EXHIBIT 10.53
***PORTIONS OF THIS EXHIBIT MARKED BY BRACKETS ("[_____]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
TELECOMMUNICATIONS SYSTEM AGREEMENT
THIS TELECOMMUNICATIONS SYSTEM AGREEMENT ("AGREEMENT"), made and entered
into this 26th day of January, 1995, by and between Interstate FiberNet, a
Georgia General Partnership (hereinafter referred to as "IFN"), having an office
at 000 Xxxxx Xxxxxx, Xxxx Xxxxx, XX 00000 and Sprint Communications Company
L.P., a Delaware Limited Partnership, having an office at 000 Xxxx 000xx Xxxxxx,
Xxxxxx Xxxx, XX 00000 ("Sprint", which expression shall include its successors
and permitted assigns), IFN and Sprint being collectively referred to herein as
the "Parties".
WHEREAS Sprint and Radians Telecommunications, Inc. entered into a
Telecommunication System Agreement dated October 20, 1993 which was assigned to
IFN and Amended on July 27, 1994; and
WHEREAS Sprint and IFN have agreed to substantially change the content of
the original Telecommunication System Agreement dated October 20, 1993, to the
extent that this Agreement will supersede and amend in its entirety the original
Telecommunication System Agreement dated October 20, 1993 and all associated
Amendments; and
WHEREAS, IFN will lease to Sprint [______________________] dark fibers on
the portion of the route from [_______________________________________________];
and [_________] dark fibers [__________________________________________________
_________________________] (collectively "Sprint Fibers"); and
WHEREAS, Sprint has agreed to accept the leased fibers in accordance with
the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained, the Parties mutually agree as follows:
Article 1. SCOPE OF AGREEMENT
1.1 IFN shall design, engineer, construct or cause to be constructed,
facilities and acquire appropriate interests in real property or other rights,
all as may be required to provide, operate, and maintain a fiber optics
transmission system (the "System") between Sprint's locations in [____________]
and [___________] ("Route"), as more fully defined in Exhibit A-1, Preliminary
System Route Diagram. The System will be constructed [________________________
__________________________________________________________________], to a point
near [__________]. From this point on the Route to [____________], the [_____]
will be [_____]. All of the Sprint Fibers will be [____________________________
__________________________________________________________________________
________________________]. All fiber cable shall contain a minimum of [_
________________________________________________________]. IFN has acquired or
shall acquire appropriate interests in real property or other rights, all as are
or may be required to provide a physical route for the installation and
operation of the System. IFN's construction and maintenance obligations shall be
performed in accordance with
PAGE 1
industry standards and the following Exhibits attached hereto, which by this
reference are incorporated herein.
Exhibit A-1 Preliminary System Route Diagram
Exhibit A-2 Final System Route Diagram (to be provided by IFN no later
than [______________], and subject to Sprint's approval)
Exhibit A-3 Cable Vendor List
Exhibit B Optical Fiber Cable Specification for [_________________
__________________].
Exhibit C Outside Plant and Cable Splicing Specifications
Exhibit D [_________________________] Criteria and Maintenance
Specifications
Exhibit E Leased Fiber Optic Specifications
Exhibit F [___________________________________________]
Telecommunications
Exhibit G Nondisclosure Agreements
Exhibit H Telecommunications System Maintenance Agreement
Exhibit I Facilities and Services Agreement
Exhibit J Specifications for Maintenance of Fiber Regenerator Sites
1.2 Sprint shall provide IFN with a list of fiber optic cable vendors,
which list will include the following: at least two vendors for [________], and
three vendors of in-ground buried cable (a copy of which is attached hereto as
Exhibit A-3), from which list IFN shall select its cable vendors. Sprint will
have the right to participate in such selection, with the final vendor
selections being made at IFN's sole discretion. All engineering documentation
and drawings shall be submitted to Sprint prior to construction and such
documents and drawings shall require Sprint's prior written approval, which
shall not be unreasonably withheld or delayed. Sprint shall make its best
efforts to provide such approval within thirty (30) days of receipt of said
documents and drawings. IFN agrees to engineer the System in accordance with
Exhibits A through F. Changes to engineering plans must be approved by Sprint in
writing.
1.3 IFN shall maintain and update on a daily basis as-built drawings
during the construction. Sprint shall be provided access at all times to such
as-built drawings for the purpose of data verification and accuracy.
1.4 IFN shall use the [_____________________] to cross all navigable
waters
PAGE 2
along the buried cable portion of the Route except for the crossings at the
following rivers: [___________________], and the [___]. IFN shall cross these
rivers pursuant to specifications set forth in Exhibit C.
1.5 During the construction, Sprint has the right, but not the obligation,
to have on-site inspectors monitor construction activity. In addition, the
Parties shall conduct periodic program review meetings throughout the
construction period for the purpose of determining program status, and
identifying and resolving problem areas. These meetings shall be conducted at
mutually agreeable intervals. Any desired modifications to the approved
engineering plans and drawings (referenced in 1.2) shall require Sprint's prior
written approval which shall not be unreasonably withheld or delayed.
1.6 IFN shall provide, at its sole cost, facilities, [____________________
_________________________], site access and outdoor security and lighting and
all other necessary and normal facility requirements at all IFN Sites
substantially as set forth in Exhibit D, but in no event less than the current
prevailing industry standards for like facilities. IFN shall maintain the IFN
Sites substantially as set forth in Exhibit J, but in no event less than the
current prevailing industry standards for like facilities.
1.7 Construction and Acceptance of the Sprint Fibers, as defined in
Article 5, may be in segments as set forth and defined as follows: "[___________
_______________________________________________________________________];
"System Segment - [___________________]" is that portion of the Route between
and including the Sprint Site at [____________] and the Sprint switch site in
[_________]; "System Segment - [_____________________]" is that portion of the
Route between and including the Sprint Sites at [____________] and [_________,
__]; and "Interim System Segment - [___________________]" is the that portion of
the Route between and including the Sprint Site at [____________] and the Sprint
switch site in [_________] that is temporarily provided to Sprint on existing
IFN fibers.
a) IFN shall complete construction of the System and perform any acts
required by IFN to be performed for Sprint to Accept the Sprint Fibers, as
set forth in Article 5, no later than [_________]. If delivery of Sprint
Fibers does not occur on or before this date or if after delivery of the
Sprint Fibers, Sprint notifies IFN of non-Acceptance, IFN shall pay to
Sprint liquidated damages in the amounts as set forth below until the
Sprint Fibers are Accepted by Sprint as set forth in Article 5.1. If the
Sprint Fibers are not Accepted by [_________], Sprint shall maintain the
right to continue using the Accepted System Segment(s) as set forth above
and specified below, at no cost or expense to Sprint until the end of a
ninety (90) day period or until Acceptance of the Sprint Fibers, whichever
occurs first. Should Acceptance of the Sprint Fibers not occur within this
time frame, and Sprint has not terminated the Agreement or cured the event
of default as provided for in Article 12, Sprint shall be allowed to
continue using the Accepted System Segment(s) specified above, at the
monthly recurring rates specified hereinafter for each such Accepted System
Segment for an additional ninety (90) days or until earlier Acceptance of
the Sprint Fibers. Should Acceptance of the Sprint Fibers not occur within
this one hundred eighty (180) day time frame, and Sprint has not terminated
the Agreement or cured the
PAGE 3
event of default as contemplated in Article 12, IFN's liability for the
liquidated damages set forth below shall terminate and Sprint shall be
allowed to continue using such Accepted System Segment(s) and Sprint and
IFN will negotiate a reasonable lease payment for the Accepted System
Segment(s) or portions thereof (as required by Sprint). Said lease payment
shall be the lesser of IFN's lowest rate offered for similar fiber or the
then current market rate.
b) IFN shall complete construction of the [______] Extension and perform
any acts required by IFN to be performed for Sprint to Accept the Sprint
Fibers in System Segment - [________] Extension, as set forth in Article 5,
on or before [_________________]. Commencing upon Acceptance thereof,
Sprint agrees to pay the lease amount for the [_______] Extension as set
forth in Article 4.1. If delivery of Sprint Fibers for the [______]
Extension does not occur on or before this date or if after delivery of the
Sprint Fibers for the [_______] Extension, Sprint notifies IFN of non-
Acceptance, IFN shall pay to Sprint liquidated damages in the amount of
[______________________________] per day until the System Segment - [_____]
Extension is Accepted by Sprint as set forth in Article 5.1.
c) IFN shall provide [_____________] fibers for the Interim System Segment
- [________] to [____________], and any acts required by IFN to be
performed for Sprint to Accept the Interim System Segment - [_________] to
[___________] shall be completed on or before [_________________]. Sprint
acknowledges that this Interim System Segment-[________________________] is
a part of IFN's existing network and is on single mode non-dispersion
shifted fiber and agrees to waive the requirements in the Agreement and
Exhibits which are based upon use of dispersion shifted fibers instead of
single mode fibers for this Interim System Segment -[____________________].
Notwithstanding the aforementioned wavier, IFN warrants that the Interim
System Segment -[_____________________] will meet all performance measures
as required in the Exhibits (e.g., Bit Error Rate Performance) of the
Agreement, provided that such performance measures do not require
[___________________________]. In consideration for this Interim System
Segment -[________________________], if delivered on or before
[_________________], Sprint agrees to pay on [_______________] a one time
fee of [_________________________________________]. In addition, beginning
on [________________], Sprint shall pay a recurring fee of [______________
__________________________] per month for the use thereof, pursuant to the
conditions set forth In Article 4.1. Such recurring fee will cease upon
Acceptance of the Sprint Fibers or on [_____________], whichever occurs
first. If delivery of Sprint Fibers for the Interim System Segment -
[_____________________] does not occur on or before this date or if after
delivery of the Sprint Fibers, Sprint notifies IFN of non-Acceptance of the
interim System Segment - [___________________], IFN shall pay to Sprint
liquidated damages in the amount of [____________________________________
______] per day until the interim System Segment-[______________________]
is Accepted by Sprint as set forth in Article 5.1. In addition, the one
time fee of [_____________________________________________________________]
will be reduced by [__________________________________________] per day
from [_______________] through [_________________________________________
______________________] per day from [_________________] through [________
________] and [_______________________________________________] per day
from [________________], until Acceptance of the Interim System Segment -
[______________________].
PAGE 4
d) Construction of [_________________] fibers for the System Segment -
[______________________ and any acts required by IFN to be performed for
Sprint to Accept the System Segment- [_______________________], shall be
completed by IFN on or before [________________]. Sprint agrees to pay
commencing on [________________________________________________________]
per month pursuant to the conditions set forth in Article 4.1. Such payment
will cease upon Acceptance of the Sprint Fibers or [___________], whichever
occurs first. If delivery of Sprint Fibers for the System Segment -
[_______________________] does not occur on or before this date or if after
delivery of the Sprint Fibers, Sprint notifies IFN of non-Acceptance of the
System Segment - [_______________________], IFN shall pay to Sprint
liquidated damages in the amount of [_____________________________] per day
until the System Segment - [_______________________] is Accepted by Sprint
as set forth in Article 5.1.
e) Construction of [__________________] fibers for the System Segment -
[____________________] and any acts required by IFN to be performed for
Sprint to Accept the System Segment - [_____________________], shall be
completed by IFN on or before [______________], with the exception of the
fiber from the IFN [________] regen site in [___________], to the Sprint
Switch Site at [____________________________], which shall be completed by
IFN on or before [___________]. If delivery of Sprint Fibers for the System
Segment - [____________________] does not occur on or before the dates
described above or if after delivery of the Sprint Fibers, Sprint notifies
IFN of non-Acceptance of the System Segment - [____________________] IFN
shall pay to Sprint liquidated damages in the amount of
[_____________________________] per day until the System Segment -
[____________________] is Accepted by Sprint as set forth in Article 5.1.
f) Upon Acceptance of the Sprint Fibers by Sprint, IFN shall allow Sprint
continued use of the Interim System Segment - [______________________],
without cost to Sprint, to allow reasonable time to transfer traffic from
the Interim System Segment - [____________________] to the Accepted System.
In addition, IFN shall reasonably cooperate with such transfer.
g) Each deadline for completion as set forth above shall be extended for
a period not to exceed thirty (30) days to the extent such delays are due
to causes beyond the control and without the fault of IFN, including Acts
of God, fires, floods, or inability to obtain materials; provided, however,
that the thirty (30) day extension of time for completion and Acceptance
shall be granted to IFN only after delivery of written notification to
Sprint of such delays. Notice must be delivered within fifteen (15) days
after the end of the month in which the delay occurred.
h) As a result of Accepting the System Segments of the Sprint Fibers as
set forth above, the Maintenance Agreement providing for the maintenance of
the System (Telecommunications System Maintenance Agreement, Exhibit H of
the Agreement) shall be enforced with the following exceptions until
Acceptance of the Sprint Fibers: i) when Sprint Accepts System Segment -
[_______] Extension and Interim System Segment - [_____________________],
Sprint will waive the
PAGE 5
Routine Maintenance charges to IFN. ii) when Sprint Accepts System Segment
- [_________________________],Sprint will adjust the charge to IFN for
Routine Maintenance to [_______________________________________] per month,
for which Sprint's obligation as set forth in Exhibit H is limited to
Routine and Demand Maintenance on the Accepted System Segment - [________
_____________] and Accepted System Segment - [___________________].
i) Sprint will waive the requirement for the Letter of Credit Agreement
as set forth in Article 5.1 until Acceptance of the Sprint Fibers or June
1, 1995, whichever occurs first. At IFN's option, IFN may substitute a
Letter of Guarantee in a form acceptable to Sprint which fulfills the
requirements set forth in Article 5.1, issued by SCANA Corporation
("SCANA") for sixty-six and two third's percent (66 2/3's %) of the
obligation and ITC Holding Company, Inc. ("ITC") for thirty-three and one
third percent (33 1/3 %) of the obligation, upon the condition that SCANA
and ITC maintain, at a minimum, substantially the same financial condition
as represented in the Financial Statements attached as Exhibit B to the
Assignment, executed on July 27, 1994.
1.8 Sprint shall, subject to Sprint's sole discretion and IFN entering
into and maintaining in good standing Sprint's Facilities and Services Agreement
attached hereto as Exhibit I, provide to IFN the use of, and collocation in,
environmentally controlled floor space and DC power at Sprint's POP sites in
[____________], [____________], and [____________],and the Sprint switch site in
[____________].
1.9 Upon completion of the System, IFN shall lease to Sprint [_________
__________] dark fibers on the portion of the Route from [______________] to
Sprint's switch site in [_____________]; and [________________________] dark
fibers from Sprint's POP site located on [_____________], in [__________] to
Sprints switch site in [_________ __________________].
1.10 IFN hereby grants Sprint access to the Sprint Fibers to exercise any
indicia of ownership, including, but not limited to, drop and insert
capabilities, upgrade capacity and replacement of the Sprint Electronics. Such
replacement of the Sprint Electronics will not result in a modification of the
payment obligations of Sprint to IFN.
1.11 The Demarcation Point between IFN and Sprint shall be the [__________
___________________] or the [_____________________________________], located
within IFN's Site or Sprint's Site.
ARTICLE 2. DEFINITIONS
Unless otherwise defined herein, the terms used in this Agreement shall
have their normal or customary meanings. In addition, for the purpose of this
Agreement, the following terms shall have the meanings set forth:
POP Point of Presence, the point of Interface between the
interexchange network and the local network.
[_____] [____________________________]
PAGE 6
Bona Fide Offer An offer to give valuable consideration, made in good
faith.
Regenerator Site in which incoming signals are regenerated and
retransmitted on an outgoing circuit.
Sprint Electronics The fiber optic telecommunications equipment owned and
used by Sprint to facilitate the transmission of
communications over the Sprint Fibers.
Sprint Fibers [________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
____________________________].
IFN Sites All POP, Regenerator, or other facilities, except Sprint
Sites, where IFN Electronics are housed.
IFN Fibers All non-Sprint Fibers contained within a fiber optic
cable installed by IFN between [_______________________
_______________________________________________________
______________________________] and non-Sprint Fibers
contained within a fiber optic cable installed by IFN
between Sprint's [_____________________________________
_______________________________________________________
____________].
Sprint Sites The Sprint POPs located at [___________________________
_______________________________________________________
_______________________________________________________
__________________________________].
IFN Electronics The fiber optic telecommunications equipment used to
facilitate the transmission of [______________] over the
fiber optic cable owned by IFN hereunder and not
including the Sprint Electronics.
Right-of-Way (ROW) Easement or right to use real property owned by
railroads, individual property owners, or other entities.
System The fiber optic telecommunications network constructed by
IFN hereunder, including, but not limited to, all fiber
cables, environmental systems, the Right-of-Way, all
Sites and facilities.
Prime The Prime Rate as published in the Wall Street Journal.
PAGE 7
Entrance Facilities Telecommunications cable that may or may not have
electronic equipment for the purpose of transport of
telecommunication services from carrier to carrier or
from customer to carrier. Such telecommunications cable
may be provided from a local operation company or other
companies licensed to provide cable for
telecommunications.
ARTICLE 3. TERM/TERMINATION
The initial Term of this Agreement shall commence as of the date and year
first above written and shall continue for a period of eleven (11) years from
the date of Acceptance, as defined in Article 5. Thereafter, Sprint will have
[_______________] year options to extend the Term. Each option to extend the
Term shall be exerciseable by Sprint as set forth in Article 4.2.
Upon termination of this Agreement, both Parties will be provided access,
upon prior written notice, to the others' sites for removal of their equipment
ARTICLE 4. COMPENSATION
4.1 Lease of Fiber Dark
-------------------
During the Term Of this Agreement, Sprint shall pay [___________________
____________________________________________] per month to IFN for the lease of
[__________________] Sprint Fibers, and [____] per month for lease of the
[_________] Extension for a total of [______] per month, beginning thirty (30)
days after Acceptance of the Sprint Fibers, as defined in Article 5, and monthly
thereafter for the term of the Agreement, including all extensions. Except as
provided in 5.2, there shall be no payments by Sprint during the construction
phase. Except as expressly otherwise provided herein, both Sprint's and IFN's
efforts shall be carried out at each company's sole cost.
Sprint shall send all payments payable hereunder, via wire transfer, to:
ITC Holding Company
Bank ABA# 000000000
Account #707788
First National Bank
00xx Xxxxxx
Xxxx Xxxxx, XX 00000
Any amounts not paid by Sprint within ten (10) days after receipt of
written notice from IFN shall be subject to a late payment charge calculated
from the invoice due date to the date paid, with interest calculated at Prime
plus 2%.
PAGE 8
IFN represents and warrants to Sprint that the prices charged to Sprint are
the lowest prices charged by IFN for dark fiber leases on this System between
[____________________________].
4.2 Options for Extension of Dark Fiber Lease
-----------------------------------------
Sprint is granted [_______________] year options for renewal of this Dark
Fiber Lease upon the following terms and conditions:
Sprint shall provide at least twelve (12) months advance written notice to
IFN of its intent to exercise an option to renew.
At the beginning of the third and fourth option periods (specifically, the
date when Sprint must provide written notice to IFN of its intent to exercise
its option to renew), if IFN is unable to provide to Sprint use of Sprint Fibers
which will meet the performance specifications attached hereto for 20% or more
of the Route, then the Parties agree to negotiate a remedy (e.g., IFN's
replacement of the defective portion of the Route with a financial contribution
from Sprint).
Should Sprint elect to exercise any of its options to renew, the lease
price per month for the Sprint Fibers for the extended term will be as follows:
First Option [______] per month
Second Option [______] per month
Third Option [______] per month
Fourth Option [______] per month
The lease price to renew the [_____] Extension shall be [_________________].
4.3 Others Payments
---------------
Sprint shall pay to IFN the sum of [________] payable as follows:
[________] upon Acceptance of the System Segment - [______________________] and
[______] upon Acceptance of the System Segment - [___________________]. Payment
shall be due and payable by wire transfer within five (5) business days of each
Acceptance.
ARTICLE 5. ACCEPTANCE
5.1 IFN shall perform testing on the System to determine the performance
level of the System after installation is complete. Sprint shall have the right
to have technicians present when testing is performed. IFN shall provide Sprint
with a copy of the test results. Based on Sprint's review of the test results,
the Parties shall mutually agree upon a list of items to be corrected. IFN will
correct any such items at IFN's sole cost. Sprint will provide a Notice of
Acceptance of the Sprint Fibers ("Acceptance"), in writing, when 1) the Parties
mutually agree the results are in conformance with the Exhibits and all product
specifications; 2) the Parties have executed a Maintenance Agreement
substantially in the form attached hereto as Exhibit H, providing, at a
PAGE 9
minimum, that Sprint provide routine maintenance (for the term of this Agreement
as extended) of all [__________] at a monthly rate of [_____] throughout the
initial term of the Maintenance Agreement; and 3) IFN has delivered to Sprint an
annually renewable Letter of Credit Agreement maintained for the duration of the
initial Term of this Agreement and thereafter as may be required by Sprint in
the amount of [________________] naming Sprint as the beneficiary from a
commercial bank on which the S & P bond rating is at or above A-. The Letter of
Credit Agreement shall provide that payment shall be made to Sprint upon
Sprint's presentment of a Certificate stating that IFN has defaulted on the
terms of this Agreement.
5.2 In the event non-service effecting deficiencies are identified, Sprint
shall conditionally Accept the Sprint Fibers and shall commence payment of the
fees as set forth in Article 4, subject to the conditions precedent for
Acceptance identified in 5.1 hereinabove.
IFN shall correct any such non-service effecting deficiencies within ninety
(90) days of Conditional Acceptance. Should any such identified deficiencies
remain uncorrected at the end of the 90 days, Sprint has the right to correct
such deficiencies, at IFN's expense. Sprint may offset the reimbursement owed
for correcting any deficiencies against the Fees to be paid hereunder.
5.3 The Parties expressly agree that Sprint may retest the Sprint Fibers,
using its own equipment, provided that such re-testing shall be at Sprint's sole
cost.
5.4 Nothing contained herein shall prevent Sprint from electing to Accept
the Sprint Fibers in segments, in which event, Sprint shall pay the rates as set
forth in Article 1.7.
ARTICLE 6. ENTRANCE FACILITIES
6.1 Each Party shall be responsible for providing/arranging for their own
Entrance Facilities at any location where either Party desires to terminate
traffic and hand it off to a local telephone company or alternative access
provider.
6.2 Should Sprint determine that it has excess facilities at its POP sites
along the Route, then Sprint agrees to make such excess facilities available to
IFN at a cost to be determined by Sprint.
ARTICLE 7. CONFIDENTIAL INFORMATION
IFN shall preserve, with the same degree of care accorded its own proprietary
information, but in no event less than reasonable care, this Agreement and
Sprint confidential or proprietary information obtained in leasing to Sprint the
Sprint Fibers, and shall execute the Nondisclosure Agreement attached as Exhibit
G. IFN shall not, without the prior written consent of Sprint, in any manner
advertise or publish the fact that Sprint has entered into this Agreement. It is
understood and agreed by Sprint that IFN has the right to disclose this
Agreement to governmental agencies having
PAGE 10
requisite governmental authority over the terms of this Agreement, provided that
IFN has given Sprint prior written notice of impending disclosure, and Sprint
has a reasonable opportunity to defend against such disclosure. Notwithstanding
the foregoing, it is understood and agreed by Sprint that IFN has the right to
disclose in writing all or part of the financial terms and conditions of this
Agreement to IFN's proposed financing sources, provided that Sprint has the
right to approve in advance such written disclosures (which approval will not be
unreasonably withheld), and further provided that Sprint's name shall not be
disclosed by IFN in such written disclosure statement without Sprint's express
written authorization. This Article 7 shall survive the termination or
expiration of the Agreement for a period of three (3) years.
ARTICLE 8. WARRANTIES
8.1 The Warranties and remedies set forth in this Agreement constitute the
only warranties and remedies with respect to this Agreement. Such Warranties are
in lieu of all other warranties, written or oral, statutory, express or implied,
including without limitation the Warranty of merchantability and the Warranty of
fitness for a particular purpose or use.
8.2 IFN represents and warrants to Sprint that it has the right to perform
as required hereunder and/or provide to Sprint the Sprint Fibers specified
herein, and that it is an entity, duly organized, validly existing and in good
standing under the laws of its origin, with all requisite power to enter into
and perform its obligations under this Agreement in accordance with its terms.
8.3 IFN represents and warrants to Sprint that all performance obligations
rendered by it hereunder shall be designed, produced, installed, furnished and
in all respects provided and maintained in conformance and compliance with
applicable federal, state and local laws, administrative and regulatory
requirements, and any other authorities having jurisdiction over the subject
matter of this Agreement that were in effect at the time of such design,
production, installation or furnishing, and it shall be responsible for applying
for, obtaining and maintaining all registrations and certifications which may be
required by such authorities.
8.4 Each Party represents that it is not aware of any facts that would
justify a complaint to the Federal Communications Commission or any state
regulatory authority concerning the prices, terms or conditions of the
transactions contemplated by this Agreement. The Parties also agree that in the
event a decision by a telecommunications regulatory authority at the federal,
state or local level necessitates modifications in this Agreement, the Parties
will negotiate in good faith to modify this Agreement in light of such decision.
8.5 IFN shall obtain all required regulatory authorizations, construction
permits, and appropriate agreements for installation and use of the System in
ducts, on poles, and/or in trenches on public or private property prior to
commencement of construction. It is expressly understood that the System may be
installed in or on ROW, the use of which is licensed or leased to IFN by others.
IFN shall acquire such
PAGE 11
ROW (including any necessary renewals or new licenses or leases) and obtain for
Sprint the right to use, maintain and access the System without interruption and
a guarantee of non disturbance during the Term of this Agreement and any
renewals thereof, including, but not limited to, sufficient ingress and egress
rights to all IFN Sites. IFN shall immediately inform Sprint in the event that
IFN is unable, after diligent and good faith efforts, to obtain renewals of
existing licenses or leases, new licenses or new leases, in order to enable
Sprint to protect its rights to use, maintain and access the System provided
hereunder during the Term of this Agreement.
8.6 IFN represents and warrants, to Sprint, that the System has been
installed in a workmanlike manner and in accordance with the Exhibits to this
Agreement. IFN shall further warrant that the System will operate in accordance
with Exhibit B and E, Technical Specifications for the term of the Agreement (as
extended). In the event that the System fails to perform in accordance with
Exhibit B and E, Technical Specifications, Sprint shall have the rights and
remedies as set forth in Article 12.4.
ARTICLE 9. INDEMNIFICATION
Each Party agrees to indemnify and hold harmless the other Party from
claims by persons not a party to this Agreement for personal injury or damage to
personal property from the negligent or willful actions of the indemnifying
Party's employees, agents, contractors, or representatives.
ARTICLE 10. LIABILITIES
Neither party shall be liable for any consequential, incidental, indirect,
special, or punitive damages, or for lost profits. This provision shall not
affect Sprint's right to liquidated damages as provided in Article 1 and Article
12.
ARTICLE 11. INSURANCE
If IFN is to perform work on Sprint premises. IFN shall obtain and maintain
in force [for the Term] Services Commercial General Liability Insurance,
including coverage for contractual liability and personal insurance, personal
injury or death, or property damage, in the amount not less than [_________] per
occurrence, insuring IFN and naming Sprint as an additional insured, and waiving
all of insurer's rights of subrogation against Sprint. Before commencing work on
Sprint premises, IFN will provide satisfactory evidence of the required
insurance and stating that no policy may be canceled or materially altered
without first giving Sprint thirty (30) days written notice.
ARTICLE 12. DEFAULT
12.1 IFN shall be in default of this Agreement if: 1) IFN becomes
insolvent, liquidates, is adjudicated as bankrupt, makes an assignment for the
benefit of
PAGE 12
creditors, invokes any provision of law for the relief of debtors, or initiates
any proceeding seeking protection from its creditors; or 2) IFN violates any
applicable laws or other legal requirements which results in a material impact
on the System or System Segments; or 3) IFN fails to acquire and/or maintain
necessary Right-of-Way for the uninterrupted use of the System as required under
this Agreement; 4) IFN fails to perform any material obligation, which is not
associated with the physical operation of the System, under the terms of this
Agreement; 5) IFN fails to perform any material obligation regarding the
physical operation of the System under the terms of this Agreement.
Such failure shall not be considered a default however if it is the result
of a material default on behalf of Sprint in its obligations under the
Maintenance Agreement.
12.2 In the event of a default as described in (3) and (5) of Article 12.1
above, Sprint has the right, without the duty, and solely at its discretion to
cure the default if IFN is not using best faith efforts to cure the same. In
such event, IFN hereby appoints Sprint as its authorized agent, with authority
to negotiate and obtain licenses, lease renewals, or rights-of-way to allow for
the completion of construction or to allow for Sprint's uninterrupted use of the
System. IFN shall reimburse Sprint for any costs associated with curing such
default at a rate of two times Sprint's direct cost for labor and services and
one and one half times Sprint's direct costs for materials and fees. Sprint may
offset such reimbursement against any fees due and owing hereunder by Sprint.
Sprint shall provide an itemized invoice to IFN for any amounts offset.
12.3 If any event of default continues for thirty (30) days after written
notice thereof, Sprint has the right, but not the duty, and solely at its
discretion to initiate any of the actions that follow:
a) To terminate the Agreement. As time is of the essence for the
completion of the System, termination shall be immediate and effective upon
notice. In such event, IFN hereby releases and discharges Sprint of and from any
and all claims, causes of action, damages or liabilities, known or unknown,
incurred by reason of or in any way growing out of the use of the System and
Route or related to this Agreement. IFN's liability for the liquidated damages
set forth in Section 1.7 shall cease upon termination of the Agreement.
b) To cure the event of default to the extent Sprint deems necessary to
allow for the continued use of the Sprint Fibers by Sprint or to complete
construction of the System for use by Sprint. In such event, IFN hereby appoints
Sprint as its authorized agent, with authority to negotiate and obtain licenses,
lease renewals, or rights-of-way to allow for the completion of construction or
to allow for Sprint's uninterrupted use of the Sprint Fibers. IFN shall
reimburse Sprint for any costs associated with curing such default at a rate of
two times Sprint's direct cost for labor and services and one and one half times
Sprint's direct costs for materials and fees. Sprint may offset such
reimbursement against any fees due and owing hereunder by Sprint. Sprint shall
provide an itemized invoice to IFN for any amounts offset.
PAGE 13
12.4 If any portion of the System experiences performance which fails the
material requirements as set forth in the Exhibits or in industry standards of
comparable systems with current and like technology, which results in an
interruption in Sprint's ability to use or a material degradation of the System,
then Sprint's obligation for payment here under shall immediately cease for the
duration of such interruption or degradation on a pro rata basis in one
sixteenth increments for each Sprint Fiber affected (one twenty fourth
increments for each Sprint Fiber affected on the Accepted System Segment -
[_____] Extension) until the same is cured, as demonstrated by IFN to the
reasonable satisfaction of Sprint. Notwithstanding any other provision of this
Agreement to the contrary, if Sprint exercises its remedy to cease payment of
its monthly obligation to IFN due to an alleged material default by IFN, then
IFN shall have the right to draw upon its Letter of Credit referenced in Article
5 hereof to satisfy IFN's monthly financial obligations related to the System,
provided that IFN may not reduce the available balance under the Letter of
Credit to an amount less than [__________] pursuant to this Article 12 without
the prior written consent of Sprint. Additionally, the amount available under
the Letter of Credit must be reinstated to the maximum amount required pursuant
to Article 5 hereof within twelve (12) months after the date IFN first makes any
draw under the Letter of Credit pursuant to this Article 12.
12.5 Sprint shall be in default of this Agreement if: 1) Sprint becomes
insolvent, liquidates, is adjudicated as bankrupt, makes an assignment for the
benefit of creditors, invokes any provision of law for the relief of debtors, or
initiates any proceeding seeking (including payment obligation) protection from
its creditors; or 2) Sprint fails to perform any material obligation under the
terms of this Agreement. If any such event of default continues for thirty (30)
days after written notice thereof, IFN has the right, but not the duty, solely
at its discretion to terminate this Agreement. Such termination shall be
immediate and effective upon notice. In such event, Sprint hereby releases and
discharges IFN of and from any and all claims, causes of action, damages or
liabilities, known or unknown, incurred by reason of or in any way growing out
of the use of the System and Route or related to this Agreement. It is not
intended that Sprint release IFN from claims relating to this Agreement such
that IFN caused or contributed to Sprint's material default hereunder.
ARTICLE 13. UTILITIES
13.1 IFN's responsibility for utilities at IFN's Sites
------------------------------------------------
IFN hereby agrees to pay any and all charges for utility services rendered
to any IFN Site along the Route. Such charges can include, but are not limited
to; electric power necessary for common alarms, interior and exterior lighting,
environmental systems (air-conditioning), Sprint Electronics, and IFN
Electronics; any water necessary for the operation of the site; any sewer
charges necessary for operation of the site; any trash/garbage fees assessed for
the IFN Sites.
13.2 Sprint's responsibility for utilities at Sprint Sites
-----------------------------------------------------
Sprint hereby agrees to pay any and all charges for utility services
rendered to
PAGE 14
Sprint Sites. Such charges can include, but are not limited to: electric power
necessary for common alarms, interior and exterior lighting, environmental
systems (air-conditioning), Sprint Electronics, and IFN Electronics; any water
necessary for the operation of the site; any sewer charges necessary for
operation of the site; any trash/garbage fees assessed for the Sprint POP site.
ARTICLE 14. TAXES
IFN shall be fully responsible for the payment of any and all ad valorem,
property, franchise, gross receipts, sales, use and other taxes directly
applicable to the leasing of the Sprint Fibers to Sprint and the maintenance
services it purchases pursuant to the Maintenance Agreement between the Parties
(except income taxes on the revenue of Sprint).
ARTICLE 15. ARBITRATION
15.1 Dispute Resolution. In the event of any dispute, controversy or
------------------
claim of any kind or nature arising under or in connection with this Agreement
or the provision of the Services by IFN that the Parties are unable to resolve
through informal discussions or negotiations, the Parties agree to submit such
dispute, controversy or claim to arbitration in accordance with the following
procedures:
(a) Either party may demand arbitration by giving the other party written
notice to such effect, which notice shall (i)describe, in reasonable
detail, the nature of the dispute, controversy or claim, and (ii)
name an arbitrator who is experienced in the subject matter of the
issue in dispute.
(b) Within thirty (30) days after the other party's receipt of such
demand, such other party shall name a second arbitrator who is
experienced in the subject matter of the issue in dispute.
(c) The two arbitrators so named shall promptly select a third arbitrator
who also is experienced in the subject matter of the issue in
dispute. The arbitration shall be heard by a panel of the three
arbitrators so chosen (the "Arbitration Panel"), and the resolution
of the dispute, controversy or claim shall be determined by a
majority vote of the Arbitration Panel. The Commercial Arbitration
Rules of the American Arbitration Association shall govern the
conduct of the arbitration.
(d) Sprint and IFN shall each bear 50% of all fees, costs and expenses of
the arbitration, and each party shall bear its own legal fees and
expenses, and costs of all experts and witnesses; provided, however,
that if the claim of either party is upheld by the Arbitration Panel
in all material respects, then the Arbitration Panel may apportion
between the Parties as the Arbitration Panel may deem equitable the
costs incurred by the prevailing party.
PAGE 15
(e) The party demanding arbitration shall request the Arbitration Panel
to (i) allow for the Parties to request reasonable discovery pursuant
to the rules then in effect under the Federal Rules of Civil
Procedure for a period not to exceed sixty (60) days prior to such
arbitration and (ii) require the testimony to be transcribed. No
findings of fact or opinions of law shall be required to be made by
the arbitrators.
(f) Any award rendered by the Arbitration Panel shall be final,
conclusive and binding upon the Parties and any judgment thereon may
be entered and enforced in any court of competent jurisdiction.
15.2 Exclusive Remedy. Other than any action necessary to enforce the
----------------
award of the Arbitration Panel, the Parties agree that the provisions of this
Article 15 are a complete defense to any suit, action or other proceeding
instituted in any court or before any administrative tribunal with respect to
any dispute, controversy or claim arising under or in connection with this
Agreement or the provisions of the Services by IFN. Nothing in this Article 15
prevents the Parties from exercising their rights to terminate this Agreement in
accordance with this Agreement.
ARTICLE 16. MISCELLANEOUS
16.1 Any work performed by either party on the premises of the other party
shall be performed while taking all necessary precautions to prevent the
occurrence of any injury to persons or property during the progress of such work
and shall adhere to Sprint security procedures, policies and operation.
16.2 Each party shall immediately notify the other party by telephone
(followed by written confirmation within twenty-four hours) of any product used
in providing services hereunder which fails to comply with any applicable safety
rules or standards of concerned governmental agencies (including the
Environmental Protection Agency), or which contains a defect which could create
or present a substantial risk to stored data or software, or which presents a
substantial risk to the public health or of injury to the public or to the
environment.
16.3 Except as specifically provided herein, this agreement does not
constitute either Party as the agent or legal representative of the other Party,
and does not create a partnership or joint venture between the Parties. Each
Party may engage in and possess other business ventures that are competitive
with the services under this Agreement. This Agreement is not intended to be an
exclusive Agreement for any services.
16.4 This Agreement, together with all Exhibits, shall constitute the
entire agreement and no negotiations or discussions prior to execution shall be
of any effect.
16.5 The invalidity in whole or in part of any provision shall not affect
the validity of any other provision.
PAGE 16
16.6 The right and remedies of the parties shall be cumulative and in
addition to any other rights and remedies provided by law or equity. A waiver of
a breach of any provision hereof shall not constitute a waiver of any other
breach. The laws of the state of Kansas shall govern this Agreement.
16.7 No subsequent agreement concerning the System shall be effective
unless made in writing and executed by authorized representatives of the
Parties.
16.8 Notices shall be in writing, mailed certified with return receipt
requested, effective upon receipt and sent to:
Sprint: Sprint Communications Company L.P.
000 Xxxx 000xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
ATTN.: Network Contracts and
Real Property Administration
Copy to: Sprint Communications Company L.P.
0000 Xxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
ATTN.: Law Department
Interstate Fibernet: Interstate Fibernet
000 Xxxxx Xxxxxx
X.X. Xxx 000
Xxxx Xxxxx,XX 00000
Attn.: Xxxxx Xxxxx
Copy to: Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxxxxxx
or to replacement addresses that may be later designated in writing.
16.9 Neither Party may assign this Agreement without the prior written
consent of the other Party which assignment shall not be unreasonably withheld,
except that Sprint may assign its rights and obligations hereunder to a legal
entity which is a successor, assign, subsidiary or affiliate of Sprint
Corporation without notice or consent, provided that such entity is of a
financial condition that will allow it to meet all obligations under this
agreement.
16.10 Sprint hereby consents to the assignment by IFN of the Agreement in
its entirety to an entity of which MPX Systems, Inc. ("MPX") and a corporation
that is, directly or indirectly, a wholly-owned subsidiary of ITC Holding
Company, Inc. ("ITC Holding") are owners holding a controlling interest, so long
as SCANA Corporation and ITC Holding continue to guarantee financing for such
assignee. For this purpose,
PROPRIETARY INFORMATION PAGE 17
"controlling interest" shall mean retention by MPX and such ITC Holding
subsidiary of at least fifty-one percent (51%) of the ownership interest in such
entity, and the ability to control the selection of management. This consent
shall terminate if such assignment does not occur on or before [______________].
ARTICLE 17. EQUIPMENT PURCHASE BY IFN
IFN shall purchase and deliver to Sprint, on or before December 31, 1994,
the equipment identified below including all right, title and interest thereto,
free and clear from any liens or encumbrances.
A. [_____________________________________________________
_____________________
_______________________________
__________
__________________
_________________________
_______________________________________
__________________________________
______________________________________]
B. [____________________________________
________________________________________________]
IFN shall ensure that all manufacturer's warranties are fully transferable
to Sprint.
ARTICLE 18. COUNTERPARTS
To facilitate execution, this Amendment may be executed in as many
counterparts as may be required, it shall not be necessary that the signature of
or on behalf of each party appears on each counterpart, but it shall be
sufficient that the signature of or on behalf of each party appears on one or
more of the counterparts. All counterparts shall collectively constitute a
single agreement. It shall not be necessary in any proof of the Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of or on behalf of all of the parties.
PAGE 18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year below written, but effective as of the day and year first set forth
above.
INTERSTATE FIBERNET, SPRINT COMMUNICATIONS COMPANY L.P.,
A GEORGIA GENERAL PARTNERSHIP A DELAWARE LIMITED PARTNERSHIP
----------------------------- ------------------------------------
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
-------------------------- --------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxx Xxxxx
Title: General Manager Title: Senior Vice President, Network
Date: 1/30/95 Date: 1/26/95
------------------------ -------------------------------
STATE OF Georgia
--------------------)
COUNTY OF Xxxxx ) ss
--------------------)
On this 30th day of January 1995, Xxxxx Xxxxx, General Manager, Interstate
Fibernet, a Georgia General Partnership executed the foregoing instrument. IN
TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year aforesaid
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Notary Public
STATE OF Missouri Notary Public, Xxxxx County, Georgia
---------------------)
COUNTY OF Xxxxxxx ) ss My Commission Expires March 23, 1998.
--------------------)
On this 26th day of January 1996, Xxxxxx Xxxxx, Senior Vice President,
Network Sprint Communications Company L.P., a Delaware Limited Partnership
executed the foregoing instrument. IN TESTIMONY WHEREOF, I have hereunto set my
hand and affixed my official seal the day and year aforesaid.
[SEAL APPEARS HERE] /s/ Xxxxx X. Xxxxxx
---------------------------------------
Notary Public
MPX SYSTEMS, ITC TRANSMISSION SYSTEMS, INC:
A SOUTH CAROLINA CORPORATION A DELAWARE CORPORATION
-------------------------------- ---------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxx Xxxxx
----------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxx Xxxxx
Title: Executive vice President Title: Vice President
AS GENERAL PARTNER FOR
INTERSTATE FIBERNET,
A GEORGIA GENERAL PARTNERSHIP
Date: 1/30/95 Date:__________________________________
--------------------------
STATE OF SC
------------------------)
COUNTY OF Lexington ) ss
-----------------------)
On this 31 day of January 1996, Xxxxxxx X. Xxxxxxxxx, Executive Vice
President, MPX Systems, a South Carolina Corporation executed the foregoing
instrument. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year aforesaid.
/s/ [SIGNATURE ILLEGIBLE]
---------------------------------------
Notary Public
STATE OF Georgia My Commission Expires 4/30/2002
------------------------)
COUNTY OF Xxxxx ) ss
-----------------------)
On 30th day January, 1996, Xxxxx Xxxxx, Vice President, ITC Transmission
Systems, Inc, a Delaware Corporation executed the foregoing instrument. IN
TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year aforesaid.
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Notary Public
Notary Public, Xxxxx County, Georgia
My Commission Expires March 23, 1998.
PAGE 19
***INFORMATION IN THIS EXHIBIT A-1 DIAGRAM HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***
Exhibit A-1
Preliminary System Route Diagram
[___________________]
EXHIBIT A-2
FINAL SYSTEM ROUTE DIAGRAM
[___________________]
(to be provided by IFN no later than January 27, 1995 and subject to Sprint's
approval)
[LOGO] Sprint 000 Xxxx 000xx Xxxxxx
X.X. Xxx 0000
Xxxxxx Xxxx XX 00000-0000
(000) 000-0000
April 5, 1995
Mr. Xxxxx Xxxxxx
Director of Operations
Gulf States FiberNet
000 Xxxx Xxxxx Xxxxxx
X.X. Xxx 000
Xxxx Xxxxx, XX 00000
Reference: [________________] Contract, Exhibit A-2
Dear Xx. Xxxxxx:
The proposal in your letter of March 30, 1995 is acceptable to us. As stated in
your letter, [_________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
___________________________________________________________].
Sincerely,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Contract Negotiator
cc. X.X.Xxxx
EXHIBIT A-3
CABLE VENDOR LIST
[___________________]
[__________________________________________________________________________
___________________________________________].
[____]
------
[_______]
[________]
[_______________]
[____]
------
[_______________]
[_______________]
***INFORMATION IN THIS EXHIBIT B (PAGES 1-25) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***
EXHIBIT B
--------------------------------------------------------------------------------
OPTICAL FIBER CABLE SPECIFICATION FOR
TABLE OF CONTENTS
Paragraph Page
--------- ----
1.0
2.0
3.0
4.0
5.0
6.0
7.0
8.0
9.0
10.0
11.0
12.0
1
***INFORMATION IN THIS EXHIBIT C (PAGES 1-9) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***
Exhibit C
OUTSIDE PLANT AND CABLE SPLICING SPECIFICATIONS
[___________________]
***INFORMATION IN THIS EXHIBIT D (PAGES 1-12) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***
EXHIBIT D
[__________________]
CRITERIA AND SPECIFICATION
[___________________]
***INFORMATION IN THIS EXHIBIT E (PAGES 1+2) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT E
Leased Fiber Optic Specifications
***INFORMATION IN THIS EXHIBIT F (PAGES 1-10) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***
EXHIBIT F
--------------------------------------------------------------------------------
[___________________________________________]
Telecommunications
EXHIBIT G
AGREEMENT FOR USE AND NON-DISCLOSURE
OF CONFIDENTIAL INFORMATION
THIS AGREEMENT, made effective as of the 26th day of January 1995, by and
between Sprint Communications Company L.P., a Delaware Limited Partnership
("Sprint"), having an office at 000 Xxxx 000xx Xxxxxx, Xxxxxx Xxxx, XX 00000,
and Interstate FiberNet, a Georgia General Partnership ("Carrier"), having an
office at 000 Xxxxx Xxxxxx, Xxxx Xxxxx, XX 00000, is to assure the protection
and preservation of the confidential and/or proprietary nature of information to
be disclosed or made available to each other in connection with an agreement
regarding telecommunications services contemplated by Carrier and Sprint ("the
Party(ies)").
WHEREAS, the Parties contemplate entering into business and/or technical
discussions relating to:
Telecommunications Services
NOW, THEREFORE, in reliance upon and in consideration of the following
undertakings, the Parties, for themselves, their subsidiaries and their
affiliates, agree as follows:
1. All information disclosed to the other Party shall be deemed to be
confidential and proprietary (hereinafter referred to as "Proprietary
Information") provided that written information is clearly marked in a
conspicuous place as confidential or proprietary, and verbal
information is immediately confirmed in writing as confidential or
proprietary.
2. Each Party agrees to use the Proprietary Information received from the
other Party only for the purpose stated above. No other rights, and
particularly licenses, to trademarks, inventions, copyrights, or
patents are implied or granted under this Agreement.
3. Proprietary Information supplied shall not be reproduced in any form
except as required to accomplish the intent of this Agreement.
4. The receiving Party shall provide the same care to avoid disclosure or
unauthorized use of the Proprietary Information as it provides to
protect its own proprietary information, but in any event at least
reasonable care. It is agreed that all Proprietary Information shall be
retained by the receiving Party in a secure place with access limited
to only such of the receiving Party's employees or agents who need to
know such information for purposes stated above.
5. All Proprietary Information, unless otherwise specified in writing,
shall remain the property of the disclosing Party, shall be used by the
receiving Party only for the purpose intended, and such Proprietary
Information, including all copies thereof, shall be returned to the
disclosing Party or destroyed after the receiving Party's need for it
has expired or upon request of the disclosing Party, or, in any event,
upon termination of this Agreement.
6. It is understood that the term "Proprietary Information" does not
include information which:
a) has been published or is now or may become in the public
domain through no fault of the receiving Party;
b) prior to disclosure hereunder is property within the
legitimate possession of the receiving Party;
c) subsequent to disclosure hereunder is lawfully received from
a third party having no obligation not to disclose;
d) is independently developed by the receiving Party through
parties who have not had, either directly or indirectly,
access to or knowledge of such Proprietary Information;
e) is transmitted to the receiving Party after the disclosing
Party has received written notice from the receiving Party
that it does not desire to receive further Proprietary
Information.
f) is required to be disclosed pursuant to court order or as
otherwise required by law, on the condition that reasonable
written notice of the requirements for such disclosure is
given to the disclosing party as soon as possible prior to
making any disclosure and the receiving party to such
requirements cooperates as the other may reasonably request in
resisting the disclosure or disclosing only under a protective
court order or other entity or agency.
7. Each Party agrees not to reveal this relationship with the other Party
to any third parties except as contemplated by Paragraph 4 of this
Agreement.
8. Damages, being difficult to ascertain in the event of violation of this
Agreement, the Parties agree that, without limiting any other rights
and remedies of each other, upon breech hereof, an injunction may be
sought by the non-breaching Party to protect its rights hereunder.
9. This Agreement shall continue in full force and effect so long as
either Party shall possess the Proprietary Information of the other
Party. This Agreement may be terminated at any time by mutual
agreement, or by either Party upon sixty (60) days written notice to
the other Party; provided that such unilateral termination of this
Agreement shall not relieve the recipient Party of its obligations
under this Agreement with respect to Proprietary Information exchanged
prior to the effective date of termination.
Sprint Communications Company L.P. Interstate FiberNet
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
----------------------------
Date: Date:
----------------------------- -----------------------------
EXHIBIT H
TELECOMMUNICATIONS SYSTEM MAINTENANCE AGREEMENT
[THIS EXHIBIT IS INCORPORATED BY REFERENCE TO AN EXECUTED VERSION OF
THAT CERTAIN TELECOMMUNICATIONS SYSTEM MAINTENANCE AGREEMENT, DATED AS OF
JANUARY 26, 1995, BETWEEN INTERSTATE FIBERNET AND SPRINT COMMUNICATIONS COMPANY
L.P., FILED AS EXHIBIT NO. 10.49 TO AMENDMENT NO. 1 TO THE COMPANY'S
REGISTRATION STATEMENT OF FORM S-4 (REGISTRATION NO. 333-31361). CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF SUCH EXHIBIT. THE EXECUTED VERSION
FILED AS EXHIBIT NO. 10.49 OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIAL
TREATMENT REQUEST.]
EXHIBIT I
SPRINT COMMUNICATIONS COMPANY FACILITIES
AND SERVICES AGREEMENT
[THIS EXHIBIT IS INCORPORATED BY REFERENCE TO AN EXECUTED
VERSION OF THAT CERTAIN SPRINT COMMUNICATIONS COMPANY FACILITIES AND SERVICES
AGREEMENT, DATED AS OF JANUARY 26, 1995, BETWEEN INTERSTATE FIBERNET AND SPRINT
COMMUNICATIONS COMPANY L.P., FILED AS EXHIBIT NO. 10.50 TO AMENDMENT NO. 1 TO
THE COMPANY'S REGISTRATION STATEMENT ON FORM S-4 (REGISTRATION NO. 333-31361).
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF SUCH EXHIBIT. THE
EXECUTED VERSION FILED AS EXHIBIT NO. 10.50 OMITS THE INFORMATION SUBJECT TO THE
CONFIDENTIAL TREATMENT REQUEST.]
***INFORMATION IN THIS EXHIBIT J (PAGES 1-7) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***
EXHIBIT J
SPECIFICATIONS FOR MAINTENANCE OF FIBER REGENERATOR SITES
[__________________]
