<PAGE> 1
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
(Mark One)
/X/ Quarterly report under Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended: June 30, 1998
/ / Transition report under Section 13 or 15(d) of the Exchange
Act
For the transition period from to
Commission file number: 333-7841
FIBERNET TELECOM GROUP, INC.
(Exact Name of Small Business Issuer as Specified in Its Charter)
Nevada 13-3859938
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
121 Erie Canal Drive, Suite A, Rochester, New York 14626
(Address of Principal Executive Offices)
716-225-0440
Issuer's Telephone Number, Including Area Code)
(Former Name, Former Address and Former fiscal Year,
if Changed Since Last Report)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
--- ---
APPLICABLE ONLY TO CORPORATE ISSUERS
The number of shares outstanding of each of issuer's classes of common
equity, as of August 11, 1998, was 16,000,000 shares of Common Stock, $.001 par
value.
Transitional Small Business Disclosure Format (check one):
Yes No X
--- ---
<PAGE> 2
PART I -- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
See attached.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
COMPANY OVERVIEW
FiberNet Telecom Group, Inc. (the "Company") is a holding company that conducts
substantially all of its business through its direct and indirect subsidiaries,
FiberNet Telecom, Inc., a wholly owned subsidiary, Local Fiber, LLC ("Local
Fiber") and FiberNet Equal Access, LLC ("Equal Access").
The Company has had no commercial operations to date. Since its inception, the
Company has engaged principally in organizational activities, including
developing a strategic operating plan, entering into contracts, hiring
personnel, and securing debt and equity commitments to fund its plan.
Accordingly, the Company has no relevant operating history upon which an
evaluation of its performance and prospects can be made. The Company is subject
to all of the business risks associated with a new enterprise, including, but
not limited to, risks of unforeseen capital requirements, failure of market
acceptance, failure to establish business relationships, and competitive
disadvantages as against larger and more established companies.
The Company has generated no revenues to date, and will not generate any
meaningful revenues until after the Company successfully completes the
development and installation of the Equal Access intra-building fiber optic
transmission networks as well as the installation of Local Fiber's local and
long distance switch. As of the end of the second quarter, Equal Access' initial
seven contracted buildings were in varying stages of construction with three of
those expected to be operational in the third quarter and the other four in the
fourth quarter 1998.
Local Fiber, the Company's CLEC subsidiary, will initially resell Bell
Atlantic-NYNEX service in Manhattan with its initial revenue beginning in the
third quarter. Local Fiber expects to have its switch and network operational by
the fourth quarter 1998 at which time its resale customers will be transferred
to Local Fiber's facilities.
LIQUIDITY AND CAPITAL RESOURCES
The Company has to date financed its development efforts through direct equity
investments from its shareholders. The Company has sustained losses for the
period for the three months ended June 30, 1998 of $487,958 and from August 10,
1994 (date of inception) to June 30, 1998 of $1,701,121. These operating losses
are due to the development of its telecommunications services businesses and the
Company anticipates that such losses will continue over the near term as it
executes its business plan. Cash used to fund losses during the three months
ended June 30, 1998 was approximately $500,000, and purchases of property and
equipment during the three months ended June 30, 1998 was $605,000. In addition,
the Company paid deposits totally $23,000 to secure its temporary sales office
in Manhattan, space in the Bell Atlantic Manhattan tandem, and deposit with Bell
Atlantic to begin resale.
The Company's planned operations will require significant capital to fund
equipment purchases, engineering costs, and installation. Local Fiber will spend
approximately $12 million over the next twelve months to purchase a local and
long distance switch, electronics equipment, DACS equipment, network control
center and monitoring equipment, fiber and copper cable, construction,
engineering, and installation. Equal Access has projected to complete
twenty-five buildings in the next twelve months and has budgeted approximately
$22 million in capital expenditures. The completion of these twenty-five
buildings is subject to the execution of additional contracts with building
owner/managers as well as securing additional financing commitments. The capital
will be used for the purchase and installation of transmission equipment, fiber
and copper cable, network engineering and the construction of network interface
equipment rooms in the basements of each building.
2
<PAGE> 3
Local Fiber and Equal Access have secured commitments for debt with a major
third party lender. Local Fiber has $9.9 million including capitalized interest
committed while Equal Access has $3.12 million including capitalized interest
committed for Phase I debt. Phase I will provide debt to cover implementation of
the Company's Premise Distribution System in the initial six buildings. An
additional $8.3 million will be reviewed for credit approval under a separate
credit facility in Phase II to complete up to an additional 30 buildings.
Conditions precedent to Phase II funding will be the successful implementation
of Phase I as contemplated in the Company's business plan.
The Company expects to accelerate its growth and expand to ten tier one markets
over the next five years which includes the deployment of switching and
transmission equipment as a CLEC through Local Fiber and the construction of up
to 370 intra-building fiber optic transmission networks under Equal Access. The
combination of debt and equity that the Company will have in place is expected
to satisfy cash requirements, under this expanded business plan, for the next
nine months of operation. However, if the Company's expansion occurs more
rapidly than currently anticipated or if operating results are below
expectations, the Company may require additional capital. The Company may decide
to raise additional capital before such time. The Company may secure additional
funding through the sale of public or private debt and/or equity securities.
There can be no assurance, however, that the Company will be successful in
raising sufficient additional capital on terms that would be acceptable.
The companies will experience a significant growth in employees over the next
twelve months as its business plans for Local Fiber and Equal Access begin to
develop into fully operating businesses. Projected employees will increase for
the current total of twelve to approximately forty with the majority of the
increase in sales, customer service and engineering and operations.
PART II -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGE IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. EXHIBITS
10.1 Telecommunications Services Agreement dated as of April 8,
1998 between Worldcom Network Services, Inc. and Local Fiber,
LLC
27.1 Financial Data Schedule
3
<PAGE> 4
SIGNATURES
In accordance with the requirements of the Exchange Act, the
registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
FIBERNET TELECOM GROUP, INC.
Date: August 13, 1998 By: /s/ John J. Marchaesi
-------------------------------
Name: John J. Marchaesi
Title: Sr. Vice President Finance
4
<PAGE> 5
FIBERNET TELECOM GROUP, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
CONSOLIDATED BALANCE SHEETS
AS OF JUNE 30, 1998 AND DECEMBER 31, 1997
UNAUDITED
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1998 1997
----------- -----------
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents $ 3,135,170 $ 5,146,327
Other current assets 38,659 3,954
----------- -----------
Total current assets 3,173,829 5,150,281
Plant and equipment, net 1,392,572 92,223
Deposits 196,904 2,837
Deferred charges 209,173 129,000
----------- -----------
TOTAL ASSETS $ 4,972,478 $ 5,374,341
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable $ 332,358 $ 490,125
Accounts payable - related party 715,231 240,000
Other accrued expenses 325,298 --
----------- -----------
Total current liabilities 1,372,887 730,125
----------- -----------
Minority interest 55,744 (1,142)
Stockholders' Equity
Common Stock, $0.001 par value, 50,000,000 shares
authorized, 15,000,000 and 16,000,000 shares issued and
outstanding at June 30, 1998 and December 31, 1997,
respectively
16,000 15,000
Series A Convertible Preferred Cumulative Stock, $0.001 par
value, 5,000,000 shares authorized, 1,000,000 shares issued
and outstanding at December 31, 1997 (Preference in
involuntary liquidation value, $5.125 per share) -- 1,000
Series B voting Preferred Stock $0.001 par value, 80,000
shares issued and outstanding (Preference in involuntary
liquidation value, $1.00 per share) 80 80
Capital in excess of par value 5,228,888 5,382,901
Deficit accumulated during the development stage (1,701,121) (753,623)
----------- -----------
Total stockholders' equity 3,543,847 4,645,358
----------- -----------
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $ 4,972,478 $ 5,374,341
=========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
<PAGE> 6
FIBERNET TELECOM GROUP, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE AND SIX MONTHS ENDED JUNE 30, 1998 AND 1997
AND FOR THE PERIOD FROM INCEPTION (AUGUST 10, 1994) TO JUNE 30, 1998
UNAUDITED
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED FOR THE SIX MONTHS ENDED PERIOD FROM
------------------------------ ------------------------------ INCEPTION TO
JUNE 30, JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1998 1997 1998 1997 1998
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Cost and expenses:
General and administrative $ 559,351 $ 109,681 $ 1,082,318 $ 224,493 $ 1,765,360
Other - Related party 18,309 60,000 39,143 120,000 159,143
------------ ------------ ------------ ------------ ------------
Loss from operations (577,660) (169,681) (1,121,461) (344,493) (1,924,503)
Interest income 49,381 -- 98,660 -- 124,839
------------ ------------ ------------ ------------ ------------
Loss before minority interest (528,279) (169,681) (1,022,801) (344,493) (1,799,664)
Minority interest 40,321 7,214 75,303 9,368 98,543
------------ ------------ ------------ ------------ ------------
Net loss $ (487,958) $ (162,467) $ (947,498) $ (335,125) $ (1,701,121)
============ ============ ============ ============ ============
Earning per share
Basic and diluted (0.03) (0.01) (0.06) (0.02) (0.11)
------------ ------------ ------------ ------------ ------------
Weighted average shares outstanding 15,700,000 15,000,000 15,700,000 15,000,000 15,700,000
============ ============ ============ ============ ============
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
<PAGE> 7
FIBERNET TELECOM GROUP, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE THREE AND SIX MONTHS ENDED JUNE 30, 1998 AND 1997
AND FOR THE PERIOD FROM INCEPTION (AUGUST 10, 1994) TO JUNE 30, 1998
UNAUDITED
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED FOR THE SIX MONTHS ENDED FROM INCEPTION
-------------------------- ---------------------------- ON THROUGH
JUNE 30, JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1998 1997 1998 1997 1998
----------- --------- ----------- ----------- --------------
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities:
Net loss $ (487,958) (162,467) $ (947,498) $ (335,125) $(1,701,121)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation 7,580 -- 10,080 -- 11,922
Deferred compensation 31,875 -- 63,750 -- 63,750
Minority interest (23,443) (3,744) (52,290) (4,063) (58,736)
Changes in assets and liabilities:
(Increase) decrease in other assets (56,476) (100,066) (308,945) 16,302 (375,899)
Increase (decrease) in accounts payable 494,084 218,200 609,175 245,003 1,240,300
----------- --------- ----------- ----------- -----------
Net cash used in operating activities (34,338) (48,077) (625,728) (77,883) (819,784)
Cash flows from investing activities:
Capital expenditures (1,036,647) -- (1,310,429) -- (1,404,494)
----------- --------- ----------- ----------- -----------
Cash used in investing activities (1,036,647) -- (1,310,429) -- (1,404,494)
Cash flows from financing activities:
Dividend paid on preferred stock -- -- (75,000) -- (75,000)
Capital contributed -- 48,530 -- 78,795 5,434,448
----------- --------- ----------- ----------- -----------
Cash provided by financing activities -- 48,530 (75,000) 78,795 5,359,448
Net increase (decrease) in cash (1,070,985) 453 (2,011,157) 912 3,135,170
Cash at beginning of period 4,206,155 1,199 5,146,327 740 --
----------- --------- ----------- ----------- -----------
Cash at end of period $ 3,135,170 $ 1,652 $ 3,135,170 $ 1,652 $ 3,135,170
=========== ========= =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
<PAGE> 8
FIBERNET TELECOM GROUP, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(A DEVELOPMENT STAGE COMPANY)
UNAUDITED
1. GENERAL
The condensed interim financial statements included herein have been
prepared by FiberNet Telecom Group, Inc. (the Company), without audit,
pursuant to the rules and regulations of the Securities and Exchange
Commission (SEC) and reflect all adjustments which are of a normal
recurring nature and which, in the opinion of management, are necessary
for a fair statement of the results for interim periods. Certain
information and footnote disclosures have been condensed or omitted
pursuant to such rules and regulations. Although FiberNet Telecom Group,
Inc. believes that the disclosures are adequate to make the information
presented not misleading, it is suggested that these condensed financial
statements be read in conjunction with the financial statements and the
notes thereto included in the Company's latest annual report to
stockholders.
2. LEASE CONTRACTS
The Company has entered into lease agreements for office space in
Rochester, a switching center in New York City, and for collocation space
in seven buildings. Lease expense for the six months ended June 30, 1998
was $42,038. Estimated future minimum lease payments are:
<TABLE>
<S> <C>
1998 $ 176,809
1999 582,300
2000 590,444
2001 598,996
2002 607,974
Thereafter 3,459,858
=========
</TABLE>
3. EARNINGS PER SHARE
Basic earnings per share were computed by dividing net income by the
weighted average number of common shares outstanding during the quarter
as required by FASB Statement No. 128, "Earnings per Share" ("SFAS 128").
As shown in the statement of operations, basic earnings per share as of
June 30, 1997 is calculated using shares outstanding as of December 31,
1997. Since the loss per share decreases, when outstanding options are
included in the computation, those options are antidilutive and are
ignored in the computation of diluted earning per share.
<PAGE> 9
<TABLE>
<CAPTION>
FOR THE PERIODS ENDED
JUNE 30, 1998
------------------------------
THREE MONTHS SIX MONTHS
------------ ------------
<S> <C> <C>
Net loss $ (487,958) $ (947,498)
Less: Preferred stock
dividends (44,837)
------------ ------------
Basic and diluted earnings per
share
Loss available to common
shareholders $ (487,958) $ (992,335)
Shares 15,700,000 15,700,000
Per - Share Amount $ (0.03) $ (0.06)
============ ============
</TABLE>
4. STOCK OPTIONS
On April 3, 1998, the Company granted 145,000 shares in a stock option
agreement to affiliates of management of the Company. The exercise price
of the option was established at $5.00.
5. RECENTLY ISSUED ACCOUNTING STANDARDS
In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 133, Accounting for Derivative
Instruments and Hedging Activities. Since the Company does not use
derivative instruments nor hedging activities in its operations, adopting
Statement 133 on our financial statements will not have material impact.
<PAGE> 1
TSA # LFL - 980415
WORLDCOM NETWORK SERVICES, INC.
CLASSIC/TRANSCEND(TM) SWITCHED SERVICES
TELECOMMUNICATIONS SERVICES AGREEMENT
This Telecommunications Services Agreement (the "TSA") is entered into as
of the 8th day of April, 1998 by and between WORLDCOM NETWORK SERVICES, INC., a
Delaware corporation, with its principal office at One Williams Center, Tulsa,
Oklahoma 74172 ("WorldCom") and LOCAL FIBER, LLC, a New York corporation, with
its principal office at 121 Erie Canal Drive, Rochester, NY 14626 ("Cusotmer").
In consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Switched Services; Other Documents; Start of Service.
(A) Services WorldCom agrees to provide and Customer agrees to accept and
pay for switched telecommunications services and other associated services
(collectively the "Switched Services") as further described in the
"Service Schedule" attached hereto and incorporated herein by reference,
which describes the particular services, specific terms and other
information necessary or appropriate for WorldCom to provide the Service
to Customer. The Switched Services provided by WorldCom are subject to (i)
the terms and conditions contained in this TSA and the Program Enrollment
Terms (the "PET") which are attached hereto and incorporated herein by
reference, (ii) the rates and discounts set forth in the applicable Rate
and Discount Schedule (the "Rate Schedule") attached hereto and
incorporated herein by reference, and (iii) each Service Request
(described below) which is accepted hereunder. The PET, as subscribed to
by the parties, shall set forth the Effective Date, the Service Term,
Customers minimum monthly commitment, if any, and other information
necessary to provide the Switched Services under this TSA. In the event of
a conflict between the terms of this TSA, the PET, the Service Schedule,
the Rate Schedule and the Service Request(s), the following order of
precedence will prevail: (1) the PET, (2) the Rate Schedule, (3) the
Service Schedule, (4) this TSA, and (5) Service Request(s). This TSA, the
PET, the Service Schedule and the applicable Rate and Discount Schedule
are sometimes collectively referred to as the "Agreement".
(B) Service Requests Customer's requests to initiate or cancel Switched
Services shall be described in an appropriate WorldCom Service Request
("Service Request"). A Service Request may consist of machine readable
tapes, facsimiles or other means approved by WorldCom. Further, Service
Requests shall specify all reasonable information, as determined by
WorldCom, necessary or appropriate for WorldCom to provide the Switched
Service(s) in question, which shall include without limitation, the type,
quantity and end point(s) (when necessary) of circuits comprising a
Service Interconnection as described in the applicable Service Schedules,
or automatic number identification ("ANI") information relevant to the
Switched Service(s), the Requested Service Date, and charges, if any,
relevant to the Switched Services described in the Service Request. After
WorldCom's receipt and verification of a valid Service Request for
SWITCHED ACCESS Service (as defined in the Service Schedule) requiring a
change in the primary interexchange carrier ("PIC"), WorldCom agrees to
(i) submit the ANI(s) relevant to such Service Requests to the following
local exchange carriers ("LECs") (with which
2/1/98 Page 1 of l2 TSA# LFL-980415
CONFIDENTIAL
<PAGE> 2
WorldCom currently has electronic interface capabilities) within ten (10)
days: Ameritech, Bell Atlantic, BellSouth, Nynex, Pacific Bell,
Southwestern Bell, US West, GTE and United, and (ii) submit the ANI(s)
relevant to such Service Requests to those LECs with which WorldCom does
not have electronic interface capabilities within a reasonable time.
(C) Start of Service WorldCom's obligation to provide and Customers
obligation to accept and pay for non-usage sensitive charges for Switched
Services shall be binding to the extent provided for in this Agreement
upon the submission of an acceptable Service Request to WorldCom by
Customer. Customer's obligation to pay for usage sensitive charges for
Switched Services shall commence with respect to any Switched Service as
of the date the Switched Service in question is made available to and used
by Customer ("Start of Service"), but in no event later than the
"Requested Service Date" if such Switched Service is available for
Customer's use as of such Requested Service Date. Start of Service for
particular Services shall be further described in the Service Schedule
relevant to the Switched Services in question.
2. Cancellation.
(A) Cancellation Charge At any time after the Effective Date, Customer may
cancel this Agreement if Customer provides written notification thereof to
WorldCom not less than thirty (30) days prior to the effective date of
cancellation. In such case (or in the event WorldCom terminates this
Agreement as provided in Section 8), Customer shall pay to WorldCom all
charges for Services provided through the effective date of such
cancellation plus a cancellation charge (the "Cancellation Charge") equal
to one hundred percent (100%) of Customer's commitment(s), if any, (as
described in the PET) that would have become due for the unexpired portion
of the Service Term.
(B) Liquidated Damages It is agreed that WorldCom's damages in the event
Customer cancels this Agreement shall be difficult or impossible to
ascertain. The provision for a cancellation charge in Subsection 2(A)
above is intended, therefore, to establish liquidated damages in the event
of a cancellation and is not intended as a penalty.
(C) Cancellation Without Charge Notwithstanding anything to the contrary
contained in Subsection 2(A) above, Customer may cancel this Agreement
without incurring any cancellation charge if (i) WorldCom fails to provide
a network as warranted in Section 8 below; (ii) WorldCom fails to deliver
call detail records promptly based on the frequency selected by Customer
(i.e., monthly, weekly or daily); or (iii) WorldCom fails to submit ANI(s)
relevant to such Service Requests to the LECs within the time period
described in Subsection 1(B) above. Provided, however, Customer must give
WorldCom written notice of any such default and an opportunity to cure
such default within five (5) days of the notice. In the event WorldCom
fails to cure any such default within the five-day period on more than
three (3) occasions within any six (6) month period, Customer may cancel
this Agreement without incurring any cancellation charge.
3. Customers End Users.
(A) End Users Customer will obtain and upon WorldCom's request provide
WorldCom (within two (2) business days of the date of the request) a
written Letter of Agency ("LOA") acceptable to WorldCom [or with any other
means approved by the Federal Communications Commission ("FCC") or any
applicable public utility commission ("PUC")], for each ANI indicating the
consent of such end user of Customer ("End User") to be served by Customer
and transferred (by way of change of such End User's designated PIC) to
the WorldCom network prior to order processing.
2/1/98 Page 2 of 12
CONFIDENTIAL
<PAGE> 3
Each LOA will provide, among other things, that the End User has consented
to the transfer being performed by Customer or Customer's designee. When
applicable, Customer will be responsible for notifying its End Users, in
writing (or by any other means approved by the FCC) that (i) a transfer
charge will be reflected on their LEC bill for effecting a change in their
PIC, (ii) the entity name under which their interstate, intrastate and/or
operator services will be billed (if different from Customer), and (iii)
the "primary" telephone number(s) to be used for maintenance and questions
concerning their long distance service and/or billing. Customer agrees to
send WorldCom a copy of the documentation Customer uses to satisfy the
above requirements promptly upon request of WorldCom. WorldCom may change
the foregoing requirements for Customer's confirming orders and/or for
notifying End Users regarding the transfer charge at any time in order to
conform with applicable FCC and state regulations. Provided, however,
Customer will be solely responsible for ensuring that the transfer of End
Users to the WorldCom network conforms with applicable FCC and state
regulations, including without limitation, the regulations established by
the FCC with respect to verification of orders for long distance service
generated by telemarketing as promulgated in 47 C.F.R., Part 64, Subpart
K, ss.64.1100 or any successor regulation(s).
(B) Transfer Charges/Disputed Transfers Customer agrees that it is
responsible for (i) all charges incurred by WorldCom to change the PIC of
End Users to the WorldCom network, (ii) all charges incurred by WorldCom
to change End Users back to their previous PIC arising from disputed
transfers to the WorldCom network plus, at WorldCom's option, an
administrative charge equal to twenty percent (20%) of such charges, and
(iii) any other damages suffered by or awards against WorldCom resulting
from disputed transfers.
(C) Excluded ANIs WorldCom has the right to reject any ANI supplied by
Customer for any of the following reasons: (i) WorldCom is not authorized
to provide or does not provide long distance services in the particular
jurisdiction in which the ANI is located, (ii) a particular ANI submitted
by Customer is not in proper form, (iii) Customer is not certified to
provide long distance services in the jurisdiction in which the ANI is
located, (iv) Customer is in material default of this Agreement, (v)
Customer fails to cooperate with WorldCom in implementing reasonable
verification processes determined by WorldCom to be necessary or
appropriate in the conduct of business, or (vi) any other circumstance
reasonably determined by WorldCom which could adversely affect WorldCom's
performance under this Agreement or WorldCom's general ability to transfer
its other customers or other end users to the WorldCom network, including
without limitation, WorldCom's ability to electronically effect PIC
changes with the LECs. In the event WorldCom rejects an ANI, WorldCom will
notify Customer of its decision specifically describing the rejected ANI
and the reason(s) for rejecting that ANI, and will not incur any further
liability under this Agreement with regard to that ANI. Further, any ANI
requested by Customer for Switched Services may be deactivated by WorldCom
if no Switched Services billings relevant thereto are generated in any
three (3) consecutive calendar month/billing periods. WorldCom will be
under no obligation to accept ANIs within the last full calendar month
period preceding the scheduled expiration of the Service Term.
(D) Records Customer will maintain documents and records ("Records")
supporting Customer's re-sale of Switched Services, including, but not
limited to, appropriate and valid LOAs from End Users for a period of not
less than (twelve) 12 months or such longer period as may be required by
applicable law, rule or regulation. Customer shall indemnify WorldCom for
any costs, charges or expenses incurred by WorldCom arising from disputed
PIC selections involving Switched Services to be provided to Customer for
which Customer cannot produce an appropriate LOA relevant to the ANI and
PIC charge in question, or when WorldCom is not reasonably satisfied that
the validity of a disputed LOA has been resolved.
2/1/98 Page 3 of 12
CONFIDENTIAL
<PAGE> 4
(E) Customer Service Customer will be solely responsible for billing its
End Users and providing such End Users with customer service. Customer
agrees to notify WorldCom as soon as reasonably possible in the event an
End User notifies Customer of problems associated with the Switched
Services, including without limitation, excess noise, echo, or loss of
service.
4. Customer's Responsibilities.
(A) Expedite Charges In the event Customer requests expedited services
and/or changes to Service Requests and WorldCom agrees to such request,
WorldCom will pass through the charges assessed by any supplying parties
(e.g., local access providers) for such expedited charges and/or changes
to Service Requests involved at the same rate to Customer. WorldCom may
further condition its performance of such request upon Customer's payment
of such additional charges to WorldCom.
(B) Fraudulent Calls Customer shall indemnify and hold WorldCom harmless
from all costs, expenses, claims or actions arising from fraudulent calls
of any nature which may comprise a portion of the Switched Services to the
extent that the party claiming the call(s) in question to be fraudulent is
(or had been at the time of the call) an End User of such Switched
Services through Customer or an end user of the Switched Services through
Customer's distribution channels. Customer shall not be excused from
paying WorldCom for Switched Services provided to Customer or any portion
thereof on the basis that fraudulent calls comprised a corresponding
portion of the Switched Services. In the event WorldCom discovers
fraudulent calls being made (or reasonably believes fraudulent calls are
being made), nothing contained herein shall prohibit WorldCom from taking
immediate action (without notice to Customer) that is reasonably necessary
to prevent such fraudulent calls from taking place, including without
limitation, denying Switched Services to particular ANIs or terminating
Switched Services to or from specific locations.
5. Charges and Payment Terms.
(A) Payment WorldCom billings for Switched Services hereunder are made on
a monthly basis (or such other basis as may be mutually agreed to by the
parties) following Start of Service. Subject to Subsection 5(C) below,
Switched Services shall be billed at the rates set forth in the applicable
Rate and Discount Schedule attached hereto. Customer will be notified of
WorldCom's time of day rate periods (including WorldCom Recognized
National Holidays). Discounts, if any, applicable to the rates for certain
Services are set forth in the Rate and Discount Schedule. Customer will
pay all undisputed charges relative to each WorldCom invoice for Switched
Services within thirty (30) days of the invoice date set forth on each
WorldCom invoice to Customer ("Due Date"). If payment is not received by
WorldCom on or before the Due Date, Customer shall also pay a late fee in
the amount of the lesser of one and one-half percent (1 1/2%) of the
unpaid balance of the charges for Switched Services rendered per month or
the maximum lawful rate under applicable state law.
(B) Taxes Customer acknowledges and understands that WorldCom computes all
charges herein exclusive of any applicable federal, state or local use,
excise, gross receipts, sales and privilege taxes, duties, fees or similar
liabilities (other than general income or property taxes), whether charged
to or against WorldCom or Customer because of the Switched Services
furnished to Customer ("Additional Charges"). Customer shall pay such
Additional Charges in
2/1/98 Page 4 of 12
CONFIDENTIAL
<PAGE> 5
addition to all other charges provided for herein. Customer will not be
liable for certain Additional Charges if Customer provides WorldCom with
an appropriate exemption certificate.
(C) Modification of Charges WorldCom reserves the right to eliminate
particular Switched Service and/or modify charges for particular Switched
Services (which charge modifications shall not exceed then-current
generally available WorldCom charges for comparable services), upon not
less than sixty (60) days prior notice to Customer, which notice will
state the effective date for the charge modification. In the event
WorldCom notifies Customer of the elimination of a particular Switched
Service and/or an increase in the charges, Customer may terminate this
Agreement without incurring a cancellation charge only with respect to the
Switched Service(s) affected by the increase in charges. In order to
cancel such Switched Service(s), Customer must notify WorldCom, in
writing, at least thirty (30) days prior to the effective date of the
increase in charges. In the event Customer cancels its subscription to a
particular Switched Service as described in this Subsection 5(C), WorldCom
and Customer agree to negotiate in good faith concerning Customer's
minimum monthly commitment, if any, described in the PET.
(D) Billing Disputes Notwithstanding the foregoing, amounts reasonably
disputed by Customer (along with late fees attributable to such amounts)
shall apply but shall not be due and payable for a period of sixty (60)
days following the Due Date therefor, provided Customer: (i) pays all
undisputed charges on or before the Due Date, (ii) presents a written
statement of any billing discrepancies to WorldCom in reasonable detail on
or before the Due Date of the invoice in question, and (iii) negotiates in
good faith with WorldCom for the purpose of resolving such dispute within
said sixty (60) day period. In the event such dispute is mutually agreed
upon and resolved in favor of WorldCom, Customer agrees to pay WorldCom
the disputed amounts together with any applicable late fees within ten
(10) days of the resolution (the "Alternate Due Date"). In the event such
dispute is mutually agreed upon and resolved in favor of Customer,
Customer will receive a credit for the disputed charges in question and
the applicable late fees. In the event WorldCom has responded to
Customer's dispute in writing and the parties fail to mutually resolve or
settle the dispute within such sixty (60) day period (unless WorldCom has
agreed in writing to extend such period) all disputed amounts together
with late fees shall become due and payable, and this provision shall not
be construed to prevent Customer from pursuing any available legal
remedies. WorldCom shall not be obligated to consider any Customer notice
of billing discrepancies which are received by WorldCom more than sixty
(60) days following the Due Date of the invoice in question.
6. Credit; Creditworthiness:
(A) Credit Customer's execution of this Agreement signifies Customer's
acceptance of WorldCom's initial and continuing credit approval procedures
and policies. WorldCom reserves the right to withhold initiation or full
implementation of any or all Switched Services under this Agreement
pending WorldCom's initial satisfactory credit review and approval thereof
which may be conditioned upon terms specified by WorldCom, including, but
not limited to, security for payments due hereunder in the form of a cash
deposit or other means. WorldCom reserves the right to modify its
requirements, if any, with respect to any security or other assurance
provided by Customer for payments due hereunder in light of Customer's
actual usage when compared to projected usage levels upon which any
security or assurance requirement was based.
(B) Creditworthiness If at any time there is a material adverse change in
Customer's creditworthiness, then in addition to any other remedies
available to WorldCom, WorldCom may elect, in its sole discretion, to
exercise one or more of the following remedies: (i) cause Start of
2/1/98 Page 5 of 12
CONFIDENTIAL
<PAGE> 6
Service for Switched Services described in a previously executed Service
Request to be withheld; (ii) cease providing Switched Services pursuant to
a Suspension Notice in accordance with Section 7(A); (iii) decline to
accept a Service Request or other requests from Customer to provide
Switched Services which WorldCom may otherwise be obligated to accept
and/or (iv) condition its provision of Switched Services or acceptance of
a Service Request on Customer's assurance of payment which shall be a
deposit or such other means to establish reasonable assurance of payment.
An adverse material change in Customer's creditworthiness shall include,
but not be limited to: (i) Customer's material default of its obligations
to WorldCom under this or any other agreement with WorldCom; (ii) failure
of Customer to make full payment of all undisputed charges due hereunder
on or before the Due Date (or disputed charges on or before the Alternate
Due Date) on three (3) or more occasions during any period of twelve (12)
or fewer months or Customer's failure to make such payment on or before
the Due Date (or the Alternate Due Date, if applicable) in any two (2)
consecutive months; (iii) acquisition of Customer (whether in whole or by
majority or controlling interest) by an entity which is insolvent, which
is subject to bankruptcy or insolvency proceedings, which owes past due
amounts to WorldCom or any entity affiliated with WorldCom or which is a
materially greater credit risk than Customer; or, (iv) Customer's being
subject to or having filed for bankruptcy or insolvency proceedings or the
legal insolvency of Customer.
7. Remedies for Breach.
(A) Suspension of Service In the event all undisputed charges due pursuant
to WorldCom's invoice are not paid in full by the Due Date or disputed
charges owed by Customer, if any, are not paid in full by the Alternate
Due Date, WorldCom shall have the right, after giving Customer at least
ten (10) days prior notice and opportunity to pay such charges within such
10-day period, to suspend all or any portion of the Switched Services to
Customer ("Suspension Notice") until such time (designated by WorldCom in
its Suspension Notice) as Customer has paid in full all undisputed charges
then due to WorldCom, including any late fees. Following such payment,
WorldCom shall reinstitute Switched Services to Customer only when
Customer provides WorldCom with satisfactory assurance of Customer's
ability to pay for such Switched Services (i.e., a deposit, letter of
credit or other means acceptable to WorldCom) and Customer's advance
payment of the cost of reinstituting such Switched Services. If Customer
fails to make the required payment by the date set forth in the Suspension
Notice, Customer will be deemed to have canceled the Services suspended
effective as of the date of suspension which cancellation shall not
relieve Customer for payment of applicable cancellation charges as
described in Section 2.
(B) Disconnection of Service In the event Customer is in material breach
of this Agreement, including without limitation, failure to pay all
undisputed charges due hereunder by the date stated in the Suspension
Notice described in Subsection 7(A) above, WorldCom shall have the right,
after giving Customer at least five (5) days prior written notice and
opportunity to cure (which notice may be given instead of or in
conjunction with the Suspension Notice described in Subsection 7(A)
above), and in addition to foreclosing any security interest WorldCom may
have, to (i) disconnect all or any portion the Switched Services being
provided hereunder and/or terminate this Agreement; (ii) withhold billing
information from Customer; and/or (iii) contact the End Users (for whom
calls are originated and terminated solely over facilities comprising the
WorldCom network) directly and bill such End Users directly until such
time as WorldCom has been paid in full for the amount owed by Customer. If
Customer fails to make payment by the date stated in the Suspension Notice
and WorldCom, after giving Customer five (5) days prior
2/1/98 Page 6 of 12
CONFIDENTIAL
<PAGE> 7
written notice, terminates this Agreement as provided in this Section 7,
such termination shall not relieve Customer for payment of applicable
cancellation charges as described in Section 2 above.
8. Warranty. WorldCom will use reasonable efforts under the circumstances to
maintain its overall network quality. The quality of Switched Services provided
hereunder shall be consistent with telecommunications common carrier industry
standards, government regulations and sound business practices. WORLDCOM MAKES
NO OTHER WARRANTIES ABOUT THE SWITCHED SERVICES PROVIDED HEREUNDER, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR USE.
9. Liability; General Indemnity; Reimbursement.
(A) Limited Liability IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE TO
THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF
CUSTOMERS OR CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS ARISING IN ANY
MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF
OBLIGATIONS HEREUNDER.
(B) General Indemnity In the event parties other than Customer (e.g.,
Customer's End Users) shall have use of the Switched Services through
Customer, then Customer agrees to forever indemnify and hold WorldCom, its
affiliated companies and any third-party provider or operator of
facilities employed in provision of the Switched Services harmless from
and against any and all claims, demands, suits, actions, losses, damages,
assessments or payments which those parties may assert arising out of or
relating to any defect in the Switched Services.
(C) Reimbursement Customer agrees to reimburse WorldCom for all reasonable
costs and expenses incurred by WorldCom due to WorldCom's direct
participation (either as a party or witness) in any administrative,
regulatory or criminal proceeding concerning Customer if WorldCom's
involvement in said proceeding is based solely on WorldCom's provision of
Switched Services to Customer.
10. Force Majeure. If WorldCom's performance of this Agreement or any obligation
hereunder is prevented, restricted or interfered with by causes beyond its
reasonable control including, but not limited to, acts of God, fire, explosion,
vandalism, cable cut, storm or other similar occurrence, any law, order,
regulation, direction, action or request of the United States government, or
state or local governments, or of any department, agency, commission, court,
bureau, corporation or other instrumentality of any one or more such
governments, or of any civil or military authority, or by national emergency,
insurrection, riot, war, strike, lockout or work stoppage or other labor
difficulties, or supplier failure, shortage, breach or delay, then WorldCom
shall be excused from such performance on a day-to-day basis to the extent of
such restriction or interference. WorldCom shall use reasonable efforts under
the circumstances to avoid or remove such causes or nonperformance and shall
proceed to perform with reasonable dispatch whenever such causes are removed or
cease.
11. State Certification. Customer warrants that in all jurisdictions in which it
provides long distance services that require certification, it has obtained the
necessary certification from the appropriate governmental authority and, if
required by WorldCom, agrees to provide proof of such certification acceptable
to WorldCom. In the event Customer is prohibited, either on a temporary or
permanent basis, from continuing to conduct its telecommunications operations in
a given state, Customer shall (i)
2/1/98 Page 7 of 12
CONFIDENTIAL
<PAGE> 8
immediately notify WorldCom by facsimile, and (ii) send written notice to
WorldCom within twenty-four (24) hours of such prohibition.
12. Interstate/Intrastate Service. Except with respect to Services specifically
designated as intrastate Services or international Services, the rates provided
to Customer in the Service Schedule are applicable only to switched Services if
such Switched Services are used for carrying interstate telecommunications
(i.e., Switched Services subject to FCC jurisdiction). WorldCom shall not be
obligated to provide Switched Services with end points within a single state or
Switched Services which originate/terminate at points both of which are situated
within a single state. In those states where WorldCom is authorized to provide
intrastate service (i.e., telecommunications transmission services subject to
the jurisdiction of state regulatory authorities), WorldCom will, at its option,
provide intrastate Switched Services pursuant to applicable state laws,
regulations and applicable tariff, if any, filed by WorldCom with state
regulatory authorities as required by applicable law.
13. Authorized Use of WorldCom Name; Press Releases. Without WorldCom's prior
written consent, Customer shall not (i) refer to itself as an authorized
representative of WorldCom whenever it refers to the Switched Services in
promotional, advertising or other materials, or (ii) use WorldCom's logos, trade
marks, service marks, or any variations thereof in any of its promotional,
advertising or other materials. Additionally, Customer shall provide to WorldCom
for its prior review and written approval, all promotions, advertising or other
materials or activity using or displaying WorldCom's name or the Services to be
provided by WorldCom. Customer agrees to change or correct, at Customer's
expense, any such material or activity which WorldCom, in its sole judgment,
determines to be inaccurate, misleading or otherwise objectionable. Customer is
explicitly authorized to only use the following statements in its sales
literature or if in response to an inquiry by Customer's end user: (i) "Customer
utilizes the WorldCom network", (ii) "Customer utilizes WorldCom's facilities",
(iii) "WorldCom provides only the network facilities", and (iv) "WorldCom is our
network services provider". Except as specifically provided in this Section 13,
the parties further agree that any press release, advertisement or publication
generated by a party regarding this Agreement, the Services provided hereunder
or in which a party desires to mention the name of the other party or the other
party's parent or affiliated company(ies), will be submitted to the
non-publishing party for its written approval prior to publication.
14. Notices. Notices under this Agreement shall be in writing and delivered to
the person identified below at the offices of the parties as they appear below
or as otherwise provided for by proper notice hereunder. Customer shall notify
WorldCom in writing if Customer's billing address is different than the address
shown below. The effective date for any notice under this Agreement shall be the
date of actual receipt of such notice by the appropriate party, notwithstanding
the date of mailing or transmittal via hand delivery or facsimile.
If to WorldCom: WorldCom Network Services, Inc.
One Williams Center
Tulsa, Oklahoma 74172
Attn: Carrier Sales Dept.
If to Customer: Local Fiber, LLC
121 Erie Canal Drive, Suite A
Rochester, New York 14626
Attn: John Marchaesi
Telephone No.: 716-225-0440
Fax No.: 716-225-0638
2/1/98 Page 8 of 12
CONFIDENTIAL
<PAGE> 9
15. No-Waiver. No term or provision of this Agreement shall be deemed waived and
no breach or default shall be deemed excused unless such waiver or consent shall
be in writing and signed by the party claimed to have waived or consented. A
consent to waiver of or excuse for a breach or default by either party, whether
express or implied, shall not constitute a consent to, waiver of, or excuse for
any different or subsequent breach or default.
16. Partial Invalidity; Government Action.
(A) Partial Invalidity If any part of any provision of this Agreement or
any other agreement, document or writing given pursuant to or in
connection with this Agreement shall be invalid or unenforceable under
applicable law, rule or regulation, that part shall be ineffective to the
extent of such invalidity only, without in any way affecting the remaining
parts of that provision or the remaining provisions of this Agreement. In
such event, Customer and WorldCom will negotiate in good faith with
respect to any such invalid or unenforceable part to the extent necessary
to render such part valid and enforceable.
(B) Government Action Upon thirty (30) days prior notice, either party
shall have the right, without liability to the other, to cancel an
affected portion of the Switched Service if any material rate or term
contained herein and relevant to the affected Switched Service is
substantially changed (to the detriment of the terminating party) or found
to be unlawful or the relationship between the parties hereunder is found
to be unlawful by order of the highest court of competent jurisdiction to
which the matter is appealed, the FCC, or other local, state or federal
government authority of competent jurisdiction.
17. Exclusive Remedies. Except as otherwise specifically provided for herein,
the remedies set forth in this Agreement comprise the exclusive remedies
available to either party at law or in equity.
18. Use of Service. Upon WorldCom's acceptance of a Service Request hereunder,
WorldCom will provide the Switched Services specified therein to Customer upon
condition that such Switched Services shall not be used for any unlawful
purpose. The provision of Switched Services will not create a partnership or
joint venture between the parties or result in a joint communications service
offering to any third parties, and WorldCom and Customer agree that this
Agreement, to the extent it is subject to FCC regulation, is an inter-carrier
agreement which is not subject to the filing requirements of Section 211(a) of
the Communications Act of 1934 (47 U.S.C. ss. 211(a)) as implemented in 47
C.F.R. ss. 43.51.
19. Choice of Law; Forum.
(A) Law This Agreement shall be construed under the laws of the State of
Oklahoma without regard to choice of law principles.
(B) Forum Any legal action or proceeding with respect to this Agreement
may be brought in the Courts of the State of Oklahoma in and for the
County of Tulsa or the United States of America for the Northern District
of Oklahoma. By execution of this Agreement, both Customer and WorldCom
hereby submit to such jurisdiction, hereby expressly waiving whatever
rights may correspond to either of them by reason of their present or
future domicile. In furtherance of the foregoing, Customer and WorldCom
hereby agree to service by U.S. Mail at the notice addresses referenced in
Section 14. Such service shall be deemed effective upon the earlier of
actual receipt or seven (7) days following the date of posting.
2/1/98 Page 9 of 12
CONFIDENTIAL
<PAGE> 10
20. Proprietary Information.
(A) Confidential Information The parties understand and agree that the
terms and conditions of this Agreement (but not the existence thereof),
all documents referenced herein (including invoices to Customer for
Switched Services provided hereunder), communications between the parties
regarding this Agreement or the Switched Services to be provided hereunder
(including price quotes to Customer for any services proposed to be
provided or actually provided hereunder), as well as such information
relevant to any other agreement between the parties (collectively
"Confidential Information"), are confidential as between Customer and
WorldCom.
(B) Limited Disclosure A party shall not disclose Confidential Information
(unless subject to discovery or disclosure pursuant to legal process), to
any other party other than the directors, officers, and employees of a
party or a party's agents including their respective attorneys,
consultants, brokers, lenders, insurance carriers or bona fide prospective
purchasers who have specifically agreed in writing to nondisclosure of the
terms and conditions hereof. Any disclosure hereof required by legal
process shall only be made after providing the non-disclosing party with
notice thereof in order to permit the non-disclosing party to seek an
appropriate protective order or exemption. Violation by a party or its
agents of the foregoing provisions shall entitle the non-disclosing party,
at its option, to obtain injunctive relief without a showing of
irreparable harm or injury and without bond.
(C) Survival of Confidentiality The provisions of this Section 19 will be
effective as of the date of this Agreement and remain in full force and
effect for a period which will be the longer of (i) one (1) year following
the date of this Agreement, or (ii) one (1) year from the termination of
all Services hereunder.
21. Successors and Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors or assigns,
provided, however, that Customer shall not assign or transfer its rights or
obligations under this Agreement without the prior written consent of WorldCom,
which consent shall not be unreasonably withheld or delayed, and further
provided that any assignment or transfer without such consent shall be void.
22. General.
(A) Survival of Terms The terms and provisions contained in this Agreement
that by their sense and context are intended to survive the performance
thereof by the parties hereto shall so survive the completion of
performance and termination of this Agreement, including, without
limitation, provisions for indemnification and the making of any and all
payments due hereunder.
(B) Headings Descriptive headings in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
(C) Industry Terms Words having well-known technical or trade meanings
shall be so construed, and all listings of items shall not be taken to be
exclusive, but shall include other items, whether similar or dissimilar to
those listed, as the context reasonably requires.
(D) Rule of Construction No rule of construction requiring interpretation
against the drafting party hereof shall apply in the interpretation of
this Agreement.
2/1/98 Page 10 of 12
CONFIDENTIAL
<PAGE> 11
23. Entire Agreement. This Agreement consists of (i) all the terms and
conditions contained herein, and (ii) all documents incorporated herein
specifically by reference. This TSA constitutes the complete and exclusive
statement of the understandings between the parties and supersedes all proposals
and prior agreements (oral or written) between the parties relating to the
Switched Services provided hereunder. No subsequent agreement between the
parties concerning the Switched Services shall be effective or binding unless it
is made in writing and subscribed to by Customer and WorldCom.
24. Other Agreements. Customer acknowledges and agrees that this Agreement and
the Switched Services described herein may not be combined with any other
switched services products or services offered by WorldCom, WorldCom's parent
company or WorldCom's affiliates. Additionally, Customer acknowledges and agrees
that:
(A) Current Services As of the Effective Date of this Agreement, (i) all
switched telecommunications services ("Current Services") offered by
WorldCom (formerly WilTel, Inc.), WorldCom's parent company, WorldCom,
Inc. (formerly LDDS Communications, Inc.) or any of WorldCom's affiliates,
including without limitation, IDB WorldCom Services, Inc. (hereinafter
referred to as the "WorldCom Group"), which are currently being provided
Customer (which for purposes of this Section 24 will include Customer's
parent company, Customer's subsidiaries and any other entities under
common control with Customer; hereinafter referred to as the "Customer
Group") pursuant to existing service agreements ("Existing Agreements")
will be canceled and no longer in force or effect except for charges or
credits due for Current Services rendered as of the Effective Date of this
Agreement and provisions intended to survive termination, such as
limitation of liability, indemnification and confidentiality, and (ii) all
Current Services provided a member of the Customer Group by a member of
the WorldCom Group will be provisioned under the terms and conditions of
this TSA. Simultaneous with the execution of this Agreement, if
applicable, Customer shall cause all members of the Customer Group to
agree to the cancellation of such Existing Agreements and the provision of
Current Services under the terms and conditions of this Agreement and
Customer agrees to provide WorldCom with reasonable documentation
evidencing such agreement.
(B) Third Party Agreements If Customer acquires or merges or combines with
a third party after the Effective Date of this Agreement, and such third
party has existing agreement(s) with a member of the WorldCom Group
(collectively referred to as the "Third Party Agreements") for the
provision of switched telecommunications services ("Third Party Existing
Services"), then ninety (90) days following the date of such acquisition,
merger or combination (or such earlier date contained in a written notice
from Customer to WorldCom) (the "Transfer Date"), (i) the Third Party
Agreements will be canceled and no longer in force or effect except for
commitments, if any, contained in such Third Party Agreements and charges
and credits due for Services rendered prior to the Transfer Date, (ii)
Third Party Existing Services will be provisioned under this Agreement,
and (iii) the aggregate commitment(s) (e.g., revenue, volume, minute,
etc.) remaining under such Third Party Agreements, if any, shall be added
on a pro rata basis to the commitment(s), if any, existing under this
Agreement. Simultaneous with the closing of such acquisition, combination
or merger, Customer will cause such third party and all of its affiliates
who are parties to such Third Party Agreements, to agree to the
cancellation of such Third Party Agreements and the provision of Third
Party Existing Services under the terms and conditions of this Agreement
and Customer agrees to provide WorldCom with reasonable documentation
evidencing such agreement. In the event any Third Party Agreement(s) have
a provision similar to the provision contained herein, the parties agree
to negotiate in good faith concerning which agreement (i.e., this
Agreement or any Third Party Agreement) shall survive and which
agreement(s) shall be terminated.
2/1/98 Page 11 of 12
CONFIDENTIAL
<PAGE> 12
Example: Assume (i) Customer's Commitment is $500,000, (ii) there
are twenty-four (24) months remaining in the Service Term of this
Agreement, and (iii) Customer acquires a third party who has an
existing switched telecommunications services agreement with a
member of the WorldCom Group which contains a minimum monthly
revenue commitment of $250,000 and has ten (10) months remaining in
the term of such agreement Customer's "new" Commitment will be
$604,166 for the remaining twenty-four (24) months in the Service
Term {$500,000 + [($250,000 x 10)/24]}.
IN WITNESS WHEREOF, the parties have executed this Telecommunications
Services Agreement as of the dates set forth below which Agreement will be
effective as described in the PET attached hereto.
WORLDCOM NETWORK SERVICES, INC. LOCAL FIBER, LLC
By: /s/ John Giambalvo By: /s/ John J. Marchaesi
----------------------- -----------------------
(Signature) (Signature)
John Giambalvo John J. Marchaesi
- - --------------------------- ---------------------------
(Print Name) (Print Name)
Regional Sales Director Sr. V.P. Finance and Administration
- - --------------------------- ---------------------------
(Title) (Title)
4/13/98 4/9/98
- - --------------------------- ---------------------------
(Date) (Date)
2/1/98 Page 12 of 12
CONFIDENTIAL
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE THREE
MONTH FINANCIAL STATEMENT AS OF JUNE 30, 1998 AND SIX MONTH FINANCIAL STATEMENT
AS OF DECEMBER 31, 1997, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<S> <C> <C>
<PERIOD-TYPE> 6-MOS 3-MOS
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1998
<PERIOD-START> JUN-30-1997 MAR-31-1998
<PERIOD-END> DEC-31-1997 JUN-30-1998
<CASH> 5,146,327 3,135,170
<SECURITIES> 0 0
<RECEIVABLES> 0 0
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 5,150,281 3,173,829
<PP&E> 94,065 1,404,492
<DEPRECIATION> 1,842 11,920
<TOTAL-ASSETS> 5,374,341 4,972,478
<CURRENT-LIABILITIES> 730,125 1,372,887
<BONDS> 0 0
0 0
0 0
<COMMON> 15,000 16,000
<OTHER-SE> 5,383,981 5,228,968
<TOTAL-LIABILITY-AND-EQUITY> 5,374,341 4,972,478
<SALES> 0 0
<TOTAL-REVENUES> 0 0
<CGS> 0 0
<TOTAL-COSTS> 0 0
<OTHER-EXPENSES> 419,982 577,660
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> (26,180) (49,381)
<INCOME-PRETAX> (393,802) (528,279)
<INCOME-TAX> 0 0
<INCOME-CONTINUING> (393,802) (528,279)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (370,562) (487,958)
<EPS-PRIMARY> (0.027) (0.03)
<EPS-DILUTED> (0.027) (0.03)
</TABLE>
