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EXHIBIT 10.6
THIRD AMENDED AND RESTATED
SERVICE AGREEMENT
This Third Amended and Restated Service Agreement (this "Agreement") is
made as of April 16, 1998, (the "Effective Date"), by and between Excel
Telecommunications Inc., a Texas corporation ("Excel"), and IXC Long
Distance, Inc., IXC Carrier, Inc., and IXC Broadband Services, Inc.
(collectively, "IXC").
Background
A. Excel and Switched Services Communications, L.L.C., a subsidiary of
IXC, previously entered into that certain Second Amended and Restated
Service Agreement dated as of January 1, 1996 (the "Original
Agreement"), which provided for the provision of long distance services
to Excel.
B. Excel and IXC previously entered into a Preferred Vendor Status
Agreement dated January 1, 1996 (the "Preferred Vendor Status
Agreement").
C. Telco Communications Group, Inc. ("Telco") and IXC Carrier, Inc.
previously entered into a Service Agreement dated December 15, 1995 (the
"Telco Service Agreement").
D. The parties hereto desire to amend and restate the Original Agreement
in its entirety by entering into this Agreement, which shall supersede
and replace the Original Agreement and the Telco Service Agreement, and,
in connection therewith, desire to terminate the Original Agreement, the
Telco Service Agreement and the Preferred Vendor Status Agreement.
Terms of Agreement
Accordingly, in consideration of the foregoing and for the mutual
promises set forth below, the parties hereby agree as follows:
1. Switched Access Services.
1.1 Scope of Services. As set forth below, IXC shall provide long
distance services to Excel, as set forth on Exhibit A (Xclusive
Services) and Exhibit B (Xnet Services) attached hereto (together with
the use of the IXC Online Software, the "Switched Services"). IXC shall
charge Excel for such Switched Services from the establishment of answer
supervision (i.e. call connection between the calling telephone and the
called telephone) until termination of such connection as reasonably
determined by IXC, calculated on the basis of six second increments for
the duration of the telephone calls using such Switched Services in
accordance with the rates shown in Exhibit A or Exhibit B, as
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applicable ("Usage Charges"), as such rates may be adjusted as set forth
herein and which rates are set forth on such exhibits in whole minute
increments. Beginning after the end of the second calendar quarter of
1998, Excel agrees to use its commercially reasonable efforts to deliver
a network demand forecast thirty (30) days after the end of each
calendar quarter until the Switched Services Commitment Expiration Date
in substantially the same form as the form attached hereto as Exhibit J
and incorporated herein by this reference.
1.2 Switched Services Take or Pay Commitment.
(a) Subject to Section 4, Excel shall have a "Switched Services
Take or Pay Commitment" in the aggregate amount of *, which shall
be satisfied by Excel during the period commencing on March 1,
1998, and ending twelve (12) months after the Effective Date (the
"Switched Services Commitment Expiration Date"). To the extent
that Excel has not paid (in the form of money or the receipt of
credits as specified in Section 1.2(b) hereof) for Switched
Services hereunder in an aggregate amount equal to the aggregate
amount of the Switched Services Take or Pay Commitment by the
Switched Services Commitment Expiration Date at the Usage Charge
rates specified in Exhibit A or Exhibit B, as applicable, then
Excel shall be obligated to pay to IXC * of the difference of (i)
the * Switched Services Take or Pay Commitment less (ii) the
actual amount paid by Excel during such period, whether or not
such Switched Services are used. Excel shall not be required to
make any partial or pro rata payments (periodic or otherwise) in
respect of the Switched Services Take or Pay Commitment prior to
the Switched Services Commitment Expiration Date. All Usage
Charges for domestic and international terminating minutes, 8XX
origination services, switchless services, calling cards, debit
cards and Mexico 800 origination services provided under the
Switched Services shall be counted towards the Switched Services
Take or Pay Commitment.
(b) Excel shall pay for Switched Services hereunder at the Usage
Charges reflected in Exhibit A or Exhibit B, as applicable. In
addition, all payments received by IXC from Excel (or credits
received by Excel) with respect to Switched Minutes (whether such
minutes were used by Excel under the Original Agreement or under
this Agreement) on or after March 1, 1998, shall count towards
the Switched Services Take or Pay Commitment. In addition, the
parties hereby acknowledge that the pricing for Switched Minutes
under this Agreement is lower than the pricing under the Original
Agreement and that it is the intent of the parties that Excel
receive the benefit of such new and reduced pricing for the
entire calendar year of 1998; provided Excel meets or exceeds the
Usage
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
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Charges set forth in the last sentence of this Section 1.2(b).
Accordingly, Excel shall receive and apply such credit against
and commencing with payments to be made by Excel for minutes used
in March 1998 and continuing monthly thereafter until such credit
is fully applied. The credit received by Excel from IXC pursuant
to this Section 1.2(b) shall be refunded by Excel to IXC in the
event that Excel, under this Agreement, does not pay to IXC at
least * in Usage Charges for Switched Services in each of the
second and third calendar quarters of 1998.
(c) Upon Excel's satisfaction of the Switched Services Take or
Pay Commitment, for every * dollars (*) of additional Switched
Services revenue, Excel's Private Line Take or Pay Commitment (as
defined below) shall be credited * dollar (*), up to a credit
amount not to exceed *.
1.3 Resale of Switched Services. Subject to the terms hereof, Excel may
resell Switched Services to its customers. After the * Switched Services
Take or Pay Commitment has been met, Excel may request from time to time
to migrate additional LATAs to IXC's network, and IXC may accept or
reject such requests based upon available capacity, provided, however,
that so long as Excel is not in breach of this Agreement and uses
Switched Services in a particular LATA, IXC cannot terminate Switched
Services in such LATA or refuse to allow Excel to add additional ANIs
(as such term is defined below) in such LATA. Notwithstanding the
foregoing, however, in the event (i) Excel has a reasonable basis for
believing that it can rightfully terminate this Agreement pursuant to
Section 7 and in good faith gives notice to IXC of termination of this
Agreement under such section; (ii) such termination is later determined
not to have been made properly under this Agreement, and (iii) Excel is
required to pay damages or other relief to IXC measured in whole or in
part by its Switched Services Take or Pay Commitment over any period,
the measurement of the amount of the commitment to be paid after such
notice of termination shall be as further explained in Section 9(b)
hereof.
1.4 Excluded ANIs. As more specifically described in Exhibit F, IXC
shall process all automatic number identifiers ("ANIs") supplied by
Excel within 24 hours of receipt. IXC shall have the right to reject
ANIs supplied by Excel in the event of (i) failure to cure a material
default by Excel hereunder; (ii) the loss of certification by Excel to
provide long distance in the jurisdiction in which the ANI is located
(and only to the extent that the ANI is in such jurisdiction), or (iii)
the failure of Excel to send IXC ANIs in material compliance with the
format mutually agreed upon by the parties. Excel currently sends ANIs
to IXC in accordance with the IXC Online Process (the "IOL Process"),
and Excel and IXC hereby agree that the IOL Process is an acceptable
format for the submission of
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
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ANIs to IXC and any change to this format shall be reasonable and shall
be given to Excel no less than fourteen (14) days prior to any such
change to the IOL Process. Excel and IXC hereby acknowledge and agree
that each will negotiate in good faith in order to execute a software
license agreement related to the IOL Process in substantially the same
form as the form attached hereto as Exhibit G and incorporated herein by
this reference.
1.5 RBOC Termination/Origination. IXC hereby acknowledges and agrees
that the Excel and Telco traffic comprising Xclusive origination
service, as it pertains to the Switched 1+ (hereinafter "Xclusive
Origination Service"), and Xclusive termination service, as it pertains
to the Switched 1+ (hereinafter, "Xclusive Termination Service"), for
the entire twelve (12) month period ("Prior Twelve Month Period")
beginning April 1, 1997 and ending March 31, 1998 (including but not
limited to the months of January 1998, February 1998, and March 1998),
when measured monthly, is in full and complete compliance with the
permissible ratios set forth in this Section 1.5 such that no surcharge
would be charged to Excel on any of Excel's traffic had such a provision
existed in the Original Agreement or on Telco's traffic had such a
provision existed in the Telco Service Agreement. Prior to this Section
1.5 being effective, IXC shall deliver to Excel an Officer's Certificate
certifying the accuracy and setting forth in reasonable detail the
following information for each month of the Prior Twelve Month Period:
(a) the percentage of Excel Xclusive Origination Service traffic in each
LATA or OCN, RBOC, and non-RBOC; and (b) the percentage of Excel
Xclusive Termination Service traffic in each LATA or OCN, RBOC, and
non-RBOC. If IXC fails to provide such information to Excel within 30
days of the Effective Date, Excel shall so notify IXC and IXC shall have
45 days from the date of such notice to provide the information as
specified in the immediately proceeding sentence or this Section 1.5
shall be deleted in its entirety and shall have no force and effect. The
parties hereto hereby agree that they will mutually agree upon
applicable ratios and cure periods for the Xnet Services as it pertains
to RBOC termination and origination and in no event shall the ratios and
cure periods for originating and terminating Xnet Services minutes be
more restrictive on Excel than those specified in this Section 1.5.
IXC hereby acknowledges and agrees that, when measured on a monthly
basis, the following is true and correct for each month of the Prior
Twelve Month Period: (i) at least * of Excel's Xclusive Termination
Service minutes terminates in a RBOC (as hereinafter defined) and (ii)
at least * of Excel's Xclusive Origination Service minutes originates
in a RBOC and but for this representation Excel would not have entered
into this Agreement. Notwithstanding anything to the contrary contained
herein, the parties hereby agree that if the actual average percentage
(measured by taking the average of each month of the Prior Twelve Month
Period ("Actual Average Percentages")) of
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
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(i) Excel's Xclusive Termination Service minutes that terminate in a
RBOC and (ii) Excel's Xclusive Origination Service minutes that
originate in a RBOC is lower than the following percentages
("Permissible Percentages"): (a) for Xclusive Origination Service, at
least * of the minutes originate in a RBOC and (b) for Xclusive
Termination Service, at least * of the minutes terminate in a RBOC,
then the following must occur before IXC may apply any surcharge, set
forth in this Section 1.5, to any of Excel's Switched Services: (i) IXC
shall give Excel notice of the Actual Average Percentages (the "Actual
Average Percentages Notice"); (ii) Excel shall have six (6) months (the
"Six Month Period") from the receipt of the Actual Average Percentages
Notice to achieve the Permissible Percentages; (iii) the surcharges set
forth in this Section 1.5 shall only be applied to Excel's Switched
Services minutes after the Six Month Period; and (iv) Excel shall use
its commercially best efforts to bring its Xclusive Termination Service
and Xclusive Origination Service into compliance with the Permissible
Percentages. If, during the Six Month Period, the percentage (when
measured on a monthly basis) of Excel's Xclusive Origination Service
minutes originating in a RBOC is less than the corresponding percentage
of the Actual Average Percentages ("Beginning Origination Percentage"),
then IXC shall have the right to apply a * per minute surcharge to
the Xclusive Originating Service minutes by which Non-RBOC origination
exceeds the Beginning Origination Percentage of the total monthly
service of such month. If during the Six Month Period, the percentage
(when measured on a monthly basis) of Excel's Xclusive Termination
Service minutes terminating in a RBOC is less than the corresponding
percentage of the Actual Average Percentage ("Beginning Termination
Percentage"), then IXC shall have the right to apply a * per minute
surcharge to the Xclusive Terminating Service minutes by which Non-RBOC
termination exceeds the Beginning Termination Percentage of the total
monthly service of such month.
Following the service commencement date of Xclusive Origination Service
or, if applicable, the Six Month Period, Excel will maintain at least
* of the originating minutes of domestic United States traffic
("Xclusive Originating Minutes") (measured over an entire calendar
month) in a Regional ▇▇▇▇ Operating Company and such other local
exchange companies set forth below in this Section 1.5 (collectively,
"RBOC"). In the event that Excel's Xclusive Originating Minutes exceed
* by up to and including * in Non-RBOCs (as hereinafter defined) for
two (2) consecutive months (when measured on a monthly basis), then IXC
shall give Excel written notice of such breach ("* Breach"). Upon
Excel's failure to cure a * Breach within sixty (60) days after receipt
of written notice by IXC to Excel of such breach, IXC shall have the
right to apply a * per minute surcharge to the number of Xclusive
Originating Minutes by which Non-RBOC origination exceeds * of the
total monthly service; provide however such surcharge shall only be
applied to such originating minutes used by Excel after this 60 day cure
period. In the event that Excel's Xclusive Originating
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
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Minutes exceed * by more than but not including * when measured on a
monthly basis in Non-RBOCs, then IXC shall have the right to apply a
* per minute surcharge to the Xclusive Originating Minutes by which
Non-RBOC origination exceeds * of the total monthly service in such
month.
Following the service commencement date for the Xclusive Termination
Services or, if applicable, the Six Month Period, Excel will maintain at
least * of the terminating minutes of domestic United States traffic
("Xclusive Terminating Minutes") (measured over an entire calendar
month) in a RBOC. In the event that Excel's Xclusive Terminating Minutes
exceed * by up to and including * in Non-RBOCs for two (2)
consecutive months (when measured on a monthly basis), then IXC shall
give Excel written notice of such breach ("* Termination Breach"). Upon
Excel's failure to cure a * Termination Breach within sixty (60) days
after receipt of written notice by IXC to Excel of such breach, IXC
shall have the right to apply a * per minute surcharge to the number
of Xclusive Terminating Minutes by which Non-RBOC termination exceeds
* of the total monthly service; provide however such surcharge shall
only be applied to such terminating minutes used by Excel after this 60
day cure period. In the event that Excel's Xclusive Terminating Minutes
exceed * by more than but not including * and less than and including
* when measured on a monthly basis in Non-RBOCs, then IXC shall give
Excel written notice of such breach ("* Termination Breach"). Upon
Excel's failure to cure a * Termination Breach within thirty (30)
days after receipt of written notice by IXC to Excel of such breach, IXC
shall have the right to apply a * per minute surcharge to the number
of Xclusive Terminating Minutes by which Non-RBOC termination exceeds
* of the total monthly service; provide however such surcharge shall
only be applied to such terminating minutes used by Excel after this 30
day cure period. In the event that Excel's Xclusive Terminating Minutes
exceed * by more than but not including * when measured on a monthly
basis in Non-RBOCs, then IXC shall have the right to apply a * per
minute surcharge to the Xclusive Terminating Minutes by which Non-RBOC
termination exceeds * of the total monthly service in such month.
Notwithstanding anything to the contrary contained herein, IXC shall
provide Excel with reports setting forth in reasonable detail the
percentage of Xclusive Terminating Minutes and the percentage of
Xclusive Originating Minutes by LATA or OCN, RBOC, and Non-RBOC ("RBOC
Compliance Reports") for the following periods as follows: (i) IXC shall
deliver to Excel an RBOC Compliance Report on or before the 15th day of
each calendar month covering the first 12 days of such month's Xclusive
Terminating Minutes and Xclusive Originating Minutes and (ii) IXC shall
deliver to Excel an RBOC Compliance Report on or before the 4th day of
each calendar month covering the entire proceeding month's Xclusive
Terminating Minutes and Xclusive Originating
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
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Minutes. If IXC fails to provide timely either of these reports, then
IXC may not apply a surcharge pursuant to this Section 1.5 to any of
Excel's traffic for such month.
Non-RBOC Origination and Termination is defined as any NPA.NXX.XXXX not
owned by the following Operating Company Numbers:
9102 NEW ENGLAND TEL&TEL
9104 NEW YORK TEL CO
9206 ▇▇▇▇ ATLANTIC NJ
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
9211 ▇▇▇▇ ATLANTIC DC
9210 ▇▇▇▇ ATLANTIC DE
9212 ▇▇▇▇ ATLANTIC MD
9213 ▇▇▇▇ ATLANTIC VA
9214 ▇▇▇▇ ATLANTIC WV
9321 OHIO ▇▇▇▇ TEL CO
9323 MICHIGAN ▇▇▇▇ TEL CO
9325 ▇▇▇▇▇▇▇ ▇▇▇▇ TEL CO
9327 WISCONSIN ▇▇▇▇ TEL CO
9329 ILLINOIS ▇▇▇▇ TEL CO
9417 SOUTHERN ▇▇▇▇ TEL CO
9419 SOUTH CENTRAL ▇▇▇▇
9533 SOUTHWESTERN ▇▇▇▇
9631 NORTHWESTERN ▇▇▇▇
9636 MOUNTAIN ▇▇▇▇ TEL CO
9638 PACIFIC NORTHWEST ▇▇▇▇
9740 PACIFIC ▇▇▇▇
9348 CINCINNATI ▇▇▇▇
9147 SOUTHERN NEW ENGLAND
TELEPHONE
9742 NEVADA ▇▇▇▇
1.6 Service Interconnections. In order to utilize Xnet Services, Excel
shall be solely responsible for establishing and maintaining a full
time, dedicated connection (a "Service Interconnection") between its
network and one of IXC's designated hubs, set forth in Exhibit H,
attached hereto and incorporated herein by this reference ("HUBS"),
subject to IXC's approval in accordance with the terms of this Agreement
and which approval may not be unreasonably withheld. If a Service
Interconnection is proposed to be made using a LEC, IXC may require
Excel to utilize IXC's entrance facilities or local service arrangement
("LSA") with the relevant LEC, and Excel shall be subject to a
non-discriminatory charge therefor from IXC, subject to a reasonable
upward adjustment not to exceed the actual non-discriminatory LEC charge
plus 1% of such LEC charge. Once
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ordered, and unless otherwise provided for in this Agreement, Service
Interconnections and the circuits comprising each Service
Interconnection may only be canceled by Excel upon at least thirty days
prior written notice to IXC, or if longer, the length of the
cancellation period of the underlying carrier.
2. Private Line Services.
2.1 Scope of Services and Rates. IXC shall use its best efforts
(considering the needs of its other customers) to provide the private
line services described on Exhibit C attached hereto ("Private Line
Services" and, together with Switched Services, the "Services") for
which a Purchase Order has been accepted and duly executed by authorized
representatives of both parties. *. A form of Purchase Order relating to
the circuits ("Circuits") is attached hereto as Exhibit D. The rates for
Private Line Service are set forth in Exhibit C. Such rates are valid
(and shall not be subject to increase without Excel's prior written
consent or agreement) until the Private Line Commitment Expiration Date
(as defined below) or, if later, until forty-eight (48) months after the
Private Line Commencement Date (as defined below). IXC may thereafter
change such rates, but not for any Circuit then in service. Excel may
also order the other services listed in Exhibit C, subject to
availability.
IXC will provide IMT capacity among all of the cities listed as On-Net
cities on Exhibit C attached hereto, which shall be treated as On-Net
cities for all purposes, including rates and reconfiguration. The city
of Atlanta shall be treated as On-Net for all purposes including rates
and reconfiguration on the earlier of (i) date it is added to the IXC
network and becomes available on IXC's fiber expansion routes and (ii)
December 1, 1998. The cities of * shall be treated as On-Net cities for
purposes of rates, but not for purposes of reconfiguration, and shall
become On-Net cities, for all purposes when added to the IXC network and
becomes available on IXC's fiber expansion routes. IXC shall notify
Excel within twenty (20) business days as additional cities become
available on IXC's fiber expansion route and shall provide Excel monthly
progress reports regarding the addition of cities to the IXC network.
Further, the Off-Net rates shall be set forth on Exhibit C; except that
the pricing for * shall be the lesser of the rate set forth on Exhibit C
and * per V&H mile.
2.2 Private Line Take or Pay Commitment.
(a) Subject to Sections 1.2, 2.4, 2.5, and 4, Excel shall have a
"Private Line Take or Pay Commitment" commencing on May 1, 1998
(such date
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
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being referred to herein as the "Private Line Commencement
Date"), and continuing until Excel has attained total cumulative
revenues under this Agreement from Private Line Services of
* (such date being referred to herein as the "Private
Line Commitment Expiration Date"). As used herein, "Private Line
Take or Pay Commitment" shall mean, with respect to a certain
period and amount, that Excel generally has the obligation to
pay for such Private Line Service hereunder in such amount by
each Benchmark Month (as hereinafter defined) during such
period, whether or not such Private Line Service is used;
however, such obligation shall be cumulative and shall be
subject to certain periodic benchmarks, which means that to
determine Excel's payment obligations under its Private Line
Take or Pay Commitment with respect to any month, the following
rules shall apply: (i) the Private Line Take or Pay Commitment
does not require Excel to use or pay for a minimum amount of
Private Line Services each and every month, rather Excel shall
be required only to meet the following benchmarks at the end of
the following months after the Private Line Commencement Date
(each, a "Benchmark Month"): (A) at the end of the twelfth
(12th) month after the Private Line Commencement Date, Excel
shall have used or paid for * million in Private Line
Services; (B) at the end of Month 18, * million; (C) at the
end of Month 24, * million; (D) at the end of Month 30, *
million; (E) at the end of Month 36, * million; (F) at the end
of Month 42, * million; and (G) at the end of Month 48, *
million (which means that at the end of each Benchmark Month,
Excel's obligation shall be solely to have used or paid for
Private Line Services during the period beginning on March 1,
1998 and ending with such Benchmark Month in an amount equal to
the amount set forth immediately after each such Benchmark Month
in this Section 2.2(a)(i)(A)-(G)); and (ii) if Excel has not met
its cumulative monthly commitment at the end of any Benchmark
Month, Excel shall have ninety (90) days from end of the
Benchmark Month to make up such deficit and become current in
its then-applicable Benchmark Monthly commitment before it is
required to pay for such deficit (provided that Excel shall be
granted a three (3) month grace period with respect to the last
Benchmark Month). In the event Excel is required to pay such
deficit, Excel shall be required to pay * of the difference
between the Benchmark Monthly commitment and the actual
cumulative usage. All private line circuit charges for Private
Line Services provided under this Agreement, under any purchase
order from Excel, and under the Telco Service Agreement form and
after March 1, 1998 and all Switched Services minutes used after
the Switched Services Take or Pay Commitment has been fulfilled
(in accordance with Section 1.2 (c)) shall be counted towards
the Private Line Take or Pay Commitment.
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
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(b) The parties hereby acknowledge that the pricing for Private
Line Services under this Agreement is lower than pricing under
the Telco Service Agreement and that it is the intent of the
parties that Telco receive the benefit of such new pricing
retroactively, such that it shall apply to all Private Line
Services used by Telco under the Telco Service Agreement or by
Excel from and after March 15, 1998. Accordingly, to the extent
that any amounts paid by Excel or Telco with respect to all
Private Line Services used on and after March 15, 1998, that
were based on the pricing for Private Line Services under the
Telco Service Agreement, then Excel shall receive a credit
towards Private Line Services used under this Agreement in an
amount equal to the amount actually paid for such Private Line
Services less the amount that would have been due and payable by
Telco had the pricing set forth in this Agreement been in effect
and used to calculate such payments. Excel shall receive such
credit commencing with payments to be made by Excel for Private
Line Services used in March 1998 and continuing monthly
thereafter until such credit is fully applied.
(c) Subject to the terms hereof, Excel may resell the Private
Line Services to its customers.
2.3 Portability. All On-Net Service which has been in-service for at
least three (3) months and provided to Excel, Telco or Excel
Communications, Inc. ("ECI") or an affiliate or subsidiary of Excel,
Telco or ECI under the terms of this Agreement shall be subject to
Portability within all areas served by IXC's network. To invoke
Portability, Excel must provide thirty (30) days prior written notice
for reconfiguration of existing service. The replacement service must
have a term for the months remaining on the disconnected Private Line
Services and revenue equal to or greater than those associated with the
disconnected Private Line Service. The price of any On-Net replacement
Private Line Service shall be calculated pursuant to Exhibit C. A
reconfiguration charge as outlined in Exhibit C will be charged for all
circuit reconfigurations. For purposes hereof, "Portability" shall mean
to change the city or cities in the Circuit's city pair to a different
city pair location.
2.4 Installation Periods/Credits. If IXC receives a firm Marketing
Service Order ("MSO") or Excel Purchase Order from Excel for DS-1 and/or
DS-3 level interexchange service between On-Net cities, IXC shall
install the applicable equipment and commence providing such service
within thirty (30) days from the date of IXC's receipt of Excel's MSO or
Excel Purchase Order (unless within 72 hours of receipt of such MSO or
Excel Purchase Order, IXC gives Excel written notice that it must
purchase equipment to fulfill the MSO or Excel Purchase Order, in which
case IXC shall have a reasonable period of time to purchase the
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equipment and commence providing service, but not to exceed 120 days).
With respect to Off-Net cities, IXC must fill such MSOs or Excel
Purchase Order within the time period that the third party carrier must
fill IXC's orders (and IXC, upon the execution of this Agreement, shall
provide Excel with the time period for its major suppliers of private
line services). In the event IXC is unable to commence providing any
service within such time periods, Excel may cancel such MSO or Excel
Purchase Order and order such service (or portion thereof) from a third
party. Upon written request, Excel shall not be required to make any
Circuit Lease payments with respect thereto (and the related Circuit
Lease shall be terminated), and Excel shall be entitled to a reduction
in the Private Line Take or Pay Commitment in an amount equal to the
monthly recurring interexchange service charges paid by Excel to such
third parties for such service for the term of such third party circuit
leases. IXC agrees to waive all installation charges in connection with
any installations hereunder.
2.5 Outage Credits. IXC shall give Excel a credit in accordance with
IXC's then-current outage policy for periods in which any Circuit loses
continuity and fails to comply with applicable specifications.
2.6 Definitions. For purposes hereof: "Available" means all necessary
IXC equipment for a Circuit has been installed. "Activation Date" means
the date a Circuit is first made Available to Excel. "Circuit" means a
▇▇-▇, ▇▇-▇ or DS-3. "Circuit Lease Term" means the term of a Circuit
specified in the applicable Purchase Order and such term shall not be
more than twelve (12) months in length. "Circuit Mileage" means the
length of a Circuit specified in the applicable Purchase Order. "DS-0"
means a circuit complying with TR-TSY-000333. "Switched and Special
Access Services - Transmission Parameter Limits and Interface
Combinations" Issue 1, July 1990. A "DS-1" is a signal conforming to the
requirements set forth in Sections 9.3 and 10.2 of Bellcore
TR-NWT-000499, Issue 5, December 1993. A "DS-3" is a signal conforming
to the requirements set forth in Section 9.6 and 10.5 of Bellcore
TR-NWT-000499, Issue 5, December, 1993. "Purchase Order" means any Excel
purchase order accepted by IXC. "Requested Service Date" means the date
Private Line Service on a Circuit is requested to commence specified in
the applicable Purchase Order. "Service" means transmission service
provided between North American DSX standard cross-connect panels
located in IXC's terminal locations.
3. Term.
(a) Unless earlier terminated pursuant to the terms hereof, the
term of this Agreement with respect to Switched Services (the
"Switched Services Term") shall commence on March 1, 1998 and
shall continue until the later of (a) the date on which the
Switched Services Take or Pay
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Commitment has been met and (b) the date that is twelve (12)
months after the Effective Date. Unless earlier terminated
pursuant to the terms hereof, the term of this Agreement with
respect to Private Line Services (the "Private Line Services
Term") shall commence on the Effective Date and shall continue
until the later of (a) the date on which the Private Line Take
or Pay Commitment has been met and (b) the date that is
forty-eight (48) months after the Private Line Commencement Date
(unless the three (3) month grace period is applicable, as
provided in Section 2.2(a), and in which case, that date that is
51 months after the Private Line Commitment Date). In the event
that Excel meets the Switched Services Take or Pay Commitment
prior to the expiration of the Switched Services Term, the
Switched Services Term shall continue until the expiration of
such twelve (12)-month period and the same rates and charges for
Switched Services shall remain in effect, provided that Excel
shall no longer be subject to or required to meet any monthly
minimum commitments for Switched Services. In addition, in the
event that Excel meets the Private Line Take or Pay Commitment
prior to the expiration of the Private Line Services Term, the
Private Line Services Term shall continue until the expiration
of such forty-eight (48) or fifty-one (51) month period, as the
case may be, and the same rates and charges for Private Line
Services shall remain in effect, provided that Excel shall no
longer be subject to or required to meet any monthly minimum
commitments for Private Line Services.
(b) At the expiration of the Switched Services Term or the
Private Line Services Term, as the case may be, this Agreement
shall be extended automatically for successive 30-day periods at
the same rates but without any minimum commitments hereunder,
unless either party gives written notice at least thirty (30)
days prior to the expiration of the Switched Services Term or
the Private Line Services Term, as applicable (or any renewal
thereof), of its intent not to renew this Agreement with respect
to the provision of Switched Services or Private Line Services,
as the case may be. Termination of this Agreement with respect
to either Switched Services or Private Line Services shall not,
by itself, affect the validity of this Agreement with respect to
the other.
(c) This Agreement shall terminate in full upon the later to
occur of (i) the expiration or earlier termination (without
renewal) of the Private Line Services Term and (ii) the
expiration or earlier termination (without renewal) of the
Switched Services Term.
(d) Excel shall have a one hundred thirty-five (135) day period
(the "Migration Period") after termination of this Agreement (or
in the case of a Better Offer (as defined herein), after the
period IXC elects not to match
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13
a Better Offer and the expiration of the 30 day written notice
by Excel of its intent to move its traffic) to migrate its
Switched Services and Private Line Services traffic from the IXC
network to another network. During such Migration Period, IXC
shall use commercially reasonable efforts to assist Excel with
such migration and to ensure that Excel is able to migrate its
traffic to another network without significant interruption of
service and, in connection therewith, shall continue to provide
Switched Services and Private Line Services to Excel in
accordance with the terms hereof at the same Usage Charges
specified in Exhibits A, B and C attached hereto.
4. Pricing Changes.
*
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
14
*
*
-14-
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
15
*
*
-15-
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
16
*
5. Priority. Excel shall have the first priority among IXC's customers
for all of Excel's traffic making up its Switched Services and Private
Line Take or Pay Commitments in accordance with the distribution of such
traffic set forth in Exhibit E.
6. Charges and Payment.
6.1 Invoicing.
(a) Usage Charges for Switched Services shall be billed once per
month and payable following the end of each period in which
actual Usage has been incurred.
(b) With respect to Private Line Services, Excel will be invoiced
monthly on the 20th day of each month for: (i) the monthly lease
rate for the following month as set forth on Exhibit C (prorated
for any partial month) for each Available Circuit; and (ii) the
charges for other services received. The first invoice shall be
for the first two months; each invoice thereafter shall be for
the following month.
(c) In the event that Excel is required to make any payments
hereunder with respect to its Switched Services Take or Pay
Commitment or its Private Line Take or Payment Commitment in any
month for services not actually used by Excel, then Excel shall
receive a credit in the amount of such payment to be applied
against the amount of any such future Services actually used by
Excel that exceed the applicable monthly commitment (as
calculated on a then-cumulative basis) in future months.
(d) All Usage Charges and Private Line Service charges for
Circuits shall be due and payable by Excel to IXC within 30 days
after the date of the receipt by Excel of the invoice. Each Excel
invoice must be paid by Excel via wire transfer of immediately
available U.S. funds to an account designated by IXC so that
payment is received by IXC on or before the applicable due date.
IXC agrees that (i) the Excel invoice date will be the
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
17
same day the Excel invoice is faxed to Excel, and (ii) the Excel
invoice will be faxed on a business day.
(e) IXC shall deliver to Excel written notice with respect to any
amount not received by IXC within five (5) business days after
the due dates specified in Section 6.1(d) above. In the event
that any payment remains unpaid after five (5) business days
following the date of receipt by Excel of this IXC notice for
such payment, such payment shall be deemed "past due" and shall
be subject to a late payment charge equal to the lesser of: (A)
one percent of the unpaid balance per month from the invoice
date; or (B) the maximum rate allowed under applicable state law.
(f) Notwithstanding anything to the contrary contained herein,
Excel may withhold payment on amounts disputed in good faith by
providing written notice of disputes with any Excel invoice
within thirty (30) business days after receipt of an Excel
invoice. Alternatively, Excel may pay disputed amounts or
undiscovered discrepancies without losing any of its rights of
recovery. Excel has an affirmative obligation of providing
written notice of any disputes with an Excel invoice within 120
business days after receipt by Excel. If Excel does not report a
good-faith dispute within the 120 business day period, Excel is
deemed to have waived its dispute rights for that Excel invoice
and the IXC billing system inputs and outputs, including without
limitation, the CDR and answer supervision, are deemed accurate
and final. IXC will use its best efforts to resolve timely
disputes within 30 business days after its receipt of the dispute
notice. If such dispute is not resolved to the reasonable
satisfaction of the parties within 30 business days after receipt
of such notice, then Excel may commence an arbitration proceeding
against IXC in accordance with the terms hereof.
The Excel facsimile number and contact person for purposes of this
Section is (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Executive Vice President-Network
Operations with a copy to General Counsel at facsimile number (214)
863-8838. Excel may change said facsimile number and contact person upon
written notice to IXC. The IXC facsimile number and contact person for
purposes of this Section is (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Billing
Department with a copy to IXC Contract Administration.
6.2 Upon the occurrence of either (a) a payment remaining past due for a period
in excess of thirty (30) days after Excel received the second invoice with
respect thereto or (b) Excel having its fifth past due payment hereunder, then
in either such case, Excel shall be in material breach (a "Material Payment
Breach") of this Agreement. Excel shall have five (5) business days after its
receipt of written notice from IXC of the Material Payment Breach to cure the
same. If Excel does not timely cure the Material Payment
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18
Breach, IXC may at its sole option do any of all of the following: (i) cease
accepting or processing orders for such applicable Service; (ii) withhold
delivery of the CDR and cease exchange of information; (iii) draw on any
security deposit or other assurance of payment submitted under this Agreement;
(iv) terminate the provision of such Service or terminate the entire Agreement
without liability to Excel, which termination may include immediate cancellation
of the Services; and (v) subject to Section 8(a), pursue such other remedy or
relief as may be legally available. Payment shall be deemed made when the
transfer has been correctly confirmed by Excel's disbursing bank, so long as
payment is actually received by IXC within three (3) days thereafter.
6.3 Throughout the term of this Agreement, with respect to Excel's
customers whose ANIs are subscribed to IXC (or to any IXC overflow
carrier), Excel is responsible with respect to the Switched Services for
direct payment of or reimbursement to IXC, but not both, for the
following charges to the extent that such charges are intended by
government regulators to apply to carriers who provide
telecommunications services to end user customers: (i)
telecommunications relay service charges required by the Americans with
Disabilities Act or otherwise, (both federal and state), (ii) common
carrier regulatory fees assessed by the Federal Communications
Commission (the "FCC") under the Omnibus Budget Reconciliation Act of
1993, as amended, and (iii) universal service fund charges,
presubscribed interexchange carrier charges, and payphone compensation
charges either imposed on IXC by the FCC or state regulatory agencies
directly or imposed on IXC by other carriers or providers as required by
the FCC or state regulatory agencies. Excel will only reimburse IXC for
charges described in this Section 6.3 if such charges are actually
incurred by IXC and only to the extent that such charges directly relate
to Excel's ANIs and provided IXC promptly provides copies of invoices
and other back-up received for such charges. If Excel claims an
exemption, Excel will promptly provide to IXC evidence of such
exemption. The above charges will be included on IXC's invoices to Excel
from time to time, if appropriate. Such charges and fees described in
this Section 6.3 may not be billed more than three (3) months after IXC
is billed for such charges.
7. Failure of Performance.
(a) Except as set forth in Section 8(b), the liability of IXC for
damages for any mistake, omission, interruption, delay, error or
defect in transmission (a "Failure of Performance") occurring in
the furnishing of Services hereunder shall be limited to not
charging Excel for any Services which IXC failed to provide;
provided such Failure of Performance is not due to IXC's or its
directors, employees, agents, officers, or affiliates' gross
negligence or willful misconduct.
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19
(b) In the event of a Failure of Performance, IXC shall use
commercially reasonable efforts to correct such failure as soon
as reasonably practicable in accordance with Section 26 hereof
and procedures agreed to by both parties.
(c) Excel may terminate this Agreement without incurring any
liability if (i) IXC fails to provide a transmission network as
warranted in Section 10 below (whether or not caused by force
majeure) or otherwise fails to comply with any provision of
Section 10; (ii) IXC fails to deliver call detail records
promptly on a daily basis Monday through Saturday, including all
nationally recognized holidays, for the previous 24-hour period's
traffic; or (iii) IXC fails to fulfill any of the obligations set
forth on Exhibit F; provided, however, Excel must give IXC
written notice of any such default and an opportunity to cure
such default within forty-eight (48) hours of the notice. In the
event IXC fails to cure any such default within the forty-eight
(48) hour period on more than three (3) occasions within any
twelve (12) month period, Excel may terminate this Agreement
without incurring any liability or cancellation charge relating
thereto and, in connection therewith, Excel's obligations under
its Switched Services Take or Pay Commitment and its Private Line
Take or Pay Commitment shall be terminated and of no further
force or effect. "Cure", with respect to any default involving an
action or response required within a certain timeframe, shall
mean that, for a period of one week, starting within the
forty-eight (48) hours' cure period, that IXC consistently makes
such action or response during the required timeframe.
(d) In the event that IXC loses its authority to provide long
distance service in a particular jurisdiction, Excel may, without
liability to IXC, move its Switched Services and/or Private Line
Services to other carriers, and IXC shall pay all reasonable
costs associated with such move including, but not limited to the
following (i) the cost of moving Excel's Switched Services
Traffic; (ii) any money owed, after such date that IXC loses
authority, under any Lease Agreement; and (iii) such other
reasonable costs. In such jurisdictions, Excel's Switched
Services Take or Pay Commitment shall be reduced in an amount
equal to the Switched Service charges paid by Excel to such third
party for such service, and Excel's Private Line Take or Pay
Commitment shall be reduced in an amount equal to the monthly
recurring interexchange service charges paid by Excel to such
third parties for such services for the term of such third party
circuit leases. Further, IXC shall defend, indemnify, and hold
harmless Excel from any losses, expenses, demands, and claims in
connection with IXC's failure to provide Excel the Services
described herein with proper authority.
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20
(e) Excel may cancel its Purchase Order and Circuit Lease Term
for all Circuits that are subject to a Better Offer at any time
without further liability hereunder to IXC or any third party
lessor. In addition, Excel may terminate any Circuit upon 90
days' notice; provided that if termination occurs: (i) prior to
the Activation Date, Excel shall reimburse IXC for all costs of
the implementation of such Circuit; or (ii) on or after such
date Excel shall pay: (A) all charges for Service previously
rendered; and (B) the amount due through the end of the Circuit
Lease Term under the applicable Purchase Order (IXC shall use
best effort to re-lease such Circuit for such term, refunding to
Excel the amount so collected, if any).
8. Limitation of Liability; Indemnification.
(a) Subject to Sections 8(b) and 8(c) below, IXC's liability
arising out of delays in restoration of the Services to be
provided under this Agreement or out of mistakes, accidents,
omissions, interruptions, or errors or defects in transmission in
the provision of Services, shall be limited to the amounts
collected by IXC for services hereunder. In the event of a proper
cancellation or termination of this Agreement by Excel during any
period in which Excel is not in default hereunder, Excel's
liability shall be limited to the amounts due and unpaid under
this Agreement as of the date of termination. EXCEPT FOR GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, AND SUBJECT TO SECTIONS 8(b)
AND 8(c) BELOW, IN NO EVENT SHALL IXC BE LIABLE TO EXCEL OR ITS
CUSTOMERS OR ANY OTHER THIRD PARTY IN ANY RESPECT, INCLUDING,
WITHOUT LIMITATION, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL,
INCIDENTAL, ACTUAL, PUNITIVE, OR ANY OTHER DAMAGES, OR FOR ANY
LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF
MISTAKES, ACCIDENTS, OMISSIONS, INTERRUPTIONS, ERRORS, OR DEFECTS
IN TRANSMISSION, OR DELAYS, INCLUDING, BUT NOT LIMITED TO, THOSE
WHICH MAY BE CAUSED BY REGULATORY OR JUDICIAL AUTHORITIES,
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OBLIGATIONS
PURSUANT TO THIS AGREEMENT. EXCEPT FOR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT, AND SUBJECT TO SECTIONS 8(b) AND 8(c) BELOW,
IN NO EVENT SHALL EXCEL BE LIABLE TO IXC OR ANY THIRD PARTY FOR
ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL DAMAGES (OTHER
THAN UNPAID AMOUNTS UNDER THIS AGREEMENT), OR FOR LOST PROFITS.
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21
(b) The limitation on liability set forth in Section 8(a) shall
not apply (i) to the gross negligence of willful misconduct of
any party; (ii) to any Losses for which Excel is entitled to
indemnification under Section 8(c); or (iii) to any Failure of
Performance resulting from a Year 2000 Failure. As used herein,
a "Year 2000 Failure" shall mean any Failure of Performance
resulting from the inability of any software or software
applications used by IXC or any of its On-Net suppliers (whether
owned or licensed) in connection with the provision of Services
hereunder to contain source code that can appropriately
interpret the upcoming calendar year "2000."
(c) IXC shall indemnify, defend and hold harmless and the
officers, directors, employees, agents, affiliates, successors
and assigns of Excel, from and against any and all losses,
liabilities, damages, actions, claims, costs and expenses
(including reasonable attorneys' fees and disbursements and
costs of investigation, litigation, settlement, judgment,
interest and penalties) (collectively, "Losses") arising out of
or resulting from any claim, demand, charge, action, cause of
action or other proceeding of infringement of any intellectual
property rights, including patent infringement claims, asserted
by any third party against the indemnitee resulting from the
access or use by Excel of Services hereunder, including the use
of Circuits in accordance with this Agreement.
(d) For purposes of this Section, the terms "IXC" and "Excel"
shall be deemed to include, in each case, their shareholders,
members, managers, officers, employees and affiliates (including
ECI and Telco and their respective affiliates and subsidiaries
in the case of Excel), and any person or entity assisting in its
performance pursuant to this Agreement.
9. Suspension of Service; Termination of Agreement.
In the event Excel: (i) breaches any material provision of this
Agreement not involving payment and such breach is not cured within 30
days of notice thereof by IXC to Excel, or (ii) has a Material Payment
Breach under Section 6.2 hereof; then IXC, upon notice to Excel, may at
IXC's option and in addition to such other rights or remedies as IXC
may, without any liability, have under this Agreement:
(a) take any of the actions specified in Section 6.2, which may
include suspension of Services to Excel until such time as such
circumstance is corrected or termination of this Agreement
(including after suspending Services); and
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22
(b) in the event IXC terminates this Agreement pursuant to
Section 6.2, *
Notwithstanding anything to the contrary contained herein, during the
term of this Agreement and for one (1) year thereafter, IXC shall not
knowingly and expressly waives any right to do any of the following,
without the prior written consent of Excel: (i) directly contact any of
Excel's end users to inform them that their long distance service will
no longer be provided through Excel or otherwise contact any Excel end
user to market any IXC service or product; (ii) ▇▇▇▇ and collect from
Excel's end-users directly (or through its billing agents) for services
provided by IXC to them; (iii) treat Excel's end-users as IXC customers
for any purposes; or (iv) withhold delivery of CDRs, except in cases of
the non payment of undisputed Usage Charges within the time periods
provided under this Agreement.
10. Performance Standards; Warranty; Certification; Maintenance.
(a) Performance Standards. IXC shall perform all of its
obligations, and comply with all of the performance standards as
set forth on Exhibit F attached hereto.
(b) Fraud Standards. IXC's obligations concerning fraud
monitoring are set forth in Exhibit F attached hereto. In
addition, IXC agrees to seek forgiveness of payments to the
extent possible from countries (such as Guyana and the Dominican
Republic) where foreign telex companies have agreed to forego
payments for disputed calls (in the event IXC does not
reasonably seek such forgiveness, IXC agrees to be liable for
such disputed calls).
(c) Private Line Circuits. IXC hereby represents and warrants
that each Circuit contains all of the functions and features
contained in the specifications therefor and that each Circuit
will perform in accordance with and comply with such
specifications.
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
23
(d) Warranty. IXC will provide a long distance network with
transmission quality and private line services consistent with
Exhibit F. OTHER THAN AS SET FORTH IN THIS SECTION 10 AND IN
EXHIBIT F, IXC MAKES NO OTHER WARRANTY TO EXCEL OR ANY OTHER
PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO
THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR
FITNESS FOR ANY PURPOSE OF ANY SERVICE PROVIDED HEREUNDER OR
DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH
WARRANTIES BY IXC ARE HEREBY EXCLUDED AND DISCLAIMED.
(e) System Maintenance. In the event IXC determines to interrupt
Services for the performance of routine system maintenance, IXC
will notify Excel at least five (5) business days prior to the
interruption, and such notice shall include the scope and length
of the maintenance and the times during which the maintenance
will take place, and IXC shall conduct such maintenance during
non-peak hours. No such interruption shall excuse IXC from
performance hereunder and shall not constitute a force majeure
event.
(f) Maintenance and Trouble Reporting. IXC's fees for Excel
maintenance support services are as follows:
Maintenance services shall be defined as all work performed by IXC on
equipment owned by Excel. Maintenance Service charges are not billed for
troubles found within that portion of a circuit provided by IXC. The following
billing rates apply for these services:
A. * per hour (4 hour minimum-if dispatch is required) Monday through
Friday during the business hours of 8:00 a.m. - 5:00 p.m. local time, exclusive
of the following holidays: New Year's Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and the day after Thanksgiving and
Christmas Day.
B. * per hour (4 hour minimum) for overtime work done after business
hours (defined above) and/or on holidays (defined above) and/or all day on
Saturdays and Sundays.
C. As requests for maintenance services are typically made via
telephone, IXC must be advised in writing as to the person(s) who are authorized
to request service. It is Excel's responsibility to keep IXC apprised of any
changes to its list of representative(s).
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* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
24
D. To request technical assistance and help under the maintenance
services, a call must be made to IXC's Network Control Center at (▇▇▇) ▇▇▇-▇▇▇▇.
This number should be used for IXC technical assistance, troubleshooting or
testing of circuits, not for service impairment or outages. The person calling
in must be on the authorized list in order to commit for charges for this
technical assistance. If that person is not on the list, the request cannot be
accommodated.
The Network Control Center personnel will take the call, record the
caller's name and phone number along with facts concerning the assistance and
support needed. The caller will then be given the number of the "Assistance
Ticket." Upon completion of work, this "Assistance Ticket" will be given to
IXC's Accounting Department, and Excel will subsequently be billed based upon
the information on that ticket. A copy will be attached to the invoice.
Except for emergencies, IXC's technicians cannot be dispatched unless
requests are made in accordance with the above call-out procedure. IXC hereby
represents and warrants that it will perform all services under this Section 10
in a good and ▇▇▇▇▇▇▇-like manner and in accordance with the applicable
performance standards set forth on Exhibit F.
11. Notices. Each notice, consent, approval, request, claim, demand,
direction or other communication (each, a "notice") relating to this
Agreement shall be in writing and shall be: (i) given in person; (ii)
sent by registered or certified mail (return receipt requested) or
courier; or(iii) transmitted by facsimile machine, with a copy of such
transmission delivered by one of the foregoing methods. Each properly
given notice shall be deemed to have been given as of the earlier of
(i) delivery, (ii) four days after the date of mailing, or (iii) the
date of facsimile transmission (receipt of which is orally confirmed or
which date is indicated by the facsimile machine of any party). Notices
not given in person shall be made to the following persons at the
following addresses and facsimile telephone numbers (which may be
changed only by properly given notice):
If to IXC: IXC Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Contract Administration
with a copy to: IXC Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to Excel: Excel Telecommunications, Inc.
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25
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to: ▇. ▇▇▇▇▇▇▇▇▇▇▇ Dance, Esq.
Excel Telecommunications, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
12. Subject to Laws. This Agreement is subject to all applicable
federal, estate and local laws, and regulations, rulings and orders of
governmental agencies, including, but not limited to, the
Telecommunications Act of 1996, the Communications Act of 1934, as
amended, the Rules and Regulations of the Federal Communications
Commission ("FCC") and state public utility or service commissions
("PSC"), tariffs and the obtaining and continuance of any required
certification, permit, license, approval or authorization of the FCC
and PSC or any governmental body.
13. Assignment. Neither party shall assign or transfer its rights or
obligations under this Agreement without the prior written consent of
the other party, which shall not be unreasonably withheld or delayed,
except that each party shall be entitled to assign the Agreement to its
Affiliates and to create a security interest in this Agreement in favor
of its lenders. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. In the event of an assignment hereof
by a party, such party shall remain directly and primarily liable for
the performance or its obligations hereunder and the other party may
enforce the provisions hereof against such party without demand upon or
proceeding in any way against any other person. For purposes of this
Agreement, "assignment" shall include, without limitation, any sales or
other transfers involving in the aggregate over fifty percent (50%) of
the assets (including without limitation, ANIs, customer lists and
relationships) or business of such entity, and, in the case of such an
assignment, the assigning party shall ensure that the recipients of any
such assets or business, assume, jointly and severally, the obligations
of the assigning party hereunder.
14. Arbitration. The parties agree that in the event a dispute shall
rise between the parties as to their respective rights, duties and
obligations under this Agreement, such disputes shall be exclusively
resolved by binding arbitration under the Rules of the American
Arbitration Association with arbitration to be held at Dallas, Texas.
The arbitrator shall be given all rights and may award, in addition to
declaratory relief, damages as provided for herein and shall award
attorney fees and costs to the prevailing party inclusive of activities
in the
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26
enforcement and appeal of the award. This provision shall not prohibit
either party from seeking permanent or preliminary injunctive, relief in
any court of competent jurisdiction. The award of the arbitrator may be
enforced in any court of competent jurisdiction. Excel may, at its
option, continue to accept what it considers to be below-standard
service and pay the charges hereunder relating thereto during such
pendency of such arbitration, without prejudice thereto.
15. Governing Law. This Agreement shall be interpreted and enforced in
accordance with, and its validity and performance shall be governed by,
the laws of the State of Texas without regard to its principles of
choice of law.
16. Severability. The provisions of this Agreement shall be interpreted,
if possible, so as to be valid, legal, and enforceable. The provisions
of this Agreement are intended to be severable. In the event any
provision contained herein is to be invalid, illegal, or unenforceable
in any jurisdiction: (i) such provision shall, as to such jurisdiction,
be ineffective to the extent so invalid, illegal, or unenforceable
without affecting the validity, legality, or enforceability thereof in
any other jurisdiction or the remaining provisions of this Agreement,
which shall remain in force and effect; and (ii) to the extent legally
permissible, a valid, legal, and enforceable provision which reflects
the original intent and economic interest of the parties shall be
substituted for such invalid, illegal, or unenforceable provision.
17. Cumulative Rights and Remedies. Except as otherwise set forth
herein, the assertion by a party of any right or the obtaining of any
remedy hereunder shall not preclude such party from asserting or
obtaining any other right or remedy, at law or in equity, hereunder, or
under any other agreement or instrument, or otherwise.
18. Waiver. The delay or failure of either party to enforce or insist
upon compliance with any of the terms or conditions of this Agreement or
to exercise any remedy provided herein, the waiver of any term or
condition of this Agreement, or the granting of an extension of time for
performance shall not constitute the permanent waiver of any term,
condition or remedy or under this Agreement, and this Agreement and each
of its provisions shall remain at all times in full force and effect
until modified as provided herein.
19. Facsimile Delivery. This Agreement may be delivered by facsimile
transmission of an executed counterpart signature nature page hereof,
and after attachment of such transmitted signature page, to a copy of
this Agreement, such copy shall have the same effect and evidentiary
value as copies delivered with original signatures. Any party delivering
this Agreement by facsimile transmission shall deliver to the other
party, as soon as practicable after such
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27
delivery, an original executed counterpart signature page of this
Agreement.
20. Amendment. Except as otherwise provided in this Agreement, any
amendment to this Agreement must be in writing and signed by both
parties.
21. Termination of Prior Agreements. Each of the Original Agreement, the
Telco Service Agreement and the Preferred Vendor Status Agreement is
hereby terminated and, from and after the date hereof, none of the
provisions thereof (including any provisions under the Original
Agreement or the Telco Service Agreement relating to minimum commitments
or any provisions under the Preferred Vendor Status Agreement relating
to rights of first refusal and IXC's status as a preferred vendor) shall
have any further force or effect. Without limiting the foregoing, IXC
hereby acknowledges that, as of the date hereof, Excel was not in breach
of or in default under the Original Agreement or the Preferred Vendor
Status Agreement and Telco was not in breach of or in default under the
Telco Service Agreement (or, if there was any such breach or default,
IXC hereby waives it) and IXC was not entitled to any amounts or
payments thereunder. In addition, Excel hereby acknowledges that, as of
the date hereof, IXC was not in breach of or in default under the
Original Agreement, the Preferred Vendor Status Agreement or the Telco
Service Agreement (or, if there was any such breach or default, Excel
hereby waives it) and Excel was not entitled to any amounts or payments
thereunder; other than the payment of * Dollars, which payment IXC shall
pay to Excel within ten (10) days of the Effective Date and which
payment shall settle prior disputes between the parties.
22. Final Agreement. This Agreement and the other agreements entered
into by the parties as of the date, hereof sets forth the entire
understanding of the parties with respect to the subject matter hereof
and supersede any and all prior agreements, arrangements or
understandings related thereto, including without limitation the
Original Agreement, the Telco Service Agreement and the Preferred Vendor
Status Agreement, and no representation, promise, inducement or
statement of intention has been made by or on behalf of IXC which is not
embodied in such agreement
23. Effect of Termination. Upon the expiration or termination of this
Agreement and except as specifically set forth herein, this Agreement
shall no longer have any force or effect and neither party shall have
any further obligation hereunder. No such expiration or termination
shall affect, however, any then-existing claim, right, remedy,
obligation or defense of any party with respect to (i) any payment to be
made hereunder or (ii) any breach of any obligation hereunder.
-27-
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
28
24. Confidential Information.
(a) Treatment of Information. Each party acknowledges that all
Confidential Information (as such term is defined below) of the
other party is a trade secret of the other party. All
Confidential Information of any party remains its exclusive
property. Each party: (i) shall not reproduce or use any
Confidential Information of the other party or its affiliates,
however acquired and whether acquired before, during or after
the term of this Agreement, except to the extent reasonably
required for the performance hereof; and (ii) except as set
forth herein, shall not disclose, or allow the disclosure of,
any such Confidential Information to any person (including its
own personnel and affiliates) without the written consent of
such other party, except (i) to employees and directors of such
party as necessary for the performance of its obligations
hereunder; (ii) to third parties rendering professional
accounting, financial, consulting, or legal services to such
party; (iii) to third parties providing financing, insurance or
brokerage services to such party; or (iv) to potential
purchasers of such party.
"Confidential Information" shall mean, with respect to a party, all of
the following, whether oral or written: the terms of this Agreement, all
business and financial reports, statements, and other information, cost
data, customer names and numbers, customer calling patterns and calling
volumes, customer lists, data, designs, design specifications,
developments, documentation, "know-how" experience, information
concerning customers, contracts, operations, sales, personnel, products
or suppliers, knowledge, marketing information, methods, models, plans,
policies, practices, price data, procedures, processes, products,
programs, research, software, specifications, strategies, supplier
lists, technical information, test data, trade secrets, owned by,
generated by, or disclosed by, such party or of any affiliate of such
party and any other information normally understood to be or designated
as confidential or proprietary by such party, including any of Excel's
electronically transmitted information to or through IXC's network
whether or not marked as "CONFIDENTIAL" or otherwise so identified,
except to the extent publicly known other than by breach hereof, in the
public domain, obtained from any person not in breach of any obligation
to such party, or independently developed by the other party. All
analyses, compilations, studies or other documents prepared by a party
using Confidential Information of the other party shall also be deemed
to be Confidential Information of such other party. Each party shall
use, in maintaining the confidentiality of the Confidential Information
of the other party, at least the same degree of care it uses, or, if
greater, that a prudent person would use, in maintaining the
confidentiality of its own information of a similar nature.
Notwithstanding anything to the contrary contained herein, IXC shall not
disclose Confidential Information to any of its
-28-
29
affiliates or departments that market long distance, local
telecommunications services, internet, paging, cellular, or other
telecommunications products to the end user.
(b) Required Disclosure. Notwithstanding the foregoing, however,
any party may make Confidential Information of the other party
available (i) on a confidential basis to its lenders and (ii) as
required by law, judicial order or federal or state securities
disclosure rules. To the extent any party is required to
disclose Confidential Information by any court or governmental
agency, such party shall, if permitted by applicable law,
promptly inform the other party of such requirement with
sufficient time to allow the other party to seek a protective
order restraining such disclosure, and if reasonably requested
to do so, shall cooperate with such other party (at the expense
of such other party) to obtain such protective order.
(c) Obligations Upon Termination . Upon the termination of this
Agreement and at the request of any party, the other party to
whom such Confidential Information has been disclosed shall
promptly return all materials relating to, based on, or
incorporating the Confidential Information of such party or,
with such party's written consent, promptly destroy such
materials; provided, however, that one copy may be retained by
the legal counsel of such other party. The obligations of each
party hereunder relating to Confidential Information shall
survive the termination of this Agreement for a period of five
years.
(d) Equitable Remedies. In the event any party falls to perform
any obligation hereunder relating to Confidential Information,
the other party will suffer irreparable harm give to reasons and
will not have an adequate remedy at law for monetary damages.
Accordingly, in addition to any other remedy available at law or
in equity, such other party shall be entitled to injunctions (or
other appropriate equitable remedies) to prevent a breach of
this Agreement and to obtain specific enforcement of the
performance of such obligation, without the posting of a bond or
other security.
Neither party shall in any manner advertise or publish or release for
publication any statement mentioning the other party or the fact that the other
party has furnished or contracted to furnish goods and services hereunder or
quote the option of any employees of such other party, unless written consent of
such other party shall first be obtained or unless required by law.
-29-
30
Notwithstanding the foregoing, the existence and terms of this Agreement
may be disclosed, but only on a confidential basis, by either party to
investors or potential investors in securities of either party and/or in
any filing with the Securities and Exchange Commission and/or filed as
an exhibit thereto, so long as the other party is given fourteen (14)
days' notice thereof and an opportunity to comment prior to ruling.
25. Insurance. Throughout the term of this Agreement and any extension
thereof, each party shall maintain, and, upon written request, shall
provide to the other proof of adequate liability insurance:
(a) Worker's compensation insurance up to the amount of the
statutory limit in the state or states where work is to be
performed;
(b) Employer's liability insurance with a limit of not less than
$200,000 per claim with an all-states endorsement;
(c) Comprehensive general liability insurance with a limit of not
less than $1,000,000 per occurrence for bodily injury liability
and property damage liability, including coverage extensions, for
blanket contractual liability, personal injury liability and
products and completed operations liability.
(d) Comprehensive Auto Liability insurance with a limit of not
less than $1,000,000 per accident for Bodily Injury Liability and
Property Damage Liability arising out of the ownership,
maintenance, or use of any vehicle in the performance of this
Agreement.
26. Force Majeure. Neither party shall be liable for any failure of
performance hereunder (except for obligations to make payments) due to
causes beyond its reasonable control, including, but not limited to:
acts of God, fire, explosion, vandalism, cable cut, storm or other
similar catastrophes; any law, order, regulation, direction, action or
request of the United States government, or of any other government,
including state and local governments having jurisdiction over either of
the parties, or of any department, agency, commission, court, bureau,
corporation or other instrumentality of any one or more, of said
governments, or of any civil or military authority; national
emergencies; insurrections; riots; wars; or strikes, lock outs, work
stoppages or other labor difficulties; provided that (a) the party that
is unable to perform shall immediately begin using all commercially
reasonable efforts to recommence performance; (b) excused performance
under this section shall not exceed a reasonable time period; and (c)
the inability to perform by reason of a Year 2000 Failure shall not
excuse performance hereunder.
-30-
31
27. Taxes. The amounts payable by Excel under this Agreement do not
include any federal, state or local sales, use or utility taxes. Within
10 business days after the first provision of Service hereunder, Excel
must furnish to IXC, and keep current during the term of this Agreement,
valid and appropriate tax exemption certificates for all applicable
jurisdictions (federal, state and local) in which it performs customer
billing. Excel is responsible for properly taxing its customers and for
the proper and timely reporting and payment of applicable taxes to the
taxing authorities. If Excel fails to provide and maintain the required
certificates, IXC may charge Excel and Excel shall pay such applicable
taxes.
28. No Personal Liability. Each action or claim against any party
arising under or relating to this Agreement shall be made only against
such party as a corporation (or limited liability company), and any
liability relating thereto shall be enforceable only against the assets
of such party. No party shall seek to ▇▇▇▇▇▇ the corporate or limited
liability company veil or otherwise seek to impose any liability
relating to, or arising from, this Agreement against any shareholder,
employee, officer or director or manager of the other party. Each of
such persons is an intended beneficiary of the mutual promises set forth
in this section and shall be entitled to enforce the obligations of this
section.
29. Further Documents. Each party shall execute and deliver all other
documents necessary to fully perform its obligations hereunder.
30. Battle of the Forms. Unless otherwise expressly agreed to in
writing, in the event of a conflict between this Agreement and any
purchase order or other document forming part of any order placed
hereunder, the terms and conditions hereof shall govern.
31. Counterparts. This Agreement may be executed in more than one
counterpart with the same effect as if all executing parties had
executed the same document. Each such counterpart shall be deemed an
original and such counterparts, taken together, shall constitute one and
the same document.
32. Authority. Each individual executing below on behalf of a party
hereby personally represents and warrants to the other party that such
individual is duly authorized to so execute, and to deliver, this
Agreement.
33. General Construction. The text of this Agreement shall not be
construed for or against any particular party. In particular, because
each party has reviewed and had the opportunity to bargain to revise
this Agreement, no inference in favor of, or against, any party shall be
drawn from the fact that such party has drafted any portion hereof.
Titles of sections contained herein are included for convenience of
reference only and are not intended to affect the meaning of the
-31-
32
text thereof.
34. Business Relationship. This Agreement shall not create any agency,
employment, joint venture, partnership, representation, or fiduciary
relationship between the parties. Neither party shall have the authority
to, nor shall any party attempt to, create any obligation on behalf of
the other party.
35. Fees and Expenses. Neither party shall be responsible for the
payment of claims for (i) any fees or commissions of any broker, finder,
consultant, intermediary or commission agent relating to this Agreement
or the subject matter hereof incurred by the other party or (ii) any
legal or other fees incurred by the other party incidental to the
preparation, execution and delivery of this Agreement.
36. Certain Additional Provisions.
(a) CDR/Electronic Exchange. IXC will offer electronic
transmission of CDRs as set forth in Exhibit C.
(b) Operator Services. "Operator Services" are calls made via 00,
0- or 0+ dialing sequences that require the assistance of an
operator to complete, such as but not limited to, collect calls
and ▇▇▇▇-to-third-number calls. Operator Services specifically
exclude calling card operator assistance calls which are deemed
to be part of the calling card Services. "500/700/900 network
calls" are those calls made to various information providers
utilizing telephone numbers with 500, 700 or 900 dialing
sequences. Operator Services and 500/700/900 network calls are
not included in the Services, but may be made available to
subscribers via the IXC Network. If Operator Services or
500/700/900 network calls utilized by subscribers, any revenues
collected for Operator Services and 500/700/900 calls are
retained solely by IXC. IXC may revise its rates for Operator
Services and 500/700/900 calls at any time.
(c) RespOrg and Customer 800 Numbers. For purposes of this
Agreement "RespOrg" shall mean the responsible organization (as
defined in the telecommunications industry's general rules with
respect to 800 number portability) for managing and administering
account records in the 800 Service Management System Database.
Excel shall act as its own RespOrg with respect to Services
hereunder. All 800 telephone numbers and their successors ordered
onto the IXC Network by Excel for which Excel is the RespOrg art
referred to as Excel 800 Numbers.
(d) Order Processing Procedures. IXC will utilize the order
processing
-32-
33
procedures set forth in Exhibit F.
(e) SS-7 Network Availability. IXC's Network will be configured
to complete Excel's calls using a common channel Signaling
System 7 network. Utilizing this network shall provide Calling
Party Number (CPN) caller ID/ANI information, where and if
available.
(f) Service Blockage. IXC's obligations concerning blockage of
Service are set forth in Exhibit F.
(g) Certification. IXC hereby represents and warrants that IXC
is licensed and certified by the proper regulatory agencies to
provide interstate, intrastate and International long distance
services, as contemplated herein, in every jurisdiction where
required.
(h) Billing Increments. IXC's billing increments are set forth
in Exhibit A.
37. Excel Certification. Excel hereby represents and warrants that it is
certified to do business in all jurisdictions in which it conducts
business and is in good standing in all such jurisdictions. Excel
further represents and warrants that it is certified by the proper
regulatory agencies to provide interstate, intrastate and international
long distance services to end-users in those jurisdictions where such
services are to be provided by Excel. Excel shall keep current during
the term of this Agreement copies of its Certificates of Public
Convenience and Necessity or similar documents certifying Excel's
interstate, intrastate, or international operating authority in any
local, state, or federal jurisdiction (collectively, "Service Compliance
Certificates") and furnish copies thereof to IXC within thirty (30) days
of written request by IXC; provided that IXC shall not be permitted to
make such request more than once every 12-month period (provided
further, Excel will use reasonable efforts to furnish such copies within
fifteen (15) days; provided however that the failure to comply with this
15 day period shall in no way give rise to a breach of this Agreement
nor shall it permit IXC to refuse or withhold Service in a particular
jurisdiction). In the event Excel fails to provide such Service
Compliance Certificates within such 30-day period, IXC shall provide
Excel with written notice detailing such failure. If Excel has not
provided such Service Compliance Certificates within thirty (30) days
after receipt of such notice, IXC shall then have the right to refuse or
withhold Service in any jurisdiction in which Excel's Service Compliance
Certificate has not been furnished to IXC. Excel shall defend and
indemnify IXC from any direct and actual losses, expenses, demands and
claims in connection with Excel's failure to maintain such Service
Compliance Certificates. Such indemnification shall include costs and
expenses (including reasonable attorney's fees) incurred by IXC
-33-
34
in settling, defending or appealing any claims or actions brought
against it relating to Excel's failure to maintain such Service
Compliance Certificates.
-34-
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year
first above written.
IXC CARRIER, INC. EXCEL
TELECOMMUNICATIONS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- --------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and CEO Chief Executive Officer
IXC LONG DISTANCE, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO
IXC BROADBAND SERVICES, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO
-35-
36
LIST OF EXHIBITS
----------------
Exhibit A Switched Services (Xclusive); Usage
Charges
Exhibit B Switched Services (Xnet); Usage Charges
Exhibit C Private Line Services; Usage Charges;
On-Net Cities
Exhibit D Private Line Purchase Order
Exhibit E LATA List
Exhibit F Performance Standards
Exhibit G Software License Agreement
Exhibit H HUB List
Exhibit I Xnet Traffic Use
Exhibit J Network Demand Certification
-36-
37
EXHIBIT A & B - XCLUSIVE & XNET SWITCHED SERVICE PRICING
CUSTOMER: Excel Telecommunications, Inc.
XCLUSIVE INTERSTATE PRICING (1+SWITCHED, 8XX SWITCHED & XPIN)
MONTHLY VOLUME SWITCHED DEDICATED
-------------- -------- ---------
Take or Pay Pricing * *
UNDER-UTILIZATION CHARGE. An under-utlization fee per DS-1 for both Xclusive &
Xnet Services will be applied to the monthly invoice based on the following
schedule:
Minutes Per Trunk* Under-utilization Fee**
------------------ -----------------------
0-19,999
20,000-39,999
40,000-59,999 *
60,000-79,999
80,000-99,999
100,000+
*The average is calculated over all trunks. Usage includes both Xclusive
outbound and inbound Service.
**The penalty is applied on all trunks based on average minutes of uage per
trunk.
A trunk is an equivalent T-1 based on 24 DS-0's.
XCLUSIVE INTERSTATE EXTENDED AREAS PRICING (DAY RATES 8 AM TO 5 PM
MONDAY-FRIDAY)*
1+ CALLS TO 1+ CALLS FROM 8XX CALLS TO 8XX CALLS FROM
DEDICATED SWITCHED SWITCHED SWITCHED DEDICATED SWITCHED
---------------------- ------------- ------------ -----------------------
Hawaii
Alaska
USVI/PR
Guam *
Northern
Mariana Is.
NORTHERN MARIANA IS. INCLUDE ROTA, SAIPAIN & TINIAN.
*SUBJECT TO AVAILABILITY
XCLUSIVE INTERSTATE EXTENDED AREAS PRICING (NON-DAY RATES)*
1+ CALLS TO 1+ CALLS FROM 8XX CALLS TO 8XX CALLS FROM
DEDICATED SWITCHED SWITCHED SWITCHED DEDICATED SWITCHED
---------------------- ------------- ------------ -----------------------
Hawaii
Alaska
USVI/PR
Guam *
Northern
Mariana Is.
NORTHERN MARIANA IS. INCLUDE ROTA, SAIPAIN & TINIAN.
*SUBJECT TO AVAILABILITY
Page 1
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
38
XCLUSIVE INTRASTATE PRICING (1+ SWITCHED, 8XX SWITCHED & XPIN) OUTBOUND &
INBOUND
STATE SWITCHED DEDICATED CARD CALLS
----- -------- --------- ----------
Alabama
Arizona
Arkansas
Ca (Intrastate)
Ca (Intralata)
Colorado
Connecticut
Delaware
Florida
Georgia
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska *
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
West Virginia
Wisconsin
Wyoming
DIRECTORY ASSISTANCE CALLS: *
Page 2
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
39
XCLUSIVE & XNET INTERNATIONAL PRICING
Country Code Switched Dedicated
------- ---- -------- ---------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ 213
American Samoa 684
Andorra 376
Angola 244
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ 54
Armenia 374
Aruba 297
Ascension Island 247
Australia ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ 43
Azerbaijan 994
Bahamas 809
Bahrain 973
Bangladesh 880
Barbados 809
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ 32
Belize 501
Benin 229 *
Bermuda 809
Bhutan 975
Bolivia 591
Bosnia and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ 55
British Virgin Is. 809
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ 359
Burkina Faso 226
Burundi 257
Cambodia 855
Cameroon 237
Cape Verde 238
Cayman Is ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 236
Chad 235
▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ 57
Comoros/Mayotte Is. 269
Congo 242
▇▇▇▇ Is. ▇▇▇
▇▇▇▇▇ ▇▇▇▇ 506
Cote d'Ivoire ▇▇▇
▇▇▇▇▇▇▇ 385
Page 3
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
40
Cuba 53
Cyprus 357
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ 45
▇▇▇▇▇ ▇▇▇▇▇▇ 246
Djibouti 253
Dominica 809
Dominican Rep. ▇▇▇
▇▇▇▇▇▇▇ 593
Egypt 20
El Salvador 503
Equatorial Guinea 240
Eritrea 291
Estonia 372
Ethiopia 251
Faeroe Is. 298
Falklands Is. 500
Fiji 679
Finland 358
France, Monaco 33
French Antilles 596
French Guiana 594
French Polynesia ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ 220 *
Georgia ▇▇▇
▇▇▇▇▇▇▇ 49
Ghana 233
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ 30
Greenland 299
Grenada 809
Guadeloupe 590
Guantanamo 539
Guatemala 502
Guinea 224
Guinea-Bissau 245
Guyana 592
Haiti 509
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ 36
Iceland 354
India 91
Indonesia 62
Inmarsat - East Atlantic 871
Inmarsat - Indian Ocean 872
Inmarsat - Pacific Ocean 873
Inmarsat - West Atlantic 874
Iran 98
Iraq 964
Ireland 353
Israel 972
Italy, Vatican City 39
Jamaica 809
Page 4
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
41
Country Code Switched Dedicated
------- ---- -------- ---------
Japan 81
Jordan 962
Kazakhstan 992
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ 965
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ 371
Lebanon 961
Lesotho 266
Liberia 231
Libya 218
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ 370 *
Luxembourg ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ 389
Madagascar ▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ 60
Maldives 960
Mali 223
Malta 356
▇▇▇▇▇▇▇▇ Is. 692
Mauritania 222
Mauritius 230
Micronesia 691
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
Morocco 212
Mozambique 258
Myanmar/Burma 95
Namibia 264
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ 977
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇ Antilles ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ 234
Niue Is ▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 675
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ 51
Page 5
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
42
Country Code Switched Dedicated
------- ---- -------- ---------
Philippines 63
Poland 48
Portugal 351
Qatar 974
Reunion Is. 262
▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ 7
Rwanda ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 966
Senegal 221
Seychelles Is. ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ 65
Slovenia 386 *
Solomon Is. 677
Somalia ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇
▇▇. ▇▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ 809
St. Lucia ▇▇▇
▇▇. ▇▇▇▇▇▇ and Miquelon 508
St. ▇▇▇▇▇▇▇ and Grenadines 809
Sudan 249
Suriname 597
Swaziland 268
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ 963
Taiwan ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ 66
Togo 228
Tonga Is. ▇▇▇
▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ 90
Turkmenistan 993
Turks/Caicos 809
Tuvalu 688
Uganda ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ 971
United Kingdom 44
Uruguay 598
Uzbekistan 998
Vanuatu 678
Venezuela 58
Viet Nam 84
Wallis & Futuna ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ 967
Page 6
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
43
Country Code Switched Dedicated
------- ---- -------- ---------
Yugoslavia & Serbia 381
Zaire 243 *
Zambia 260
Zimbabwe 263
1. DEDICATED ACCESS RATES ARE FOR XNET INTERNATIONAL AND XCLUSIVE DEDICATED
ACCESS SERVICES.
2. AUSTRALIAN EXTERNAL TERRITORIES INCLUDE: NORFOLK IS., CHRISTMAS IS. AND
COCOS IS.
3. ALL INTERNATIONAL CALLS EXCLUDING CALLS TO MEXICO ARE BILLED IN 30
SECOND INITIAL, AND 6 SECOND ADDITIONAL INCREMENTS.
4. ALL CALLS TO MEXICO ARE BILLED IN FULL MINUTE INCREMENTS.
XCLUSIVE & XNET INTERNATIONAL - MEXICO RATES (CALLS TO MEXICO)
SWITCHED ACCESS DEDICATED ACCESS
PER MINUTE PER MINUTE
BAND RATES RATES
---- ---------------- ----------------
1
2
3
4
5 *
6
7
8
CALLS TO MEXICO ARE BILLED IN WHOLE MINUTE INCREMENTS.
XCLUSIVE & XNET INTERNATIONAL - CANADA RATES (CALLS TO CANADA)
SWITCHED ACCESS DEDICATED ACCESS
--------------- ----------------
INITIAL 30 ADDT'L INITIAL 30 ADDT'L
SECONDS 6 SECONDS SECONDS 6 SECONDS
--------------------- -----------------------
* *
XCLUSIVE & XNET INTERNATIONAL - 8XX CALLS FROM CANADA TO US 48 STATES*
PEAK OFF-PEAK
---- --------
INITIAL 30 ADDT'L INITIAL 30 ADDT'L
SECONDS 6 SECONDS SECONDS 6 SECONDS
---------------------------- -------------------------
To Switched Access * *
To Dedicated Access * *
CANADIAN PEAK PERIOD IS 8 AM TO 5 PM MONDAY THROUGH FRIDAY.
OFF-PEAK IS ALL OTHER TIMES.
*XPIN CALLS FROM CANADA ARE RATED AT THE ▇▇▇▇▇ PRICES AS SWITCHED ACCESS INBOUND
8XX CALLS FROM CANADA.
XCLUSIVE & XNET CARD SERVICES: CALLING & DEBIT CARDS
INTERSTATE CALLS DAY NON-DAY
---------------- --- -------
Base Rates
with 3 Year Term *
*for intrastate card rates, see intrastate rate schedules
Page 7
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
44
DAY NON-DAY
--- -------
Calls Originating in Canada *
DAY = 8:00 A.M. TO 5:00 P.M. MONDAY THROUGH FRIDAY
Surcharges - per call:
Domestic Termination
Canada Termination or Origination
Mexico Termination *
Other International Termination
International Usage Charges, as contracted at the switched access international
rates, apply to international calls in addition to the surcharges shown above.
ON-DEMAND FEATURE CHARGES (1):
Audio Text * per Minute
Message Store & Forward * per Message
Operator Assistance
Station to Station * per Message
Person to Person Not available
Conference Calling (Charges applied to each participant)
Set-up Charge *
Day Rate/Minute *
Non-Day Rate/Minute *
Int'l Rate/Minute Per Int'l Switched Rate
There are no charges for Speed Dialing or Variable Credit Limits.
(1) On Demand features apply to calling card calls, not debit card calls.
BILLING INCREMENTS:
Domestic* 6 seconds, then 6 seconds
Domestic* to Canada 30 seconds, then 6 seconds
Domestic* to Mexico 30 seconds, then 6 seconds
Domestic* to Overseas 30 seconds, then 6 seconds
Extended Areas (Hawaii, Alaska,
Puerto Rico, US Virgin Islands,
Guam, Northern Mariana Islands) 6 seconds, then 6 seconds
*Domestic includes the 50 states (US).
XCLUSIVE & XNET TOLL FREE SERVICE FROM MEXICO TO US 48 STATES*
MONTHLY VOLUME ORIGINATING SWITCHED ACCESS DEDICATED ACCESS
OF TOLL FREE SVC. BAND DAY NIGHT DAY NIGHT
----------------- ----------- --- ----- --- -----
$750,000+ 1 * *
2
*TOLL FREE SERVICE FROM MEXICO IS SUBJECT TO AVAILABILITY.
IXC RESERVES THE RIGHT TO ADJUST PRICING WITH FIFTEEN (15) DAYS WRITTEN NOTICE.
DAY = 8 AM TO 5 PM MONDAY THROUGH FRIDAY FOR TOLL FREE SERVICE FROM MEXICO
BAND 1 IS THE SAME AS BANDS 1,2 AND 3 ON XNET TERMINATING PRODUCTS
BAND 2 IS THE SAME AS BANDS 4, 5 AND 6 ON XNET TERMINATING PRODUCTS
Page 8
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
45
XNET LEX INTERSTATE & INTRASTATE TERMINATION RATES
INTERSTATE USAGE INTRASTATE USAGE
OPERATING COMPANY OCN NO. RATE/MINUTE RATE/MINUTE
----------------- ------- ----------- -----------
Ameritech, OH 9321
Ameritech, MI 9323
Ameritech, IN 9325
Ameritech, WI 9327
Ameritech, IL ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ 9211
▇▇▇▇ Atlantic, MD 9212
▇▇▇▇ Atlantic, VA 9213
▇▇▇▇ Atlantic, WV ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ 9417
▇▇▇▇ South, NC 9417
▇▇▇▇ South, SC 9417 * *
South Central ▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ 9419
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, MS 9419
South Central ▇▇▇▇, TN 9419
▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇
NYNEX, ME 9102
▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ Metro 9104
PacTel, CA 9740
PacTel, NV ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ 9533
Southwestern ▇▇▇▇, MO 9533
Southwestern ▇▇▇▇, OK 9533
Southwestern ▇▇▇▇, TX 9533
US West, IA 9631
US West, MN ▇▇▇▇
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇
▇▇ ▇▇▇▇, ▇▇ 9631
Page 9
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
46
INTERSTATE INTRASTATE
OPERATING COMPANY OCN NO. RATE/MINUTE RATE/MINUTE
----------------- ------- ----------- -----------
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇
▇▇ West, CO 9636
US West, ID ▇▇▇▇
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇
▇▇ ▇▇▇▇, ▇▇ 9636
US West, UT 9636
US West, WY ▇▇▇▇
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇
▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇
SNET ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇, ▇▇ 3009
GTE, AL 4331
GTESW, AR 4341 * *
GTE, CA 2319
GTE, CA
GTE, FL 0328
GTE, HI 3100
GTEN, IA 4311
GTENW, ID 4321
GTE, IL 1015
GTE, IN 0779
GTE, IN 0772
GTE, KY 0407
GTE, MI 0695
GTEN, MN 4312
GTE, MO 1922
GTEN, MO 4313
GTE, NC 0509
GTES, NC 4334
GTEN, NE 4314
GTESW, NM 4342
GTE, OH 0615
GTESW, OK 4343
GTENW, OR 4323
GTE, PA 0169
GTES, SC 4335
GTE, TX 2154
GTESW, TX 4344
GTE, VA 0233
GTES, VA 4337
GTENW, WA 4324
GTE, WI 0886
United, FL 0341
United, IL 9329
United, IN 0832
United, KS 1842
United, MN 1456
United, MO 1957
Page 10
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
47
INTERSTATE INTRASTATE
OPERATING COMPANY OCN NO. RATE/MINUTE RATE/MINUTE
----------------- ------- ----------- -----------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ 1595
United, NJ 0138
United, NV 1842
United, OH 0661
United, OR 2400 * *
▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ 0506
United, TN 0581
United, TX 2084
United, VA 0567
▇▇▇▇▇▇, ▇▇ ▇▇▇▇
Other Independents
NECA
XNET LEX INTERSTATE PRICING
MONTHLY VOLUME 8XX ORIGINATIONS
-------------- ----------------
Term: 3 Years
$500,001+
Top LATA's *
Standard *
NECA *
Page 11
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
48
ANCILLARY SERVICE CHARGES
SERVICE EXPLANATION APPLIED CHARGE
------- ----------- ------- ------
IN THE EVENT OF A DISCREPANCY BETWEEN ANCILLARY SERVICE CHARGES LISTED BELOW AND
THOSE OF THE EXISTING EXCEL/IXC AGREEMENT, THOSE ANCILLARY SERVICE CHARGES
OUTLINED IN THE EXISTING EXCEL AGREEMENT SHALL BE APPLICABLE.
ANI Administration Per ANI loaded into our switches. Required when an ANI has Monthly */ANI
(1) international blocking, account codes, or other switched-based
features.
IC Pay IC Pay is a 1+ switched access option allowing the Reseller to Monthly * per IC Pay'
designate that a WTN PIC order not result in a PIC charge from PIC
the LEC to the end-user.
Account Codes Install fee per BTN/ANI verified account code table. Non-recurring */table
Monthly fee per BTN/ANI vertified account code table. Monthly */table
8XX Service Administrative Charge for each 8XX number Monthly * per 8XX#
8XX number reservation - one time charge per number reserved Non-recurring */8XX#
Monthly fee for each 8XX number listed at the (▇▇▇)▇▇▇-▇▇▇▇ Monthly */listing
Installation charge for signaling and trunking required for ANI Non-recurring */trunk
delivery on 8XX calls.
Installation charge for direct termination overflow. Non-recurring */DTO trunk
Charged for each change to direct termination overflow routing. Per change */DTO trunk
Installation charge for dialed number identification service (DNIS) Non-recurring */trunk
Charged for each change to DNIS Per change */trunk
XPIN Service Install fee per Xpin 8XX number. Non-recurring * per 8XX#
Monthly fee per Xpin 8XX number. Monthly * per 8XX#
CDR Delivery (2) Monthly charge for CDR via On-Line by dial-up access. Monthly *
Monthly charge for CDR via On-Line by direct line access. Monthly *
Monthly charge for CDR via Tape or Diskette. Monthly *
CDR Daily (for Xnet) Monthly * per CDR
Transport for Installation charges for transport service - includes
Interconnection all telco charges Non-recurring Pass-through
Monthly charges for transport service - includes all telco charges Monthly Pass-through
Monthly Minimum Usage per DS-1 Monthly See 6.C./MSA
Local Loops Installation charges for dedicated trunk, includes all telco charges Non-recurring Pass-through
Monthly charges for dedicated trunk, includes all telco charges Monthly Pass-through
Installation charges for Echo Cancellers (when required) Non-recurring *
Monthly charges for Echo Cancellers (when required) Monthly *
Order processing fee - to accompany each order for local loop Non-recurring *
or special access order.
Reseller ID Setup (3) Set-up charge per Reseller I.D. Non-recurring *
Maintenance charge per Reseller I.D. Monthly *
Changes to Reseller I.D. Profile. Per change *
700 Branding (4) Set-up charge per Custom 700 Branding Message. Non-recurring * per network
Calling Card Set-up charge for the Calling Card Custom Printing Option Non-recurring * per set-up
Print Option Printing charge (includes shipping) Per Card Printed *
Debit Card Service Retail Rate Table set-up - no charge for the 1st 3 tables Per table, after 1st 3 *
Language set-up fee, applies to up to 2 addt'l languages Per Additional
The 1st is free. Language *
Custom Recordings for scripts. Per Incident Pass-through
Page 12
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
49
Mexico Toll Free Installation Per Switched # *
Service Installation Per Dedicated # *
Monthly Recurring Per Switched # *
Monthly Recurring Per Dedicated # *
Minimum Monthly Usage Per Switched # *
Minimum Monthly Usage Per Dedicated # *
Directory Assistance Per call *
(1) ANI Administration Charges are waived for Xclusive Services.
(2) CDR delivery charges are waived for Xclusive Services.
(3) Reseller ID set-up charges are waived for the 1st 3 reseller profiles.
Check w/your Account Manager or Account Executive for details. An
example of a change to the Reseller I.D. profile is a change of address.
(4) First 700 Branding set-up is at no charge. These charges apply to custom
branding after the 1st 700 number.
Notes:
A. All monthly fees are pro-rated. All others are not.
B. No charges are eligible for volume or term discounts.
C. Ancillary charges are applied at the time of initial account set-up.
Charges for changes are applied when changes occur.
Page 13
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
50
EXHIBIT C - PRIVATE LINE PRICING
SERVICE TYPE RATE/DS-0 V&H MILE
ON-NET SERVICE:
DS-1 *
DS-3 *
Minimum Circuit Charges: DS-1 *
DS-3 *
OFF-NET SERVICE:
Las Vegas DS-3 Service *
Service is for a twelve (12) month minimum term.
NOTES:
1. ALL PRIVATE LINE SERVICE TO CITIES NOT LISTED ON EXHIBIT C WILL BE
PRICED AT IXC'S ACTUAL COST PLUS *.
2. IXC, UPON REQUEST FROM EXCEL, SHALL PROVIDE AN OFFICER'S CERTIFICATE NO
MORE THAN ONCE PER YEAR CERTIFYING IXC'S ACTUAL COST FOR OFF-NET
SERVICES.
Page 14
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
51
EXHIBIT C - ON-NET CITY LISTING
LOCATION LATA ADDRESS /(NPA)NXX
-------- ---- ------------------------------
Abilene, TX 550 ▇▇▇▇ ▇. ▇▇▇▇▇, #▇▇▇,
(915)675
Akron, OH 325 ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ & Bowery, (216)535
Albuquerque, NM 664 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇., N.W.,
13th Floor, (505)247
Amarillo, TX 546 Amarillo Petroleum Bldg.,
▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇ 607/608
(806)373
Ann Arbor, MI 346 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, (313)994
Austin, TX 558 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
(512)389
Bakersfield, CA 734 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
(805)327
Baltimore, MD 238 1220 ▇. ▇▇▇▇▇▇ (301)752
Battle Creek, MI 348 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (616)962
Bay City, MI 344 100 ▇. ▇▇▇▇ (517)667
Chicago, IL ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (312)861
Cincinnati, OH 922 2300 ▇▇▇▇▇ Tower, #4701
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇)▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., (216)771
Columbus, OH ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇
▇▇▇ ▇. ▇▇▇▇▇ St., (614)469
Colorado Springs, CO ▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇, # ▇▇▇, (719)471
Corpus Christi, TX 564 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
(512)882
Dallas, TX 552 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, (214)969
Dallas, TX ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, #▇▇▇
2323 Bryan, (214)954
Dayton, OH ▇▇▇ ▇ ▇▇▇'▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇, (▇▇▇)▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, (303)572
Detroit, MI 340 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, (313)259
Detroit, MI 340 Book Bldg., Suite 2609
1249 Washington (313)961
El Paso, TX ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇. ▇▇▇▇, #▇▇▇▇, (915)533
Flint, MI 340 2001 S. Grand Traverse
(313)767
Fresno Term, CA 728 Guarantee Savings, #1201
B1171 ▇▇▇▇▇▇ Mall, (209)268
Fresno, CA 728 4605 E. Vine, (209)486
Ft. Worth, TX ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, (817)870
Grand Rapids, MI 348 ▇▇▇ ▇▇▇▇▇▇, ▇.▇., (616)235
Harlingen, TX 568 513 ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ Bldg.,
(210)425
Houston, TX 560 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, (713)224
Indianapolis, IN 336 Merchants Bank Bldg.,
11 S. Meridian, #1798/1799
(317)637
Jackson, MI 346 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
(517)783
Kalamazoo, MI 348 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, (616)385
Kansas City, MO 524 Bank of Kansas City, # 1704
▇▇▇▇ ▇▇▇▇▇ ▇▇▇., (816)283
Lansing, MI 346 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇)▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 730 One Wilshire, ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, (213)689
Lubbock, TX 544 1220 Broadway, Ste. 1901,
(806)762
McAllen, TX 568 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇,
(210)687
Midland, MI 344 1000 Jefferson, (517)631
Midland, TX 542 KMID-TV Studio, ▇▇▇▇▇▇▇
Blvd @ Air Terminal(915)561
New York, NY 132 ▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
(212)285
▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
(201)824
Oklahoma City, OK ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (405)232
Philadelphia, PA 228 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
(▇▇▇)▇▇▇
▇▇▇▇▇▇▇, ▇▇ 666 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ Twr, (602)279
Pittsburgh, PA ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, (412)281
Pontiac, MI 344 324 S. Saginaw, (313)338
Royal Oak, MI ▇▇▇▇ ▇. ▇▇ ▇▇▇▇ ▇▇▇▇
(313)435
Saginaw, MI 344 315 ▇▇▇▇▇▇▇▇, (517)771
San Angelo, TX 961 ▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(915)653
San Antonio, TX 566 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, (▇▇▇)▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇
425 Market St., (415)543
Southbend, IN 332 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
19th Floor, (219)233
St. Louis, MO ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
(314)231
Sunnyvale, CA 722 111 Uranium, (408)739
Toledo, OH 326 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
(419)242
Tucson, AZ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., #▇▇▇▇
33 ▇. ▇▇▇▇▇, (520)792
Tulsa, OK 538 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇.
(▇▇▇)▇▇▇
▇▇▇▇, ▇▇ 556 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, (817)750
Washington, D.C. 236 ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., #▇▇▇
(202)833
Page 15
52
SECTION 2. UNIFORM SALES & USE TAX CERTIFICATION FORM
Issued to: IXC, 5000 Plaza on the Lake, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Certify that: Excel Telecommunications, Inc., ______________________________ is
registered and/or identified with the below listed cities and/or states within
which your firm would deliver purchases to us and that any such purchases are
for wholesale, resale, ingredients or components of a new product to be resold,
leased, rented or used in the normal course of our business. We are in the
business of wholesaling, retailing, manufacturing, leasing, renting or providing
non-taxable services or products.
Check applicable box: (___) Single Purchase Certificate
(____) Blanket Certificate
Is engaged as a registered (where applicable): (____) Wholesaler
(____) Lessor (____) Retailer (____) Manufacturer
(____) Exempt Organization Use (____) Other (Specify) __________________
Product or service rendered by Customer: _______________________________________
STATE REGISTRATION OR I.D. NO. STATE REGISTRATION OR I.D. NO.
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
------------- ------------------------ --------------- -------------------------
I further certify that if any property so purchased tax free is used or consumed
by the firm as to make it subject to a sales or use tax we will pay the tax due
direct to the proper taxing authority when state law so provides or inform the
seller for added tax billing. This certificate shallbe part of each order which
we may hereafter give to you, unless otherwise specified, and shall be valid
until cancelled by us in writing or revoked by the city or state.
Exemption Claimed: (___) Resale (___) Federal Government
(___) Exempt Organization (___) State & Local Government
(___) Direct Payment Permit (___) Other (Specify)____________________________
I swear and affirm that the information on this form is true and correct as to
every material matter.
--------------------------------------------------------------------------------
Signature Title Date
Page 16
53
EXHIBIT D - PRIVATE LINE SERVICE ANCILLARY PRICING
NON-RECURRING CHARGES DS-0 DS-1 DS-3
New Order Installation ......Waived for On-Net Services......
Order Change
Order Cancellation (prior to activation)
ASR (new or disconnect) Special Access
ASR Supplement * * *
Order Expedite
Reconfiguration
DACS Charge (switching only)
DACS Port Charge (▇▇▇▇ access to DACS)
DS-1 DACS Port
OTHER CHARGES MONTHLY RECURRING NON-RECURRING
Cross-Connect Charge (Other Interexchange carrier, local access or customer
interconnect/collocation facility to Supplier local access or bypass facility
within the same Supplier POP):
DS-1
DS-3 * *
OC-3*
OC-12*
OC-48*
Interconnect Charge (Supplier POP to Supplier POP in the same city or local
area using Supplier owned or leased transmission systems, with no Supplier
long haul attached at either Supplier POP):
DS-1
DS-3
OC-3* * *
OC-12*
OC-48*
M1/3 - 1 Year Term
Echo Canceller (per circuit end)
Second End Loop (Ex: for ADPCM)
Rack Space I.C.B - Subject to Availability
Shelf Space */ea/mo. I.C.B.
DC Power */amp/mo (5 amp minimum;
5 amp increments)
NOTES:
1. ALL CHARGES INCURRED BY SUPPLIER ON CUSTOMER'S BEHALF FROM ANY LOCAL
EXCHANGE CARRIER, COMPETITIVE ACCESS PROVIDER OR COMPETITIVE LOCAL
EXCHANGE CARRIER WILL BE DIRECTLY PASSED ON TO THE CUSTOMER.
2. SERVICES NOT DESCRIBED ABOVE WILL BE CONSIDERED SPECIAL HANDLING AND
CHARGES WILL BE ASSESSED ON AN INDIVIDUAL CASE BASIS (ICB).
3. ALL PRIVATE LINE ANCILLARY SERVICE CHARGES TO CITIES NOT LISTED ON
EXHIBIT C WILL BE PRICED ON AN INDIVIDUAL CASE BASIS AND WILL BE SUBJECT
TO THE TERMS AND CHARGES OF THE UNDERLYING CARRIER.
*All OC product cross-connects and interconnects will be provided based upon
availability. OC interconnects shall have a minimum term of 12 months.
Page 17
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
54
EXHIBIT D
Req'st Svc Date:___________ IXC - PRIVATE LINE
Accepted Earlier Activation: PURCHASE ORDER
Y _____ N _____ MARKET SERVICE ORDER
(MSO)
CKT ID: __________________
OFFICE USE ONLY
MSO # ________________________
RELATED MSO:__________________
PURCHASE ORDER FORM FOR CUSTOMER ORDER NO:_________________
Pursuant to the THIRD AMENDED AND RESTATED SERVICE AGREEMENT by and between IXC
as Supplier and EXCEL TELECOMMUNICATIONS, INC. as Customer,
dated__________________, 1998, Customer orders and Supplier shall provide the
following Digital Transmission Service:
QTY RATE TERM MILES
New _______ Renew __________
Cancel _______ Disconnect __________ DS-3 ____ _____ _____ ____
Change _______ Expedite Y____ N___ DS-1 ____ _____ _____ ____
On Net _______ Off Net __________ DS0 ____ _____ _____ ____
Protocol Reconfigure __________ CIF ____ _____ _____ ____
Other ________________________________ Other ____ _____ _____ ____
Customer Contact: ________________ Phone #: ________________ Fax # __________
Technical Contact ________________ Phone #: ________________ Fax # __________
CITY LOCATION A: ________________ CITY LOCATION B:___________________________
--------------------------------------------------------------------------------
Special _____________ Switched _____ Special ___________ Switched ________
Bypass Y ____ N ____ Owner _____ Bypass Y ____N ____ Owner ________
LESSOR TO PROVIDE CFA: Y ____ N ____ LESSOR TO PROVIDE: CFA: Y____ N_____
LOA: Y ____ N_____ ASR: Y ____ N ____ LOA: Y____ N____ ASR: Y____N_____
--------------------------------------------------------------------------------
CUSTOMER (LESSEE) TO PROVIDE: CUSTOMER (LESSEE) TO PROVIDE:
LOA: Y___ N_____ Coordinated Convert Y___ N____ LOA: Y__N___ Coordinated Convert Y___N___
CIF Arrangement Y___N____ CIF Attach Y___N___ CIF Arrangement Y___N___ CIF Attach __N__
Special Instructions __________________ ________ Special Instructions _____________________
MONTHLY LEASE RATE: NON RECURRING CHARGES:
Monthly IXC Charge: $ ___________ Installation $ ____________ ASR: $______
Eqpt. Lease Charge: $ ___________ Installation $ ____________ Reconfig $______
Echo Canceller: $ ___________ Installation $ ____________ Expedite $______
CIF Racks: $ ___________ Installation $ ____________
CIF Power: $ ___________ Installation $ ____________
Other $ ___________ Installation $ ____________
TOTAL: $ ___________ TOTAL OF NON RECURRING CHARGES:$_______
IN WITNESS WHEREOF, the parties have executed this PURCHASE ORDER on the
_____day of_______19______
--------------------------------- -----------------------------------------
SUPPLIER APPROVAL/TITLE CUSTOMER AUTHORIZED REPRESENTATIVE/
(Service Provider) TITLE (CUSTOMER)
PLEASE FAX THIS DOCUMENT TO CUSTOMER SERVICE FAX # (▇▇▇) ▇▇▇-▇▇▇▇
FOR OFFICE USE ONLY VERSION 3.0 10/2/97
Page 18
55
EXHIBIT D - PRIVATE LINE SERVICE ANCILLARY PRICING
NON-RECURRING CHARGES DS-0 DS-1 DS-3
New Order Installation
Order Change
Order Cancellation (prior to activation)
ASR (new or disconnect) Special Access
ASR Supplement * * *
Order Expedite
Reconfiguration
DACS Charge (switching only)
DACS Port Charge (▇▇▇▇ access to DACS)
DS-1 DACS Port
OTHER CHARGES MONTHLY RECURRING NON-RECURRING
------------- ----------------- -------------
Cross-Connect Charge (Other Interexchange carrier, local access or customer
interconnect/collocation facility to Supplier local access or bypass facility
within the same Supplier POP):
DS-1
DS-3 * *
OC-3*
OC-12*
OC-48*
Interconnect Charge (Supplier POP to Supplier POP in the same city or local
area using Supplier owned or leased transmission systems, with no Supplier
long haul attached at either Supplier POP):
DS-1
DS-3
OC-3* * *
OC-12*
OC-48*
M1/3 - 1 Year Term
2 Year Term
3 Year Term
Echo Canceller (per circuit end)
Second End Loop (Ex: for ADPCM)
Rack Space I.C.B - Subject to Availability
Shelf Space */ea/mo. I.C.B.
DC Power */amp/mo (5 amp minimum; 5 amp increments)
NOTES:
1. ALL CHARGES INCURRED BY SUPPLIER ON CUSTOMER'S BEHALF FROM ANY LOCAL
EXCHANGE CARRIER, COMPETITIVE ACCESS PROVIDER OR COMPETITIVE LOCAL
EXCHANGE CARRIER WILL BE DIRECTLY PASSED ON TO THE CUSTOMER.
2. SERVICES NOT DESCRIBED ABOVE WILL BE CONSIDERED SPECIAL HANDLING AND
CHARGES WILL BE ASSESSED ON AN INDIVIDUAL CASE BASIS (ICB).
3. ALL OF THE ABOVE CHARGES ARE SUBJECT TO CHANGE WITH A 30-DAY NOTICE.
4. ALL PRIVATE LINE ANCILLARY SERVICE CHARGES TO CITIES NOT LISTED ON
EXHIBIT C WILL BE PRICED ON AN INDIVIDUAL CASE BASIS AND WILL BE SUBJECT
TO THE TERMS AND CHARGES OF THE UNDERLYING CARRIER.
*All OC product cross-connects and interconnects will be provided based upon
availability. OC interconnects shall have a minimum term of 12 months.
Page 19
* Confidential material has been omitted and filed
separately with the Securities and Exchange Commission.
56
EXHIBIT E - XNET TOP LATA'S
LATA NAME LATA NUMBER
--------- -----------
New York 132
Newark 224
Philadelphia 228
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. 236
Indianapolis 336
Detroit 340
Chicago 358
Raleigh 422
Atlanta ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ 524
Dallas 552
Houston 560
San Antonio 566
Minneapolis 628
Denver 656
Phoenix 666
Portland 672
Las Vegas ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ 730
San Diego 732
Monterey 736
Bakersfield 734
Atlantic City 220
Trenton 222
Page 20
57
EXHIBIT F
PERFORMANCE STANDARDS
IXC will not be responsible for performance degradation due to conditions of
force majeure, subject to the limits set forth in Section 26. However, in such
case, IXC must use its best efforts for the restoration of network and systems.
"Network" is defined as those elements which affect transmission and
completion of calls. "Systems" are defined as those elements that
support the business operations. The following criteria must be met:
1. IXC shall deliver billable Call Detail Record ("CDR") collection
and distribution to Excel promptly on a daily basis Monday
through Saturday, including nationally recognized holidays, for
the previous period's traffic. This requires all billable CDRs
be transmitted in totality to Excel's pickup point, including
daily processing rejects, which are reasonably determined by
both parties to be rejects
2. IXC must be able to collect, partition and duplicate at least
five (5) million billable CDRs per day (and remove nonbillable
CDRs) from the network at present architectural and capacity
design. IXC shall archive CDRs for not less than two (2) years.
3. Automatic Number Identification ("ANIs") not identified in
either IXC or Excel's database must have their CDRs identified
as Casual Calls CDRs. Casual Call Distribution must occur daily
based upon a twenty-eight (28) day aging cycle distribution
whereby CDR allocation to an Excel ANI will be passed to Excel.
4. "Systems" availability will not be lower than 98 percent in any
thirty (30) day period. This excludes scheduled downtime in a
monthly production schedule mutually agreeable to both parties
(provided that IXC shall be allowed downtime each twenty-four
(24) hours from 10:00 p.m. to 7:00 a.m.), and downtime for new
load implementation, backups, maintenance and unplanned outages.
Notwithstanding anything in the Agreement to the contrary, in
the event of a default under this Section4, Excel shall so
notify IXC. In order to cure such default, IXC must notify Excel
that the underlying problem has been corrected, specifying a
specific time of such corrections, which must have been within
forty-eight (48) hours of receipt of Excel's notice. From such
notice from IXC, systems availability ▇▇▇▇
▇▇▇▇ 21
58
not be lower than 98 percent measured in the period ending 7,
14, 21 and 30 days thereafter. In such event, such default will
be deemed to be cured.
5. IXC shall provide monthly summary billing and invoicing with
originating and terminating LATAs identified in format which
will assure ease of reconciliation of monthly CDR billing
matched to the delivered billable CDRs for that period.
6. Order Entry for Switched 1+ Service must be processed within
twenty-four (24) hours, and for 800 Switched Service, within
twenty-four (24) hours, excluding Sundays and nationally
recognized holidays except that in cases where Excel's Resporg
provides the 800 number, order entry shall be processed within
seventy-two (72) hours, for orders which are reasonably
determined to be valid by both parties.
7. IXC's Fraud Management system must be capable of initiating a
"Fast Kill" and "Restoration" within five (5) minutes of the
request and meet mutually agreeable Excel specific parameters on
the ANI level. IXC will provide advanced notification of
activities or changes on global parameters.
8. The Network must provide seven (7) day per week, twenty-four
(24) hour day coverage of technical administrative functions.
9. IXC must act on problems affecting transmission service on IXC's
network and use its best efforts to resolve such problem within
four (4) hours from the time service is affected.
10. IXC shall use its best efforts to report problems affecting
network or its support functions to Excel within 30 minutes of
occurrence. Problems affecting traffic and performance must be
reported and updated, and IXC must notify Excel when the
condition has been remedied. Excel may submit a "trouble ticket"
identifying the specific trouble items with the ability to query
the status of that ticket. Excel must give approval before the
trouble ticket is closed. Problems affecting IXC's alarm, fraud,
and CDR collection functions shall be high priority, problems
affecting all other functions shall be acted upon within two (2)
hours.
11. IXC shall provide Excel with busy hour report no less often than
once a month. IXC's access network shall be engineered so that
no more than one call in one hundred originating calls will be
blocked during any hour. IXC shall relieve blockage conditions
by means of rerouting terminating traffic to an off-network
provider immediately upon identification of blockage
Page 22
59
from the time such blockage first occurs. Engineered trunk
groups augments shall then be issued within ten (10) working
days from the time such blockage first occurs.
12. The Private Line Services shall meet IXC's performance standards
for DS-1 and DS-3 services as in effect as of March 16, 1998,
copies of which are attached to this Exhibit F and incorporated
herein by reference and made a part hereof for all purposes.
13. Crossover of DS-1 to DS-3. At such time as Excel has leased up
to 12 DS-1 Circuits between a given city pair or at such point
that Excel requests a cross over, the pricing of such DS-1
Circuits shall cross over ("Cross Over") to DS-3 pricing and
Excel shall be given by IXC DS-3 capacity between such city
pair. Notwithstanding anything to the contrary contained herein
or in the applicable Purchase Order, upon a Cross Over, Excel
without liability to IXC or any third party, shall terminate
such DS-1 Purchase Order and shall enter into a new Purchase
Order for the DS-3 capacity and such Purchase Order shall have a
Circuit Lease Term equal to an average of the remaining months
on the DS-1 Purchase Orders prior to the Cross Over.
14. All software or software applications used by IXC (or any of
IXC's On-Net suppliers) in the provision of Services hereunder
shall be fully Year 2000 Compliant. As used herein, "Year 2000
Compliant" means that the relevant software or software
applications shall contain source code that can appropriately
interpret the upcoming calendar year "2000."
Page 23
60
EXHIBIT G - SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this "Agreement") is made and entered into this
____ day of _____________, 1998 (the "Effective Date"), by and between IXC, a
Delaware corporation ("IXC") and Excel Telecommunications, Inc., a Texas
corporation ("LICENSEE").
R E C I T A L S
A. IXC is a provider of telecommunications services and LICENSEE is a
customer of IXC pursuant to the Telecommunications Service Agreement
("TSA") to which this Agreement is attached to as Exhibit C.
B. IXC has developed and owns all right, title and interest in and to a
proprietary collection of computer programs known as "IXC Online -
Customer Module" which IXC makes available to its customers (the
"Software") so as to enable IXC's customers to access a certain database
maintained by IXC relating to the telecommunications traffic carried by
IXC (the "Database").
C. LICENSEE desires to license from IXC and IXC desires to grant to
LICENSEE, on the terms and subject to the conditions of this Agreement,
a license to use the Software so as to enable LICENSEE to access the
Database.
A G R E E M E N T
In consideration of the foregoing recitals and the mutual covenants, agreements,
representations and warranties contained herein and in the TSA, the parties
intending to be legally bound, hereby agree as follows:
▇. ▇▇▇▇▇ OF LICENSE.
A. Subject to the terms and conditions of this Agreement, IXC
hereby grants to LICENSEE a license (the "License") to use the
Software in object code form only, solely on, together with and
as an integral part of a single Qualified Configuration (as
defined in Section 3.1, below) solely for interconnection to the
Database for purposes of accessing any one or more of the
various functions made available at the sole discretion of IXC,
including, without limitation, order entry, entry and retrieval
of customer information, trouble reporting, status inquiries,
report writing and expense tracking.
B. SCOPE OF LICENSE. The License is nonexclusive and
nontransferable and only extends to LICENSEE. LICENSEE agrees
that it shall not, without the prior written consent of IXC,
which consent may be withheld by IXC in its sole and absolute
discretion, (i) transfer or sublicense the Software to any third
party, directly or indirectly, manually or electronically, (ii)
assign this Agreement or any interest herein to any third party,
or (iii) contract, create, incur, assume or allow to exist any
claim, mortgage, lien, security interest or other charge or
encumbrance with respect to this Agreement or the Software to
any third party.
C. RETENTION OF RIGHTS. The License places no restriction on IXC's
right to use, market, distribute, license or sell the Software
(or any portion thereof) to any third party. All rights not
expressly granted herein are retained by IXC.
II. TERM. This Agreement and the License created hereunder shall remain in
effect until the earlier to occur of (i) the termination of the TSA, or
(ii) either party giving to the other 30 days' prior written notice of
such party's election to terminate this Agreement.
III. INSTALLATION OF THE SOFTWARE ON THE QUALIFIED CONFIGURATION. IXC shall be
responsible for installing the Software on the Qualified Configuration
(the "Installation") in accordance with the terms and conditions of this
Section 3.
A. THE QUALIFIED CONFIGURATION. The required hardware and software
to enable LICENSEE to use the Software is hereinafter referred
to as the "Qualified Configuration" and shall consist of the
hardware and software configuration which is more fully
described on Schedule 1 attached hereto and incorporated herein
by this reference. LICENSEE, at its cost, shall be responsible
for procuring the Qualified Configuration. At all times during
the term of this Agreement, LICENSEE, at its cost, shall be
responsible for maintaining the Qualified Configuration,
including, without limitation, purchasing and utilizing any and
all third-party software, and all updates or new releases
pertaining thereto, as may be required to ensure that the
Software continues to operate on the Qualified Configuration.
To ensure satisfactory operation of the Software, Customer
hereby agrees and acknowledges that the Software is intended for
use with Windows NT and Windows 95 which is part of the
Qualified Configuration. Any other version of Windows, is not
considered a Qualified Configuration. IXC provides technical
support assistance for the Software in conjunction with Windows
NT and for no other operating software.
Customer hereby assumes any risks in connection with the use of
any operating software other than Windows NT and Windows 95 in
connection with the Software. Customer hereby waives any claim
or cause of action against IXC that may arise in connection with
Customer's use of operating software other than Windows NT in
connection with the Software.
B. PERFORMANCE OF THE INSTALLATION. In order to enable IXC to
expeditiously perform the Installation, as soon as practicable
after the Effective Date, LICENSEE shall allow IXC access,
during normal business hours, to the Qualified Configuration.
Upon gaining such access to the Qualified Configuration, IXC
shall commence with the Installation and shall diligently pursue
completion thereof.
Page 24
61
IV. MAINTENANCE OF THE DATABASE. LICENSEE acknowledges that IXC must from time
to time perform periodic maintenance of the Database which may result in a
temporary shutdown of the Database and, during such times, IXC may suspend
entry of new orders to the Database. IXC agrees to provide LICENSEE with
as much advance notice as is reasonably possible of any such planned or
scheduled maintenance.
V. REVISIONS, ADDITIONS AND MODIFICATIONS. IXC may from time to time provide
LICENSEE with revisions of the Software. LICENSEE shall accept such
revisions, provided that if the revisions change existing procedures or
file formats for order entry, response files and call detail records
("CDRs"), IXC will provide LICENSEE with at least 30 days' prior written
notice of such revisions, and shall instruct LICENSEE, without charge, in
the installation and use of the revisions.
VI. ADDITIONAL OBLIGATIONS OF IXC.
A. FILE PRIVACY. IXC will take all commercially reasonable action
to protect LICENSEE's files and data from being accessed by any
third parties other than those third parties, if any, that may
have been authorized by LICENSEE to access such files and data.
B. FILE SECURITY. IXC will archive for a reasonable period of time,
all of LICENSEE's CDR data and will provide a copy of the most
recent data to LICENSEE at such times that invoices are
generated under the TSA. Nonetheless, IXC cannot guarantee that
IXC's files and data will not be lost or altered and, therefore,
LICENSEE hereby agrees to be solely responsible for maintaining
a procedure external to the Database for maintaining and
archiving all of its CDR data.
VII. ADDITIONAL OBLIGATIONS OF LICENSEE.
A. COMMUNICATION COSTS. LICENSEE shall be responsible for all
communication costs from LICENSEE's facility to the designated
Database server location, including, without limitation, all
equipment and telephone costs and any connection charges
thereto.
B. LETTERS OF AUTHORIZATION. LICENSEE acknowledges and agrees that
certain of the services available on the Database require
executed end-user Letters of Authorization/Agency ("LOAs").
LICENSEE shall maintain a file of all requisite LOAs and supply
photocopies of such LOAs to IXC within five (5) business days of
IXC's request, in accordance with the directions provided to
LICENSEE at such time.
C. AUTHORIZED USERS. LICENSEE shall maintain and provide to IXC,
within five (5) business days of its receipt of written notice
from IXC requesting such information, a list of all persons
authorized by LICENSEE to use the Software. All such persons
shall be employees of LICENSEE and LICENSEE shall take all
action necessary to ensure that such users do not (i) violate
any of the terms and conditions of this Agreement, or (ii)
access any files or data for licensees other than LICENSEE.
VIII. TRADEMARK RIGHTS. IXC has adopted and owns certain trademarks and service
marks used in identifying and marketing IXC technology, products and
services including, but not limited to the marks "IXC" and "IXC On-Line"
(collectively, the "Trademarks"). LICENSEE recognizes and concedes for all
purposes that any trademarks, logos or trade names affixed by IXC to IXC
technology, products and services, whether or not registered, constitute
the exclusive property of IXC and cannot be used by LICENSEE, nor shall
LICENSEE use any confusingly similar ▇▇▇▇, logo or trade name.
IX. PROPRIETARY RIGHTS; CONFIDENTIAL INFORMATION. Full copyright and title to
the Software shall at all times remain with IXC. Customer agrees to (i)
maintain in confidence any confidential information of IXC obtained by
Customer during the term of this Agreement, and (ii) refrain from
disclosing confidential information of IXC to anyone until that
information shall be in the public domain.
X. NO WARRANTY; LIMITATION OF LIABILITY. IXC EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES
OR CONDITIONS OF TITLE, NONINFRINGEMENT, FITNESS OR SUITABILITY FOR ANY
PARTICULAR PURPOSE. LICENSEE ACKNOWLEDGES AND AGREES THAT IXC'S MAXIMUM
AGGREGATE LIABILITY TO LICENSEE UNDER THIS AGREEMENT SHALL IN NO EVENT
EXCEED $25,000.00.
XI. WARRANTY OF AUTHORITY. Each of the individuals signing this Agreement on
behalf of a party hereto warrants and represents that such individual is
duly authorized and empowered to enter into this Agreement and bind such
party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
IXC EXCEL TELECOMMUNICATIONS, INC.
By: By:
-------------------------------- -------------------------------------
Title: Title:
----------------------------- ----------------------------------
Page 25
62
SCHEDULE 1
The following constitutes the minimum recommended requirements for IXC OnLine.
Based on the work functions used and volumes of work, other configurations may
also be supported.
HARDWARE FOR PC PLATFORM
[ ] Processor: Intel 486/66
[ ] At least 16 MB RAM for NT 3.51; 32 MB RAM for NT 4.0, Win95
[ ] High Density (1.44 MB) 3.5" floppy disk drive
[ ] Hard Disk with a minimum of 1 GB of storage (driven by CDR volumes)
[ ] SCSI Controller preferred to IDE (but not mandatory)
[ ] 101 Keyboard
[ ] Mouse (at least 2 button)
[ ] Network cards that are compatible with Windows NT (if connected to LAN)
CD-ROM
[ ] Double speed or faster; supported by Windows NT (for billing via CD-ROM)
VIDEO CARD AND MONITOR
[ ] SVGA, 800 x 600 resolution screen (1024 x 768 resolution is acceptable as
well, but the screen will appear smaller.)
[ ] 15" Color Monitor, 0.28" dot pitch
SOFTWARE AND OPERATING SYSTEM
[ ] Windows NT Workstation (version 3.51 or 4.0) or Windows 95
MISCELLANEOUS SOFTWARE
[ ] Virus checking programs (NT and Win 95 compatible)
[ ] Any relational database that can read .DBF (database) files so that order
status can be tracked (Examples of programs that read these files: FoxPro,
Paradox, Oracle, Excel, Approach, Access.)
SECURITY
[ ] IXC OnLine will scan for viruses as files are transferred to the system. As
such, only ASCII file uploads will be accepted. Files suspected of
containing a virus will not be processed by IXC OnLine, and the user will be
notified of the problem.
INTERACTIVE INTERFACE REQUIREMENTS
If the interface with IXC OnLine is dial-up, the requirements (in addition to
the "Common Requirements" stated above) are as follows:
[ ] ▇▇▇▇▇ compatible modem at 28.8 kbps (async)
[ ] For batch ASCII file transfer, Procomm Plus or a comparable communication
transfer software (must support X-modem and Z-modem protocols) is
recommended.
USERS WHO WILL ENTER ORDERS INTERACTIVELY NEED NOT PURCHASE THIS SOFTWARE.
[ ] Sufficient hard disk storage to receive CDR files; 1 Gig + recommended.
(Based on your specific volumes.)
[ ] Windows NT Remote Access Service - native to Windows NT (for interactive
use)
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If the physical interface with IXC OnLine is via a DEDICATED LINE, then the
requirements, in addition to the "Common Requirements" stated above, are as
follows:
[ ] 56 / 64 kbps line (DS-0) from customer site to IXC determined location (to
be confirmed based on IXC's WAN configuration)
[ ] CSU/DSU for line termination (to be confirmed based on IXC's WAN
configuration) - coordinate with IXC MIS department
[ ] Router connection or Eicon card
DATABASE CONFIGURATION
Many of the preparations required for the establishment of your database
must be performed by IXC. After receiving a fully executed contract,
your Account Manager will require your assistance in completing some of
these tasks, such as your Customer Profile and Calling Card Setup.
ACCESS TO IXC ONLINE
Once you have met all of the hardware and software requirements, you
will be given your assigned User ID's and passwords, as well as the
software that will allow you to access IXC OnLine.
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TAXES ON TELECOMMUNICATIONS SERVICES - Contact IXC's Tax Department at
▇▇▇-▇▇▇-▇▇▇▇ for assistance in completing this form
Please check one of the following:
______ Telecommunications services purchased from Supplier are for resale
purposes in the normal course of our business (or are subject to other
tax exemptions). These services are exempt from federal, state and local
taxes.
IF CHECKED, COMPLETE SECTION 1 & SECTION 2 BELOW FOR THE APPLICABLE
STATES WHERE SERVICE IS PROVIDED.
______ Telecommunications services purchased from Supplier are not for resale
purposes, but are purchased for our own use. These services are not
subject to other exemptions.
IF CHECKED, SIGN HERE: ______________________________ DATE:____________________
SECTION 1. CERTIFICATE OF EXEMPTION FROM FEDERAL EXCISE TAXES ON COMMUNICATIONS
SERVICES AND FACILITIES
The undersigned hereby certifies that the service furnished by Supplier is
exempt from the Federal Excise Tax on Communications and Facilities imposed by
Internal Revenue Code (IRC) Section 4251 because the undersigned is exempt under
IRC Section 4253 for such reason as marked below (check one). The undersigned
agrees to notify Supplier in writing when the claimed status no longer applies.
____ A nonprofit hospital referred to in IRC Section 170 (b)(1)(A)(ii) which
is exempt from income tax under Section 501 (a).
____ A nonprofit educational organization described in IRC Section (170)
(b)(1)(A)(ii) which is exempt from income tax under Section 501 (a).
____ A School which is operated as an activity of an organization described
in IRC Section 501 (C)(3) which is exempt from income tax under Section
505(a), and operates as described in IRC Section 4253 (j).
____ The U.S. government, government of a State, political subdivision of a
state of the District of Columbia.
____ The American Red Cross or an international organization described in
Internal Revenue Code Sections 7701 (a) (18) and 4253 (c).
____ A news service company of the type referred to in Internal Revenue Code
Section 4253 (b).
____ Diplomatic, consular or other officers of foreign governments
temporarily residing in the United States who are nationals of the
foreign country on a diplomatic mission.
____ The service will be used exclusively in the rendering of a
communications services upon which tax is imposed by IRC Section 4251.
It is understood that no tax will be collected by Supplier on charges
for said service and that it will be the responsibility of the
undersigned to collect such tax as may be due from its customers.
____ The service, which is defined in Section 4252 (b)(2), is for use by a
common carrier, telephone or telegraph company, or radio broadcasting
station or network in the conduct of its business as such.
FOR THIS CERTIFICATE TO BE VALID YOU MUST CHECK ONE OF THE ABOVE BOXES, SIGN AND
DATE THE CERTIFICATE AND PROVIDE AN EFFECTIVE DATE. ANY MODIFICATIONS TO THE
ABOVE WILL RENDER THE CERTIFICATE NULL AND VOID.
THE EXEMPT STATUS OF THE UNDERSIGNED IS EFFECTIVE AS OF _______________________.
Customer: Excel Telecommunications, Inc. FEDERAL TAX I.D. __________________
I swear under penalty of fines, imprisonment, or both, together with cost of
prosecution that the statement contained herein are true to the best of my
knowledge.
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Signature Title Date
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