<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 4, 1998
REGISTRATION NO. 333-43339
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
KNOLOGY HOLDINGS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
4812
(PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
58-2203141
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
1241 O.G. SKINNER DRIVE
WEST POINT, GEORGIA 31833
(706) 645-8553
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------
WILLIAM E. MORROW
KNOLOGY HOLDINGS, INC.
1241 O.G. SKINNER DRIVE
WEST POINT, GEORGIA 31833
(706) 645-8553
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------
Copies to:
STEVEN M. KAUFMAN, ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004
(202) 637-5600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE PRICE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED UNIT PRICE(1) FEE(2)
- -----------------------------------------------------------------------------------------------
11 7/8% Senior Discount Notes Due 2007..... $444,100,000 56.1449% $249,339,526 $73,556
===============================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(f) under the Securities Act of 1933, as amended.
(2) Calculated pursuant to Rule 457(f) based on the book value, calculated as of
November 30, 1997, of the outstanding 11 7/8% Senior Discount Notes Due 2007
of KNOLOGY Holdings, Inc. to be canceled in the exchange transaction
hereunder. Such amount was previously paid.
------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
EXPLANATORY NOTE
This Amendment No. 2 is being submitted to file the following exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
+10.21 License Agreement for Pole Attachments and/or Conduit Occupancy dated July 28,
1993 by and between BellSouth Telecommunications, Inc. d/b/a Southern Bell
Telephone and Telegraph Company and American Cable Company.
+10.22 License Agreement dated September 29, 1995 by and between Montgomery Cablevision
and Entertainment, Inc. and American Communication Services of Montgomery, Inc.
+10.23 License Agreement dated January 17, 1996 by and between American Cable, Inc. and
American Communication Services of Columbus, Inc.
+10.24 Addendum to License Agreement dated April 21, 1997 by and between American Cable,
Inc. and American Communication Services of Columbus, Inc.
+10.52 License Agreement for Pole Attachments and/or Conduit Occupancy in Florida, dated
September 15, 1993, between BellSouth Telecommunications, Inc. d/b/a Southern
Bell Telephone and Telegraph and Beach Cable, Inc.
24.1 Power of attorney (included on signature page).
</TABLE>
- ---------------
+ Confidential treatment has been requested. The copy filed as an exhibit omits
the information subject to the confidential treatment request.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law ("DGCL"), a
corporation may indemnify its directors, officers, employees and agents and its
former directors, officers, employees and agents and those who serve, at the
corporation's request, in such capacities with another enterprise, against
expenses (including attorneys' fees) as well as judgments, fines and
settlements, actually and reasonably incurred in connection with the defense of
any action, suit or proceeding in which they or any of them were or are made
parties or are threatened to be made parties by reason of their serving or
having served in such capacity. The DGCL provides, however, that such person
must have acted in good faith and in a manner such person reasonably believed to
be in (or not opposed to) the best interests of the corporation and, in the case
of a criminal action, such person must have had no reasonable cause to believe
his or her conduct was unlawful. In addition, the DGCL does not permit
indemnification in an action or suit by or in the right of the corporation,
where such person has been adjudged liable to the corporation, unless, and only
to the extent that, a court determines that such person fairly and reasonably is
entitled to indemnity for costs the court deems proper in light of liability
adjudication. Indemnity is mandatory to the extent a claim, issue or matter has
been successfully defended.
The Company's Certificate of Incorporation (the "Certificate") contains
provisions that provide that no director of the Company shall be liable for
breach of fiduciary duty as a director except for (1) any breach of the
directors' duty of loyalty to the Company or its stockholders; (2) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law; (3) liability under Section 174 of the DGCL; or (4) any
transaction from which the director derived an improper personal benefit. Under
the Bylaws of the Company, the Company is required to advance expenses incurred
by an officer or director in defending or participating in any action which such
director or officer is made a party to or is threatened to be made a party to by
reason of his or her serving or having served as an officer or director if the
director or officer undertakes to repay such amount if it is determined that the
director or officer is not entitled to indemnification. In addition, the Company
intends to enter into indemnity agreements with each of its directors pursuant
to which the Company will agree to indemnify the directors as permitted by the
DGCL.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
*1.1 Placement Agreement, dated October 16, 1997, between KNOLOGY Holdings, Inc. and
Morgan Stanley & Co. Incorporated, for itself and the other Placement Agents
named therein (the "Placement Agents").
*2.1 Agreement and Plan of Merger, dated December 5, 1997, by and among KNOLOGY
Holdings, Inc., KNOLOGY of Panama City, Inc., Beach Cable, Inc. and L. Charles
Hilton.
*3.1 Certificate of Incorporation of KNOLOGY Holdings, Inc.
*3.2 Amended and Restated Bylaws of KNOLOGY Holdings, Inc.
*4.1 Indenture dated as of October 22, 1997 between KNOLOGY Holdings, Inc. and United
States Trust Company of New York, as Trustee, relating to the 11 7/8% Senior
Discount Notes Due 2007 of KNOLOGY Holdings, Inc.
*4.2 Registration Rights Agreement, dated October 22, 1997, between KNOLOGY Holdings,
Inc., the Placement Agents and SCANA Communications, Inc.
*4.3 Form of Senior Discount Note (contained in Indenture filed as Exhibit 4.1).
*4.4 Form of Exchange Note (contained in Indenture filed as Exhibit 4.1).
</TABLE>
II-1
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
**5.1 Opinion of Hogan & Hartson L.L.P.
**8.1 Tax Opinion of Hogan & Hartson L.L.P.
*10.1 Unit Purchase Agreement, dated as of October 16, 1997 between KNOLOGY Holdings,
Inc. and SCANA Communications, Inc.
*10.2 Warrant Agreement, dated as of October 22, 1997, between KNOLOGY Holdings, Inc.
and United States Trust Company of New York (including form of Warrant
Certificate).
*10.3 Warrant Registration Rights Agreement, dated as of October 22, 1997, between
KNOLOGY Holdings, Inc. and United States Trust Company of New York.
*10.4 Sub-Lease Indenture dated November 1, 1995 by and between J. Smith Lanier & Co.
Financial Services, Inc. and ITC Holding Company, Inc.
*10.5 Lease Agreement dated April 15, 1996 by and between D.L. Jordan and American
Cable Company, Inc.
*10.6 Lease Agreement dated April 19, 1996 by and between B.E. Satterwhite and American
Cable Company, Inc.
*10.7 Pole Attachment Agreement dated January 1, 1998 by and between Gulf Power Company
and Beach Cable, Inc.
*10.8 Lease Agreement dated August 19, 1996 by and between Vaughn/Taylor, L.L.C. and
Montgomery Cablevision and Entertainment, Inc.
*10.9 Lease Agreement dated August 20, 1996 by and between William H. McLemore and
Montgomery Cablevision and Entertainment, Inc.
*10.10 Lease Agreement dated November 7, 1996 by and between Samuel B. Hewitt and
American Cable Company, Inc.
*10.11 Site Agreement dated November 19, 1996 by and between John Walter Stowers and
Montgomery Cablevision and Entertainment, Inc.
*10.12 Office Lease Agreement dated February 15, 1997 by and between Scott P. Pinckard
and Cybernet Holdings, Inc.
*+10.13 Lease Agreement dated April 2, 1997 by and between Interstate Telephone Company
and Cybernet Holding, Inc.
*10.14 Lease Agreement dated May 15, 1997 by and between Southern Boulevard Corporation
and Cybernet Holding d/b/a Montgomery Cablevision and Entertainment, Inc.
*10.15 Lease Agreement dated August 23, 1997 by and between Interstate Fibernet, Inc.
and KNOLOGY Holdings, Inc.
*+10.16 Telecommunications Facility Lease and Capacity Agreement, dated September 10,
1996, by and between Troup EMC Communications, Inc. and Cybernet Holding, Inc.
**10.17 Master Pole Attachment Agreement dated January 12, 1998 by and between South
Carolina Electric and Gas and KNOLOGY Holdings, Inc. d/b/a/ KNOLOGY of
Charleston.
*10.18 Pole Attachment Agreement dated May 21, 1990 by and between the Georgia Power
Company and American Cable Company.
*10.19 License Agreement for Pole Attachments dated June 19, 1990 by and between South
Central Bell Telephone Company and Montgomery Cablevision and Entertainment, Inc.
*10.20 Agreement for Attachments of Cables, Amplifiers, and Associated Equipment for the
Provision of Cable Television Service dated March 1, 1993 by and between Alabama
Power Company and Montgomery Cablevision and Entertainment, Inc.
</TABLE>
II-2
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
+10.21 License Agreement for Pole Attachments and/or Conduit Occupancy dated July 28,
1993 by and between BellSouth Telecommunications, Inc. d/b/a Southern Bell
Telephone and Telegraph Company and American Cable Company.
+10.22 License Agreement dated September 29, 1995 by and between Montgomery Cablevision
and Entertainment, Inc. and American Communications Services of Montgomery, Inc.
+10.23 License Agreement dated January 17, 1996 by and between American Cable, Inc. and
American Communication Services of Columbus, Inc.
+10.24 Addendum to License Agreement dated April 21, 1997 by and between American Cable,
Inc. and American Communication Services of Columbus, Inc.
*10.25 Lease Agreement, dated December 5, 1997 by and between The Hilton Company and
KNOLOGY of Panama City, Inc.
*+10.26 Billing and Collection Services Agreement dated April 2, 1997 by and between
Interstate Telephone Company and Cybernet Holding, Inc.
*+10.27 Operator and Related Services Agreement dated April 14, 1997 by and between
Eastern Telecom Inc. d/b/a Inter Quest and Cybernet Holding, Inc.
*+10.28 Agreement for Telecommunication Services dated May 1, 1997 by and between
Cybernet Holding, Inc. and DeltaCom, Inc.
*+10.29 First Addendum to Service Agreement dated July 7, 1997 by and between KNOLOGY
Holdings, Inc. and DeltaCom, Inc.
*10.30 Interconnection Agreement by and among BellSouth Communications, Inc., Cybernet
Holding, Inc., American Cable, Inc. and Montgomery Cablevision & Entertainment,
Inc., dated April 15, 1997.
*10.31 Amendment To Interconnection Agreement by and among BellSouth Telecommunications,
Inc., Cybernet Holding, Inc., American Cable, Inc. and Montgomery Cablevision &
Entertainment, dated May 1, 1997.
*10.32 Second Amendment To Interconnection Agreement by and among BellSouth
Telecommunications, Inc., Cybernet Holding, Inc., American Cable, Inc. and
Montgomery Cablevision & Entertainment, dated July 7, 1997.
*10.33 Commitment Letter from First Union National Bank to KNOLOGY Holdings, Inc., dated
October 15, 1997.
*10.33.1 Commitment Extension Letter from First Union National Bank to KNOLOGY Holdings,
Inc., dated December 12, 1997.
*10.34 Certificate of Membership with National Cable Television Cooperative, dated
January 29, 1996, of Cybernet Holding, Inc.
*10.35 Stockholders' Agreement among KNOLOGY Holdings, Inc. and Certain Stockholders
Thereof dated as of December 8, 1995.
*10.36 Amendment No. 1 to Stockholders' Agreement dated as of January 25, 1996.
*10.37 Amendment No. 2 to Stockholders' Agreement dated as of April 18, 1996.
*10.38 Amended and Restated Agreement Among Shareholders Among KNOLOGY Holdings, Inc.
and Certain Shareholders thereof dated as of July 28, 1997.
*10.39 Ordinance (Harris County, Georgia) dated April 6, 1982.
*10.40 Ordinance (Harris County, Georgia) to Amend Cable Franchise Ordinance of April 6,
1982, dated November 5, 1996.
*10.41 Ordinance (Bibb City, Georgia) dated October 5, 1990.
*10.42 Ordinance No. 88-53 (Columbus, Georgia) dated May 17, 1988.
</TABLE>
II-3
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
*10.43 Ordinance No. 89-3 (Columbus, Georgia) dated January 10, 1989.
*10.44 Ordinance No. 16-90 (Montgomery, Alabama) dated March 6, 1990.
*10.45 Ordinance No. 50-76 (Montgomery, Alabama).
*10.45.1 Ordinance No. 9-90 (Montgomery, Alabama) dated January 16, 1990.
*10.46 Resolution No. 58-95 (Montgomery, Alabama) dated April 6, 1995.
*10.47 Resolution No. 92-7 (Panama City Beach, Florida) dated July 23, 1992.
*10.48 License (Bay County, Florida) dated January 5, 1993.
*10.49 Resolution No. 97-22 (Panama City Beach, Florida) dated December 3, 1997.
*10.50 Resolution No. 2075 (Bay County, Florida) dated November 18, 1997.
*+10.51 Collocation Agreement between Interstate FiberNet and Cybernet Holding, Inc.,
dated July 1, 1997.
+10.52 License Agreement for Pole Attachments and/or Conduit Occupancy in Florida dated
September 15, 1993 between BellSouth Telecommunications, Inc. d/b/a Southern Bell
Telephone and Telegraph and Beach Cable, Inc.
*11.1 Computation of Earnings Per Share of Common Stock.
*12.1 Statement regarding Computation of Ratio of Earnings to Fixed Charges.
*21.1 Subsidiaries of KNOLOGY Holdings, Inc.
*23.1 Consent of Arthur Andersen LLP.
**23.2 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
24.1 Power of attorney (included on signature page).
*25.1 Statement on Form T-1 of Eligibility of Trustee.
*27.1 Financial Data Schedule for the year ended December 31, 1996.
*27.2 Financial Data Schedule for the nine month period ended September 30, 1997.
*99.1 Form of Letter of Transmittal.
*99.2 Form of Notice of Guaranteed Delivery.
*99.3 Form of Letter to Brokers, et al.
*99.4 Form of Letter to Clients.
</TABLE>
- ---------------
* Previously filed.
** To be filed by amendment.
+ Confidential treatment has been requested. The copy filed as an exhibit omits
the information subject to the confidential treatment request.
(b) Financial Statement Schedules
The following financial statement schedule is filed herewith:
Schedule II--Valuation and Qualifying Accounts
Schedules not listed above have been omitted because they are inapplicable
or the information required to be set forth therein is provided in the Combined
Financial Statements of the Company or notes thereto.
ITEM 22. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange
II-4
<PAGE> 7
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of this Registration Statement through
the date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in this Registration Statement when it became effective.
The undersigned registrant hereby undertakes to file, during any period in
which offers or sales are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in this Registration Statement when it becomes
effective; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement.
The undersigned registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undersigned registrant hereby undertakes to remove from registration by
means of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
II-5
<PAGE> 8
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF SECURITIES ACT, THE COMPANY HAS DULY CAUSED
THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF WEST POINT, GEORGIA, ON THIS 3RD DAY
OF FEBRUARY, 1998.
KNOLOGY Holdings, Inc.
By /s/ WILLIAM E. MORROW
------------------------------------
WILLIAM E. MORROW
CHIEF EXECUTIVE OFFICER
------------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints O. Gene Gabbard, William E. Morrow and James K.
McCormick, jointly and severally, each in his own capacity, his true and lawful
attorneys-in-fact, with full power of substitution, for him and his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents with full power and authority to do so and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of Securities Act, this Registration Statement
has been signed below by the following persons, in the capacities indicated
below, on this 3rd day of February, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
* Chairman of the Board and Director
- ---------------------------------------------
O. GENE GABBARD
/s/ WILLIAM E. MORROW President, Chief Executive Officer and
- --------------------------------------------- Director (Principal executive officer)
WILLIAM E. MORROW
/s/ JAMES K. MCCORMICK Chief Financial Officer and Secretary
- --------------------------------------------- (Principal financial officer and principal
JAMES K. MCCORMICK accounting officer)
* Director
- ---------------------------------------------
RICHARD BODMAN
* Director
- ---------------------------------------------
DONALD W. BURTON
* Director
- ---------------------------------------------
CAMPBELL B. LANIER, III
</TABLE>
II-6
<PAGE> 9
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
- --------------------------------------------- Director
L. CHARLES HILTON, JR.
* Director
- ---------------------------------------------
WILLIAM H. SCOTT, III
* Director
- ---------------------------------------------
ANDREW M. WALKER
*By: /s/ WILLIAM E. MORROW
- ---------------------------------------------
WILLIAM E. MORROW
ATTORNEY-IN-FACT
</TABLE>
II-7
<PAGE> 10
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
*1.1 Placement Agreement, dated October 16, 1997, between KNOLOGY Holdings, Inc. and
Morgan Stanley & Co. Incorporated, for itself and the other Placement Agents
named therein (the "Placement Agents").
*2.1 Agreement and Plan of Merger, dated December 5, 1997, by and among KNOLOGY
Holdings, Inc., KNOLOGY of Panama City, Inc., Beach Cable, Inc. and L. Charles
Hilton.
*3.1 Certificate of Incorporation of KNOLOGY Holdings, Inc.
*3.2 Amended and Restated Bylaws of KNOLOGY Holdings, Inc.
*4.1 Indenture dated as of October 22, 1997 between KNOLOGY Holdings, Inc. and United
States Trust Company of New York, as Trustee, relating to the 11 7/8% Senior
Discount Notes Due 2007 of KNOLOGY Holdings, Inc.
*4.2 Registration Rights Agreement, dated October 22, 1997, between KNOLOGY Holdings,
Inc., the Placement Agents and SCANA Communications, Inc.
*4.3 Form of Senior Discount Note (contained in Indenture filed as Exhibit 4.1).
*4.4 Form of Exchange Note (contained in Indenture filed as Exhibit 4.1).
**5.1 Opinion of Hogan & Hartson L.L.P.
**8.1 Tax Opinion of Hogan & Hartson L.L.P.
*10.1 Unit Purchase Agreement, dated as of October 16, 1997 between KNOLOGY Holdings,
Inc. and SCANA Communications, Inc.
*10.2 Warrant Agreement, dated as of October 22, 1997, between KNOLOGY Holdings, Inc.
and United States Trust Company of New York (including form of Warrant
Certificate).
*10.3 Warrant Registration Rights Agreement, dated as of October 22, 1997, between
KNOLOGY Holdings, Inc. and United States Trust Company of New York.
*10.4 Sub-Lease Indenture dated November 1, 1995 by and between J. Smith Lanier & Co.
Financial Services, Inc. and ITC Holding Company, Inc.
*10.5 Lease Agreement dated April 15, 1996 by and between D.L. Jordan and American
Cable Company, Inc.
*10.6 Lease Agreement dated April 19, 1996 by and between B.E. Satterwhite and American
Cable Company, Inc.
*10.7 Pole Attachment Agreement dated January 1, 1998 by and between Gulf Power Company
and Beach Cable, Inc.
*10.8 Lease Agreement dated August 19, 1996 by and between Vaughn/Taylor, L.L.C. and
Montgomery Cablevision and Entertainment, Inc.
*10.9 Lease Agreement dated August 20, 1996 by and between William H. McLemore and
Montgomery Cablevision and Entertainment, Inc.
*10.10 Lease Agreement dated November 7, 1996 by and between Samuel B. Hewitt and
American Cable Company, Inc.
*10.11 Site Agreement dated November 19, 1996 by and between John Walter Stowers and
Montgomery Cablevision and Entertainment, Inc.
*10.12 Office Lease Agreement dated February 15, 1997 by and between Scott P. Pinckard
and Cybernet Holdings, Inc.
*+10.13 Lease Agreement dated April 2, 1997 by and between Interstate Telephone Company
and Cybernet Holding, Inc.
*10.14 Lease Agreement dated May 15, 1997 by and between Southern Boulevard Corporation
and Cybernet Holding d/b/a Montgomery Cablevision and Entertainment, Inc.
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
*10.15 Lease Agreement dated August 23, 1997 by and between Interstate Fibernet, Inc.
and KNOLOGY Holdings, Inc.
*+10.16 Telecommunications Facility Lease and Capacity Agreement, dated September 10,
1996, by and between Troup EMC Communications, Inc. and Cybernet Holding, Inc.
**10.17 Master Pole Attachment Agreement dated January 12, 1998 by and between South
Carolina Electric and Gas and KNOLOGY Holdings, Inc. d/b/a/ KNOLOGY of
Charleston.
*10.18 Pole Attachment Agreement dated May 21, 1990 by and between the Georgia Power
Company and American Cable Company.
*10.19 License Agreement for Pole Attachments dated June 19, 1990 by and between South
Central Bell Telephone Company and Montgomery Cablevision and Entertainment, Inc.
*10.20 Agreement for Attachments of Cables, Amplifiers, and Associated Equipment for the
Provision of Cable Television Service dated March 1, 1993 by and between Alabama
Power Company and Montgomery Cablevision and Entertainment, Inc.
+10.21 License Agreement for Pole Attachments and/or Conduit Occupancy dated July 28,
1993 by and between BellSouth Telecommunications, Inc. d/b/a Southern Bell
Telephone and Telegraph Company and American Cable Company.
+10.22 License Agreement dated September 29, 1995 by and between Montgomery Cablevision
and Entertainment, Inc. and American Communications Services of Montgomery, Inc.
+10.23 License Agreement dated January 17, 1996 by and between American Cable, Inc. and
American Communication Services of Columbus, Inc.
+10.24 Addendum to License Agreement dated April 21, 1997 by and between American Cable,
Inc. and American Communication Services of Columbus, Inc.
*10.25 Lease Agreement, dated December 5, 1997 by and between The Hilton Company and
KNOLOGY of Panama City, Inc.
*+10.26 Billing and Collection Services Agreement dated April 2, 1997 by and between
Interstate Telephone Company and Cybernet Holding, Inc.
*+10.27 Operator and Related Services Agreement dated April 14, 1997 by and between
Eastern Telecom Inc. d/b/a Inter Quest and Cybernet Holding, Inc.
*+10.28 Agreement for Telecommunication Services dated May 1, 1997 by and between
Cybernet Holding, Inc. and DeltaCom, Inc.
*+10.29 First Addendum to Service Agreement dated July 7, 1997 by and between KNOLOGY
Holdings, Inc. and DeltaCom, Inc.
*10.30 Interconnection Agreement by and among BellSouth Communications, Inc., Cybernet
Holding, Inc., American Cable, Inc. and Montgomery Cablevision & Entertainment,
Inc., dated April 15, 1997.
*10.31 Amendment To Interconnection Agreement by and among BellSouth Telecommunications,
Inc., Cybernet Holding, Inc., American Cable, Inc. and Montgomery Cablevision &
Entertainment, dated May 1, 1997.
*10.32 Second Amendment To Interconnection Agreement by and among BellSouth
Telecommunications, Inc., Cybernet Holding, Inc., American Cable, Inc. and
Montgomery Cablevision & Entertainment, dated July 7, 1997.
*10.33 Commitment Letter from First Union National Bank to KNOLOGY Holdings, Inc., dated
October 15, 1997.
*10.33.1 Commitment Extension Letter from First Union National Bank to KNOLOGY Holdings,
Inc., dated December 12, 1997.
*10.34 Certificate of Membership with National Cable Television Cooperative, dated
January 29, 1996, of Cybernet Holding, Inc.
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- ---------------------------------------------------------------------------------
<C> <S>
*10.35 Stockholders' Agreement among KNOLOGY Holdings, Inc. and Certain Stockholders
Thereof dated as of December 8, 1995.
*10.36 Amendment No. 1 to Stockholders' Agreement dated as of January 25, 1996.
*10.37 Amendment No. 2 to Stockholders' Agreement dated as of April 18, 1996.
*10.38 Amended and Restated Agreement Among Shareholders Among KNOLOGY Holdings, Inc.
and Certain Shareholders thereof dated as of July 28, 1997.
*10.39 Ordinance (Harris County, Georgia) dated April 6, 1982.
*10.40 Ordinance (Harris County, Georgia) to Amend Cable Franchise Ordinance of April 6,
1982, dated November 5, 1996.
*10.41 Ordinance (Bibb City, Georgia) dated October 5, 1990.
*10.42 Ordinance No. 88-53 (Columbus, Georgia) dated May 17, 1988.
*10.43 Ordinance No. 89-3 (Columbus, Georgia) dated January 10, 1989.
*10.44 Ordinance No. 16-90 (Montgomery, Alabama) dated March 6, 1990.
*10.45 Ordinance No. 50-76 (Montgomery, Alabama).
*10.45.1 Ordinance No. 9-90 (Montgomery, Alabama) dated January 16, 1990.
*10.46 Resolution No. 58-95 (Montgomery, Alabama) dated April 6, 1995.
*10.47 Resolution No. 92-7 (Panama City Beach, Florida) dated July 23, 1992.
*10.48 License (Bay County, Florida) dated January 5, 1993.
*10.49 Resolution No. 97-22 (Panama City Beach, Florida) dated December 3, 1997.
*10.50 Resolution No. 2075 (Bay County, Florida) dated November 18, 1997.
*+10.51 Collocation Agreement between Interstate FiberNet and Cybernet Holding, Inc.,
dated July 1, 1997.
+10.52 License Agreement for Pole Attachments and/or Conduit Occupancy in Florida dated
September 15, 1993 between BellSouth Telecommunications, Inc. d/b/a Southern Bell
Telephone and Telegraph and Beach Cable, Inc.
*11.1 Computation of Earnings Per Share of Common Stock.
*12.1 Statement regarding Computation of Ratio of Earnings to Fixed Charges.
*21.1 Subsidiaries of KNOLOGY Holdings, Inc.
*23.1 Consent of Arthur Andersen LLP.
**23.2 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
24.1 Power of attorney (included on signature page).
*25.1 Statement on Form T-1 of Eligibility of Trustee.
*27.1 Financial Data Schedule for the year ended December 31, 1996.
*27.2 Financial Data Schedule for the nine month period ended September 30, 1997.
*99.1 Form of Letter of Transmittal.
*99.2 Form of Notice of Guaranteed Delivery.
*99.3 Form of Letter to Brokers, et al.
*99.4 Form of Letter to Clients.
</TABLE>
- ---------------
* Previously filed.
** To be filed by amendment.
+ Confidential treatment has been requested. The copy filed as an exhibit omits
the information subject to the confidential treatment request.
<PAGE> 1
EXHIBIT 10.21
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[_______]") OR OTHERWISE
INDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTAL TREATMENT.
THE OMITTED PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.***
LICENSE AGREEMENT
for
POLE ATTACHMENTS and/or CONDUIT OCCUPANCY
Dated 7/28/93
Between
BELLSOUTH TELECOMMUNICATIONS, INC.
(Licensor)
And
AMERICAN CABLE COMPANY
(Licensee)
BELLSOUTH License Agreement Number -
Proprietary
The information contained herein should not be disclosed to unauthorized
persons. It is meant for the use of the parties contracting herein in connection
with performance under this agreement.
<PAGE> 2
CONTENTS
ARTICLE PAGE
Preface 1
I Definition 2
II Scope of Agreement 4
III Fees and Charges 5
IV Advance Payment 6
V Specifications 7
VI Legal Requirements 8
VII Issuance of Licenses 9
VIII Make-Ready Work 10
IX Construction, Maintenance and Removal of
Communications Facilities 13
X Termination of Licenses 16
XI Inspection of Licensee's Communications Facilities 17
XII Unauthorized Attachment, Utilization, or Occupancy 18
XIII Security Interest 19
XIV Liability and Damages 20
XV Insurance 22
XVI Authorization Not Exclusive 23
XVII Assignment of Rights 23
XVIII Failure to Enforce 23
XIX Termination of Agreement 24
XX Term of Agreement 26
XXI Notices 26
XXII Supersedure of Previous Agreement(s) 27
APPENDICES
I Schedule of Fees and Charges
II Multiple Pole Attachment and Conduit Occupancy
License Applications
EXHIBITS
I Administrative Forms and Notices
II NonDiscrimination Compliance Agreement
III Conflict of Interest Agreement
IV NonDisclosure Agreement
<PAGE> 3
LICENSE AGREEMENT
THIS AGREEMENT, executed this 28th day of July, 1994 between BELLSOUTH
TELECOMMUNICATIONS, INC., d/b/a
South Central Bell Telephone Company
/ X / Southern Bell Telephone and Telegraph Company
a corporation organized and existing under the laws of the State of Georgia,
hereinafter called Licensor, and American Cable Company, a corporation organized
and existing under the laws of the State of Georgia hereinafter called Licensee;
W I T N E S S E T H:
WHEREAS, Licensee proposes to furnish communications services in the
State of Georgia and more particularly in the city of Columbus, as well as
unincorporated Muscogee county, and
WHEREAS, Licensee desires to place and maintain aerial and underground
communications facilities within the area described above and desires to place
such communications facilities on poles, anchors, and in the conduit system of
Licensor; and
WHEREAS, Licensor is willing to permit, under certain conditions, on a
revocable, non-exclusive license basis, to the extent it may lawfully do so, the
placement of said communications facilities on or within Licensor's facilities
where reasonably available in the area described above and where such use will
not interfere with Licensor's service requirements or the service requirements
of those parties with which Licensor has joint user arrangements or the use of
its facilities by others;
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, the parties do hereby mutually covenant and agree
as follows;
Proprietary
The information contained herein should not be disclosed to unauthorized
persons. It is meant for the use of the parties contracting herein in connection
with performance under this agreement.
1
<PAGE> 4
ARTICLE I
DEFINITIONS
As used in this Agreement:
A) Anchor
An assembly (rod and fixed object or plate owned by the Licensor or by
others), designed to resist the pull of a guy strand, for which the
Licensor is responsible for authorizing the attachment of Licensee's
communication facilities.
B) Conduit
A structure, usually underground, containing one or more ducts.
C) Conduit Occupancy
Occupancy of a conduit system by any item of Licensee's communications
facilities.
D) Conduit System
Any combination of ducts, conduits, manholes, handholes, and vaults
joined to form an integrated whole, which is owned solely or in part by
the Licensor.
E) Duct
A single enclosed raceway for wire conductors or cables.
F) Guy Strand
A metal cable attached to a pole and anchor (or another pole) for the
purpose of increasing pole stability.
G) Joint Owner
A person, firm, corporation or other legal entity sharing ownership of
a pole and/or anchor with Licensor.
H) Joint User
A joint user which may attach to a pole or anchor or occupy a conduit
either solely or partially owned by the Licensor, in return for
granting the Licensor equivalent rights of attachment to poles, anchors
and/or occupancy of conduit which it owns, either solely or partially.
I) Licensee's Communications Facilities
All facilities, including but not limited to cables, equipment and
associated hardware, owned and utilized by the Licensee which are
attached to a pole or anchor or occupy a conduit system.
2
<PAGE> 5
J) Manhole
A subsurface enclosure which personnel may enter and use for the
purpose of installing, operating, maintaining and repairing
communications facilities.
K) Make-Ready Work
All work, including but not limited to rearrangement and/or transfer of
existing facilities, replacement of a pole or other changes required to
accommodate the Licensee's communications facilities on a pole, anchor
or in a conduit system.
L) Prelicense Survey
All work required, including field inspection and administrative
processing, to determine the make-ready work necessary to accommodate
Licensee's communications facilities on a pole, anchor or in a duct.
M) Pole
A pole owned by the Licensor and/or by others for which Licensor is
responsible for authorizing the attachment of Licensee's communications
facilities.
N) Pole Attachment
Any item of Licensee's communications facilities affixed to a pole.
O) Service Requirements
Are multitudes of situations causing activity on the part of either
party's employees. Activity of importance to this agreement includes
new construction, removal of existing facilities and transfer, and/or
rearrangement of existing facilities. This activity may be caused by,
but is not limited to, increased plant retirements, emergencies, third
party attachments, changes in plans, etc.
P) Rearrangement of Attachments
Is the moving of attachments from one position to another on the same
pole or in the same conduit.
Q) Transfer of Attachments
Is the removing of attachments from one pole and placing of these onto
another pole or moving of attachments from one location in the
Licensor's conduit system to another location in the Licensor's conduit
system.
3
<PAGE> 6
ARTICLE II
SCOPE OF AGREEMENT
A) Subject to the provisions of this Agreement, Licensor agrees to issue
to Licensee revocable, nonexclusive licenses authorizing the attachment
of Licensee's communications facilities to poles or anchors, or the
placement of Licensee's communications facilities in Licensor's conduit
system within the state of Georgia and more particularly in the city of
Columbus, as well as unincorporated Muscogee county.
B) No use, however extended, of poles, anchors, or conduit systems or
payment of any fees or charges required under this Agreement shall
create or vest in Licensee any easements or any other ownership of
property rights of any nature in such poles, anchors, or conduit
systems. Licensee's rights herein shall be and remain a mere license.
Neither this Agreement nor any license granted hereunder shall
constitute an assignment of any of Licensor's rights to use the public
or private property at locations of such poles, anchors, and conduit
systems.
C) Licensor's rights to locate and maintain its poles, anchors, and
conduit systems and to operate its facilities in conjunction therewith
in such a manner as will best enable it to fulfill its own service
requirements is in no manner limited by this Agreement.
D) Nothing contained in this Agreement shad be construed to compel
Licensor to construct, reconstruct, retain, extend, place or maintain
any pole, anchor, duct or other facility for use by the Licensee not
needed for Licensor's own service requirements.
E) Nothing contained in this Agreement shall be construed as a limitation,
restriction, or prohibition against Licensor with respect to any joint
user agreement or arrangement which Licensor has heretofore entered
into, or may in the future enter into, with others not parties to this
Agreement regarding the poles, anchors, and conduit Systems covered by
this Agreement. The rights of Licensee shall at all times be subject to
any such existing and future agreement or arrangement with any such
joint user.
Proprietary
The information contained herein should not be disclosed to unauthorized
persons. It is meant for the use of the parties contracting herein in connection
with performance under this agreement.
4
<PAGE> 7
ARTICLE III
FEES AND CHARGES
A) Licensee shall pay to Licensor all fees and charges applicable in
connection with the attachment of its communications facilities to a
pole, anchor, or occupancy of a conduit system as specified in APPENDIX
I.
Where Licensor's communications facilities are attached to poles or
anchors owned by power distribution companies or authorities or any
other company or authority and where pre-survey and/or make-ready work
is required by Licensor on said poles to accommodate Licensee's
facilities, Licensee shall pay the Licensor for all such work in
accordance with the provisions of this Agreement in the same manner as
if the poles or anchors belonged to Licensor.
B) Except as herein otherwise expressly provided, Licensee at its own
expense shall place, maintain, rearrange, transfer and remove its own
attachments, and shall at all times perform such work promptly and in
such a manner as not to interfere with work or service being performed
by the other party. Upon completion of work by Licensor which will
necessitate transfer of the Licensee's attachments, the Licensor shall
provide written notice to the Licensee that such transfer must be
completed.
C) Non-payment of any amount due under this Agreement shall constitute a
default by Licensee of this Agreement subject to the provisions of
Article XIX
D) Whereas Licensor desires to protect the interest of its rate payers,
employees, and shareholders, Licensee shall furnish a bond or letter of
credit in a form satisfactory to Licensor or other satisfactory
evidence of financial security in such amount as Licensor from time to
time may require, to guarantee the performance of all Licensee
obligations hereunder. The amount of the bond or letter of credit or
financial security shall not operate as a limitation upon the
obligations of the Licensee hereunder.
E) At the expiration of six (6) months from the date of this Agreement,
changes in the amount of the fees and charges specified in Appendix I
may be made by Licensor upon at least sixty (60) days prior written
notice to Licensee, and Licensee agrees to pay such changed fees and
charges. Notwithstanding any other provision of this Agreement,
Licensee may terminate this Agreement at the end of such notice period
if the change in fees and charges is not acceptable to Licensee, by
giving Licensor written notice of its election to terminate this
Agreement at least ten (10) days prior to the end of such notice
period.
F) Licensee shall pay all applicable fees and charges due within thirty
(30) days after receipt of the bill.
G) Amendments to fees and charges shall be effected by the separate
execution of APPENDIX I which shall become a part of and be governed by
the terms and conditions of this Agreement.
5
<PAGE> 8
ARTICLE IV
ADVANCE PAYMENT
A) Licensee shall make an advance payment to the Licensor prior to:
1) any undertaking by Licensor of a prelicense survey or the
administrative processing portion of such a survey in an
amount specified by Licensor sufficient to cover the estimated
charges for completing the specific work operation required,
and
2) performance by Licensor of any make-ready work required in an
amount specified by Licensor sufficient to cover the estimated
charges for completing the required make-ready work.
B) The amount of the advance payment required (Exhibit I, Form B-1) will
be credited against the payment due the Licensor for performing the
prelicense survey or portion thereof and/or make-ready work or having
it performed by others.
C) Where the advance payment is less than the charge by the Licensor for
such work, Licensee agrees to pay Licensor within thirty (30) days of
receipt of the bill all sums due in excess of the amount of the advance
payment.
D) Where the advance payment exceeds the charge by the Licensor for such
work Licensor shall refund within thirty (30) days of issuance of the
bill the difference to Licensee.
6
<PAGE> 9
ARTICLE V
SPECIFICATIONS
A) Licensee's communications facilities shall be placed and maintained in
accordance with the requirements and specifications of the current
editions of the Bell System Manual of Construction Procedures (Blue
Book), the National Electrical Code (NEC), the National Electrical
Safety Code (NESC), all of which are incorporated by reference in this
Agreement, the rules and regulations of the Occupational Safety and
Health Act (OSHA) and any governing authority having jurisdiction over
the subject matter. Where a difference in specifications may exist, the
more stringent shall apply.
B) If any part of Licensee's communications facilities is not placed and
maintained in accordance with A) preceding, and Licensee has not
corrected the violation within sixty (60) days from receipt of written
notice thereof from Licensor, may at its option correct said condition;
provided, however, that if Licensee provides Licensor with written
notice at least ten (10) days prior to the expiration of the sixty (60)
day time period detailing the reasons for its inability to cure the
violations within said sixty (60) day period, then upon the consent of
Licensor, which consent shall not be unreasonably withheld or delayed,
the time for curing such violation shall be extended for such period of
time as shall be reasonably necessary to complete such curing. Licensor
will attempt to notify Licensee in writing prior to performing such
work whenever practicable. However when in the opinion of the Licensor
such conditions pose an immediate threat to the safety of the
Licensor's employee or the public, interfere with the performance of
the Licensor's then existing and current service obligations, or pose
an immediate threat to the physical integrity of the Licensor's
facilities, the Licensor may perform such work and/or take such action
that it deems necessary without first giving written notice to the
Licensee and without subjecting itself to any liability. As soon as
practicable thereafter, Licensor will advise Licensee in writing of the
work performed or the action taken and will endeavor to arrange for
re-accommodation of Licensee's facilities so affected. The Licensee
shall be responsible for paying the Licensor for all costs incurred by
the Licensor for all work, action, and re-accommodation performed by
Licensor under this subsection.
7
<PAGE> 10
ARTICLE VI
LEGAL REQUIREMENTS
A) Licensee shall be responsible for obtaining from the appropriate
governmental and/or private authority any required authorization to
construct, operate and/or maintain its communications facilities on
public and/or private property before it attaches its communications
facilities to poles and anchors or occupies conduit located on such
public and/or private property. Such authorizations may include, but
are not necessarily limited to, certificates of public convenience and
necessity to provide service to the public and appropriate easements or
right of way permits for location of facilities. In the absence of
evidence satisfying the above, Licensor reserves the right to revoke or
refuse to issue a license.
B) No license granted under this Agreement shall extend to any pole,
anchor or portion of a conduit system where the attachment or placement
of Licensee's communications facilities would result in a forfeiture of
rights of Licensor, or joint users, to occupy the property on which
such poles, anchors, or conduit systems are located. If the existence
of Licensee's communications facilities on a pole, anchor, or in a
conduit system would cause a forfeiture of the right of the Licensor or
joint user, or both, to occupy such property Licensee agrees to remove
its communications facilities forthwith upon receipt of written
notification from the Licensor. If said communications facilities are
not so removed, Licensor may perform and/or have performed such removal
after the expiration of 60 days from the receipt of said written
notification without liability on the part of the Licensor and Licensee
agrees to pay Licensor or joint user or both, the cost thereof and for
all losses and damages that may result; provided, however, that should
the existence of Licensee's communications facilities on a pole, anchor
or guy strand or in a conduit system cause the forfeiture of rights by
Licensor and/or a joint user, Licensee shall be required to remove its
communications facilities only in the event that it is unable to cure
the problem by obtaining the required private and/or public
authorization prior to the expiration of the stipulated sixty (60) day
time period; provided, however, that where such a situation cannot
reasonably be corrected in such sixty (60) day time period, if Licensee
shall proceed promptly to correct the same and prosecute such
correction with due diligence, the time for correction shall be
extended for such period of time as may be necessary to complete such
correction. Licensee agrees to indemnify, defend and save harmless
Licensor from and against any legal action or any cost resulting from
such legal action brought against it as a result of Licensee's actions
in connection with the exercise of its rights under this Article VI(B).
8
<PAGE> 11
ARTICLE VII
ISSUANCE OF LICENSES
A) Before Licensee shall attach to any pole or anchor, or occupy any
portion of a conduit system, Licensee shall make written application
for and have received a written license from the Licensor. (Exhibit I,
Forms A-1 and A-2 and/or D-1 through D-4).
B) Licensee agrees to limit the filing of applications for pole attachment
licenses to include not more than 300 poles or 300 associated anchors
on any one application and 1500 poles or 1500 associated anchors on all
applications which are pending approval by Licensor at any one time.
Such limitations will apply to poles and anchors located within a
single plant construction district of Licensor. Licensor, in its sole
judgment, may permit the preceding limitations to be exceeded if so
requested in writing by the Licensee when the circumstances of a
particular job warrant such. Licensee further agrees to designate a
desired priority of completion of the prelicense survey and make-ready
work for each application relative to all other of its applications on
file with Licensor at the same time.
9
<PAGE> 12
ARTICLE VIII
MAKE-READY WORK
A) Poles and Anchors, Guys
1) When an application for attachment (Exhibit I, Form A-1) to a pole
or anchor is submitted by Licensee, a prelicense survey will be
required to determine the adequacy of the existing poles and anchors
to accommodate Licensee's communications facilities. Utilization of
the existing available capacity of an anchor when such utilization
does not result in a reduction of the holding capacity below the
level normally required by the Licensor for safety or other purposes
will be permitted at the option of the Licensor and upon agreement
by the Licensee to payment of the charges as specified in Appendix
I.
2) The field inspection portion of the prelicense survey, which
requires the visual inspection of existing poles and anchors will be
performed by a representative of the Licensor. Joint users and/or
Licensee may participate in the field inspection at the option of
the Licensee. The administrative processing portion of the
prelicense survey, which includes the processing of the application,
the preparation of the make-ready work orders, the coordination of
work requirements and schedules with joint users and other attachees
will be performed by the Licensor.
a) Before the Licensor performs any portion of the prelicense
survey, the Licensor will advise the Licensee in writing of the
estimated charges that will apply and receive written
authorization and advance payment, as provided for in Article IV,
from the Licensee (Exhibit I, Form B-1). Licensee shall have
ninety (90) days from receipt of Form B-1 to make the required
payment and indicate its written authorization for completion of
the required prelicense survey and acceptance of the resulting
charges. Failure to respond in the specified period will result
in cancellation of the application.
3) Licensor reserves the right to refuse to grant a license for
attachment to a pole or anchor, or utilization of an anchor, when
Licensor determines that the available capacity on such pole, anchor
and/or guy strand is required for its exclusive use or that of a
joint user or governmental entity with pole attachment rights and
that the pole or anchor may not reasonably be rearranged or replaced
to accommodate Licensee's communications facilities.
4) In the event Licensor determines that a pole and/or anchor to which
Licensee desires to attach, or an anchor/guy strand which Licensee
desires to utilize, is inadequate or otherwise needs rearrangement
of the existing facilities thereon to accommodate the Licensee's
communications facilities, Licensor will advise the Licensee in
writing of the estimated make-ready charges that will apply (Form
B-1).
Licensee shall have ninety (90) days from the receipt of Form B-1
to make the required payment and indicate its written
authorization for completion of the required make-ready work and
acceptance of the resulting charges. Failure to respond in the
specified period will result in cancellation of the applications.
10
<PAGE> 13
5) Make-ready work will be performed by the Licensor following receipt
of the required written authorization and advance payment from the
Licensee. Licensee shall pay the Licensor for all make-ready work
completed in accordance with the provisions of this Agreement and
Licensee shall reimburse the owners of other facilities attached to
such poles and/or anchors for any expense incurred by them in
transferring or rearranging their facilities to accommodate
Licensee's pole attachments. Licensee shall not be entitled to any
monies paid to the Licensor for pole or anchor by reason of the use
by the Licensor, joint user, governmental entity or other authorized
licensees of any additional capacity resulting from such replacement
or rearrangement.
6) License applications received by Licensor from two or more Licensees
for attachment to the same pole, anchor, or utilization of the same
anchor will be processed by Licensor in accordance with the
procedures detailed in APPENDIX II.
7) Licensee shall notify Licensor whenever it is necessary for Licensor
to rearrange its existing facilities on a pole or anchor owned by
another party or transfer its facilities to a replacement pole or
anchor owned by another party in order to accommodate the Licensee.
The cost of such rearrangement and/or transfer will be included in
the make-ready work for which Licensee shall pay Licensor.
8) Should Licensor, joint user or governmental entity having pole or
anchor accommodation rights, for its own service requirements, need
to attach additional facilities to any poles or anchors to which
Licensee is attached or avail itself of the holding capacity of an
anchor being utilized by the Licensee, Licensee will either
rearrange its facilities on the pole or anchor or transfer them to a
replacement pole or anchor, as determined by Licensor so that the
additional facilities of Licensor, joint user or governmental entity
may be accommodated. The cost of such rearrangement and/or transfer
will be at the sole expense of the Licensee. If Licensee does not
rearrange or transfer its communications facilities within sixty
(60) days after receipt of written notice from Licensor requesting
such rearrangement or transfer, Licensor or joint user may perform
or have performed such rearrangement or transfer without liability
on the part of Licensor or joint user and Licensee shall be liable
for the full costs thereof.
B) Conduit System
1) When an application for conduit occupancy is submitted by the
Licensee, a prelicense survey by the Licensor will be required to
determine the availability of the conduit system to accommodate
Licensee's communications facilities. Licensor will advise the
Licensee in writing of the estimated charges that will apply for
such prelicense survey and receive written authorization and advance
payment (as provided for in Article IV) from the Licensee before
undertaking such a survey (Form B-1). A representative of the
Licensee may accompany the Licensor's representative on the field
inspection portion of such prelicense survey. Licensee shall have
ninety (90) days from receipt of Form B-1 to make the required
payment and indicate its written authorization for completion of the
required prelicense survey and acceptance of the resulting charges.
Failure to respond in the specified period will result in
cancellation of the application.
11
<PAGE> 14
2) License applications received by Licensor from two or more Licensees
for occupancy of the same conduit system will be processed by
Licensor in accordance with procedures detailed in APPENDIX II.
3) The Licensor retains the right, in its sole judgment, to determine
the availability of space in a conduit system. In any event the
Licensor determines that rearrangement of the existing facilities in
the conduit system is required before the Licensee's communications
facilities can be accommodated, Licensor will advise the Licensee in
writing of the estimated make-ready charges that will apply for such
rearrangement work (Form B-1). Licensee shall have ninety (90) days
from the receipt of Form B-1 to make the required payment and
indicate its written authorization for completion of the required
make-ready work and acceptance of the resulting charges. Failure to
respond within the specified period will result in cancellation of
the application.
4) Should Licensor or any governmental entity with whom Licensor has an
agreement granting such entity priority access to and/or occupancy
of Licensor's conduit system need, for its own service requirements,
any of the conduit capacity occupied by Licensee's communications
facilities and, if Licensor advises Licensee that Licensee's
communications facilities can be accommodated otherwise in
Licensor's conduit system, Licensee shall be required to rearrange
its communications facilities in the manner designated by the
Licensor and at the expense of Licensee. If Licensee has not so
rearranged its communications facilities within sixty (60) days of
receipt of written notice from Licensor, Licensor may perform or
have performed such rearrangement without any liability on the part
of the Licensor and Licensee shall reimburse Licensor for the full
costs thereof.
5) In performing all make-ready work to accommodate Licensee's
communications facilities, Licensor will endeavor to include such
work in its normal work load schedule.
12
<PAGE> 15
ARTICLE IX
CONSTRUCTION, MAINTENANCE AND REMOVAL OF
COMMUNICATIONS FACILITIES
A) Licensee shall, at its own expense, construct and maintain its
communications facilities on poles and/or anchors, and in conduit systems
covered by this Agreement in a safe condition and in a manner reasonably
acceptable to Licensor, so as not to physically conflict or electrically
interfere with the facilities attached thereon or placed therein by the
Licensor, joint users, or other authorized licensees.
B) Licensor shall specify the point of attachment on each pole or anchor to be
occupied by Licensee's communications facilities. Where communications
facilities of more than one Licensee are involved, Licensor will attempt to
the extent practical, to designate the same relative position on each pole
or anchor for each Licensee's communications facilities.
C) Licensee shall notify the Licensor in writing (Exhibit I, Form E) at least
thirty (30) days before adding to, relocating, replacing or otherwise
modifying its facilities attached to a pole and/or anchor where additional
space or holding capacity may be required on either a temporary or
permanent basis. Maintaining and/or modifying existing facilities and
installing or removing service connections will not require prior
authorization or notices.
D) The Licensee must obtain prior written authorization "Exhibit I, Form D or
Form F, as applicable) from the Licensor before the Licensee shall install,
remove or provide maintenance of its communication facilities in any of
Licensor's conduit systems. Licensor shad not withhold or delay such
authorization without good cause. Licensor retains the right to specify
what, if any, work shall be performed by Licensor at Licensee's expense.
E) In each instance where Licensee's communications facilities are to be
placed in Licensor's conduit system, Licensor shall designate the
particular duct(s) to be occupied, the location and manner in which
Licensee's communications facilities will enter and exit Licensor's conduit
system and the specific location and manner of installation for any
associated equipment which is permitted by Licensor to occupy the conduit
system. Licensor reserves the right to exclude or limit the type, number
and physical size of Licensee's communications facilities which may be
placed in Licensor's conduit system; provided, however, that Licensor shall
provide Licensee with a written explanation of any such exclusion or
sanitation which may be imposed.
13
<PAGE> 16
F) Licensor's manholes shall be opened only as permitted by Licensor's
authorized employees or agents. Licensee shall be responsible for obtaining
any necessary authorization from appropriate authorities to open manholes
and conduct work operations therein. Licensee's employees, agents or
contractors will be permitted to enter or work in Licensor's manholes only
when an authorized employee or agent of Licensor is present or the
Licensor's authorized employee or agent has determined the Licensee's work
will not affect Licensor's equipment. Licensor's authorized employee or
agent shall have the authority to suspend Licensee's work operations in and
around Licensor's manholes if in the sole discretion of said employee or
agent, any hazardous conditions arise, any unsafe practices are being
followed, or the work may adversely affect Licensor's equipment by
Licensee's employees, agents, or contractors. Licensee agrees to pay
Licensor the charges, as determined in accordance with the terms and
conditions of APPENDIX I, for having Licensor's employee or agent present
when Licensee's work is being done in and around Licensor's manholes. The
presence of Licensor's authorized employee or agent is to protect the
Licensor's equipment and shall not relieve Licensee of its responsibility
to conduct all of its work operations in and around Licensor's manholes in
a safe and workmanlike manner, in accordance with the terms of this
Agreement.
G) Licensee, at its expense will remove its communications facilities from
poles, anchors, or portions of a conduit system within sixty (60) days
after:
1) termination of the license covering such attachment or conduit
occupancy; or
2) the date Licensee replaces its existing facilities on a pole with the
placement of substitute facilities on the same pole or another pole, or
replaces its existing facilities in one duct with the placement of
substitute facilities in another duct.
Licensee shall remain liable for and pay to the Licensor all fees and
charges pursuant to provisions of this Agreement until all of Licensee's
facilities are physically removed from such poles, anchors and portions of
conduit systems.
If Licensee fails to remove its facilities within the specified period,
Licensor shall have the right to remove such facilities at Licensee's
expense and without any liability on the part of the Licensor for damage to
such facilities and/or without any liability for any interruption of
Licensee's services.
H) In the event Licensor desires at any time to abandon any of its poles on
which Licensee has a licensed attachment and is the only attachee, Licensor
shall give Licensee notice in writing to that effect at least sixty (60)
days prior to the date on which Licensor intends to abandon such pole. At
the expiration of said period any license previously issued to Licensee by
Licensor will automatically terminate, and:
1) If no attachments remain on such pole, it shall be removed by Licensor;
or
2) If the Licensor shall have no attachments on such pole but the Licensee
does, Licensor may, without liability, remove Licensee's attachments
from such pole and remove the poles unless:
a) Licensee presents to Licensor, for its files, a certified copy of
Licensee's recorded right-of-way to the land surrounding the pole
in question, or
b) Licensee presents to Licensor, for its files, a copy of the
right-of-way permit issued by the controlling governmental
organization, and
c) Licensee accepts from Licensor and pays a bill for purchase of the
pole in question at a price determined by the Licensor.
14
<PAGE> 17
3) If (a) or (b) and (c) above are complied with, then, Licensor shall
transfer ownership of such pole to Licensee, and Licensee shall
thereafter save harmless the Licensor from all obligations, liability,
damages, costs, expenses, or charges incurred because of, or arising
out of, the presence or condition of such pole or any attachments
thereto.
I) In the event Licensor desires at any time to abandon any of its poles on
which a joint user has an attachment and on which Licensee has a licensed
attachment, Licensor shall give both parties sixty (60) days notice in
writing of such intent, unless the Joint Use Agreement applicable thereto
requires a longer period of notice to the joint user, who shall be given
the notice according to the said Agreement's terms. At the expiration of
said notification period, any license previously issued by the Licensor to
the Licensee shall automatically terminate, and:
1) If no attachments remain on such pole, it shall be removed by Licensor;
or
2) If the Licensor shall have not attachments on such pole but the joint
user and Licensee do, Licensor will transfer ownership of said pole to
the joint user in the manner described in the Joint Use Agreement
without further liability to the Licensor; or
3) If the Licensor shall have not attachments on such pole and the joint
user shall have no attachments on such pole but the Licensee does,
Licensor may, without liability, remove the pole unless the conditions
in H), 2) a) or b) and c) above are met.
J) When Licensee's communications facilities are removed from a pole, anchor
or conduit system, no reattachment to the same pole or anchor or
replacement in the same portion of a conduit system shall be made until:
1) The Licensee has first complied with all of the provisions of the
Agreement as though no such pole or anchor attachment or conduit
occupancy had previously been made, and
2) All outstanding charges due Licensor for such previous attachment
and/or occupancy have been paid in full.
K) Licensee shall advise Licensor in writing at to the date on which the
removal of its communications facilities from each pole, anchor, and/or
portion of conduit system has been completed.
15
<PAGE> 18
ARTICLE X
TERMINATION OF LICENSES
A) Any license issued under this Agreement shall automatically terminate when
Licensee ceases to have authority to construct and operate its
communications facilities on public or private property at the location of
the particular pole, anchor or portion of conduit system covered by the
license; provided, however, that Licensee shall have the right to contest
any notice of termination of authority from any governmental authority or
property owner and, in such event, the license covering the use of such
pole, anchor, guy strand or portion of conduit system shall remain in
effect until such time as Licensee's appeal process is exhausted or the
right to use such pole, anchor, guy strand or portion of conduit systems
has been reinstated. Licensee agrees to indemnify, defend and save harmless
Licensor from and against any legal action or any cost resulting from such
legal action brought against it as a result of Licensee's actions in
connection with the exercise of its rights under this Article X(A).
B) Licensee may at any time terminate its license with respect to the
attachment to a pole or anchor or occupancy of a portion of conduit system
and remove its communications facilities by giving Licensor written notice
of such intention (Exhibit I, Forms E & F). Once Licensee's communications
facilities have been removed they shall not be reattached to such pole or
anchor or occupy the same portion of a conduit system until Licensee has
complied with all provisions of this Agreement as though no previous
license had been issued.
16
<PAGE> 19
ARTICLE XI
INSPECTION OF LICENSEE'S COMMUNICATIONS FACILITIES
A) Licensor reserves the right to make periodic inspections of any part of
Licensee's communications facilities attached to Licensor's poles, anchors,
or occupying Licensor's conduit system, and Licensee shall reimburse
Licensor for the expense of such inspections as specified in APPENDIX I;
provided, however, that Licensee shall have the right to have one or more
of its employees or representatives present during the time of any such
inspection.
B) The frequency and extent of such inspection by Licensor will depend upon
Licensee's performance in relation to the requirements of ARTICLES V, VII
and IX herein.
C) Licensor will give Licensee advance written notice of such inspections,
except in those instances where, in a sole judgment of Licensor, safety
considerations justify the need for such an inspection without the delay of
waiting until a written notice has been forwarded to Licensee.
D) The making of periodic inspections or the failure to do so shall not
operate to impose upon Licensor any liability of any kind whatsoever nor
relieve Licensee of any responsibility, obligations or liability assumed
under this Agreement.
17
<PAGE> 20
ARTICLE XII
UNAUTHORIZED ATTACHMENT, UTILIZATION, OR OCCUPANCY
A) If any of Licensee's communications facilities shall be found attached to
poles, anchors, or occupying conduit systems for which no license is
outstanding, Licensor, without prejudice to its other rights or remedies
under this Agreement including termination of licenses may impose a charge
and require Licensee to submit in writing, within fifteen (15) days after
receipt of written notification from Licensor of the unauthorized
attachment, or conduit occupancy, a pole or anchor attachment, or conduit
occupancy license application. If such application is not received by the
Licensor within the specified time period, Licensee may be required at
Licensor's option to remove its unauthorized attachment or occupancy within
sixty (60) days of the final date of submitting the required application,
or Licensor may at Licensor's option remove Licensee's facilities without
liability, and the expense of such removal shall be borne by Licensee.
B) For the purpose of determining the applicable charge, any unauthorized pole
or anchor attachment, or conduit system occupancy shall be treated as
having existed for a period of two (2) years prior to its discovery or from
the time of the last inspection date or for the period beginning with the
effective date of this License Agreement, whichever period shall be the
shorter.
The fees and charges, as specified in APPENDIX I, shall be due and payable
forthwith whether or not Licensee is permitted to continue the pole or
anchor attachment or conduit occupancy.
C) No act or failure to act by Licensor with regard to said unlicensed used
shall be deemed as a ratification of the unlicensed use; and if any license
should be subsequently issued, said license shall not operate retroactively
or constitute a waiver by Licensor of any of its rights or privileges under
this Agreement or otherwise; provided, however, that Licensee shall be
subject to all liabilities, obligations and responsibilities of this
Agreement in regards to said unauthorized use from its inception.
18
<PAGE> 21
ARTICLE XIII
SECURITY INTEREST
Should Licensor under any applicable Article of this Agreement remove Licensee's
facilities from the poles, anchors, or conduit systems covered by this
Agreement, Licensor will deliver to Licensee the facilities so removed upon
payment by Licensee of the cost of removal, storage and delivery, and all other
amounts due Licensor. At any time, Licensee, upon request of Licensor, shall
grant Licensor a first priority chattel mortgage, or other security interest in
all of Licensee's communications facilities now or hereafter attached to poles,
anchors, or placed in conduit systems pursuant to this Agreement, and licensee
agrees to perform all acts necessary to perfect Licensor's chattel mortgage or
other security interest under the terms of each state's law. If the terms of
Licensee's loan agreements and debentures preclude the grant of liens or
security interests to Licensor, Licensee shall grant to Licensor, any time, upon
Licensor's request, other permissible assurance of security for performance
satisfactory to Licensor to cover any such aforementioned amounts due Licensor.
Nothing in this Article shall operate to prevent Licensor from pursuing, at its
option, any other remedies under this Agreement or in law or equity, including
public or private sale of facilities under security interest or lien.
19
<PAGE> 22
ARTICLE XIV
LIABILITY AND DAMAGES
A) Licensor shall exercise precaution to avoid damaging the communications
facilities of the Licensee and shall make an immediate report to the
Licensee of the occurrence of any such damage caused by its employees,
agents or contractors. Licensor agrees to reimburse the Licensee for all
reasonable costs incurred by the Licensee for the physical repair of such
facilities damaged by the negligence of Licensor, its employees, agents,
contractors, subcontractors or invites. However, Licensor shall not be
liable to Licensee for any interruption of Licensee's service or for
interference with the operation of Licensee's communications facilities, or
for any special, indirect, or consequential damages arising in any manner,
including Licensor's negligence, out of the use of poles, anchors, or
conduit systems or Licensor's actions or omissions in regard thereto and
Licensee shall indemnify and save harmless Licensor from and against any
and all claims, demands, causes of action, costs and reasonable attorneys'
fees with respect to such special, indirect or consequential damages.
B) Licensee shall exercise precaution to avoid damaging the facilities of
Licensor and of others attached to poles, anchors, or occupying a conduit
system and shall make an immediate report to the Owner of the occurrence of
any such damage caused by Licensee's employees, agents or contractors.
Licensee agrees to reimburse the Licensor for all reasonable costs incurred
by the Licensor for the physical repair of such facilities damaged by the
negligence of Licensee.
C) Licensee shall indemnify, protect and save harmless the Licensor, its
directors, officers, employees and agents, Licensor's other licensees, and
joint users from and against any and all claims, demands, causes of action,
damages and costs, including reasonable attorney's fees through appeals
incurred by the Licensor, the Licensor's other licensees and joint users as
a result of acts by the Licensee, its employees, agents or contractors,
including but not limited to the cost of relocating poles, anchors, guys,
or conduit system resulting from a loss of right-of-way or property owner
consents and/or the cost of defending those rights and/or consents.
D) The Licensee shall indemnify, protect and save harmless the Licensor, its
directors, officers, employees and agents, Licensor's other licensees, and
joint users from and against any and all claims, demands, causes of actions
and costs, including reasonable attorney's fees, through appeals for
damages to property and injury or death to persons, including but not
limited to payments under any Worker's Compensation Law or under any plan
for employee's disability and death benefits, caused by, arising from,
incident to, connected with or growing out of the erection, rearrangement,
maintenance, presence, use or removal of Licensee's facilities, or by their
proximity to the facilities of all parties attached to a pole, anchor
and/or guy, or placed in a conduit system, or by any act or omission of the
Licensee's employees, agents or contractors in the vicinity of the
Licensor's poles, anchors, guys or conduit system.
20
<PAGE> 23
E) The Licensee shall indemnify, protect and save harmless Licensor, its
directors, officers, employees, and agents, Licensor's other licensees, and
joint users from any and all claims, demands, causes of action and costs,
including attorneys' fees through appeals, which arise directly or
indirectly from the construction and operation of Licensee's facilities,
including but not limited to taxes, special charges by others, claims and
demands for damages or loss from infringement of copyrights, for libel and
slander, for unauthorized use of television or radio broadcast programs and
other program material and from and against all claims, demands and costs,
including attorney's fees through appeals for infringement of patents with
respect to the construction, maintenance, use and operation of Licensee's
facilities in combination with poles, anchors, conduit systems or
otherwise.
F) Licensee shall promptly advise the Licensor of all claims relating to
damage of property or injury to or death of persons, arising or alleged to
have arisen in any manner, directly or indirectly, by the erection,
maintenance, repair, replacement, presume, use or removal of the Licensee's
facilities. Licensee shall promptly notify Licensor in writing of any suits
or causes of action which may involve Licensor and, upon the request of
Licensor, copies of all relevant accident reports and statement made to
Licensee's insurer by Licensee or others shall be furnished promptly to
Licensor.
21
<PAGE> 24
ARTICLE XV
INSURANCE
A) Licensee shall obtain and maintain insurance, including endorsements
insuring the contractural liability and indemnification provisions of this
Agreement, issued by an insurance carrier reasonably satisfactory to
Licensor to protect the Licensor, other authorized Licensees, and joint
users from and against all claims demands, causes of action, judgments,
costs, including reasonable attorneys' fees, expenses and liabilities of
every kind and nature which may arise or result, directly or indirectly
from or by reason of such loss, injury or damage as covered in this
Agreement including ARTICLE XIV preceding.
B) The amounts of such insurance:
1) against liability due to damage to property shall be not less than
$300,000 as to any one occurrence and $500,000 aggregate, and
2) against liability due to injury or death of persons shall be not less
than $500,000 as to any one person and $1,000,000 as to any one
occurrence, with an annual aggregate limit of not less than
$10,000,000.
C) Licensee shall submit to Licensor certificates by each company insuring
Licensee with respect to any insurance required hereunder, such
certificate(s) to specify the coverage provided and that such company will
not cancel or change any such policy of insurance issued to Licensee except
after sixty (60) days written notice to Licensor.
D) Licensee shall also carry such insurance as will protect it from all claims
under any Worker's Compensation Law in effect that may be applicable to it
as a result of work performed pursuant to this Agreement.
E) All insurance required in accordance with B) and C) preceding must be
effective before Licensor will authorize attachment to a pole and/or
anchor, or occupancy of a conduit system and shall remain in force until
such Licensee's facilities have been removed from all such poles, anchors,
or conduit system. In the event that the Licensee shall fail to maintain
the required insurance coverage, Licensor may pay any premium thereon
falling due, and the Licensee shall forthwith reimburse the Licensor for
any such premium paid.
22
<PAGE> 25
ARTICLE XVI
AUTHORIZATION NOT EXCLUSIVE
Nothing herein contained shall be construed as a grant of any exclusive
authorization, right or privilege to Licensee. Licensor shall have the
right to grant, renew and extend rights and privileges to others not
parties to this Agreement, by contract or otherwise, to use any pole,
anchor, or conduit system covered by this Agreement and Licensee's rights
hereunder.
ARTICLE XVII
ASSIGNMENT OF RIGHTS
A) Licensee shall not assign or transfer this Agreement or any license or any
authorization granted under this Agreement, and this Agreement shall not
inure to the benefit of Licensee's successors or assigns, without the prior
written consent of Licensor. Licensor shall not unreasonably withhold such
consent.
B) In the event such consent or consents are granted by Licensor, then the
provisions of this Agreement shall apply to and bind the successors and
assigns of the Licensee.
ARTICLE XVIII
FAILURE TO ENFORCE
Failure of Licensor to enforce or insist upon compliance with any of the
terms or conditions of this Agreement or to give notice or declare this
Agreement or any authorization granted hereunder terminated shall not
constitute a general waiver or relinquishment of any term or condition of
this Agreement, but the same shall be and remain at all times in full force
and effect.
23
<PAGE> 26
ARTICLE XIX
TERMINATION OF AGREEMENT
A) Subject to provisions of Article XVII hereof, should Licensee cease to
provide its communications services in the area covered by this Agreement,
then all of Licensee's rights, privileges and authorizations under this
Agreement, including all licenses issued hereunder, shall automatically
terminate as of the date following the final day that such communications
services are provided.
B) Licensor shall have the right to forthwith terminate this entire Agreement
or any license issued hereunder whenever Licensee is in default of any term
of this Agreement, including, but not limited to, the following conditions:
1) If Licensee's communications facilities are used or maintained in
violation of any law or in aid of any unlawful act or undertaking; or
2) If Licensee attaches to any poles and/or anchors or occupies any
portion of a conduit system without having first been issued a license
therefore subject to the terms of Article XII hereinabove; or
3) If any authorization which may be required of the Licensee by any
governmental or private authority for the construction, operation, and
maintenance of the Licensee's communications facilities is denied or
revoked and Licensee has failed to comply with the provisions of
Article VI(B) hereinabove; or
4) If the insurance carrier shall at any time notify Licensor or Licensee
that the policy or policies of insurance, required under ARTICLE XV
hereof, will be canceled or changed and Licensee has not obtained
substitute adequate coverage within the time periods specified herein,
and if in the sole judgment of Licensor the requirements of ARTICLE XV
will no longer be satisfied, this Agreement shall terminate upon the
effective date of such cancellation or change.
C) Licensor will promptly notify the Licensee in writing of any condition(s)
applicable to B) above. Licensee shall take immediate corrective action to
eliminate any such condition(s) and shall confirm in writing to Licensor
within thirty (30) days following receipt of such written notice that the
cited condition(s) has (have) ceased or been corrected. If Licensee fails
to discontinue or correct such conditions and fails to give the required
confirmation, Licensor may immediately terminate this Agreement.
D) In the event of termination of this Agreement or any of Licensee's rights,
privileges or authorizations hereunder, Licensee shall remove its
communications facilities from Licensor's poles, anchors and conduit system
within six months from the date of termination; provided, however, that
Licensee shall be liable for and pay all fees and charges pursuant to terms
of this Agreement to Licensor until Licensee's communications facilities
are actually removed from Licensor's poles, anchors and conduit system.
24
<PAGE> 27
Appendix I
Page 25 of 4
E) If Licensee does not remove its communications facilities from Licensor's
poles, anchors and conduit system within the applicable time periods
specified in this Agreement, Licensor shall have the right to remove them
at the expense of Licensee and without any liability on the part of
Licensor to Licensee therefore.
F) In the event any of the arrangements, fees and charges provided for under
this Agreement are hereafter offered under tariff filed by Licensor and in
effect with a regulatory commission, this Agreement with respect to those
arrangements, fees and charges shall terminate and shall be superseded by
said tariff. Said termination is to become effective on the day when said
tariff becomes effective.
25
<PAGE> 28
ARTICLE XX
TERM OF AGREEMENT
A) Unless sooner terminated as herein provided, this Agreement shall continue
in effect for a term of one (1) year from the date hereof and thereafter
from year to year until either party hereto terminates this Agreement by
giving the other party at least one hundred eighty (180) days prior written
notice thereof. Such one hundred eighty (180) days notice of termination
may be given to take effect at the end of the original one (1) year period
or any time thereafter.
B) Termination of this Agreement or any licenses issued hereunder shall not
affect Licensee's liabilities and obligations incurred hereunder prior to
the effective date of such termination.
ARTICLE XXI
NOTICES
All written notices required under this Agreement shall be given by posting the
same certified mail, return receipt requested, to Licensee as follows:
(Name) Mr. Preston Lammert
(Title) General Manager
(Company) American Cable Company
(Address) 5636 E. Whitesville Road
(City, State, and Columbus GA 31904
Zip Code) with a copy to:
and to Licensor as follows:
(Name) License Agreement Coordinator
(Title) BellSouth Telecommunications, Inc. d/b/a
(Company) Southern Bell Telephone and Telegraph
Company
(Address) 261- 100 Perimeter Center Place
(City, State, Atlanta GA 30346
and Zip Code)
(Telephone) (404) 391-5760
or to such address as the party hereto may from time to time specify in writing
by like notice.
Proprietary
The information contained herein should not be disclosed to unauthorized
persons. It is meant for the use of the parties contracting herein in connection
with performance under this agreement.
26
<PAGE> 29
ARTICLE XXII
SUPERSEDURE OF PREVIOUS AGREEMENT(S)
This Agreement supersedes all previous agreements, whether written or
oral, between Licensor and Licensee for attachment and maintenance of
Licensee's communications facilities on poles, anchors and in conduit
systems within the geographical area covered by this Agreement; and
there are no other provisions, terms or conditions to this Agreement
except as expressed herein. All currently effective licenses heretofore
granted pursuant to such previous agreements shall be subject to the
terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate on the day and year first above written.
BellSouth Telecommunications, Inc.
Licensor
/s/ Sherri Ellis By: /s/ D.L. Strohmeyer
- ----------------------- ----------------------------------
Witness Signature
/s/ Doris Whitehead Its: Vice President/Network Operations/Central
- ----------------------- ----------------------------------
Witness Title
ATTEST: /s/ Lynn W. Jarvis
------------------
Assistant Secretary
American Cable Company
Licensee
/s/ [ILLEGIBLE SIGNATURE] By: /s/ Preston L. Lammert
- ------------------------- ----------------------------------
Witness Signature
/s/ Fred L. Bush, Jr. Its: General Manger
- ------------------------- ----------------------------------
Witness Title
Proprietary
The information contained herein should not be disclosed to unauthorized
persons. It is meant for the use of the parties contracting herein in connection
with performance under this agreement.
27
<PAGE> 30
APPENDIX I
SCHEDULE OF FEES AND CHARGES
***INFORMATION IN THIS APPENDIX HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE
COMMISSION.***
<PAGE> 31
Appendix I
Page 2 of 4
APPENDIX I
SCHEDULE OF FEES AND CHARGES
THIS APPENDIX I, effective as of 01/01/95, is an integral part of the License
Agreement between BellSouth Telecommunications, Inc. (Licensor) and American
Cable Company (Licensee), dated 07/28/93 and contains the fees and charges
governing the use of Licensor's poles, anchors, and conduit systems by
licensee's communications facilities.
A) Attachment, Utilization, and Occupancy Fees
1) General
a) Attachment, utilization, and occupancy fees commence on the first
day of the calendar month following the date the License is issued
for such attachment, utilization or occupancy. Such fees cease as
of the final day of the calendar month preceding the month in
which the attachment or occupancy is physically removed or the
utilization is discontinued.
b) A one month minimum charge is applicable for all attachment,
utilization and occupancy accommodations.
c) Fees shall be payable semi-annually in advance on the first day of
January and July.
d) The total attachment and occupancy fees due hereunder, shall be
based upon the number of poles, anchors, guy strands and duct feet
of conduit for which licenses have been issued before the first
day of June and the first day of December each year. Each
semi-annual payment shall include a proration of the monthly
attachment, utilization and occupancy charges applicable for
attachments, utilizations or occupancy initially authorized by the
Licensor during the preceding six (6) month period.
e) In the event any of the arrangements, fees and charges provided
for under this Agreement are hereafter offered under tariff filed
by Licensor and in effect with a regulatory commission, this
Agreement with respect to those arrangements, fees and charges
shall terminate and shall be superseded by said tariff. Said
termination is to become effective on the day preceding the day
when said tariff becomes effective.
<PAGE> 32
Appendix I
Page 3 of 4
2) Fees
Licensee shall pay to Licensor the following fees:
Pole and/or Anchor Accommodations
Annual Fee
Per pole attached [____]
Conduit Occupancy Accommodations
Annual Fee
Per foot of duct occupied [____]
i) For the purpose of determining the duct feet chargeable, the duct
considered occupied shall be measured from the center to center of adjacent
manholes, or center of manhole to the end of a duct not terminated in a
manhole.
ii) When inner duct is utilized, the occupancy fee will be prorated based on
the number of inner ducts placed in the duct. (Example: Occupancy of one
inner duct in a duct containing three inner ducts will be charged at
one-third the normal duct fee.) Licensee shall pay the entire cost incurred
by Licensor in providing the inner duct.
iii) The above rates are not applicable for crossing of any navigable waterway.
Rates for navigable waterway crossings will be calculated on an individual
case basis.
<PAGE> 33
Appendix I
Page 4 of 4
B) Charges
1) Computation
Charges for all work performed by the Licensor or by its authorized
representative in connection with the furnishing of pole, anchor, and
conduit system accommodations as covered by this Agreement shall be
based on the full cost, plus [___] of such amount, to the Licensor for
performance for such work. Such charges will apply for, but not be
limited to, prelicense survey, make-ready work, inspection and removal
of Licensee's communications facilities and supervision, at the option
of the Licensor, of Licensee performed work in and around the immediate
vicinity of a conduit system or pole.
2) Pole and/or Anchor Replacements
The charge for replacement of a pole, or anchor required to accommodate
Licensee's communications facilities, in accordance with ARTICLE VIII,
A) 7) shall be based on Licensor's fully installed costs less salvage
value, if any.
C) Payment Date
Failure to pay all fees and charges within thirty (30) days after
presentment of the bill therefor or on the specified payment date,
whichever is later, shall constitute a default of this Agreement.
AMERICAN CABLE COMPANY BELLSOUTH TELECOMMUNICATIONS
d/b/a/ SOUTHERN BELL TELEPHONE AND
TELEGRAPH COMPANY
BY: /s/ Butch Lammert BY: /s/ WR McNair
----------------------- -------------------------------
ITS: General Manager ITS: VICE PRESIDENT-NETWORK
----------------------- OPERATIONS-NORTH
Attest: (Seal) Attest: /s/ Lynn W. Jarvis (Seal)
----------------------- -------------------------------
Witness: Witness: /s/ Doris F. Malone
----------------------- -------------------------------
<PAGE> 34
APPENDIX II
PROCEDURE FOR PROCESSING
MULTIPLE POLE and/or CONDUIT
OCCUPANCY LICENSE APPLICATIONS
<PAGE> 35
Appendix II
Page 2 of 5
APPENDIX II
PROCEDURE FOR PROCESSING
MULTIPLE POLE and/or CONDUIT
OCCUPANCY LICENSE APPLICATIONS
THIS APPENDIX II, effective as of the 1st day of January, 1994, is an
integral part of the License Agreement between BellSouth Telecommunications,
Inc. (Licensor) and American Cable Company (Licensee), dated January 1, 1994 and
contains the procedure for processing multiple license applications.
A) MULTIPLE APPLICANTS
Applications received from multiple applicants for the same pole, anchor or
conduit system will be classified as follows:
1) SIMULTANEOUS - received by the Licensor on the same business day.
2) NON-SIMULTANEOUS - received by the Licensor on different business days.
B) PROCESSING
1) SIMULTANEOUS APPLICATIONS - Processing of simultaneous applications
will be done concurrently. Authorization for attachment, utilization or
occupancy will be granted simultaneously to all multiple applicants
involved.
2) NON-SIMULTANEOUS APPLICATIONS - Initial applicant will be offered the
following options in writing immediately following receipt, by the
Licensor, of an application(s). Copies of such written notification to
the initial applicant will be sent to the additional applicant(s).
OPTION 1 - Application(s) of the initial applicant will be processed on
the basis that there is no application on file from another
applicant for the same pole, anchor or conduit system.
OPTION 2 - Application(s) of initial applicant and additional
applicant(s) will be processed in accordance with B) 1)
preceding.
<PAGE> 36
Appendix II
Page 3 of 5
3) INITIAL APPLICANT
All work in progress on application(s) filed by an initial applicant
win be suspended by the Licensor from the date of its written
notification as required in 2) preceding until the initial applicant
notifies the Licensor, in writing, of the Option it elects. Such
written notification by the initial applicant will be required no
later than twenty (20) days following its receipt of the
aforementioned notification from the Licensor; otherwise the Licensor
will deem the initial applicant to have elected Option 1. Licensor
will notify the additional applicant(s), in writing, of the Option
elected by the initial applicant.
4) ADDITIONAL APPLICANT(S)
Option 2 will be subject to acceptance by all multiple applicants
involved. The additional applicant(s) will have ten (10) days from
receipt of written notification from the Licensor advising that the
initial applicant has selected Option 2, to accept or reject by
written notification to the Licensor the conditions applicable to
simultaneous attachment, utilization or occupancy; otherwise the
Licensor will deem the additional applicant(a) to have rejected
acceptance to treatment as simultaneous applicants.
C) CONDITIONS APPLICABLE TO SIMULTANEOUS APPLICATIONS:
1) FIELD INSPECTION
The field inspection will be performed by a representative of the
Licensor.
2) MAKE-READY WORK
Multiple applicants must develop a mutually agreeable order of pole,
anchor or conduit system availability and overall make-ready work
completion schedule.
a) When multiple applicants cannot reach such mutual agreement
within fifteen (15) days from receipt of written notification
from the Licensor of the estimated charges for the required
make-ready work, the Licensor may at its option offer as an
alternative to complete the total make-ready work required for
all multiple applicants before simultaneously granting
attachment, utilization or occupancy authorization for all
multiple applications involved.
b) Any multiple applicant who fails to agree to the alternative
arrangement will be considered by the Licensor to have
canceled its application(s) relative to the poles, anchors, or
conduit systems involved on pending applications of another
applicant(s).
3) COSTS
Each multiple applicant will be charged an equal share of the total
actual make-ready costs incurred by the Licensor to accommodate
simultaneous attachment or occupancy by the multiple applicants.
<PAGE> 37
Appendix II
Page 4 of 5
D) CONDITIONS APPLICABLE TO NON-SIMULTANEOUS APPLICATIONS
1) FIELD INSPECTION
Field inspections will be performed by a representative of the Licensor.
2) PRE-LICENSE SURVEY COSTS
Each multiple applicant will be charged the applicable pre-license
survey costs incurred by the Licensor relative to a determination of the
make-ready work required to accommodate attachment, utilization or
occupancy of the individual applicant's communications facilities on a
non-simultaneous basis.
3) MAKE-READY COMPLETION SCHEDULE
The date of receipt (earliest taking precedence) by the Licensor of
applications filed in accordance with Article VII B will determine the
priority of make-ready work completion by the Licensor. Any change in
priority of pole, anchor or conduit availability will require an
appropriate change in make-ready work completion of the application(s)
involved and be subject to the Licensor's ability to accommodate the
specific change(s) required in its established work schedule.
4) MAKE-READY WORK COSTS
Make-ready work costs will be allocated as follows:
a) The initial applicant will be charged the total cost incurred by the
Licensor to accommodate the attachment, utilization or occupancy of
the initial applicant's communications facilities on poles, anchors
or in conduits on a non-simultaneous basis.
b) The additional applicant(s) will be charged the total cost incurred
by the Licensor to accommodate the attachment, utilization or
occupancy of the additional applicant's communications facilities on
poles, anchors or in conduits for which prior attachment,
utilization or occupancy authorization has been granted to another
applicant.
E) PRE-LICENSE SURVEY COMPLETION - LICENSOR
In performing all field inspections and associated administrative processing
for which it may be responsible, the Licensor will endeavor to include such
work in its normal work load schedule.
<PAGE> 38
Appendix II
Page 5 of 5
F) CHANGES IN APPENDIX
This Appendix may be changed in whole or in part at any time during the term
of this Agreement at the sole option of the Licensor upon the giving of not
less than sixty (60) days written notice thereof to the Licensee and to
substitute in place thereof such other provisions as the Licensor may deem
necessary as relative to multiple attachments to poles and anchors or
conduit occupancy of the Licensor.
AMERICAN CABLE COMPANY BELLSOUTH TELECOMMUNICATIONS, INC.
Name of Licensee Name of Licensor
By: /s/ Preston L. Lammert By: /s/ D.L. Strohmeyer
---------------------------- ------------------------------------------
Signature Signature
Its: General Manager Its:Vice President/Network Operations/Central
---------------------------- -----------------------------------------
Title Title
Witness:/s/[ILLEGIBLE SIGNATURE] Witness: /s/ Sherri Ellis
------------------------ -------------------------------------
Witness:/s/Fred L. Bush, Jr. Witness: /s/ Doris Whitehead
------------------------ -------------------------------------
ATTEST: /s/ Lynn W. Jarvis
-------------------------------
Assistant Secretary
Proprietary
The information contained herein should not be disclosed to unauthorized
persons. It is meant for the use of the parties contracting herein in connection
with performance under this agreement.
<PAGE> 39
EXHIBIT I
ADMINISTRATIVE FORMS AND NOTICES
<PAGE> 40
Exhibit I
Page 2 of 17
EXHIBIT I
ADMINISTRATIVE FORMS AND NOTICES
THIS EXHIBIT I, effective as of the 1st day of January 1994, is an integral
part of the License Agreement between BellSouth Telecommunications, Inc.
(Licensor), and American Cable Company (Licensee), dated January 1st, contains
the administrative forms governing the use of Licensor's poles, anchors and
conduit system for Licensee's communications facilities.
INDEX OF ADMINISTRATIVE FORMS
Application and Pole Attachment License A-1
Pole and Anchor Details A-2
Pole Survey Form A-3
Authorization for Prelicense Survey and/or
Make-Ready Work B-1
Itemized Estimate - Pole and Anchor Make-Ready
Work Charges C-1
Itemized Estimate - Conduit Make-Ready Work and
Charges C-2
Summary Estimate - Pole Attachment/Conduit Occupancy C-3
Application and Conduit Occupancy License D-1
Conduit System Diagram D-2
Cable to Occupy Conduit D-3
Equipment Housings to be Placed in Manholes D-4
Notification of Surrender or Modification of Pole
Attachment License by Licensee E
Notification of Surrender or Modification of Conduit
Occupancy License by Licensee F
<PAGE> 41
Exhibit I
Page 3 of 17
Form A1
1 of 2
APPLICATION AND POLE ATTACHMENT LICENSE
-----------------------------
Name of Licensee
-----------------------------
Street Address
-----------------------------
City and State
-----------------------------
Date
Addressee determined by contract type
In accordance with the terms and conditions of the License Agreement
between us, dated _______________, 19__, application is hereby made for a
non-exclusive license to attach communications facilities to _____ poles and
_____ anchors as indicated on the attached sketch and Form A-2. This request
will be designated:
POLE ATTACHMENT (P.A.) Application No. P.A. _______________ (1), located
____________________________
Licensee hereby requests Licensor to provide an estimate of the cost to
complete the required pre-licensing survey work. Such estimate does not bind the
Licensee to acceptance of Licensor's completion of the Field Inspection portion
of the prelicense survey.
Please initiate a Form B-1 for this application.
By:
--------------------------------
Signature of authorized person
Its:
--------------------------------
Title of authorized person
Tel. No.
----------------------------
(1) Individual applications to be numbered in sequential ascending order by
Licensee for each License Agreement. Licensor will process applications
in sequential ascending order according to the application numbers
assigned by the Licensee.
<PAGE> 42
Exhibit I
Page 4 of 17
Form A1
2 of 2
Application and Pole Attachment License (continued)
The above referenced License __________ is hereby granted to attach the
communications facilities described in this application to ______ poles and
_____ anchors as indicated on the attached Form A -- 2. BellSouth
Telecommunications, Inc. authorization _____________ has been assigned to this
request. A copy of form(s) is/are attached for your files.
By:
---------------------------
Tel. No.
----------------------
Date:
-------------------------
<PAGE> 43
Exhibit I
Page 5 of 17
Form A-2
- ---------------------------------
(Licensee)
- --------------------------------- ---------------------------
(Pole Attachment Application No.) (Area) (1)
POLE, ANCHOR, & GUY STRAND DETAILS
- -------------------------------------------------------------------------------
LICENSEE (2) LICENSOR (3)
- -------------------------------------------------------------------------------
Pole # Make- Anchor A/GS Attach- License License
(4) Location (5) Ready Use Use ments No. Date
Req'd (6) (7) (8) (9)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
1
- ------------------------------------------------------------------------------
2
- ------------------------------------------------------------------------------
3
- ------------------------------------------------------------------------------
4
- ------------------------------------------------------------------------------
5
- ------------------------------------------------------------------------------
6
- ------------------------------------------------------------------------------
7
- ------------------------------------------------------------------------------
8
- ------------------------------------------------------------------------------
9
- ------------------------------------------------------------------------------
10
- ------------------------------------------------------------------------------
11
- ------------------------------------------------------------------------------
12
- ------------------------------------------------------------------------------
13
- ------------------------------------------------------------------------------
<PAGE> 44
Exhibit I
Page 6 of 17
[POLE SURVEY FORM APPEARS HERE]
<PAGE> 45
Form B-1 Exhibit I
Page 1 of 2 Page 7 of 17
Authorization
for
Pre-License Survey and/or Make Ready Work
- ---------------------- Licensor mailing address:
Licensee
Operations Manager, Network
----------------------------
----------------------------
The following is a summary of the estimated charges for:
/ / Pole attachment Application Number P.A.-
-------------
/ / Conduit Occupancy Application Number C.O.-
-------------
Location:
----------------------------------------------------------------
Pre-License Survey:
<TABLE>
<CAPTION>
Hours Rate/Hour + % Total
----- --------- --- -----
<S> <C> <C> <C> <C>
Pole
Field Inspection (if req'd)
----- --------- --- -----
* Summary Estimate
----- --------- --- -----
* Itemized Estimate
----- --------- --- -----
*Includes administrative processing
Conduit
Field Inspection (if req'd)
----- --------- --- -----
** Summary Estimate
----- --------- --- -----
** Itemized Estimate
----- --------- --- -----
** Includes field inspection and administrative processing
</TABLE>
If you wish us to complete the required survey work, please forward a check in
the amount of $------- for a summary estimate or $------- for an itemized
estimate.
If you have chosen to conduct the field inspection portion of the pole survey,
you may proceed with the inspection. Afterwards, forward inspection details to
us upon your completion of the inspection along with a check in the amount of
$------- for a summary estimate or $------- for an itemized estimate.
Upon completion of this work, the above estimate will be adjusted to reflect the
actual costs incurred.
- -------------------------- ----------------
Operations Manager Date
<PAGE> 46
Form B-1 Exhibit I
Page 2 of 2 Page 8 of 17
Authorization
for
Pre-License Survey and/or Make-Ready Work
Attached is a check in the amount of $----------- for the following:
/ / Pre-license survey
/ / Summary estimate
/ / Itemized estimate
You are hereby authorized to proceed with the work necessary to furnish us a
make-ready cost estimate.
/ / Pre-license field survey prepared by licensee is attached
----------------------------------
Authorized Licensee Representative
----------------------------------
Date
The attached form(s) ------------ indicate(s) the total estimated cost for the
above referenced make-ready work.
Should you desire to have this make-ready work accomplished, please forward a
check to this office in the amount of $----------. Upon completion of this work,
the above estimated amount will be adjusted to reflect the actual costs
incurred.
/ / No make-ready work required
----------------------------------
Operations Manager
----------------------------------
Date
Attached is a check in the amount of $--------- for the above referenced
make-ready work. Please proceed with the work.
----------------------------------
Authorized Licensee Representative
----------------------------------
Date
BellSouth make-ready work completed -------------.
<PAGE> 47
Form C - 1 EXHIBIT I
PAGE 9 OF 17
ITEMIZED ESTIMATE
POLE, ANCHOR, ANCHOR/GUY STRAND
MAKE-READY WORK AND CHARGES
<TABLE>
<S> <C>
- ------------------------ -------------------------------------
(Licensee) (Date Prepared)
- ------------------------ -------------------------------------
(Area) (Custom Work Order No.)
- ------------------------ -------------------------------------
(P.A. Applic. No.) (Exchange or Wire Center)
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
POLE INFORMATION MAKE-READY WORK REQUIREMENTS MATERIAL LABOR
(5) (6)
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Licensor Performed
Pole No. Location Description of Work by Unit Rate/ Total
(1) (2) (3) (4) No. & Item Cost Total Hours Hour
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
1 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
2 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
3 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
4 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
5 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
6 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
7 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
8 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
9 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
10 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
11 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
12 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
13 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
14 ------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
15 ------
---------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 48
Form C - 2 EXHIBIT I
PAGE 10 OF 17
ITEMIZED ESTIMATE
CONDUIT MAKE-READY WORK AND CHANGES
<TABLE>
<S> <C>
- ------------------------ --------------------------------
(Licensee) (Date Prepared)
- ------------------------ --------------------------------
(Area) (Custom Work Order No.)
- ------------------------ --------------------------------
(P.A. Applic. No.) (Exchange or Wire Center)
</TABLE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------
CONDUIT INFORMATION MAKE-READY WORK REQUIREMENTS MATERIAL (4) LABOR (5)
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Location Description of Work (3)
----------------------- Unit Rate/
Street (1) Section (2) No. & Item Cost Total Hours Hour Total
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
1
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
2
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
3
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
4
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
5
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
6
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
7
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
8
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
9
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
10
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
11
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
12
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
13
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
14
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
15
----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 49
Form C-3 Exhibit I
Page 11 of 17
ITEMIZED ESTIMATE / SUMMARY ESTIMATE
- ------------------ Pole Attachment -----------------------
Licensee Application No. Date prepared
---------------
- ------------------ Conduit Occupancy -----------------------
Area Application No. Authorization No.
---------------
- ------------------ -----------------------
Application No. Wire Center or Exchange
<TABLE>
<CAPTION>
Make-Ready Hours Rate/Hr Total
---------------- ------------- ---------- -------------
<S> <C> <C> <C> <C> <C>
Labor $ $
------------- ---------- -------------
* Engineering &
Administration $ $
------------- ---------- -------------
Material $
-------------
Subtotal $
-------------
+ 10% $
-------------
Total $
-------------
* Less previous payments under
this authorization $
-------------
Amount Due $
</TABLE>
* If this authorization includes the make-ready survey and associated payments,
engineering and administrative costs for the make-ready survey should be
included in the estimated amount above.
<PAGE> 50
Form D-1
Exhibit I
Page 12 of 17
APPLICATION AND CONDUIT OCCUPANCY LICENSE
-----------------------------
(Licensee)
-----------------------------
(Street Address)
-----------------------------
(City, State)
-----------------------------
(Date)
Operations Manager - Network
BellSouth Telecommunications, Inc.
- ---------------------------------
- ---------------------------------
In accordance with the terms and conditions of the License Agreement between us,
dated _________, 19__, application is hereby made for a license to occupy the
conduit system shown on form D-2, with the cable and equipment detailed on Forms
D-3 and D-4. This request will be designated as follows:
CONDUIT OCCUPANCY (C. O.) Application Number CO- ---------- (1)
By:
-------------------------------------
Authorized Licensee Representative
Its:
-----------------------------------
Title
Tel. No.
-------------------------------
The above referenced License --------------- is hereby granted to occupy
Licensor's conduit system, as indicated on the attached Form D-2, with cable,
equipment, and facilities specified on the attached Forms, D-3 and D-4. Duct
footage this license is -------------------.
----------------------------------------
(Licensor)
----------------------------------------
(C.O. Application No.)
(1) Individual applications to be numbered in sequential ascending order by
Licensee for each License Agreement. Licensor will process applications in
sequential ascending order according to the application numbers assigned by
the Licensee.
<PAGE> 51
Form D-2 Exhibit I
Page 13 of 17
- ----------------------
(Licensor)
- ----------------------
(C.O. Application No.)
CONDUIT SYSTEM DIAGRAM - SAMPLE
Letters (A, B & C) = Cable designation by type from form D-3
Numbers (1, 2, etc.) = Number of cable(s) by section
= Represents all cables in conduit section
--------------------
O = Pole
<PAGE> 52
Form D-2 EXHIBIT I
Page 13A of 17
- ------------------
(Licensee)
- ------------------
(C.O. Applic. No.)
CONDUIT SYSTEM DIAGRAM - SAMPLE
[A CONDUIT SYSTEM DIAGRAM APPEARS HERE]
Letters (A, B & C) = Cable designation by type from form D-3
Numbers (1, 2 & 3) = Number of cable(s) by section
= Represents all cables in conduit section
--------------------
O = Pole
<PAGE> 53
Form D-3 Exhibit I
Page 14 of 17
- -----------------------------------
(Licensee)
- -----------------------------------
(Conduit Occupancy Application No.)
CABLE TO OCCUPY CONDUIT
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Metallic Maximum Maximum
Sheath Type Voltage Current
Cable Wt. Lbs. or of To in any Type of
Designa- O. D. Per Shield Cable Ground Conductor Jacket
tion Inches Foot (d) (e) (f) (g) (h)
------------------ ----------------
(a) (b) (c) Yes No AC DC
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1
- --------------------------------------------------------------------------------------------------------------------------
2
- --------------------------------------------------------------------------------------------------------------------------
3
- --------------------------------------------------------------------------------------------------------------------------
4
- --------------------------------------------------------------------------------------------------------------------------
5
- --------------------------------------------------------------------------------------------------------------------------
6
- --------------------------------------------------------------------------------------------------------------------------
7
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
(a) Cable Designation: Assign letter, alphabetically, to each
different type of cable to be installed.
(b) O. D. (Inches): Outside diameter of cable.
(c) WT. Lbs. per foot: Self-explanatory.
(d) Metallic Sheath Or Shield: Self-explanatory.
(e) Type of Cable: If coaxial cable, show number of tubes.
If pair cable, show pair size and
gauge (e.g. 16-22).
(f) Maximum Voltage to Ground: Self-explanatory.
(g) Maximum Current in any Conductor: Indicate voltage and
amperage.
(h) Type of Jacket: Enter the type of material of the outer jacket
or sheath (polyethylene, PVC, lead, etc.).
<PAGE> 54
Form D-4 Exhibit I
Page 15 of 17
- -----------------------------------
(Licensee)
- -----------------------------------
(Conduit Occupancy Application No.)
EQUIPMENT HOUSINGS TO BE PLACED IN MANHOLES
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------
Manhole Type Height Width Depth Weight
Location
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1
------------------ ------------------ ----------------- --------------- -------------- ------------
2
------------------ ------------------ ----------------- --------------- -------------- ------------
3
------------------ ------------------ ----------------- --------------- -------------- ------------
4
------------------ ------------------ ----------------- --------------- -------------- ------------
5
------------------ ------------------ ----------------- --------------- -------------- ------------
6
------------------ ------------------ ----------------- --------------- -------------- ------------
7
------------------ ------------------ ----------------- --------------- -------------- ------------
8
------------------ ------------------ ----------------- --------------- -------------- ------------
9
------------------ ------------------ ----------------- --------------- -------------- ------------
10
------------------ ------------------ ----------------- --------------- -------------- ------------
11
------------------ ------------------ ----------------- --------------- -------------- ------------
12
------------------ ------------------ ----------------- --------------- -------------- ------------
13
------------------ ------------------ ----------------- --------------- -------------- ------------
14
------------------ ------------------ ----------------- --------------- -------------- ------------
15
------------------ ------------------ ----------------- --------------- -------------- ------------
</TABLE>
<PAGE> 55
Form E Exhibit I
Page 16 of 17
- ----------------------------
(Licensee)
NOTIFICATION OF SURRENDER OR MODIFICATION
OF POLE ATTACHMENT LICENSE BY LICENSEE
------------------------------------
(Licensor Street Address)
------------------------------------
(City & State)
- ---------------------------------- ------------------------------------
(Licensor, Telephone Company Name) (Date)
In accordance with the terms and conditions of the License Agreement between us,
dated____, l9__, notice is hereby given that the licenses covering attachments
to the following poles and/or anchors and/or utilization of anchor/guy strand
are surrendered (or modified as indicated in Licensee's prior notification to
Licensor, dated___ , 19__) effective_____.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Assoc. Pole License Number License Date Surrender or Date
Number Modification (surrender/modified)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 A
A/GS
- ----------------------------------------------------------------------------------------------------------------------------
2 A
A/GS
- ----------------------------------------------------------------------------------------------------------------------------
3 A
A/GS
- ----------------------------------------------------------------------------------------------------------------------------
4 A
A/GS
- ----------------------------------------------------------------------------------------------------------------------------
5 A
A/GS
- ----------------------------------------------------------------------------------------------------------------------------
6 A
A/GS
- ----------------------------------------------------------------------------------------------------------------------------
7 A
A/GS
- ----------------------------------------------------------------------------------------------------------------------------
8 A
A/GS
- ----------------------------------------------------------------------------------------------------------------------------
9 A
A/GS
- ----------------------------------------------------------------------------------------------------------------------------
10 A
A/GS
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
Date licensor received notification:
--------------------------------------------
<TABLE>
<S> <C>
Date licensor accepted modification:
-------------------------------------------- -----------------------------------
(Authorized Licensee Representative)
</TABLE>
By:
-----------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
Discontinued: Poles
-------------------------------------- -----------------------------------
Anchors (Title)
--------------------------------------
Anchors/Guy Strands
--------------------------------------
</TABLE>
<PAGE> 56
Form F Exhibit I
Page 17 of 17
(Licensee)
NOTIFICATION OF SURRENDER OR MODIFICATION
OF CONDUIT OCCUPANCY LICENSE BY LICENSEE
------------------------------------
(Licensor Street Address)
------------------------------------
(City & State)
- ---------------------------------- ------------------------------------
(Licensor, Telephone Company Name) (Date)
In accordance with the terms and conditions of the License Agreement between us,
dated____, l9__, notice is hereby given that the licenses covering occupancy of
the following conduit are surrendered (or modified as indicated in Licensee's
prior notification to Licensor, dated ___, 19__) effective____.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------
Assoc. Pole License Number License Date Surrender or Date
Number Modification (surrender/modified)
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 A
A/GS
----------------------------------------------------------------------------------------------------------------------------
2 A
A/GS
----------------------------------------------------------------------------------------------------------------------------
3 A
A/GS
----------------------------------------------------------------------------------------------------------------------------
4 A
A/GS
----------------------------------------------------------------------------------------------------------------------------
5 A
A/GS
----------------------------------------------------------------------------------------------------------------------------
6 A
A/GS
----------------------------------------------------------------------------------------------------------------------------
7 A
A/GS
----------------------------------------------------------------------------------------------------------------------------
8 A
A/GS
----------------------------------------------------------------------------------------------------------------------------
9 A
A/GS
----------------------------------------------------------------------------------------------------------------------------
10 A
A/GS
----------------------------------------------------------------------------------------------------------------------------
</TABLE>
Date licensor received notification:
--------------------------------------------
Date licensor accepted modification:
--------------------------------------------
<TABLE>
<S> <C> <C>
------------------------------------
(Authorized Licensee Representative)
By:
-----------------------------------------------------------------------------
Discontinued: Total Duct Footage ------------------------------------
--------------------------------- (Title)
</TABLE>
<PAGE> 57
EXHIBIT II
NONDISCRIMINATION COMPLIANCE AGREEMENT
<PAGE> 58
Exhibit II
Page 2 of 3
NON DISCRIMINATION COMPLIANCE AGREEMENT
Contractors shall comply with the applicable provisions of the following:
Exec. Order #12138, P.L. 95-507, Exec. Order #11246, Exec. Order #11625, Section
8 of the Small Business Act as amended. Railroad Revitalization and Regulatory
Reform Act of 1976, Exec. Order #11701, Exec. Order #11758, Exec. Order #12138,
Section 503 of the Rehabilitation Act of 1973 as amended by PL93-516, Vietnam
Era Veteran's Readjustment Assistance Act of 1974 and the rules, regulations and
relevant Orders of the Secretary of Labor pertaining to the Executive Orders and
Statutes listed above.
For contracts of or which aggregate to $2,500 or more annually, the following
table describes the clauses which are included in the contract:
1. Inclusion of the Equal Employment clause in all contracts and orders;
2. Certification of non-segregated facilities;
3. Certification that an affirmative action program has been developed and is
being filed;
4. Certification that an annual Employers Information Report (EEO-1 Standard
Form 100) is being filed;
5. Inclusion of the "Utilization of Minority and Women's Business Enterprises"
clause in all contracts and orders;
6. Inclusion of the "Minority and Women's Business Enterprise Subcontracting
Program" clause in all contracts and orders;
7. Inclusion of the "Listing of Employment Openings" clause in all contracts and
orders;
8. Inclusion of the "Employment of the Handicapped" clause in all contracts and
orders:
Contract Value Clause(s) Required
$ 2,500 to $10,0008
$10,000 to $50,000 1, 2, 5, 6, 7, 8
$50,000 or more 1, 2, 3*, 4*, 5, 6, 7, 8
* Applies only for businesses with 50 or more employees
1. Equal Employment Opportunity Provisions
In accordance with Exec. Order #11246, dated September 24, 1965 and Part 60-1 of
Title 41 of the codes of Federal Regulations (Public Contracts and Property
Management, Office of Federal Contract Compliance, Obligations of Contractors
and Subcontractors), as may be amended from time to time, the parties
incorporate herein by this reference the regulations and contract clauses
required by those provisions to be made a part of Government contracts and
subcontracts.
2. Certification of Non-segregated Facilities
The contractor certifies that it does not and will not maintain any facilities
it provides for its employees in a segregated manner, or permit its employees to
perform their services at any location under its control where segregated
facilities are maintained and that it will obtain a similar certification prior
to the award of any nonexempt subcontract.
3. Certification of Affirmative Action Program
The contractor affirms that it has developed and is maintaining an affirmative
action plan as required by Part 60-2 of Title 41 of the Code of Federal
Regulations.
4. Certification of Filing of Employers Information Reports
The contractor agrees to file annually, on or before the 31st day of March,
complete and accurate reports on Standard Form 100 (EEO-1) or such forms as may
be promulgated in its place.
5. Utilization of Minority and Women's Business Enterprises
(a) It is the policy of the Government and BellSouth Corporation and its
affiliates as a Government contractor, that minority and women's business
enterprises shall have the maximum practicable opportunity to participate in the
performance of contracts.
(b) The contractor agrees to use his or her best efforts to carry out this
policy in the award of his or her subcontracts to the fullest extent consistent
with the efficient performance of this contract. As used in this contract, the
term "minority or women's business enterprises" means a business with at least
51 percent of which is owned by minority or women group members or in case of
publicly owned businesses, at least 51 percent of the stock of which is owned by
minority or women group members. For purposes of this definition, minority group
members are Blacks, Hispanics, Asians, Pacific Islanders, American Indians and
Alaskan Natives. Contractors may rely on written representation by
subcontractors regarding their status as minority or women's business
enterprises in lieu of an independent investigation.
6. Minority and Women's business enterprise Subcontracting Program
(a) the contractor agrees to establish and conduct a program which will enable
minority and women's business enterprises (as defined in paragraph 5 above) to
be considered fairly as subcontractors and suppliers under the contract. In this
connection, the Contractor shall:
(1) Designate a liaison officer who will administer the contractor's minority
and women's business enterprises program;
(2) Provide adequate and timely consideration of the potentialities of known
minority and women's business enterprises in all "make-or-buy" decisions;
(3) Assure that known minority and women's business enterprises will have an
equitable opportunity to compete for subcontracts, particularly by arranging
solicitations, time for the preparation of bids, quantities, specifications, and
delivery schedules so as to facilitate the participation of minority and women's
business enterprises;
(4) Maintain records showing (i) procedures which have been adopted to comply
with the policies set forth in this clause, including the establishment of a
source list of minority and women's business enterprises, (ii) awards to
minority and women's business enterprises on the source list, and (iii) specific
efforts to identify and award contracts to minority and women's business
enterprises;
(5) Include the Utilization of Minority and Women's Business Enterprises clause
in subcontracts which offer substantial minority and women's business
enterprises subcontracting opportunities;
(6) Cooperate with the Government's Contracting Officer for BellSouth
Corporation or its affiliates in any studies and surveys of the contractor's
minority and women's business enterprises procedures and practices that the
Government's Contracting Officer may from time to time conduct;
<PAGE> 59
Exhibit II
Page 3 of 3
(7) Submit periodic reports of subcontracting to known minority and women's
business enterprises with respect to the records referred to in sub-paragraph
(4) above, in such form and manner and at such time (not more often than
quarterly) as the Government's Contracting Officer for BellSouth Corporation or
its affiliates may prescribe.
(b) The contractor further agrees to insert, in any subcontract hereunder which
may exceed $500,000 (or in the case of WBX $1,000,000 in the case of contracts
for the construction of any public facility and which offer substantial
subcontracting possibilities) provisions which shall conform substantially to
the Language of this Agreement, including this paragraph (b) and to notify the
Contracting Officer of the names of such subcontractors.
7. List of Employment Openings for Veterans
In accordance with Exec. Order 11701, dated January 24, 1973, and Part 60-250 of
Title 41 of the Code of Federal Regulations, as it may be amended from time to
time, the parties incorporate herein by this reference the regulations and
contract clauses required by those provisions to be made a part of Government
contracts and subcontracts.
8. Employment of the Handicapped
In accordance with Exec. Order 11750, dated January 15, 1974, and Part 60-741 of
Title 41 of the Code of Federal Regulations as may be amended from time to time,
the parties incorporate herein by this reference the regulations and contract
clauses required by those provisions to be made a part of Government contracts
and subcontracts.
<PAGE> 60
EXHIBIT III
CONFLICT OF INTEREST AGREEMENT
<PAGE> 61
Exhibit III
Page 2 of 2
CONFLICT OF INTEREST AGREEMENT
The Licensor does business with thousands of contractors and suppliers. It is a
fundamental policy of the Licensor that such dealings shall be conducted on a
fair and impartial basis, free from improper influences, so that all
participating contractors and suppliers may be considered on the basis of the
quality and cost of their product or service.
The Licensor is also committed to doing business with contractors and suppliers
in an atmosphere that is in keeping with the highest standards of business
ethics. Although the Licensor recognizes that the exchange of gifts and
entertainment is customary in some businesses, the Licensor believes that this
practice often raises embarrassing questions about the motive of both the giver
and receiver. Therefore, the Licensor has for some time followed a policy that
its employees shall not accept from customers, suppliers of property, goods, or
Services, or from any other persons, any gifts, benefits, or unusual hospitality
that may in any way tend to influence them, or have the appearance of
influencing them, in the performance of their jobs. Employees of the Licensor
who are authorized to make purchases or negotiate contracts are aware of this
policy.
The Licensor believes that firm adherence to this policy will help establish
better business relationships between the Licensor and any Licensee. The
Licensor solicits the Licensee's cooperation in achieving that objective.
By executing this Agreement, the Licensee hereby stipulates that the Licensee
has not employed, retained, induced, or directed any person employed by the
Licensor to solicit or secure this Agreement upon agreement, offer,
understanding, or implication involving any form of remuneration whatsoever. The
Licensee agrees that in the event of an allegation of substance (the
determination of which will be solely made by the Licensor) that there has been
a violation hereof, the Licensee will cooperate in every reasonable manner with
the Licensor in establishing whether the allegation is true. Notwithstanding any
provisions of this Agreement to the contrary, if a violation of this provision
is found to have occurred and is deemed material by the Licensor, the Licensor
may terminate this Agreement.
<PAGE> 62
EXHIBIT IV
NONDISCLOSURE AGREEMENT
<PAGE> 63
EXHIBIT IV
Page 2 of 2
NONDISCLOSURE AGREEMENT
During the term of this Agreement it may be necessary for the Licensor to
provide the Licensee with certain information considered to be proprietary or
confidential. The receiving party shall protect such information of the other
party from whatever source from distribution, disclosure, or dissemination to
anyone except employees of the receiving party with a need to know such
information in conjunction with the provision of Services hereunder, except as
authorized herein or as otherwise authorized in writing.
All such information shall be in writing or other tangible form and clearly
marked with a confidential or proprietary legend. Information conveyed orally
shall be designated as proprietary or confidential at the time of such oral
conveyance and shall be reduced to writing within forty five (45) days).
The Licensee will not have an obligation to protect any portion of the
Licensor's information which:
is made publicly available by the Licensor or lawfully by a nonparty to
this Agreement; or
is lawfully obtained by the Licensee from any source other than the
Licensor; or
is previously known to the Licensee without an obligation to keep it
confidential; or
is released by the Licensor in writing; or
is released by Licensee pursuant to any subpoena issued in connection
with any legal action or administrative proceedings; however, the Licensee shall
immediately notify the Licensor of such subpoena.
The Licensee will only make copies of the information solely in
supporting the Licensor as are necessary for its use under the terms hereof, and
each such copy will be marked with the same proprietary notices as appear on the
originals.
The Licensee agrees to use the information solely in supporting the
Licensor and for no other customer or purpose.
The Licensee agrees not to identify the Licensor or any other owner of
information disclosed hereunder in any advertising or publicity without the
prior written permission of the Licensor.
<PAGE> 1
EXHIBIT 10.22
***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.***
LICENSE AGREEMENT
This Agreement is made and entered into on this 29th day of September,
1995, by and between Montgomery Cablevision and Entertainment, Inc., an Alabama
corporation (hereinafter referred to as "MCE"), and American Communication
Services of Montgomery, Inc., a Maryland Corporation (hereinafter referred to as
"ACSI").
WHEREAS, ACSI desires fiber optic capacity for its business
purposes; and
WHEREAS, MCE is willing to construct or lease fiber optic cable, at the
expense of ACSI, and in return, to allow ACSI to use certain of the fibers on
such cable;
NOW, THEREFORE, in consideration of the premises and the agreements of the
parties, MCE and ACSI agree as follows:
Section 1. Construction of Fiber Optic Cable
Subject to securing all requisite government and regulatory approvals, and
in consideration of the payments and other agreements of ACSI contained herein,
MCE agrees to construct (or cause to be constructed) and to maintain a fiber
optic cable in or around the City of Montgomery, Alabama (the "Fiber System")
upon electric distribution, CATV distribution transmission lines, and/or other
rights-of-way selected by MCE. The Fiber System shall consist of not less than
[_______________] fibers, except as agreed to by the parties pursuant to
Section 30. Each of the fibers shall be single mode, dual window,
non-dispersion shifted.
For purposes of this Agreement, the Fiber System shall not consist of any
fiber or cable on the ACSI side of any demarcation point (i.e. splice point in
an ACSI manhole) with MCE.
All construction shall be performed pursuant to MCE's specifications. MCE
shall provide the specifications for each phase of construction to ACSI. The
specifications for each phase may be provided at once, or at MCE's option, may
be divided and provided in multiple parts. Unless ACSI objects to MCE in writing
to specifications within ten (10) days of receipt of those specifications, such
specifications shall be deemed to have been agreed upon.
Section 2. Route Location and Phases of Construction
MCE shall construct the Fiber System over a route more fully described in
Exhibit A, attached hereto and made a part hereof (the "Route"). The Fiber
System
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will be constructed in phases as more fully described in Exhibit A, and will be
completed by the "Not Later Than" ("NLT") dates specified in Exhibit B. Failure
to complete construction by the agreed upon NLT dates will result in a penalty
being accessed against MCE of [____] per day for each day beyond the NLT dates
specified in Exhibit B (other than any delays relating to receipt of permits or
completion of "make-ready" work to be done by others necessary for MCE to
commence and pursue the construction later than 90 days from MCE's application
or request to commence, respectively).
Section 3. License; Grant of Security Interest and Collateral Assignment to
Lender
So long as ACSI performs its payment obligations and all of its other
obligations under this Agreement, ACSI shall have the sole and exclusive right
to use a total of [________________] of the fibers constituting the Fiber
System (which [__] fibers are referred to herein as the "ACSI Fiber"). MCE
shall have the sole and exclusive right to use the remaining [________________]
fibers constituting the Fiber System subject to the provisions of Section 10
(which [__] fibers are referred to herein as the "MCE Fiber").
MCE shall designate the [________________] fibers that are to be ACSI
Fiber. MCE may substitute fibers of equal or better capacity and quality at any
time, so long as such substitution does not interfere with ACSI's service to
its customers.
In the event that an Event of Default of ACSI occurs pursuant to Section
14 hereof which has not been cured pursuant to Section 15 hereof, MCE shall have
the sole and exclusive right to use all ACSI Fiber, without incurring any
liability, responsibility or obligations to ACSI, ACSI's customers, or any user
of ACSI Fiber, provided, however, that it is currently contemplated that ACSI
will enter into a secured financing arrangement (the "Secured Financing
Arrangement") with a major equipment supplier financier (the "Lender"), and that
the Lender will be granted a security interest in substantially all the assets
of ACSI, including, without limitation, ACSI's rights under this Agreement to
which MCE hereby consents. Further, with reference to Section 21 hereunder, MCE
hereby consents to a collateral assignment of ACSI's rights hereunder to the
Lender in connection with the Secured Financing Arrangement. MCE acknowledges
and agrees that in the event that Lender exercises its remedies under the
Secured Financing Arrangement, Lender may foreclose on its security interest in
this Agreement or arrange for a third party through public or private sale or
through agreement with ACSI to acquire ACSI's assets. Notwithstanding any
provision of this Agreement to the contrary, such foreclosure by the Lender or
acquisition of assets by such third party shall not constitute a breach of this
Agreement and upon such foreclosure or acquisition, the Lender or such third
party shall succeed to all rights and remedies of ACSI under this Agreement.
Neither the Lender nor such third party shall be liable for any act, omission,
default, or obligation (other than payments required hereunder) that arose or
occurred under this
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<PAGE> 3
Agreement prior to the date on which the Lender or such third party succeeded to
the rights of ACSI under this Agreement. MCE agrees that, if the Lender does not
deem to be sufficient MCE's consent hereby to the grant of such security
interest to the Lender and the collateral assignment of ACSI's rights under this
Agreement to the Lender, at ACSI's expense, MCE will execute all additional
documents as may reasonably be required by Lender to evidence MCE's consent to
such security interest and collateral assignment. MCE further agrees that, upon
an Event of Default of ACSI, the Lender shall have the opportunity to cure such
Event of Default within the time periods specified in Section 15 hereof; in this
event, or in the event of a foreclosure or acquisition by the Lender or a third
party pursuant to the Secured Financing Arrangement, pursuant to which the
Lender or a third party succeeds to ACSI's rights under this Agreement, so long
as no Event of Default of ACSI has occurred for which the applicable cure period
has passed, the Lender shall have the right to use the ACSI Fiber. At the
termination of this Agreement for any reason, ACSI's (and the Lender's) rights
to ACSI Fiber shall end, terminate and forever cease.
Section 4. Term of Agreement
This Agreement shall be effective as of the date hereof and shall continue
in effect for a term of fifteen (15) years, with ACSI having the option to
extend this Agreement for two (2) five (5) year renewal terms. At the end of
such term, including any renewal terms, all ownership rights of ACSI and all
rights of ACSI to utilize the Fiber System, including the ACSI Fiber, shall end,
terminate, and forever cease.
ACSI may exercise its option for a renewal term by providing notice of its
intent to do so in writing to MCE at least six (6) months prior to the last day
of the preceding term.
Section 5. Notification of Completion
MCE shall notify ACSI upon the completion of each phase of construction if
any, as set forth in Exhibit A hereto, and ACSI will accept the fiber in
accordance with acceptance and testing procedures mutually agreed to by the
parties. In the event of disagreement on the acceptance and testing procedures,
the Fiber System or any phase thereof will be deemed acceptable if it meets
generally accepted standards for similar fiber cable construction.
Section 6. Payments
ACSI agrees to reimburse MCE for [___] (except as set forth in Section 30)
of all reasonable actual costs and expenses incurred by MCE in constructing the
Fiber System. During construction of the system, MCE will periodically provide
to ACSI a listing of such costs and expenses.
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<PAGE> 4
ACSI will reimburse the pro-rated share of these costs to MCE by first
reimbursing fifty percent of ACSI's portion of the estimated costs and expenses
shown on Exhibit B within ten (10) business days of the expected start date of
each phase referenced in Exhibit B. The remaining fifty percent will be
reimbursed by remitting one-half of the amount shown on each listing provided by
MCE during the construction within ten (10) business days of the date of each
such listing. Within ten (10) business days of the completion of construction,
ACSI shall reimburse MCE for any additional amounts due or shall receive any
refunds for overpayments, whichever is applicable.
All costs and expenses which are not reimbursed when required hereunder
shall be assessed interest at a rate of one and one-half percent per month.
Upon commencement of construction of the Fiber System, ACSI agrees to pay
to MCE (in addition to the reimbursement of costs) a one-time fee of
[____________________] on each route to be constructed under this agreement as
partial compensation to MCE for the use of rights-of-way by the ACSI Fiber. At
the option of ACSI, this amount may be amortized over a five-year period at an
interest rate of twelve percent (12%). If ACSI selects this option, the first
annual payment will be due upon commencement of construction for each
respective phase, and subsequent annual payments will be due on each of the
first four annual anniversaries of the execution hereof.
ACSI will also be responsible for the payment, or reimbursement to MCE, of
all sales, use, franchise, business license, or other taxes or fees charged by
any governmental entity that arise out of the use of the ACSI Fiber.
ACSI shall have the right to review the relevant books and records of MCE
for the limited purpose of verifying the costs and expenses subject to
reimbursement hereunder. A request to perform such a review must be preceded by
five days written notice, and any information disclosed or revealed in such
review shall be kept confidential by ACSI, except such information as ACSI may
be required to disclose to the Lender in connection with the Secured Financing
Arrangement.
Section 7. Additional Fiber and Entrance Facilities
The ACSI Fiber shall also include entrance into any buildings within 2,500
feet of the fiber system, in which MCE has available building conduit(s). Fiber
to be constructed by ACSI to a mutually agreed point of demarcation.
As further consideration for the use of the ACSI Fiber, ACSI agrees to
provide to MCE, during the term of this Agreement and any renewal term:
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<PAGE> 5
(a) sole and exclusive use of [___________] fibers which
meet MCE's performance standards on all fiber optic
cable routes and entrance facilities which ACSI
currently owns, leases, or otherwise has rights to use
in and around the Montgomery metropolitan area, which
fibers are described and shown in Exhibit C hereto.
MCE agrees that it will not use or lease this fiber to
a third party who proposes to provide local
competitive access services, as that term is defined
in Section 10.
(b) sole and exclusive use of and access to, and the right
to install fiber optic cables in, one (1) innerduct on
the conduit routes described and shown on Exhibit C
hereto. MCE agrees that it will not use this conduit
and any fiber optic cable installed in this conduit to
provide local competitive access services, as that
term is defined in Section 10. In addition, MCE
agrees not to lease or sell this fiber to any third
party who proposes to provide local competitive access
services, as that term is defined in Section 10.
(c) Most favored customer pricing (plus $1, per monthly invoice)
for like services and like quantities, or as agreed to by the
parties, on private line services which are purchased by MCE
or an affiliated ITC Holding Company entity from ACSI.
(d) ACSI will view MCE as most favored vendor, when
purchasing off-net, type II services, in areas wherein
MCE can provide mutually agreed upon competitive
pricing, responsive provisioning and high quality
products. ACSI will grant MCE a first right of
refusal on type II services, based on the above
quality and pricing points. First right of refusal
will consist of an affirmative response, accepting the
order within three (3) business days of placement. In
addition, MCE will incur a [____] penalty when missing a
customer concurred due date by more than five (5)
business days. After ten (10) business days, ACSI can
terminate the order and re-order with any other
provider.
Section 8. Assessment of Costs
ACSI agrees to pay its pro rata share (i.e. one-half) of any and all
variable and recurring costs (other than maintenance costs which are addressed
in Section 13) associated with the Fiber System during the term (including any
renewals) of this Agreement. Variable and recurring costs include, but are not
limited to, purchasing new rights-of-way, railroad crossing fees, easement fees,
inspection fees, encroachment fees, property taxes, franchise or special fee
assessments, or any
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<PAGE> 6
other fees or assessments imposed by any governmental entity, and insurance.
They do not include the costs and expenses of constructing the Fiber System,
which are discussed in Section 6 of this Agreement. Furthermore, these costs
must relate to the Fiber System, and thus, they do not include costs incurred to
operate any electric system or CATV system owned or managed by MCE or its
affiliates.
An invoice for variable and recurring costs will be issued by MCE annually
or, at MCE's option, may be issued monthly. The invoice shall be paid within
thirty (30) days of receipt by ACSI. Any invoices issued hereunder shall
describe in sufficient detail the costs being charged and shall be subject to
review by ACSI. MCE will seek to minimize costs associated with the Fiber
System, consistent with good business practices. No administrative mark-up will
be added to any invoice. All invoices to ACSI which are not paid when due
hereunder shall be assessed interest at a rate of one and one-half percent per
month.
ACSI shall retain the right to object to any fee, assessment or tax
imposed by any governmental entity during the term of this Agreement, if MCE
chooses not to challenge said fee, assessment or tax. MCE agrees to cooperate
with ACSI if ACSI should exercise its rights hereunder. If ACSI chooses to
challenge or object to any governmental fee or tax hereunder, then all
penalties, attorneys fees and litigation costs associated therewith shall be
borne solely by ACSI as they are incurred. MCE agrees to share [___] of any
savings incurred on the MCE Fiber, during the immediate 12 months following any
favorable judgment initiated solely by ACSI.
Variable and recurring costs incurred exclusively to serve the business
needs of ACSI will be the sole responsibility of ACSI. These costs include, but
are not limited to, installing a new hand-hole and splice case for a new pickup
point and splicing in a new customer. ACSI will be invoiced for these charges as
they occur. Any invoice issued hereunder shall be payable within ten (10) days
of receipt by ACSI. All invoices to ACSI which are not paid when due hereunder
shall be assessed interest at a rate of one and one-half percent per month.
ACSI shall have the right to review the relevant books and records of MCE
for the limited purpose of verifying the costs referenced hereunder. A request
to perform such a review must be preceded by five days written notice, and any
information disclosed or revealed in such review shall be kept confidential by
ACSI, except such information as ACSI may be required to disclose to the Lender
in connection with the Secured Financing Arrangement.
Section 9. Equipment and Land
As provided elsewhere in this Agreement, ACSI shall pay for all costs
associated with use and operation of the ACSI Fiber including all equipment and
additional space or land required therefor.
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MCE shall provide for demarcation of fibers allocated to ACSI, MCE and
others. "Demarcation" means the point of meeting where the "hand-off" occurs
between the Fiber System and ACSI's system (whether secured from others or
owned). Generally, the demarcation point will be at the splice, unless the fiber
enters a building, in which case it will be at the distribution panel or other
point where the ACSI cable physically interconnects with the Fiber System. ACSI
shall provide the fiber to be spliced into the ACSI Fiber. The splice will be
prepared and maintained by MCE. Access to the splice enclosure, fiber optic
distribution frame, or fiber optic splice case shall be an exclusive right of
MCE or others at MCE's direction.
Section 10. Nonexclusive Agreement
MCE reserves for its own use and for the potential use of others the right
to MCE Fiber. MCE may initially or subsequently install additional cables along
the Route for its own use and for the potential use of others. None of these
cables or fibers shall become ACSI Fiber or otherwise be provided for ACSI's use
hereunder, and ACSI shall bear no costs (inclusive of installation and labor)
associated with these cables.
MCE agrees that for a period extending until September 1, 1996, that it
will not lease any of the MCE Fiber or optical/electronic transmission capacity,
to any third party that proposes to provide local competitive access services
(which term includes any interlata or intralata, special or switched access,
private line or local exchange services, but does not include, without
limitation, video, cable television, Personal Communications Services, or
cellular) through use of such MCE Fiber or capacity on terms more favorable than
those offered to ACSI. In addition, if MCE is considering entering any such
lease prior to September 1, 1996, [__________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_______.]
(a) MCE may use MCE Fiber (as described in Section 3,
paragraph 1) or ACSI provided innerduct for the purpose
of providing any service, capacity or facilities to its
own customers, affiliates, or lessees without
limitation, subject to the provisions of subsections (b)
and (c) of this Section 10 in the case of local
competitive access services (as defined above).
(b) To the extent (if any) that MCE uses MCE Fiber (as
described in Section 3, paragraph 1) or ACSI provided
innerduct to provide originating and/or terminating long
distance traffic to its residential customers, dedicated
access from MCE's POP to any interexchange carriers
other than DeltaCom will be carried over ACSI Fiber on
the joint Fiber System.
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(c) With respect to competitive access services consisting
of (i) local telephone services to MCE's business
customers in or around the City of Montgomery, Alabama
or (ii) originating and/or terminating long distance
traffic between such customers and any interexchange
carriers, (x) if such services or traffic can be carried
from the originating end to the terminating end entirely
on ACSI-owned fiber optic cable facilities (including
but not limited to ACSI Fiber), such competitive access
services must be purchased from ACSI and ACSI must
provide the same on terms and conditions which are in
accordance with paragraph 7(c) of this Agreement and are
otherwise generally competitive, or (y) if such services
or traffic cannot be carried from the originating end to
the terminating end entirely on ACSI-owned fiber optic
cable facilities (including but not limited to ACSI
Fiber), MCE may carry such services or traffic directly
or through another entity over the area where it cannot
be carried over ACSI-owned fiber optic cable facilities
(including but not limited to ACSI Fiber) and to a
suitable location to hand off the traffic to ACSI, and
the remaining portion of such competitive access
services must be purchased from ACSI and ACSI must
provide the same on terms and conditions which are in
accordance with paragraph 7(c) of this Agreement and are
otherwise generally competitive.
Section 11. Royalty Payment
As consideration for the requirements of Section 10, ACSI shall pay to MCE
a monthly royalty payment equal to [_________________] of ACSI's monthly Booked
Net Revenue After Taxes, which is defined as total revenue, less operating
expenses, interest expenses, taxes, and depreciation, all calculated in
accordance with generally accepted accounting principles. This payment will be
due to MCE, within thirty (30) calendar days of the end of each month, so long
as the amount is greater than zero and will continue throughout the term of
this agreement and shall continue for any renewals thereafter. This royalty
will be calculated on the basis of revenues generated by ACSI, its affiliates
(not including the parent company), or partners from usage on or of the Fiber
System. In no case will this royalty be less than the minimum amount specified
in Exhibit D [___________________________________] for years 1 through 10 based
upon ACSI's 4/3/95 Montgomery Business Plan Booked Net income projection), and
for Year 11, [_________________________________], and for every year
thereafter, [_________________________________] increased by changes in the
Consumer Price Index occurring since the beginning of Year 11. As it pertains
to the payment described above, MCE will have the right to audit ACSI's
invoices and financial statements on a limited basis, for the express purposes
only, to ensure
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accuracy of payments rendered to MCE by ACSI. This right will be quarterly, on
five (5) days written notice to ACSI.
Section 12. Availability
MCE will endeavor to provide uninterrupted availability of the Fiber
System and will make reasonable efforts to restore fiber optic connections as
soon as possible in the event of a failure. The parties acknowledge that
restoration times can vary significantly depending on the nature of the cause of
the interruption. ACSI agrees to provide MCE with any information or records
with respect to operations or operating characteristics of ACSI's system that
may be needed or useful to MCE in maintaining, repairing and/or replacing all or
part of the Fiber System. It is the responsibility of ACSI to possess the
equipment and alternative fiber optic cable route necessary to automatically
reroute traffic in the event of a loss of use of the ACSI Fiber.
Section 13. Maintenance and Maintenance Fees.
All maintenance of the Fiber System shall be performed solely by MCE or by
others at MCE's direction. MCE agrees to develop maintenance procedures with a
least-intrusive overall objective. Where practical, maintenance and construction
activities affecting system performance will be conducted between the hours of
midnight and 6 a.m., with five (5) days advance written notice. MCE agrees to
provide to ACSI, upon request, its maintenance procedures. ACSI may, at its
discretion, provide input as to the maintenance procedures.
MCE shall provide necessary routine maintenance for the Fiber System, such
as routine tower structure, right-of-way inspection and right-of-way clearing.
During the first ten (10) years of this agreement, ACSI shall pay to MCE an
annual fee for routine maintenance equal to [_________________] of the
pro-rated costs and expenses of constructing the Fiber System; years eleven
(11) through fifteen (15) shall be calculated at [__________________________].
The first annual maintenance payment shall be due within ten (10) business days
of the Start Date shown on Exhibit B and each annual payment thereafter shall
be due on the anniversary date of this Agreement. Annual maintenance payments
shall be calculated using the estimated costs and expenses set forth in Exhibit
B until the Fiber System is constructed, at which time such payments shall be
based upon the actual costs and expenses.
Upon any renewal term, annual maintenance shall be negotiated and mutually
agreed upon.
Routine right-of-way clearing is performed approximately every five (5)
years. Any requests for more frequent or more extensive right-of-way clearing
shall be provided by MCE at the sole cost and expense of ACSI.
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MCE shall also restore the Fiber System in the event of a service outage
or other events requiring repairs. MCE will respond to any outage within two (2)
hours or less after notice of the outage has been given to the designated MCE
contact and will use its best efforts to resolve the problem as quickly
thereafter as is reasonably possible. The costs associated with such restoration
shall not be treated as routine maintenance and ACSI shall be responsible for
its pro rata share of material, labor and overhead costs associated with the
necessary repairs. If MCE fails to respond within two (2) hours after notice of
the outage has been given to the designated MCE contact, a penalty will be
incurred of [___________________] thereafter and will be due ACSI. Both MCE and
ACSI will provide the other with written notice designating contacts for
purposes of this Agreement and this Section in particular.
ACSI shall have no responsibility for costs associated with replacement
and restoration of the Fiber System as a result of major repairs to the lines
arising out of a decision to reroute the structure and/or lines for the
convenience of MCE.
In the event of a Fiber System move for public convenience or necessity,
as in the case of a road widening, or to comply with an order, law or other
requirement of a government body, ACSI shall be responsible for its pro rata
share of the cost to move the Fiber System.
Section 14. Events of Default
Events of default shall include:
(a) If a payment is not made when due, MCE shall provide written
notice to ACSI of such nonpayment, and if payment is not made
within ten (10) business days or more after receipt of such
notice, an Event of Default shall be deemed to have occurred
(however, MCE shall be required to provide only two notices of
nonpayment every twelve months);
(b) Default in the performance of any other material
liability, obligation, representation or covenant of
ACSI or MCE;
(c) The admission by ACSI in writing of its inability to pay its
debts generally when due, or the making of any general
assignment for the benefit of creditors by ACSI;
(d) The institution of bankruptcy, reorganization, liquidation or
receivership proceedings by or against ACSI which is not
dismissed within 60 days thereafter; and
(e) An involuntary transfer of ACSI's interest by
operation of law.
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Section 15. Rights Upon Default
Upon the occurrence of any of the Events of Default listed in Section
14(b), the non-defaulting party shall give notice of such violation or default,
and if the defaulting party does not cure that default or violation within a
thirty (30) calendar day period the non-defaulting party may in its discretion
do one or more of the following:
(a) Proceed by appropriate court action or actions at law or in
equity or in bankruptcy to enforce performance by the
defaulting party of the covenant and terms of this Agreement
and/or to recover damages for the breach thereof;
(b) Invoke and exercise any other remedy or remedies
available at law or in equity;
(c) Cancel this Agreement; and
(d) In the event of an ACSI default, MCE may give written
notice to ACSI of the present value of the entire
amount of payments due to MCE under this Agreement and
an estimate of all other amounts remaining to be paid
over the balance of the term hereof, computed from the
date of ACSI's default. All of these amounts shall
become immediately due and payable and shall be
accelerated.
The remedies in the Event of Default, as hereinabove set forth, shall not
be deemed to be exclusive, but shall be cumulative and shall be in addition to
all other remedies existing in law, in equity or in bankruptcy;
The defaulting party shall be liable for all costs and expenses, including
reasonable legal fees and disbursements, incurred by reason of any Event of
Default or the exercise by the other party or its assignee of any of its
remedies hereunder, provided that such other party prevails in any such action.
Section 16. Reports and Certificates
On written request, during the term of this Agreement, ACSI agrees to
furnish to MCE and/or its assignee within one hundred twenty (120) days after
the close of its fiscal year, an annual report of its parent company consisting
of (1) its consolidated financial statements including a balance sheet as of the
end of such fiscal year, and (ii) statements of income for the year then ended,
with all notes thereto, in each case certified as true and correct by the chief
financial officer of its parent company; provided that if its parent company
shall have independent certified
11
<PAGE> 12
accountants prepare such financial statements, ACSI shall furnish such
financials to MCE when available.
All non-public information regarding ACSI or its affiliates received by
MCE, its successors, assigns or affiliates under this Section shall be held
confidential.
Section 17. Representations and Warranties
By the execution and delivery of this Agreement, ACSI shall be deemed to
have made the following representations and warranties to MCE with respect to
this Agreement:
(a) ACSI is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maryland and is,
or will become, duly qualified to do business in each
jurisdiction where such qualification is necessary; and has
the power and authority to enter into and perform its
obligations under this Agreement;
(b) ACSI is duly authorized and empowered to execute and deliver
this Agreement and to fulfill and comply with the terms,
conditions and provisions hereof and thereof;
(c) There are no actions, suits or proceedings, whether or
not purportedly on behalf of ACSI, pending or (to the
knowledge of ASCI) threatened against or affecting
ACSI or any property rights of ACSI at law or in
equity, or before any commission or other
administrative agency, that, if determined adversely
to ACSI would materially and adversely affect the
ability of ACSI to perform its obligations under this
Agreement. ACSI is not in default with respect to any
order or decree of any court or governmental
commission, agency or instrumentality which would
materially affect the ability of ACSI to perform its
obligations;
(d) The execution, delivery and performance of this
Agreement does not conflict with, or result in a breach
of, the terms, conditions or provisions of: (i) ACSI's
articles of incorporation; or (ii) any bond, debenture,
note, mortgage, indenture, agreement or other
instrument to which ACSI is a party or by which ACSI or
its property may be bound, or constitute (with due
notice or lapse of time or both) a default thereunder,
provided, that MCE acknowledges that it is currently
contemplated that ACSI will enter into the Secured
Financing Arrangement with the Lender; ACSI has
obtained all necessary consents to the execution,
12
<PAGE> 13
delivery and performance of this Agreement and all debentures,
notes, mortgages, indentures, agreements and other instruments
to which ACSI is a party or by which it or its property may be
bound;
(e) Any and all authorizations or approvals from any
governmental or public body or authority of the United
States of America, or of any of the States thereof, the
District of Columbia, the City of Montgomery, Alabama,
or other local authority, necessary in connection with
the execution, delivery and performance of this
Agreement have been or will be obtained prior to making
the Fiber System operational, except for such approvals
and authorizations as have been obtained and are in
effect as of the date thereof and as to those, the same
will be maintained in effect throughout the term of
this Agreement.
By execution and delivery of this Agreement, MCE shall be deemed to have
made the following representations and warranties to ACSI with respect to this
agreement.
(a) MCE is a corporation duly formed and validly existing
under the laws of the State of Alabama and is qualified
to do business in each jurisdiction where such
qualification is necessary; and has access to certain
rights-of-way (owned by its parent companies, ITC
Holding Company, Inc. and CYBERNET Holding LLC, or
other ITC affiliates as may be the case) necessary to
perform under this agreement; and has the power and
authority to enter into and perform its obligations
under this Agreement;
(b) MCE is duly authorized and empowered to execute and deliver
this Agreement and to fulfill and comply with the terms,
conditions and provisions hereof.
(c) There are no actions, suits or proceedings, whether or
not purportedly on behalf of MCE, pending or (to the
knowledge of MCE) threatened against or affecting MCE
or any property rights of MCE at law or in equity, or
before any commission or other administrative agency,
that, if determined adversely to MCE would materially
and adversely affect the ability of MCE to perform its
obligations under this Agreement, except as set forth
in Section 19. MCE is not in default with respect to
any order or decree of any court or governmental
commission, agency or instrumentality which would
materially affect the ability of MCE to perform its
obligations hereunder or thereunder, nor does any
13
<PAGE> 14
such order or decree exist that would materially and adversely
affect the ability of MCE to perform such obligations;
(d) The execution, delivery and performance of this
Agreement does not conflict with, or result in a
breach of, the terms, conditions or provisions of: (i)
MCE'S articles of incorporation; or (ii) any bond,
debenture, note, mortgage, indenture, agreement or
other instrument to which MCE is a party or by which
MCE or its property may be bound, or constitute (with
due notice or lapse of time or both) a default
thereunder.
Section 18. Rights-of-Way
Under its existing right-of-way agreements with private landowners and/or
holders of easements providing rights-of-way, MCE believes that it has the right
to use the rights-of-way as contemplated herein, but does not warrant that they
will be legally sufficient, without the consent of the landowners, for all
purposes contemplated hereunder. In the event that a landowner should object to
MCE's use of a right-of-way, MCE will promptly notify ACSI of the objection and
will use its best efforts to resolve the dispute. Unless MCE determines that
legal and/or regulatory considerations dictate a different characterization,
this Agreement shall be construed as constituting a license from MCE to ACSI for
use of the ACSI Fiber during the term of this Agreement. ACSI will be required
to obtain rights-of-way for the equipment which it intends to install outside of
the Route, including any cables required for service to its customers' premises.
ACSI will also be required to acquire whatever rights-of-way are necessary to
bury cable from the base of poles and towers to any other sites.
Section 19. Regulation
Under current law, the parties are unclear as to whether MCE needs the
approval of the Alabama Public Service Commission (the "PSC") in order to enter
into or perform its obligations under this Agreement. Nevertheless, MCE intends
to seek from the PSC the necessary authority or a determination that no such
authority is required. If it is determined that such authority is needed, MCE
reserves the right to assign this Agreement to another party who has or can
obtain the necessary authority. Such assignment will release MCE from any
liability or obligations to ACSI, but the assignee will be bound to the same
obligations and liabilities as MCE.
Nothing in this Agreement shall be construed as obligating MCE to do any
act, or prevent MCE from doing any act, that would make MCE subject to
regulation as a telephone company, communications carrier, or common carrier.
14
<PAGE> 15
Section 20. Ownership
MCE shall own [________________] strands of the fiber optic cable
comprising the Fiber System and any electronic equipment which MCE attaches to
the Fiber System. This does not include the conduit set forth on Exhibit C.
Subject to Section 4 hereof, for the term of this Agreement, ACSI shall own
[___________] strands of the fiber optic cable comprising the Fiber System and
any electronic equipment which ACSI attaches to the Fiber System.
Section 21. Assignment
Except as provided in Section 19, neither MCE nor ACSI shall make any
assignment of any of its rights or obligations to any third party under this
agreement without the consent of the other party, which consent shall not be
unreasonably withheld (consents shall not be deemed unreasonably withheld with
respect to a proposed assignment of this Agreement by a party to an entity where
the other party has a good faith belief that the transferee is unable to comply
with the terms and conditions of this Agreement), except that ACSI may, without
the written consent of MCE, collaterally assign its rights in this Agreement to
the Lender in connection with the Secured Financing Arrangement. Notwithstanding
the foregoing, neither party shall not be required to obtain the other party's
consent to contracts for services required under this Agreement or to assign its
rights (but not its obligations) under this Agreement to an affiliate.
Section 22. Limitation of Liability
MCE will not be liable for consequential damages or for any loss of use,
revenue, or profit suffered by ACSI or its assigns as a result of any act or
failure hereunder, including the unavailability or failure of capacity, MCE's
supply of or failure to supply power to the Fiber System or the ACSI Fiber, or
any damage to the ACSI Fiber or the Fiber System. MCE's total liability for any
claims or damage arising out of or connected with this Agreement shall not
exceed the amount of fees paid by ACSI to MCE prior to date of said claim or
damage.
Section 23. Indemnity
Subject to Section 22, each party, for itself, its successors and assigns,
agrees to defend, indemnify and save the other, its directors, officers,
employees, agents, successors and assigns, harmless from and against any and all
claims, demands, damages, actions or causes of action, together with any and all
losses, fines, penalties, costs or expenses (including attorney's fees) in
connection therewith or related thereto, asserted by any third party, including,
but not limited to, the general public, the other party's employees, customers,
contractors, subcontractors and/or agents, arising from or in any manner growing
out of or attributed to the indemnifying
15
<PAGE> 16
party's negligence or willful acts, including, but not limited to operations,
cable splicing, equipment, facilities, regenerator, regenerator(s) site(s), or
connection(s).
ACSI, for itself, its successors and assigns, agrees to defend, indemnify
and save MCE, its directors, officers, employees, agents, successors and
assigns, harmless from and against any and all claims, demands, damages,
actions, or causes of action, together with any and all losses, fines,
penalties, costs or expenses in connection therewith or related thereto,
asserted by any person or persons arising from or in any manner growing out of
unavailability or loss of capacity, whether or not caused by the fault or
negligence of ACSI.
Section 24. Force Majeure
In the event that MCE shall be prevented from or delayed in installing,
repairing or replacing the Fiber System because of causes beyond its control
such as, but not necessarily limited to, lightning, flood, fire, explosion,
storm, destruction of property, strike or other labor dispute or disturbance,
civil insurrection, national emergency, embargo, moratorium, any governmental
action or order of any court or administrative agency, major mechanical
breakdown, or failure of a unique supplier to supply necessary materials or
equipment on time, MCE shall be excused from timely performance.
Section 25. Confidentiality
MCE shall maintain the confidentiality of records and information received
by it under this Agreement regarding ACSI or its affiliates, except as necessary
to instruct or protect any third parties, including, but not necessarily limited
to, agents and contractors. ACSI shall maintain the confidentiality of records
and information received by it under this Agreement regarding MCE or its
affiliates, except as necessary to instruct or protect any third parties,
including, but not necessarily limited to, agents and contractors. The parties
hereby incorporate by reference the Non-Disclosure Agreement that they entered
into on August 17, 1995.
Section 26. Warranty
The parties acknowledge that MCE is not selling goods to ACSI, and
consequently, the warranties generally provided by the Uniform Commercial Code
will not be available to ACSI. The Fiber System shall be constructed to meet
specifications as set forth in this Agreement. However, BECAUSE MCE IS NOT THE
MANUFACTURER OR VENDOR OF ANY OF THE PROPERTY THAT WILL BE UTILIZED, INCLUDING,
BUT NOT LIMITED TO, FIBER OPTIC CABLE AND ALL ASSOCIATED EQUIPMENT, NOR A DEALER
IN SUCH PROPERTY, MCE HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION,
WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE DESIGN,
CONDITION,
16
<PAGE> 17
DURABILITY, USEFULNESS, SUITABILITY, FITNESS FOR USE, FITNESS FOR A PARTICULAR
PURPOSE OR MERCHANTABILITY OF THE FIBER CAPACITY, THE FIBER SYSTEM OR THE ACSI
FIBER. MCE SHALL NOT BE RESPONSIBLE FOR ANY PATENT OR LATENT DEFECTS THEREIN OR
ANY DAMAGES RESULTING THEREFROM.
MCE shall be responsible, at no extra cost to ACSI, for enforcing
manufacturer's warranties providing for any and all replacements required as a
result of manufacturing failure, provided that ACSI shall be responsible for its
pro rata labor costs and reasonable overhead of the installation of the
replacement cable, to the extent MCE (rather than the manufacturer) is
responsible for such changes.
Section 27. Notices
All notices and other communications provided for herein shall be validly
given if in writing and delivered personally, via overnight express mail, via
certified mail, or via regular mail, addressed as below to whichever is
appropriate:
17
<PAGE> 18
If to MCE:
Mr. Clarence J. Prestwood
CYBERNET HOLDING, LLC
PO Box 510
West Point, Georgia 31833
Mr. Cam B. Lanier
Chairman & CEO
ITC HOLDING COMPANY
PO Box 510
West Point, Georgia 31833
If to ACSI:
General Counsel
ACSI
131 National Business Parkway
Suite 100
Annapolis Junction, MD 20701
Chief Financial Officer
ACSI
131 National Business Parkway
Suite 100
Annapolis Junction, MD 20701
copy to:
Mr. Dennis Ives
ACSI
600 Hunter Drive
Suite 301
Oak Brook, IL 60521
Mr. James A. Bick
AT&T Capital Corporation
44 Whippary Road
Morristown, NY 07962-1983
Section 28. Further Assurances
ACSI, at its own cost, expense and liability, will cause to be promptly
and duly taken, executed, acknowledged and delivered all such further
assurances, acts and documents as MCE or its permitted assigns may from time to
time reasonably
18
<PAGE> 19
request in order to more effectively carry out the intent and purposes of this
Agreement and the transactions contemplated hereby, and will take all such other
actions or cause such actions to be taken as may be necessary or as may be
requested by MCE or its assigns in order to establish, preserve, protect and
perfect the good and marketable title of MCE to the Fiber System; provided that
anything in this Section 28 notwithstanding, MCE acknowledges and agrees that
ACSI is granting a security interest, and MCE consents in the granting of such
security interest, in the rights of ACSI under this Agreement to the Lender in
connection with the Secured Financing Arrangement.
Section 29. Miscellaneous Provisions
(1) This Agreement embodies the entire agreement between the parties. It
may not be modified or terminated except as provided herein or by other written
agreement between the parties. If any provision is invalid, it shall be
considered deleted from this Agreement, and such invalidity shall not invalidate
the remaining provisions of this Agreement.
(2) Before resorting to any litigation, the parties agree to exercise
reasonable efforts to amicably resolve the dispute by negotiations between the
appropriate representatives or executives of the parties.
(3) This Agreement shall be governed by the laws of the State of Alabama.
Venue for any litigation between the parties shall be in the Circuit Court of
Montgomery County, Alabama, excluding the choice-of-law rules thereof.
(4) Each party and counsel for each party have reviewed this Agreement.
Accordingly, the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
(5) The failure of either party to insist on the performance of any of the
terms of this Agreement, or the waiver of any breach of any of the terms of this
Agreement, shall not be construed as thereafter waiving any such terms, or any
others, but the terms shall continue and remain in full force and effect as if
no such forbearance or waiver had occurred.
(6) It is understood and agreed by the parties that this Agreement shall
not in any way be construed as creating any relationship between the parties
other than that expressly provided herein.
(7) The headings of the sections in this Agreement are for the purpose of
reference only and shall not limit or affect the meaning of the Agreement as a
whole or of the sections thereof.
19
<PAGE> 20
(8) All dollar amounts indicated in this Agreement are denominated in
United States currency.
(9) The parties hereto agree that this Agreement, to the extent it is
subject to Federal Communications Commission ("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. Section 211(a)) as
implemented in 47 C.F.R. Section 43.51.
(10) In connection with the matters provided for in this Agreement, each
party hereto shall comply with all applicable laws and regulations, including,
but not limited to, the Communications Act of 1934, as amended, and the
policies, rules and regulations of the FCC.
(11) Neither ACSI nor MCE shall, without the other party's prior written
consent: (i) use the other party's name in promotional, advertising or other
materials, or (ii) use the other party's logos, trade marks, service marks, or
any variations thereof in any of its promotional, advertising or other
materials.
(12) Nothing in this Agreement shall constitute a joint undertaking by
either ACSI or MCE for the furnishing of any service to customers of the other
party. Nothing in this Agreement shall be deemed to create any relationship
between ACSI and MCE other than that of independent parties contracting with
each other solely for the purpose of carrying out the provisions of this
Agreement. Neither of the parties hereto shall be deemed or construed, by virtue
of this Agreement, to be the agent, employee, representative, partner, or joint
venturer of the other party.
(13) 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, said part
shall be ineffective to the extent of such invalidity only, without in any way
affecting the remaining parts of said provision or the remaining provisions of
said agreement.
(14) It is the explicit intention of the parties hereto that no person or
entity other than the parties hereto is or shall be entitled to bring any action
to enforce any provision of this Agreement against either of the parties hereto,
and that the covenants, undertakings, and agreements set forth in this Agreement
shall be solely for the benefit of, and shall be enforceable only by, the
parties hereto or their respective successors and assigns as permitted
hereunder.
(15) The terms and provisions contained in this Agreement that by their
sense and context are intended to survive the termination or expiration of this
Agreement shall so survive the termination or expiration of this Agreement,
20
<PAGE> 21
including, without limitation, provisions for the making of any and all payments
due hereunder.
Section 30. Agreed Changes to the Fiber System
The Fiber System is being extended to areas within or around the City of
Montgomery, Alabama at the request of ACSI, which extensions ("System
Extensions") are set forth on Exhibit G. The Route, Phases, estimated
construction schedule and "Not Later Than" dates for such System Extensions
shall be as set forth on Exhibit G. ACSI shall bear [____] of the construction
cost of the System Extensions, [_______________________________________________
_______________________________________________________________________________
_________________________________.] The parties shall negotiate in good faith
concerning any proposed additions or changes to Exhibit F, and any such
additions or changes shall be set forth on amendments to Exhibit F signed by
the parties hereto.
21
<PAGE> 22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by duly authorized persons.
AMERICAN COMMUNICATION
SERVICES OF MONTGOMERY, INC.
/s/ Name: /s/ George M. Tronsrue III
--------------------------
Title: Executive Vice President
-------------------------
Date: 9/29/95
--------------------------
MONTGOMERY CABLEVISION AND
ENTERTAINMENT, INC.
/s/ Name: /s/ Clarence J. Prestwood
--------------------------
Title: CEO
-------------------------
Date: 9/29/95
--------------------------
22
<PAGE> 23
***INFORMATION IN THIS EXHIBIT 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
Routes and Phases
Phase 1: [______________________________________________________________
_____________________________________________________
____________]
Phase 2: [________________________________________________________________
_________________________________________________________________
________________________________________]
Phase 3: [________________________________________________________________
___________________________________________________________]
<PAGE> 24
EXHIBIT B
Estimated Costs and Expenses of Construction, Timing
Estimated Construction
<TABLE>
<CAPTION>
"Not Later Than"
Cost Start Date Completion Date Completion Date
---- ---------- --------------- ---------------
<S> <C> <C> <C> <C>
Phase 1: [___________] 09/29/95 01/31/96 04/30/96
Phase 2: [___________] 03/01/96 06/30/96 09/30/96
Phase 3: [___________] 01/02/96 05/31/96 08/31/96
</TABLE>
<PAGE> 25
***INFORMATION IN THIS EXHIBIT 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
ACSI Conduit and Fiber Optic Cable Route
The ACSI Network route is along the following streets in the City of Montgomery:
City Right of Way: From: To:
[__________] [_________________] [____________]
[___________] [_____________] [___________]
[____________] [____________] [______________]
[_____________] [____________] [_______________]
[_______________] [______________] [________________]
[________________] [_______________] [____________]
[____________] [________________] [______________]
[______________] [____________] [____________]
[____________] [______________] [___________]
[___________] [____________] [_______________]
[_______________] [___________] [_________________]
[_________________] [_______________] [__________]
<PAGE> 26
***INFORMATION IN THIS EXHIBIT 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
[__________________________________]
for Years 1 through 10 based
upon ACSI's 4/3/95 Montgomery Business Plan Booked Net Income Projection
<TABLE>
<CAPTION>
Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
- ------ ------ ------ ------ ------ ------ ------ ------ ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[_] [_] [_] [_] [___] [_____] [_____] [_____] [_____] [______]
</TABLE>
<TABLE>
<S> <C>
Total Cumulative Minimum Payment: [_______]
Average Cumulative for Period: [___________]
</TABLE>
<PAGE> 27
***INFORMATION IN THIS EXHIBIT 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
Target Building List
[_____________________]
[_______________________]
[_____________________]
[_______________]
[_____________________]
[______________________]
[______________________]
[____________________]
[________________]
[__________]
[________________]
[_____________________]
[_______________]
[____________________]
[___________________]
[_____________________]
[________________]
[__________________]
[___________________]
[___________________]
[__________________]
[______________________]
[_________________]
[____________________]
[____________________]
[________________]
[_________________]
[________________]
[__________________]
<PAGE> 28
***INFORMATION IN THIS EXHIBIT 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
Estimated Cost and Expenses of Construction
Estimated Construction
<TABLE>
<CAPTION>
"Not Later Than"
Cost Start Date Completion Date Completion Date
---- ---------- --------------- ---------------
<S> <C> <C> <C> <C>
Phase 1g: [_________] 01/02/96 06/30/96 09/30/96
Phase 2g: [__________] 01/02/96 06/30/96 09/30/96
Phase 3g: [__________] 01/02/96 06/30/96 09/30/96
Phase 4g: [__________] 10/15/95 03/30/96 06/30/96
Phase 5g: [___________] 01/01/96 06/30/96 06/30/96
</TABLE>
Routes and Phases
Phase 1g: [__________________________________________________________________
_________________________________________________________________]
Phase 2g: [_________________________________________________________________
______________________________________________________]
Phase 3g: [_____________________________________________________________
___________________________________________________________________
_______]
Phase 4g: [______________________________________________________________
___________________________________________________________________
_______________]
Phase 5g: [_____________________________________________________________
___________________________________________________________________
_________________________________________________________________
____________________________________]
<PAGE> 29
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT entered into as of the 17th day of August, 1995 between
AMERICAN COMMUNICATIONS SERVICES, INC. ("ACSI"), with offices at 131 National
Business Parkway, Annapolis Junction, Maryland 20701 and CYBERNET HOLDING LLC,
with offices at 1239 O.G. Skinner Drive, Post Office Box 510, West Point,
Georgia 31833.
1. ACSI and CYBERNET HOLDING LLC, intend to disclose to each
other information, which may include confidential information, relating to the
evaluation of a possible working/business relationship (the "Potential
Relationship"). The term "Confidential Information" shall mean any information
or data which is disclosed by a party to the other party under or in
contemplation of this Agreement and which (a) if in tangible form or other
media that can be converted to readable form, is clearly marked as proprietary,
confidential, or private when disclosed, or (b) if oral, is identified as
proprietary, confidential, or private on disclosure and is summarized in a
writing so marked and delivered within thirty (30) days following such
disclosure. Confidential Information may be either the property of the
disclosing party or information provided to the disclosing party by a corporate
affiliate of the disclosing party or by a third party.
2. This Agreement expressly does not encompass the corporate
affiliates of either party hereto. Consequently, affiliates of either party
may not disclose Confidential Information to the other party or its affiliates,
and affiliates of either party may not receive Confidential Information from
the other party or its affiliates.
3. The receiving party acknowledges the economic value to the
disclosing party of all Confidential Information. With respect to Confidential
information, the recipient shall:
(a) use the Confidential Information only for the purpose
of evaluating the Potential Relationship;
(b) restrict disclosure of the Confidential Information
solely to those employees or authorized representatives of such party
and its affiliates with a "need to know" and not disclose it to any
other person or entity without the prior written consent of the
disclosing party;
(c) advise those personnel who gain access to
Confidential Information of their obligations with respect to the
Confidential Information;
(d) make only the number of copies of the Confidential
Information necessary to disseminate the information to those
personnel who are entitled to have access to it, and ensure that all
confidentiality notices set forth on the Confidential Information are
reproduced in full on such copies;
(e) safeguard the Confidential Information with the same
degree of care to avoid unauthorized disclosure as recipient uses to
protect its own confidential and private information; and
(f) maintain a list of recipient personnel permitted
access to Confidential Information and, upon request, provide the
disclosing party
<PAGE> 30
with a copy of the list.
A "need to know" basis means that the person requires the
Confidential Information in order to perform his or her
responsibilities in connection with evaluating the Potential
Relationship.
4. The obligations of Paragraph 3 shall not apply to any
Confidential Information which the recipient can demonstrate:
(a) is or becomes available to the public through
no breach of this Agreement;
(b) was previously known by the recipient without
any obligation to hold it in Confidence;
(c) is received from a third party free to
disclose such information without restriction;
(d) is independently developed by the recipient
without the use of Confidential Information of the disclosing
party;
(e) is approved for release by written
authorization of the disclosing party, but only to the extent
of and subject to such conditions as may be imposed in such
written authorization;
(f) is required by law or regulation to be
disclosed, but only to the extent and for the purposes of such
required disclosure; or
(g) is disclosed in response to a valid order of
a court or other governmental body of the United States or any
political subdivisions thereof, but only to the extent of and
for the purposes of such order, provided, however, that the
recipient shall first notify the disclosing party of the order
and permit the disclosing party to seek an appropriate
protective order.
5. When requested by the recipient, the disclosing party will
provide a nonconfidential summary prior to disclosure of the actual
Confidential Information to enable the recipient to determine whether it can
accept the Confidential Information. Each party has the right to refuse to
accept any information under this Agreement, and nothing obligates either party
to disclose to the other party any particular information.
6. Each party acknowledges its obligation to control access to
and/or exportation of technical data under the applicable export laws and
regulations of the United States, and each party agrees to adhere to and comply
with the laws and regulations with respect to any technical data received under
this Agreement.
7. Confidential Information, including permitted copies, shall be
deemed the property of the disclosing party. The recipient shall, without
twenty (20) days of a written request by the disclosing party, return all
Confidential Information, including all copies thereof, to the disclosing party
or destroy all such Confidential Information. The recipient shall also, within
ten (10) days of
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a written request by the disclosing party, certify in writing that it has
satisfied its obligations under Paragraph 3, 6 and 7 of this Agreement.
8. Both parties agree that an impending or existing violation of
any provision of this Agreement would cause the disclosing party irreparable
injury for which it would have no adequate remedy at law, and that the
disclosing party shall be entitled to seek immediate injunctive relief
prohibiting such violation, in addition to any other rights and remedies
available to it.
9. Nothing contained in this Agreement or in any discussions
undertaken or disclosures made pursuant hereto shall (a) be deemed a commitment
to engage in any business relationship, contract or future dealing with the
other party, or (b) limit either party's right to conduct similar discussions
or perform similar work to that undertaken pursuant hereto, so long as said
discussions or work do not violate this Agreement.
10. No patent, copyright, trademark or other proprietary right or
license is granted by this Agreement or any disclosure hereunder, except for
the right to use such information in accordance with this Agreement. No
warranties of any kind are given with respect to the Confidential Information
disclosed under this Agreement or any use thereof, except as may be otherwise
agreed to in writing.
11. This Agreement shall be effective as of the date first written
above and shall continue until terminated by either party at will, provided,
however that the obligations under this Agreement survive termination thereof.
12. This Agreement may not be assigned by either party without the
prior written consent of the other except that ACSI may assign this Agreement
to any of its affiliates upon prior written notice to CYBERNET HOLDING LLC. No
permitted assignment shall relieve a party of its obligations hereunder with
respect to Confidential Information disclosed to that party prior to the
assignment. Any assignment in violation of this Section shall be void. This
Agreement shall be binding upon the parties and their respective successors and
assigns.
13. If any provision of this Agreement shall be held invalid or
unenforceable, such provision shall be deemed deleted from this Agreement and
replaced by a valid and enforceable provision which so far as possible achieves
the parties' intent in agreeing to the original provision. The remaining
provisions of this Agreement shall continue in full force and effect.
14. Each party warrants that it had the authority to enter into
this Agreement to lawfully make the disclosures contemplated hereunder.
15. This Agreement represents the entire understanding between the
parties with respect to the subject matter hereof and supersedes all prior
communications, agreements and understandings related thereto. The provisions
of this Agreement may not be modified, amended, or waived, except by a written
instrument duly executed by both parties. This Agreement shall be governed in
all respects by the domestic laws of the State of Maryland.
16. Both parties agree not to disclose the ITC's pending
acquisition of DeltaCom.
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AMERICAN COMMUNICATIONS SERVICES, INC.
BY: /s/ GEORGE M. TRONSRUE, III
------------------------------
TITLE: Executive Vice President
---------------------------
CYBERNET HOLDING LLC
BY: /s/ CLARENCE J. PRESTWOOD
------------------------------
TITLE: President & CEO
---------------------------
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<PAGE> 1
EXHIBIT 10.23
***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.***
LICENSE AGREEMENT
This Agreement is made and entered into on this 17th day of January, 1996,
by and between American Cable Inc., a Delaware corporation (hereinafter referred
to as "AC"), and American Communication Services of Columbus, Inc., a Maryland
Corporation (hereinafter referred to as "ACSI").
WHEREAS, ACSI desires fiber optic capacity for its business purposes; and
WHEREAS, AC is willing to construct or lease fiber optic cable, at the
expense of ACSI, and in return, to allow ACSI to use certain of the fibers on
such cable;
NOW, THEREFORE, in consideration of the premises and the agreements of the
parties, AC and ACSI agree as follows:
Section 1. Construction of Fiber Optic Cable
Subject to securing all requisite government and regulatory approvals, and
in consideration of the payments and other agreements of ACSI contained herein,
AC agrees to construct (or cause to be constructed) and to maintain a fiber
optic cable in or around the City of Columbus, Georgia (the "Fiber System") upon
electric distribution, CATV distribution transmission lines, and/or other
rights-of-way selected by AC. The Fiber System shall consist of not less than
[_______________] fibers, except as agreed to by the parties pursuant to
Section 30 Each of the fibers shall be single mode, dual window, non-dispersion
shifted. In the event that requisite government and regulatory approvals are
not secured by AC, then ACSI may, at its discretion, terminate this agreement.
For purposes of this Agreement, the Fiber System shall not consist of any fiber
or cable on the ACSI side of any demarcation point (i.e. splice point in an
ACSI manhole) with AC.
All construction shall be performed pursuant to AC's specifications. AC
shall provide the specifications for each phase of construction to ACSI. The
specifications for each phase may be provided at once, or at AC's option, may be
divided and provided in multiple parts. Unless ACSI objects to AC in writing to
specifications within ten (10) days of receipt of those specifications, such
specifications shall be deemed to have been agreed upon.
Section 2. Route Location and Phases of Construction
AC shall construct the Fiber System over a route more fully described in
Exhibit A, attached hereto and made a part hereof (the "Route"). The Fiber
System will be constructed in phases as more fully described in Exhibit A, and
will be completed by the "Not Later Than" ("NLT") dates specified in Exhibit B.
Failure to
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complete construction by the agreed upon NLT dates will result in a penalty
being accessed against AC of [____] per day for each day beyond the NLT dates
specified in Exhibit B (other than any delays relating to receipt of permits or
completion of "make-ready" work to be done by others necessary for AC to
commence and pursue the construction later than 90 days from AC's application or
request to commence, respectively).
Section 3. License; Grant of Security Interest and Collateral Assignment to
Lender
So long as ACSI performs its payment obligations and all of its other
obligations under this Agreement, ACSI shall have the sole and exclusive right
to use a total of [________________] of the fibers constituting the Fiber
System (which [__] fibers are referred to herein as the "ACSI Fiber") subject
to Section 4 hereafter. AC shall have the sole and exclusive right to use the
remaining [________________] fibers constituting the Fiber System subject to
the provisions of Section 10 (which [__] fibers are referred to herein as the
"AC Fiber").
AC shall designate the [________________] fibers that are to be ACSI
Fiber. AC may substitute fibers of equal or better capacity and quality at any
time, so long as such substitution does not interfere with ACSI's service to
its customers.
In the event that an Event of Default of ACSI occurs pursuant to Section
14 hereof which has not been cured pursuant to Section 15 hereof, AC shall have
the sole and exclusive right to use all ACSI Fiber, without incurring any
liability, responsibility or obligations to ACSI, ACSI's customers, or any user
of ACSI Fiber.
Section 4. Term of Agreement
This Agreement shall be effective as of the date hereof and shall continue
in effect for a term of fifteen (15) years, with ACSI having the option to
extend this Agreement for two (2) five (5) year renewal terms. At the end of
such term, including any renewal terms, all ownership rights of ACSI and all
rights of ACSI to utilize the Fiber System, including the ACSI Fiber, shall end,
terminate, and forever cease.
ACSI may exercise its option for a renewal term by providing notice of its
intent to do so in writing to AC at least six (6) months prior to the last day
of the preceding term.
Section 5. Notification of Completion
AC shall notify ACSI upon the completion of each phase of construction if
any, as set forth in Exhibit A hereto, and ACSI will accept the fiber in
accordance with acceptance and testing procedures mutually agreed to by the
parties. In the event of
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disagreement on the acceptance and testing procedures, the Fiber System or any
phase thereof will be deemed acceptable if it meets generally accepted standards
for similar fiber cable construction.
Section 6. Payments
ACSI agrees to reimburse AC for [___] (except as set forth in Section
30) of all reasonable actual costs and expenses incurred by AC in constructing
the Fiber System. During construction of the system, AC will periodically
provide to ACSI a listing of such costs and expenses.
ACSI will reimburse the pro-rated share of these costs to AC by first
reimbursing fifty percent of ACSI's portion of the estimated costs and expenses
shown on Exhibit B within ten (10) business days of the expected start date of
each phase referenced in Exhibit B. The remaining fifty percent will be
reimbursed by remitting one-half of the amount shown on each listing provided by
AC during the construction within ten (10) business days of the date of each
such listing. Within ten (10) business days of the completion of construction,
ACSI shall reimburse AC for any additional amounts due or shall receive any
refunds for overpayments, whichever is applicable.
All costs and expenses which are not reimbursed when required hereunder
shall be assessed interest at a rate of one and one-half percent per month.
Upon commencement of construction of the Fiber System, ACSI agrees to pay
to AC (in addition to the reimbursement of costs) a one-time fee of [_________
____________] on each route to be constructed under this agreement as described
in Exhibit B and [_____________________] for each route constructed solely for
ACSI as set forth in Exhibit E as partial compensation to AC for the license to
use the AC right-of-way for the ACSI Fiber. At the option of ACSI, 50% of this
amount may be amortized over a three-year period at an interest rate of twelve
percent (12%). If ACSI selects this option, the first annual payment will be
due 12 months after the commencement of construction for each respective phase,
and subsequent annual payments will be due on each of the second and third
annual anniversaries of the execution hereof. The remaining 50% of the one-time
right of way fee will be paid upon commencement of each respective phase of
construction.
ACSI will also be responsible for the payment, or reimbursement to AC, of
all sales, use, franchise, business license, or other taxes or fees charged by
any governmental entity that arise out of the use of the ACSI Fiber.
ACSI shall have the right to review the relevant books and records of AC
for the limited purpose of verifying the costs and expenses subject to
reimbursement hereunder. A request to perform such a review must be preceded by
five days
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written notice, and any information disclosed or revealed in such review shall
be kept confidential by ACSI, except such information as ACSI may be required to
disclose to the Lender in connection with the Secured Financing Arrangement.
Section 7a. Additional Fiber and Entrance Facilities
The ACSI Fiber shall also include entrance into any buildings within 2,500
feet of the fiber system, in which AC has available building conduit(s). Fiber
to be constructed by ACSI to a mutually agreed point of demarcation.
As further consideration for the use of the ACSI Fiber, ACSI agrees to
provide to AC, during the term of this Agreement and any renewal term:
(a) Most favored customer pricing (plus $1, per monthly invoice)
for like services and like quantities, or as agreed to by the
parties, on private line services which are purchased by AC or
an affiliated ITC Holding Company entity from ACSI.
(b) ACSI will view AC as "most favored vendor", when purchasing
off-net, type II services, in areas wherein AC can provide
mutually agreed upon competitive pricing, responsive
provisioning and high quality products. ACSI will grant AC a
first right of refusal on type II services, based on the above
quality and pricing points. First right of refusal will
consist of an affirmative response, accepting the order within
three (3) business days of placement. In addition, AC will
incur a [____] penalty when missing a customer concurred due
date by more than five (5) business days. After ten (10)
business days, ACSI can terminate the order and re-order with
any other provider.
Section 7b. Central Business District
ACSI will build a network in the Central Business District (CBD), as more
fully described in Exhibit C. The CBD network will be constructed and owned
entirely by ACSI and is not part of the Fiber System.
The CBD network will not be considered part of the Fiber System and will
therefore be excluded from the ROW fees outlined in Section 6 and maintenance
fees outlined in Section 13. except as described in Exhibit E, Phase 7g.
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In the event that AC provides conduit within the CBD network at the
request of ACSI, wherein ACSI places fiber optic cable, ACSI will provide to AC
the following:
(a) sole and exclusive use of [___________] fibers which meet AC's
performance standards on all fiber optic cable and routes
which utilize AC conduit within the CBD. AC agrees that it
will not use, sell or lease this fiber to a third party who
proposes to provide local competitive access services, as that
term is defined in Section 10.
(b) sole and exclusive use of and access to, and the right to
install fiber optic cables in, one (1) innerduct on the
conduit routes described and shown on Exhibit C hereto. AC
agrees that it will not use this conduit and any fiber optic
cable installed in this conduit to provide local competitive
access services, as that term is defined in Section 10. In
addition, AC agrees not to lease or sell this fiber to any
third party who proposes to provide local competitive access
services, as that term is defined in Section 10.
Section 8. Assessment of Costs
ACSI agrees to pay its pro rata share (i.e. one-half) of any and all
variable and recurring costs (other than maintenance costs which are addressed
in Section 13) associated with the Fiber System during the term (including any
renewals) of this Agreement. Variable and recurring costs include, but are not
limited to, purchasing new rights-of-way, railroad crossing fees, easement fees,
inspection fees, encroachment fees, property taxes, franchise or special fee
assessments, or any other fees or assessments imposed by any governmental
entity, and insurance. They do not include the costs and expenses of
constructing the Fiber System, which are discussed in Section 6 of this
Agreement. Furthermore, these costs must relate to the Fiber System, and thus,
they do not include costs incurred to operate any electric system or CATV system
owned or managed by AC or its affiliates.
An invoice for variable and recurring costs will be issued by AC annually
or, at AC's option, may be issued monthly. The invoice shall be paid within
thirty (30) days of receipt by ACSI. Any invoices issued hereunder shall
describe in sufficient detail the costs being charged and shall be subject to
review by ACSI. AC will seek to minimize costs associated with the Fiber System,
consistent with good business practices. No administrative mark-up will be added
to any invoice. All invoices to ACSI which are not paid when due hereunder shall
be assessed interest at a rate of one and one-half percent per month.
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ACSI shall retain the right to object to any fee, assessment or tax
imposed by any governmental entity during the term of this Agreement, if AC
chooses not to challenge said fee, assessment or tax. AC agrees to cooperate
with ACSI if ACSI should exercise its rights hereunder. If ACSI chooses to
challenge or object to any governmental fee or tax hereunder, then all
penalties, attorneys fees and litigation costs associated therewith shall be
borne solely by ACSI as they are incurred. AC agrees to share [___] of any
savings incurred on the AC Fiber, during the immediate 12 months following any
favorable judgment initiated solely by ACSI.
Variable and recurring costs incurred exclusively to serve the business
needs of ACSI will be the sole responsibility of ACSI. These costs include, but
are not limited to, installing a new hand-hole and splice case for a new pickup
point and splicing in a new customer. ACSI will be invoiced for these charges as
they occur. Any invoice issued hereunder shall be payable within ten (10) days
of receipt by ACSI. All invoices to ACSI which are not paid when due hereunder
shall be assessed interest at a rate of one and one-half percent per month.
ACSI shall have the right to review the relevant books and records of AC
for the limited purpose of verifying the costs referenced hereunder. A request
to perform such a review must be preceded by five days written notice, and any
information disclosed or revealed in such review shall be kept confidential by
ACSI, except such information as ACSI may be required to disclose to the Lender
in connection with the Secured Financing Arrangement.
Section 9. Equipment and Land
As provided elsewhere in this Agreement, ACSI shall pay for all costs
associated with use and operation of the ACSI Fiber including all equipment and
additional space or land required therefor.
AC shall provide for demarcation of fibers allocated to ACSI, AC and
others. "Demarcation" means the point of meeting where the "hand-off" occurs
between the Fiber System and ACSI's system (whether secured from others or
owned). Generally, the demarcation point will be at the splice, unless the fiber
enters a building, in which case it will be at the distribution panel or other
point where the ACSI cable physically interconnects with the Fiber System. ACSI
shall provide the fiber to be spliced into the ACSI Fiber. The splice will be
prepared and maintained by AC. Access to the splice enclosure, fiber optic
distribution frame, or fiber optic splice case shall be an exclusive right of AC
or others at AC's direction.
Section 10. Nonexclusive Agreement
AC reserves for its own use and for the potential use of others the right
to AC Fiber. AC may initially or subsequently install additional cables along
the Route for its
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own use and for the potential use of others. None of these cables or fibers
shall become ACSI Fiber or otherwise be provided for ACSI's use hereunder, and
ACSI shall bear no costs (inclusive of installation and labor) associated with
these cables.
AC agrees that for a period extending until February 1, 1997, that it will
not lease any of the AC Fiber or optical/electronic transmission capacity, to
any third party that proposes to provide local competitive access services
(which term includes any interlata or intralata, special or switched access,
private line or local exchange services, but does not include, without
limitation, video, cable television, Personal Communications Services, or
cellular) through use of such AC Fiber or capacity on terms more favorable than
those offered to ACSI. In addition, if AC is considering entering any such lease
prior to February 1, 1997, [____________________________________________]
______________________________________________________________________________
_______________________________________________________________________________
_______.]
(a) AC may use AC Fiber (as described in Section 3, paragraph 1)
or ACSI provided innerduct for the purpose of providing any
service, capacity or facilities to its own customers,
affiliates, or lessees without limitation, subject to the
provisions of subsections (b) and (c) of this Section 10 in
the case of local competitive access services (as defined
above).
(b) To the extent (if any) that AC uses AC Fiber (as described in
Section 3, paragraph 1) or ACSI provided innerduct to provide
originating and/or terminating long distance traffic to its
residential customers, dedicated access from AC's POP to any
interexchange carriers other than DeltaCom will be carried
over ACSI Fiber on the joint Fiber System.
(c) With respect to competitive access services consisting of (i)
local telephone services to AC's business customers in or
around the City of Columbus, Georgia or (ii) originating
and/or terminating long distance traffic between such
customers and any interexchange carriers, (x) if such services
or traffic can be carried from the originating end to the
terminating end entirely on ACSI-owned fiber optic cable
facilities (including but not limited to ACSI Fiber), such
competitive access services must be purchased from ACSI and
ACSI must provide the same on terms and conditions which are
in accordance with paragraph 7(c) of this Agreement and are
otherwise generally competitive, or (y) if such services or
traffic cannot be carried from the originating end to the
terminating end entirely on ACSI-owned fiber optic cable
facilities (including but not limited to ACSI Fiber), AC may
carry such services or traffic directly or through another
entity over the
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area where it cannot be carried over ACSI-owned fiber optic
cable facilities (including but not limited to ACSI Fiber) and
to a suitable location to hand off the traffic to ACSI, and
the remaining portion of such competitive access services must
be purchased from ACSI and ACSI must provide the same on terms
and conditions which are in accordance with paragraph 7(c) of
this Agreement and are otherwise generally competitive.
Section 11. Royalty Payment
As consideration for the requirements of Section 10, ACSI shall pay to AC
a monthly royalty payment equal to [________________] of ACSI's monthly Booked
Net Revenue After Taxes, which is defined as total revenue, less operating
expenses, interest expenses, taxes, and depreciation, all calculated in
accordance with generally accepted accounting principles. This payment will be
due to AC, within thirty (30) calendar days of the end of each month, so long
as the amount is greater than zero and will continue throughout the term of
this agreement and shall continue for any renewals thereafter. This royalty
will be calculated on the basis of revenues generated by ACSI, its affiliates
(not including the parent company), or partners from usage on or of the Fiber
System. In no case will this royalty be less than the minimum amount specified
in Exhibit D [__________________________________] for years 1 through 10
based upon ACSI's 11/21/95 Columbus Business Plan Booked Net income
projection), and for Year 11, [_________________________________], and for
every year thereafter, [__________________________________] increased by
changes in the Consumer Price Index occurring since the beginning of Year 11.
As it pertains to the payment described above, AC will have the right to audit
ACSI's invoices and financial statements on a limited basis, for the express
purposes only, to ensure accuracy of payments rendered to AC by ACSI. This
right will be quarterly, on five (5) days written notice to ACSI.
Section 12. Availability
AC will endeavor to provide uninterrupted availability of the Fiber System
and will make reasonable efforts to restore fiber optic connections as soon as
possible in the event of a failure. The parties acknowledge that restoration
times can vary significantly depending on the nature of the cause of the
interruption. ACSI agrees to provide AC with any information or records with
respect to operations or operating characteristics of ACSI's system that may be
needed or useful to AC in maintaining, repairing and/or replacing all or part of
the Fiber System. It is the responsibility of ACSI to possess the equipment and
alternative fiber optic cable route necessary to automatically reroute traffic
in the event of a loss of use of the ACSI Fiber.
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Section 13. Maintenance and Maintenance Fees.
All maintenance of the Fiber System shall be performed solely by AC or by
others at AC's direction. MCE agrees to develop maintenance procedures with a
least-intrusive overall objective. Where practical, maintenance and construction
activities affecting system performance will be conducted between the hours of
midnight and 6 a.m., with five (5) days advance written notice. AC agrees to
provide to ACSI, upon request, its maintenance procedures. ACSI may, at its
discretion, provide input as to the maintenance procedures.
AC shall provide necessary routine maintenance for the Fiber System, such
as routine tower structure, right-of-way inspection and right-of-way clearing.
During the first ten (10) years of this agreement, ACSI shall pay to AC an
annual fee for routine maintenance equal to [_________________] of the
pro-rated costs and expenses of constructing the Fiber System; years eleven
(11) through fifteen (15) shall be calculated at [__________________________].
The first annual maintenance payment shall be due within ten (10) business days
of the Start Date shown on Exhibit B and each annual payment thereafter shall
be due on the anniversary date of this Agreement. Annual maintenance payments
shall be calculated using the estimated costs and expenses set forth in Exhibit
B until the Fiber System is constructed, at which time such payments shall be
based upon the actual costs and expenses.
Upon any renewal term, annual maintenance shall be negotiated and mutually
agreed upon.
Routine right-of-way clearing is performed approximately every five (5)
years. Any requests for more frequent or more extensive right-of-way clearing
shall be provided by AC at the sole cost and expense of ACSI.
AC shall also restore the Fiber System in the event of a service outage or
other events requiring repairs. AC will respond to any outage within two (2)
hours or less after notice of the outage has been given to the designated AC
contact and will use its best efforts to resolve the problem as quickly
thereafter as is reasonably possible. The costs associated with such restoration
shall not be treated as routine maintenance and ACSI shall be responsible for
its pro rata share of material, labor and overhead costs associated with the
necessary repairs. If AC fails to respond within two (2) hours after notice of
the outage has been given to the designated AC contact, a penalty will be
incurred of [___________________] thereafter and will be due ACSI. Both MCE and
ACSI will provide the other with written notice designating contacts for
purposes of this Agreement and this Section in particular.
ACSI shall have no responsibility for costs associated with replacement
and restoration of the Fiber System as a result of major repairs to the lines
arising out of a decision to reroute the structure and/or lines for the
convenience of AC.
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In the event of a Fiber System move for public convenience or necessity,
as in the case of a road widening, or to comply with an order, law or other
requirement of a government body, ACSI shall be responsible for its pro rata
share of the cost to move the Fiber System.
Section 14. Events of Default
Events of default shall include:
(a) If a payment is not made when due, AC shall provide written
notice, via certified mail, to ACSI of such nonpayment, and if
payment is not made within ten (10) business days or more
after receipt of such notice, an Event of Default shall be
deemed to have occurred (however, AC shall be required to
provide only two notices of nonpayment every twelve months);
(b) Default in the performance of any other material
liability, obligation, representation or covenant of
ACSI or AC;
(c) The admission by ACSI in writing of its inability to pay its
debts generally when due, or the making of any general
assignment for the benefit of creditors by ACSI;
(d) The institution of bankruptcy, reorganization, liquidation or
receivership proceedings by or against ACSI which is not
dismissed within 60 days thereafter; and
(e) An involuntary transfer of ACSI's interest by
operation of law.
Section 15. Rights Upon Default
Upon the occurrence of any of the Events of Default listed in Section
14(b), the non-defaulting party shall give notice of such violation or default,
and if the defaulting party does not cure that default or violation within a
thirty (30) calendar day period the non-defaulting party may in its discretion
do one or more of the following:
(a) Proceed by appropriate court action or actions at law or in
equity or in bankruptcy to enforce performance by the
defaulting party of the covenant and terms of this Agreement
and/or to recover damages for the breach thereof;
(b) Invoke and exercise any other remedy or remedies
available at law or in equity;
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(c) Cancel this Agreement; and
(d) In the event of an ACSI default, AC may give written
notice to ACSI of the present value of the entire
amount of payments due to AC under this Agreement and
an estimate of all other amounts remaining to be paid
over the balance of the term hereof, computed from
the date of ACSI's default. All of these amounts
shall become immediately due and payable and shall be
accelerated.
The remedies in the Event of Default, as hereinabove set forth, shall not
be deemed to be exclusive, but shall be cumulative and shall be in addition to
all other remedies existing in law, in equity or in bankruptcy;
The defaulting party shall be liable for all costs and expenses, including
reasonable legal fees and disbursements, incurred by reason of any Event of
Default or the exercise by the other party or its assignee of any of its
remedies hereunder, provided that such other party prevails in any such action.
Section 16. Reports and Certificates
On written request, during the term of this Agreement, ACSI agrees to
furnish to AC and/or its assignee within one hundred twenty (120) days after the
close of its fiscal year, an annual report of its parent company consisting of
(1) its consolidated financial statements including a balance sheet as of the
end of such fiscal year, and (ii) statements of income for the year then ended,
with all notes thereto, in each case certified as true and correct by the chief
financial officer of its parent company; provided that if its parent company
shall have independent certified accountants prepare such financial statements,
ACSI shall furnish such financials to AC when available.
All non-public information regarding ACSI or its affiliates received by
AC, its successors, assigns or affiliates under this Section shall be held
confidential.
Section 17. Representations and Warranties
By the execution and delivery of this Agreement, ACSI shall be deemed to
have made the following representations and warranties to AC with respect to
this Agreement:
(a) ACSI is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maryland and is,
or will become, duly qualified to do business in each
jurisdiction where
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such qualification is necessary; and has the power and
authority to enter into and perform its obligations under this
Agreement;
(b) ACSI is duly authorized and empowered to execute and deliver
this Agreement and to fulfill and comply with the terms,
conditions and provisions hereof and thereof;
(c) There are no actions, suits or proceedings, whether or not
purportedly on behalf of ACSI, pending or (to the knowledge of
ASCI) threatened against or affecting ACSI or any property
rights of ACSI at law or in equity, or before any commission
or other administrative agency, that, if determined adversely
to ACSI would materially and adversely affect the ability of
ACSI to perform its obligations under this Agreement. ACSI is
not in default with respect to any order or decree of any
court or governmental commission, agency or instrumentality
which would materially affect the ability of ACSI to perform
its obligations;
(d) The execution, delivery and performance of this Agreement
does not conflict with, or result in a breach of, the terms,
conditions or provisions of: (i) ACSI's articles of
incorporation; or (ii) any bond, debenture, note, mortgage,
indenture, agreement or other instrument to which ACSI is a
party or by which ACSI or its property may be bound, or
constitute (with due notice or lapse of time or both) a
default thereunder;
(e) Any and all authorizations or approvals from any governmental
or public body or authority of the United States of America,
or of any of the States thereof, the District of Columbia, the
City of Columbus, Georgia, or other local authority, necessary
in connection with the execution, delivery and performance of
this Agreement have been or will be obtained prior to making
the Fiber System operational, except for such approvals and
authorizations as have been obtained and are in effect as of
the date thereof and as to those, the same will be maintained
in effect throughout the term of this Agreement.
By execution and delivery of this Agreement, AC shall be deemed to have
made the following representations and warranties to ACSI with respect to this
agreement.
(a) AC is a corporation duly formed and validly existing under the
laws of the State of Georgia and is qualified to do business
in
12
<PAGE> 13
each jurisdiction where such qualification is necessary; and
has access to certain rights-of-way (owned by its parent
companies, ITC Holding Company, Inc. and CYBERNET Holding LLC,
or other ITC affiliates as may be the case) necessary to
perform under this agreement; and that it has the power and
authority to enter into and perform its obligations under this
Agreement;
(b) AC is duly authorized and empowered to execute and deliver
this Agreement and to fulfill and comply with the terms,
conditions and provisions hereof.
(c) There are no actions, suits or proceedings, whether or not
purportedly on behalf of AC, pending or (to the knowledge of
AC) threatened against or affecting AC or any property rights
of AC at law or in equity, or before any commission or other
administrative agency, that, if determined adversely to AC
would materially and adversely affect the ability of AC to
perform its obligations under this Agreement, except as set
forth in Section 19. AC is not in default with respect to any
order or decree of any court or governmental commission,
agency or instrumentality which would materially affect the
ability of AC to perform its obligations hereunder or
thereunder, nor does any such order or decree exist that would
materially and adversely affect the ability of AC to perform
such obligations;
(d) The execution, delivery and performance of this Agreement does
not conflict with, or result in a breach of, the terms,
conditions or provisions of: (i) AC'S articles of
incorporation; or (ii) any bond, debenture, note, mortgage,
indenture, agreement or other instrument to which AC is a
party or by which AC or its property may be bound, or
constitute (with due notice or lapse of time or both) a
default thereunder.
Section 18. Rights-of-Way
Under its existing right-of-way agreements with private landowners and/or
holders of easements providing rights-of-way, AC believes that it has the right
to use the rights-of-way as contemplated herein, but does not warrant that they
will be legally sufficient, without the consent of the landowners, for all
purposes contemplated hereunder. In the event that a landowner should object to
AC's use of a right-of-way, AC will promptly notify ACSI of the objection and
will use its best efforts to resolve the dispute. Unless AC determines that
legal and/or regulatory considerations dictate a different characterization,
this Agreement shall be construed as constituting a license from AC to ACSI for
use of the ACSI Fiber during the term of this
13
<PAGE> 14
Agreement. ACSI will be required to obtain rights-of-way for the equipment which
it intends to install outside of the Route, including any cables required for
service to its customers' premises. ACSI will also be required to acquire
whatever rights-of-way are necessary to bury cable from the base of poles and
towers to any other sites.
Section 19. Regulation
Under current law, the parties are unclear as to whether AC needs the
approval of the Georgia Public Service Commission (the "PSC") in order to enter
into or perform its obligations under this Agreement. Nevertheless, AC intends
to seek from the PSC the necessary authority or a determination that no such
authority is required. If it is determined that such authority is needed, AC
reserves the right to assign this Agreement to another party who has or can
obtain the necessary authority. Such assignment will release AC from any
liability or obligations to ACSI, but the assignee will be bound to the same
obligations and liabilities as AC.
Nothing in this Agreement shall be construed as obligating AC to do any
act, or prevent AC from doing any act, that would make AC subject to regulation
as a telephone company, communications carrier, or common carrier.
Section 20. Ownership
AC shall own [________________] strands of the fiber optic cable
comprising the Fiber System and any electronic equipment which AC attaches to
the Fiber System. Subject to Section 4 hereof, for the term of this Agreement,
ACSI shall own [___________] strands of the fiber optic cable comprising the
Fiber System and any electronic equipment which ACSI attaches to the Fiber
System.
Section 21. Assignment
Except as provided in Section 19, neither AC nor ACSI shall make any
assignment of any of its rights or obligations to any third party under this
agreement without the consent of the other party, which consent shall not be
unreasonably withheld (consents shall not be deemed unreasonably withheld with
respect to a proposed assignment of this Agreement by a party to an entity where
the other party has a good faith belief that the transferee is unable to comply
with the terms and conditions of this Agreement), except that ACSI may, without
the written consent of AC, collaterally assign its rights in this Agreement to
the Lender in connection with the Secured Financing Arrangement. Notwithstanding
the foregoing, neither party shall not be required to obtain the other party's
consent to contracts for services required under this Agreement or to assign its
rights (but not its obligations) under this Agreement to an affiliate.
14
<PAGE> 15
Section 22. Limitation of Liability
AC will not be liable for consequential damages or for any loss of use,
revenue, or profit suffered by ACSI or its assigns as a result of any act or
failure hereunder, including the unavailability or failure of capacity, AC's
supply of or failure to supply power to the Fiber System or the ACSI Fiber, or
any damage to the ACSI Fiber or the Fiber System. AC's total liability for any
claims or damage arising out of or connected with this Agreement shall not
exceed the amount of fees paid by ACSI to AC prior to date of said claim or
damage.
ACSI will not be liable for consequential damages or for any loss of use,
revenue, or profit suffered by AC or its assigns as a result of any act or
failure hereunder, including the unavailability or failure of capacity, ACSI's
supply of or failure to supply power to the Fiber System or the AC Fiber, or any
damage to the AC Fiber or the Fiber System. ACSI's total liability for any
claims or damage arising out of or connected with this Agreement shall not
exceed the amount of fees paid by AC to ACSI prior to date of said claim or
damage.
Section 23. Indemnity
Subject to Section 22, each party, for itself, its successors and assigns,
agrees to defend, indemnify and save the other, its directors, officers,
employees, agents, successors and assigns, harmless from and against any and all
claims, demands, damages, actions or causes of action, together with any and all
losses, fines, penalties, costs or expenses (including attorney's fees) in
connection therewith or related thereto, asserted by any third party, including,
but not limited to, the general public, the other party's employees, customers,
contractors, subcontractors and/or agents, arising from or in any manner growing
out of or attributed to the indemnifying party's negligence or willful acts,
including, but not limited to operations, cable splicing, equipment, facilities,
regenerator, regenerator(s) site(s), or connection(s).
ACSI, for itself, its successors and assigns, agrees to defend, indemnify
and save AC, its directors, officers, employees, agents, successors and assigns,
harmless from and against any and all claims, demands, damages, actions, or
causes of action, together with any and all losses, fines, penalties, costs or
expenses in connection therewith or related thereto, asserted by any person or
persons arising from or in any manner growing out of unavailability or loss of
capacity, whether or not caused by the fault or negligence of ACSI.
Section 24. Force Majeure
In the event that AC shall be prevented from or delayed in installing,
repairing or replacing the Fiber System because of causes beyond its control
such as, but not necessarily limited to, lightning, flood, fire, explosion,
storm, destruction of property,
15
<PAGE> 16
strike or other labor dispute or disturbance, civil insurrection, national
emergency, embargo, moratorium, any governmental action or order of any court or
administrative agency, major mechanical breakdown, or failure of a unique
supplier to supply necessary materials or equipment on time, AC shall be excused
from timely performance.
Section 25. Confidentiality
AC shall maintain the confidentiality of records and information received
by it under this Agreement regarding ACSI or its affiliates, except as necessary
to instruct or protect any third parties, including, but not necessarily limited
to, agents and contractors. ACSI shall maintain the confidentiality of records
and information received by it under this Agreement regarding AC or its
affiliates, except as necessary to instruct or protect any third parties,
including, but not necessarily limited to, agents and contractors. The parties
hereby incorporate by reference the Non-Disclosure Agreement that they entered
into on August 17, 1995.
Section 26. Warranty
The parties acknowledge that AC is not selling goods to ACSI, and
consequently, the warranties generally provided by the Uniform Commercial Code
will not be available to ACSI. The Fiber System shall be constructed to meet
specifications as set forth in this Agreement. However, BECAUSE AC IS NOT THE
MANUFACTURER OR VENDOR OF ANY OF THE PROPERTY THAT WILL BE UTILIZED, INCLUDING,
BUT NOT LIMITED TO, FIBER OPTIC CABLE AND ALL ASSOCIATED EQUIPMENT, NOR A DEALER
IN SUCH PROPERTY, AC HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION,
WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE DESIGN,
CONDITION, DURABILITY, USEFULNESS, SUITABILITY, FITNESS FOR USE, FITNESS FOR A
PARTICULAR PURPOSE OR MERCHANTABILITY OF THE FIBER CAPACITY, THE FIBER SYSTEM OR
THE ACSI FIBER. AC SHALL NOT BE RESPONSIBLE FOR ANY PATENT OR LATENT DEFECTS
THEREIN OR ANY DAMAGES RESULTING THEREFROM.
AC shall be responsible, at no extra cost to ACSI, for enforcing
manufacturer's warranties providing for any and all replacements required as a
result of manufacturing failure, provided that ACSI shall be responsible for its
pro rata labor costs and reasonable overhead of the installation of the
replacement cable, to the extent AC (rather than the manufacturer) is
responsible for such changes.
16
<PAGE> 17
Section 27. Notices
All notices and other communications provided for herein shall be validly
given if in writing and delivered personally, via overnight express mail, via
certified mail, or via regular mail, addressed as below to whichever is
appropriate:
If to AC:
Mr. Clarence J. Prestwood
CYBERNET HOLDING, LLC
PO Box 510
West Point, Georgia 31833
Mr. Cam B. Lanier
Chairman & CEO
ITC HOLDING COMPANY
PO Box 510
West Point, Georgia 31833
If to ACSI:
General Counsel
ACSI
131 National Business Parkway
Suite 100
Annapolis Junction, MD 20701
Chief Financial Officer
ACSI
131 National Business Parkway
Suite 100
Annapolis Junction, MD 20701
copy to:
Mr. Dennis Ives
ACSI
600 Hunter Drive
Suite 301
Oak Brook, IL 60521
17
<PAGE> 18
Section 28. Further Assurances
ACSI, at its own cost, expense and liability, will cause to be promptly
and duly taken, executed, acknowledged and delivered all such further
assurances, acts and documents as AC or its permitted assigns may from time to
time reasonably request in order to more effectively carry out the intent and
purposes of this Agreement and the transactions contemplated hereby, and will
take all such other actions or cause such actions to be taken as may be
necessary or as may be requested by AC or its assigns in order to establish,
preserve, protect and perfect the good and marketable title of AC to the Fiber
System; provided that anything in this Section 28 notwithstanding, AC
acknowledges and agrees that ACSI is granting a security interest, and AC
consents in the granting of such security interest, in the rights of ACSI under
this Agreement to the Lender in connection with the Secured Financing
Arrangement.
Section 29. Miscellaneous Provisions
(1) This Agreement embodies the entire agreement between the parties.
It may not be modified or terminated except as provided herein or by other
written agreement between the parties. If any provision is invalid, it shall be
considered deleted from this Agreement, and such invalidity shall not invalidate
the remaining provisions of this Agreement.
(2) Before resorting to any litigation, the parties agree to exercise
reasonable efforts to amicably resolve the dispute by negotiations between the
appropriate representatives or executives of the parties.
(3) This Agreement shall be governed by the laws of the State of
Georgia. Venue for any litigation between the parties shall be in the Circuit
Court of Columbus County, Georgia, excluding the choice-of-law rules thereof.
(4) Each party and counsel for each party have reviewed this Agreement.
Accordingly, the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
(5) The failure of either party to insist on the performance of any of
the terms of this Agreement, or the waiver of any breach of any of the terms of
this Agreement, shall not be construed as thereafter waiving any such terms, or
any others, but the terms shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred.
18
<PAGE> 19
(6) It is understood and agreed by the parties that this Agreement shall
not in any way be construed as creating any relationship between the parties
other than that expressly provided herein.
(7) The headings of the sections in this Agreement are for the purpose
of reference only and shall not limit or affect the meaning of the Agreement as
a whole or of the sections thereof.
(8) All dollar amounts indicated in this Agreement are denominated in
United States currency.
(9) The parties hereto agree that this Agreement, to the extent it is
subject to Federal Communications Commission ("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. Section 211(a)) as
implemented in 47 C.F.R. Section 43.51.
(10) In connection with the matters provided for in this Agreement, each
party hereto shall comply with all applicable laws and regulations, including,
but not limited to, the Communications Act of 1934, as amended, and the
policies, rules and regulations of the FCC.
(11) Neither ACSI nor AC shall, without the other party's prior written
consent: (i) use the other party's name in promotional, advertising or other
materials, or (ii) use the other party's logos, trade marks, service marks, or
any variations thereof in any of its promotional, advertising or other
materials.
(12) Nothing in this Agreement shall constitute a joint undertaking by
either ACSI or AC for the furnishing of any service to customers of the other
party. Nothing in this Agreement shall be deemed to create any relationship
between ACSI and AC other than that of independent parties contracting with each
other solely for the purpose of carrying out the provisions of this Agreement.
Neither of the parties hereto shall be deemed or construed, by virtue of this
Agreement, to be the agent, employee, representative, partner, or joint venturer
of the other party.
(13) 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, said part
shall be ineffective to the extent of such invalidity only, without in any way
affecting the remaining parts of said provision or the remaining provisions of
said agreement.
(14) It is the explicit intention of the parties hereto that no person or
entity other than the parties hereto is or shall be entitled to bring any action
to enforce any provision of this Agreement against either of the parties hereto,
and that the
19
<PAGE> 20
covenants, undertakings, and agreements set forth in this Agreement shall be
solely for the benefit of, and shall be enforceable only by, the parties hereto
or their respective successors and assigns as permitted hereunder.
(15) The terms and provisions contained in this Agreement that by their
sense and context are intended to survive the termination or expiration of this
Agreement shall so survive the termination or expiration of this Agreement,
including, without limitation, provisions for the making of any and all payments
due hereunder.
Section 30. Agreed Changes to the Fiber System
The Fiber System is being extended to areas within or around the City of
Columbus, Georgia at the request of ACSI, which extensions ("System Extensions")
are set forth on Exhibit G. The Route, Phases, estimated construction schedule
and "Not Later Than" dates for such System Extensions shall be as set forth on
Exhibit E. ACSI shall bear [____] of the construction cost of the System
Extensions, [_________________________________________________________________
______________________________________________________________________________
________]. The parties shall negotiate in good faith concerning any proposed
additions or changes to Exhibit E, and any such additions or changes shall be
set forth on amendments to Exhibit E signed by the parties hereto. [___________
___________________________________________________________________________
_________________________________________________________________________
__________________________________________________________________________
_______________________________________________________________________________
______________________________________________________________________________
_________________________________________]. For the period beginning after the
first 2 years and extending until the termination of this agreement, AC will
reimburse ACSI for [________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
______________________________________________________________________________
_________________________________________________.]
20
<PAGE> 21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by duly authorized persons.
AMERICAN COMMUNICATION SERVICES OF
COLUMBUS, INC.
/s/ Name: /s/ George M. Tronsrue, III
-----------------------
Title: Executive Vice-President
Date: 1/17/96
AMERICAN CABLE INC.
/s/ Name: /s/ Clarence J. Prestwood
-------------------------
Title: CEO
Date: 1/24/96
21
<PAGE> 22
***INFORMATION IN THIS EXHIBIT 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
Routes and Phases
Phase 1: [________________________________________________________]
_______________________________________________________
__________________________________________________________
______________]
Phase 2: [____________________________________________________
___________________________________________________________
___________________________]
Phase 3: [___________________________________________________________
_________________________________________________________
_____________________________________________________
___________________________________________________________]
Phase [______________________________________________________________
______________________________________________________________
______________________________________________]
<PAGE> 23
EXHIBIT B
Estimated Costs and Expenses of Construction
Estimated Construction
<TABLE>
<CAPTION>
Cost Start Date Completion Date
<S> <C> <C> <C>
Phase 1: [__________] 1/2/96 6/30/96
Phase 2: [__________] 1/2/96 6/30/96
Phase 3: [__________] 1/2/96 6/30/96
Phase 4: [__________] 1/2/96 6/30/96
</TABLE>
Completion dates based on 90 day permitting time frame. Delays beyond our
control would be due to other utilities make-ready work being completed which
are part of permitting.
<PAGE> 24
***INFORMATION IN THIS EXHIBIT 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
ACSI Conduit and Fiber Optic Cable Route
The ACSI Network route is along the following streets in the city of Columbus,
Georgia:
City Right of Way From: To:
[__________] [___________] [___________]
[___________] [__________] [__________]
[__________] [___________] [___________]
[___________] [__________] [__________]
[__________] [___________] [___________]
[___________] [__________] [__________]
[__________] [___________] [___________]
[___________] [__________] [__________]
[__________] [___________] [___________]
[___________] [__________] [__________]
<PAGE> 25
***INFORMATION IN THIS EXHIBIT 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
[__________________________________]
for Years 1 through 10 based upon ACSI's 11/21/95 Columbus Business Plan
Booked Net Income Projection
<TABLE>
<CAPTION>
1996 1997 1998 1999 2000 2001 2002 2003 2004 2005
Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
------ ------ ------ ------ ------ ------ ------ ------ ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[_] [_] [_] [_] [_] [_] [_____] [_______] [________] [________]
Total Cumulative Payment: [__________]
Average Cumulative for Period: [__________]
</TABLE>
<PAGE> 26
***INFORMATION IN THIS EXHIBIT 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
Estimated Cost and Expenses of Construction
Estimated Construction
<TABLE>
<CAPTION>
Cost Start Date Completion Date
---- ---------- ---------------
<S> <C> <C> <C>
Phase 1g: [___________] 1/2/96 6/30/96
Phase 2g: [___________] 1/2/96 6/30/96
Phase 3g: [___________] 1/2/96 6/30/96
Phase 4g: [___________] 1/2/96 4/30/96
Phase 5g: [___________] 1/2/96 6/30/96
Phase 6g: [___________] 1/2/96 6/30/96
Phase 7g: [___________] Immediate 4/03/96
</TABLE>
Completion dates based on 90 day permitting time frame. Delays beyond our
control would be due to other utilities make-ready work being completed which
are part of permitting.
Routes and Phases
Phase 1g: [_____________________________________________________________
__________________________________________________________________
__________________________________________________________________]
Phase 2g: [_____________________________________________________________
__________________________________________________________________
_______________________________________________________________
___________________________]
Phase 3g: [_______________________________________________________________
_________________________________________________________________
___________________________________________
_____________________]
Phase 4g: [____________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________]
Phase 5g: [__________________________________________________
__________________________________________]
Phase 6g: [__________________________________________________________
___________________________________________________________
________________________________]
Phase 7g: [___________________________________________________________
__________________________________________________________
_________________________________________________________
_____________________________]
<PAGE> 27
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT entered into as of the 17th day of August, 1995 between
AMERICAN COMMUNICATIONS SERVICES, INC. ("ACSI"), with offices at 131 National
Business Parkway, Annapolis Junction, Maryland 20701 and CYBERNET HOLDING LLC,
with offices at 1239 O.G. Skinner Drive, Post Office Box 510, West Point,
Georgia 31833.
1. ACSI and CYBERNET HOLDING LLC, intend to disclose to each
other information, which may include confidential information, relating to the
evaluation of a possible working/business relationship (the "Potential
Relationship"). The term "Confidential Information" shall mean any information
or data which is disclosed by a party to the other party under or in
contemplation of this Agreement and which (a) if in tangible form or other
media that can be converted to readable form, is clearly marked as proprietary,
confidential, or private when disclosed, or (b) if oral, is identified as
proprietary, confidential, or private on disclosure and is summarized in a
writing so marked and delivered within thirty (30) days following such
disclosure. Confidential Information may be either the property of the
disclosing party or information provided to the disclosing party by a corporate
affiliate of the disclosing party or by a third party.
2. This Agreement expressly does not encompass the corporate
affiliates of either party hereto. Consequently, affiliates of either party
may not disclose Confidential Information to the other party or its affiliates,
and affiliates of either party may not receive Confidential Information from
the other party or its affiliates.
3. The receiving party acknowledges the economic value to the
disclosing party of all Confidential Information. With respect to Confidential
information, the recipient shall:
(a) use the Confidential Information only for the purpose
of evaluating the Potential Relationship;
(b) restrict disclosure of the Confidential Information
solely to those employees or authorized representatives of such party
and its affiliates with a "need to know" and not disclose it to any
other person or entity without the prior written consent of the
disclosing party;
(c) advise those personnel who gain access to
Confidential Information of their obligations with respect to the
Confidential Information;
(d) make only the number of copies of the Confidential
Information necessary to disseminate the information to those
personnel who are entitled to have access to it, and ensure that all
confidentiality notices set forth on the Confidential Information are
reproduced in full on such copies;
(e) safeguard the Confidential Information with the same
degree of care to avoid unauthorized disclosure as recipient uses to
protect its own confidential and private information; and
(f) maintain a list of recipient personnel permitted
access to Confidential Information and, upon request, provide the
disclosing party
<PAGE> 28
with a copy of the list.
A "need to know" basis means that the person requires the
Confidential Information in order to perform his or her
responsibilities in connection with evaluating the Potential
Relationship.
4. The obligations of Paragraph 3 shall not apply to any
Confidential Information which the recipient can demonstrate:
(a) is or becomes available to the public through
no breach of this Agreement;
(b) was previously known by the recipient without
any obligation to hold it in Confidence;
(c) is received from a third party free to
disclose such information without restriction;
(d) is independently developed by the recipient
without the use of Confidential Information of the disclosing
party;
(e) is approved for release by written
authorization of the disclosing party, but only to the extent
of and subject to such conditions as may be imposed in such
written authorization;
(f) is required by law or regulation to be
disclosed, but only to the extent and for the purposes of such
required disclosure; or
(g) is disclosed in response to a valid order of
a court or other governmental body of the United States or any
political subdivisions thereof, but only to the extent of and
for the purposes of such order, provided, however, that the
recipient shall first notify the disclosing party of the order
and permit the disclosing party to seek an appropriate
protective order.
5. When requested by the recipient, the disclosing party will
provide a nonconfidential summary prior to disclosure of the actual
Confidential Information to enable the recipient to determine whether it can
accept the Confidential Information. Each party has the right to refuse to
accept any information under this Agreement, and nothing obligates either party
to disclose to the other party any particular information.
6. Each party acknowledges its obligation to control access to
and/or exportation of technical data under the applicable export laws and
regulations of the United States, and each party agrees to adhere to and comply
with the laws and regulations with respect to any technical data received under
this Agreement.
7. Confidential Information, including permitted copies, shall be
deemed the property of the disclosing party. The recipient shall, without
twenty (20) days of a written request by the disclosing party, return all
Confidential Information, including all copies thereof, to the disclosing party
or destroy all such Confidential Information. The recipient shall also, within
ten (10) days of
-2-
<PAGE> 29
a written request by the disclosing party, certify in writing that it has
satisfied its obligations under Paragraph 3, 6 and 7 of this Agreement.
8. Both parties agree that an impending or existing violation of
any provision of this Agreement would cause the disclosing party irreparable
injury for which it would have no adequate remedy at law, and that the
disclosing party shall be entitled to seek immediate injunctive relief
prohibiting such violation, in addition to any other rights and remedies
available to it.
9. Nothing contained in this Agreement or in any discussions
undertaken or disclosures made pursuant hereto shall (a) be deemed a commitment
to engage in any business relationship, contract or future dealing with the
other party, or (b) limit either party's right to conduct similar discussions
or perform similar work to that undertaken pursuant hereto, so long as said
discussions or work do not violate this Agreement.
10. No patent, copyright, trademark or other proprietary right or
license is granted by this Agreement or any disclosure hereunder, except for
the right to use such information in accordance with this Agreement. No
warranties of any kind are given with respect to the Confidential Information
disclosed under this Agreement or any use thereof, except as may be otherwise
agreed to in writing.
11. This Agreement shall be effective as of the date first written
above and shall continue until terminated by either party at will, provided,
however that the obligations under this Agreement survive termination thereof.
12. This Agreement may not be assigned by either party without the
prior written consent of the other except that ACSI may assign this Agreement
to any of its affiliates upon prior written notice to CYBERNET HOLDING LLC. No
permitted assignment shall relieve a party of its obligations hereunder with
respect to Confidential Information disclosed to that party prior to the
assignment. Any assignment in violation of this Section shall be void. This
Agreement shall be binding upon the parties and their respective successors and
assigns.
13. If any provision of this Agreement shall be held invalid or
unenforceable, such provision shall be deemed deleted from this Agreement and
replaced by a valid and enforceable provision which so far as possible achieves
the parties' intent in agreeing to the original provision. The remaining
provisions of this Agreement shall continue in full force and effect.
14. Each party warrants that it had the authority to enter into
this Agreement to lawfully make the disclosures contemplated hereunder.
15. This Agreement represents the entire understanding between the
parties with respect to the subject matter hereof and supersedes all prior
communications, agreements and understandings related thereto. The provisions
of this Agreement may not be modified, amended, or waived, except by a written
instrument duly executed by both parties. This Agreement shall be governed in
all respects by the domestic laws of the State of Maryland.
16. Both parties agree not to disclose the ITC's pending
acquisition of DeltaCom.
-3-
<PAGE> 30
AMERICAN COMMUNICATIONS SERVICES, INC.
BY: /s/ GEORGE M. TRONSRUE, III
------------------------------
TITLE: Executive Vice President
---------------------------
CYBERNET HOLDING LLC
BY: /s/ CLARENCE J. PRESTWOOD
------------------------------
TITLE: President & CEO
---------------------------
-4-
<PAGE> 1
EXHIBIT 10.24
***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.***
ADDENDUM TO LICENSE AGREEMENT
This Addendum (herein so called) constitutes a binding agreement
between American Cable, Inc. (AC) and American Communication Services of
Columbus, Inc. (ACSI), and represents a definitive amendment to the License
Agreement (the "License Agreement") between AC and ACSI dated January 17, 1996.
Described herein are the principal terms and conditions for the provision of
fiber optic capacity AC to ACSI for the route described in that certain
Installation Agreement (herein so called) between AC and ACSI dated January 23,
1997.
1. Fiber Optic Network
The fiber optic route (the "Route") and cable specifications are defined in the
Installation Agreement, a copy of which is attached hereto as Exhibit A.
2. Construction
AC will construct the Route pursuant to the Installation Agreement. ACSI agrees
to perform the installation as provided for in the Installation Agreement at
ACSI's expense.
3. Fiber Optic Cable Ownership
The fiber optic cable installed on the Route shall be owned by AC. [__________
______________________________________________________________________________
______________________________________________________________________________
__________] ACSI may [_________________________] for [__________] per year per
fiber for the term of this agreement.
4. Term
Except as specified in Paragraph 5, the term of this agreement shall be
co-terminus with that of the License Agreement.
5. Early Termination by AC
AC reserves the right to terminate this Addendum on 180 days notice to ACSI if,
in AC's sole determination, the physical capacity of AC's facility on the Route
is insufficient to permit facilities expansion by means of additional coaxial or
fiber optic cable as required by AC to meet its business requirements. ACSI
agrees to pay all reasonable actual costs and expenses associated with the
decommissioning of the fiber optic cable. If AC exercises its right of early
termination under this Section 5 within the first five (5) years of the term of
the License Agreement, then ACSI will be reimbursed a pro rata share of the
Construction Management Fee described in paragraph 7(b) herein. For example, if
termination occurs in the 10th month, 50/60th of the Management Construction Fee
will be
<PAGE> 2
paid to ACSI, net 30 days from the date on which AC gives ACSI notice of its
intent to exercise early termination.
6. Payment of Expenses
ACSI agrees to reimburse AC for 100% of the reasonable actual costs and expenses
including, but not limited to, maintenance, taxes, and any sale, use, franchise,
business license or other fees charged by any governmental entity that arise out
of the use of the fiber optic cable. Payment is to be made by ACSI within 10
business days after its receipt of an invoice from AC.
7. Fees and Charges
ACSI agrees to pay AC within 30 days of the date of this addendum the following
amounts:
a). Rights of Way Use Fees at a rate of [_____________________] for
the fiber optic cable, in accordance with Section 6 of the License Agreement.
b). Construction Management Fee at a rate of [_______].
c). One Year Fiber Lease fee for AC fibers at a rate of [____] per
fiber.
The foregoing reflects our mutual understanding and binding agreement.
American Cable, Inc. American Communication Services
of Columbus, Inc.
By: /s/ Felix Boccucci By: /s/ George M. Tronsrue, III
------------------------- -----------------------------
Date: 4/21/97 Date: 2/3/97
----------------------- ---------------------------
<PAGE> 1
EXHIBIT 10.28
***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.***
AGREEMENT FOR TELECOMMUNICATION SERVICES
THIS AGREEMENT is entered into by and between Cybernet with
offices located in West Point, Georgia (hereinafter "Customer") and DELTACOM,
INC., an Alabama corporation with offices located in Arab, Alabama, (hereinafter
DeltaCom"), collectively referred to as the "Parties", and shall be effective on
the date last appearing below.
WHEREAS, Customer desires to purchase certain telecommunication
services from DeltaCom; and
WHEREAS, DeltaCom desires to provide Customer with certain
telecommunication services.
NOW THEREFORE, in consideration of the mutual promises and
covenants contained herein, DeltaCom and Customer agree as follows:
1. TERM: The term of this Agreement shall commence on the date of
signature and continue for a period of twelve (12) consecutive months. Upon
expiration of the term hereof, this Agreement shall be continued month to month
thereafter, with either Party having the right to terminate this Agreement by
giving 60 days prior written notice to the other.
2. SERVICES PROVIDED BY DELTACOM: Subject to the terms and conditions of
this Agreement, DeltaCom shall provide certain long distance telecommunications
services (the "Services") to Customer as further described in Attachment 1. Both
parties agree that the services provided herein which are subject to regulation
by any governmental entity, agency or commission shall be provided in accordance
with the governmental entity's, agency's, or commission's rules and regulations
and DeltaCom's current approved tariff and as the same may be amended from time
to time. All charges for usage of the services to be provided by DeltaCom, or by
Customer to its customers, hereunder shall not exceed the maximum limit charges
established by order or ruling of any governmental agency or entity from time to
time, if any such limits are established.
3. RATES: The rates applicable to the Services provided to Customer by
DeltaCom are contained in Attachment 1.1.
4. PAYMENT FOR SERVICES: A statement for Services provided to Customer under
this Agreement shall be submitted to Customer by DeltaCom on a monthly basis and
shall be due and payable on the due date stated therein (which shall not be
earlier than thirty (30) days after Customer's receipt of the statement). The
first and the final statement for Services will be for a partial month in the
event the service dates do not coincide with DeltaCom billing dates. Payments
received more than ten (10) days from the due date will be considered delinquent
and will bear interest at the
<PAGE> 2
rate of one and one half percent (1.5%) per month or at the maximum rate allowed
by law, whichever is less, on any sum remaining delinquent. Customer shall be
responsible for payment to DeltaCom for all excise, sales, use and other similar
taxes which may be levied by any governing body for Service furnished under this
Agreement. All statements shall be deemed to be correct and binding upon
Customer unless written notice is provided to DeltaCom of any disputed charges
within six (6) months of the date of the statement. In no event does such excuse
Customer from making payment within the time provided herein.
5. SUSPENSION OF SERVICE FOR NONPAYMENT: DeltaCom may suspend Service
ten (10) days after mailing or telefaxing written notice to Customer of
nonpayment of any sum fifteen (15) or more days past the statement due date (but
only if the Customer does not cure the nonpayment within the ten (10) day
period). Following a suspension of Service(s), DeltaCom may terminate the
Service(s) to Customer, in whole or in part, without further notice to Customer,
if nonpayment is not corrected within five (5) days of suspension of Service.
Neither suspension or termination of the Service will relieve Customer of any
obligation to pay DeltaCom's statement(s) for Services. Should this Agreement be
terminated by Customer prior to the expiration of the term of this Agreement,
Customer shall be responsible for payment of all reasonable costs, charges, and
expenses incurred by DeltaCom resulting from the early termination of this
Agreement.
6. SECURITY FOR PAYMENT: Upon request by DeltaCom, Customer agrees to
provide financial statements and/or other indications of financial
circumstances.
7. COMPLIANCE WITH ADMINISTRATIVE PROCEDURES: Customer shall comply with
the administrative procedures of DeltaCom which have been previously delivered
to Customer, and as the same may be amended from time to time by mutual
agreement of the parties in writing, regarding providing of documentation and
information necessary for DeltaCom to provide the Services described herein to
Customer.
8. BRANDING OF CALLS: Customer shall be responsible for assuring that
for billing purposes all Services provided hereunder shall be branded in the
name of Customer and that Customer's customers and any other end users to whom
the Services are offered by Customer are informed that the Services provided and
rates charged the customer and end user are rates established by Customer.
9. CANCELLATION: Either Party shall have the right to cancel this
Agreement without liability if DeltaCom is prohibited from furnishing the
Service or if any material rate or term contained herein is materially adversely
changed by order of the highest court of competent jurisdiction to which the
matter is appealed, the Federal Communications Commission, or any other federal,
state, or local government authority.
-2-
<PAGE> 3
10. USE AND PROTECTION OF INFORMATION: The parties agree that the terms
of this Agreement or any modifications hereto and any information exchanged
between them, except information which is in the public domain, in any form, is
confidential information ("Confidential Information"). The Parties agree that
during the term of this Agreement and for a period of three (3) years
thereafter, they will not, without the prior written consent of the disclosing
Party: (i) use any portion of such Confidential Information for any purpose
other than performance pursuant to this Agreement; or (ii) disclose any portion
of such Confidential Information to a third party; provided, however that the
recipient may disclose Confidential Information to the extent such disclosure is
required either by a governmental or regulatory authority or to enforce its
rights under this Agreement. The obligations to protect Confidential Information
shall remain in effect except to the extent that such Confidential Information
(a) becomes generally available to the public other than as a result of
unauthorized disclosure by the recipient Party, (b) has been released without
similar restriction by the disclosing Party to another person or entity, (c) was
known by the recipient Party prior to disclosure or (d) was independently
developed by or furnished by an independent third party to the recipient Party
without a breach of this Agreement. Confidential Information of a tangible
nature shall remain the property of the disclosing Party, and shall be returned
to the disclosing Party or shall be destroyed upon termination of this
Agreement. The recipient Party agrees to safeguard Confidential Information
utilizing the same degree of care utilized by the recipient Party in protecting
its own confidential information.
11. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY: IN NO EVENT
SHALL DELTACOM BE LIABLE TO CUSTOMER, OR ANY END USER OR ANY OTHER PARTY, PERSON
OR ENTITY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES,
OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF
MISTAKES, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS, LOST DATA, CLAIMS OF
THIRD PARTIES, OR DEFECTS IN TRANSMISSION, OR DELAYS, INCLUDING THOSE WHICH
MAYBE CAUSED BY REGULATORY OR JUDICIAL AUTHORITIES OR OTHERWISE ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE OBLIGATIONS OF DELTACOM PURSUANT TO THIS
AGREEMENT, WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE AND OTHERWISE.
DELTACOM MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE
DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE
OF THE SERVICE OR THE LOCAL ACCESS, OR AS TO ANY OTHER MATTER ALL OF WHICH
WARRANTIES BY DELTACOM ARE HEREBY EXCLUDED AND DISCLAIMED. For purposes of this
Paragraph, the term "DeltaCom" shall be deemed to include DeltaCom its parent
entity, affiliates and subsidiaries.
-3-
<PAGE> 4
12. INDEMNITY: (A) Each Party, its officers, agents or employees engaged
in performance under this Agreement shall at no time be deemed to be performing
as agents or employees of the other Party, or as joint venturers, and any acts,
errors or omissions of such officers, agents and employees shall not be deemed
to be those of the other Party. (B) Each Party shall indemnify and hold the
other and/or all of its officers, agents, servants, parent, subsidiaries and
employees ("Affiliates") or any of them, harmless from and against any and all
losses, claims, damages, liabilities, costs, and expenses ("Claims") imposed
upon either Party (including without limitation damages to property or injuries,
including death, to Affiliates, employees or subcontractors, and all other
persons performing this Agreement) as a result of a negligent act or omission on
the part of the indemnifying Party, its Affiliates or subcontractors in
connection with the performance of this Agreement or as a result of a breach or
default of any covenant of the indemnifying Party , its Affiliates or
subcontractors in connection with the performance of this Agreement or as a
result of a breach or default of any covenant of the indemnifying Party under
this Agreement.
13. FORCE MAJEURE: Except as provided in this Agreement, either Party
may delay performance hereunder due to causes beyond its reasonable control,
including but not limited to acts of God, fire, explosion, vandalism, cable cut,
storm or other similar catastrophes; any law, order, regulation, direction,
action or request of the United States government, or of any other government,
including state and local governments, having jurisdiction over either of the
parties, or of any department, agency, commission, court, bureau, corporation or
other instrumentality of any one or more of said governments, or of any civil or
military authority; national emergencies; insurrections; riots; wars; or
strikes, lock-outs, work stoppages or other labor difficulties. If such delay in
performance shall be on the part of DeltaCom and shall be for more than thirty
(30) days, then Customer may terminate this Agreement with no liability on the
part of any Party. The affected Party shall use its best efforts to remove the
cause of the delay.
14. ADDITIONAL PROVISIONS:
(A) The failure of either Party to give notice of default or to enforce
or insist upon compliance with any terms or conditions of this Agreement, the
waiver of any term or condition of this Agreement, or the granting of an
extension of time for performance, shall not constitute the permanent waiver of
any term or condition of this Agreement, and this Agreement and each of its
provisions shall remain at all times in full force and effect until modified by
the parties in writing.
(B) Each Party agrees to comply with, and shall require its agents,
servants, employees and contractors to comply with all applicable laws, rules,
regulations and orders of all governmental and quasi-governmental agencies
having jurisdiction over such Party or its telecommunication services and to
obtain and maintain in effect all permits, licenses, approvals, and agreements
that are needed to operate its telecommunication services and perform its
obligations under this Agreement.
-4-
<PAGE> 5
(C) In event suit is brought or an attorney is retained by any
Party to this Agreement to enforce the terms of this Agreement or to collect any
moneys due hereunder or to collect money damages for breach hereof, the
prevailing Party shall be entitled to recover, in addition to any other remedy,
reimbursement for reasonable attorney's fees, court costs, costs of
investigation and other related expenses incurred in connection therewith. All
suits brought by either Party must be commenced within one (1) year of the
action on which the claim is based, or less if so required by Alabama law.
(D) No subsequent agreement between Customer and DeltaCom concerning the
Services shall be effective or binding unless it is made in writing, and no
representation, promise, inducement or statement or intention has been made by
either Party which is not embodied herein.
(E) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors or assigns; provided, however,
neither Party may assign or transfer its right or obligations under this
Agreement without prior written consent of the other Party, which consent shall
not be unreasonably withheld.
(F) Notices under this Agreement shall be in writing and delivered by
overnight express courier service or by registered or certified mail, return
receipt requested, postage paid, to the person whose names and business
addresses appear herein, or as otherwise provided by proper notice hereunder,
and the effective date of any notice under this Agreement shall be the date of
delivery or refusal of such notice, and not the date of mailing.
TO DELTACOM: Susan Crane, Vice President Special Markets
DeltaCom, Inc.
113 South Main Street
P.O. Box 1233
Arab, AL 35016
COPY TO: Assistant General Counsel
DeltaCom, Inc.
700 Boulevard South, Suite 101
Huntsville, AL 35802
TO CUSTOMER: Cybernet
Felix Boccucci
312 West 8th Street
West Point, GA 31833
-5-
<PAGE> 6
(G) The Parties agree that in the event a decision or rating by a
regulatory authority at the federal, state or local level materially affects the
rights or obligations of either Party arising out of this Agreement, the Parties
will negotiate in good faith to modify this Agreement in light of such decision.
Should said decision or ruling prevent the continuance of these services then
either Party may terminate this Agreement with notice to the other Party without
further liability hereunder, except as may be provided in this Agreement.
(H) This Agreement sets forth the entire understanding of the Parties
and supersedes any and all prior agreements, arrangements or understandings
relating to the subject matter hereof.
(I) This Agreement and all other documents and writings associated
herewith shall be governed by the laws of the state of Alabama. 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, said part shall be ineffective to the extent
of such invalidity only, without in any way affecting the remaining parts of
said provision or remaining provisions of this Agreement and the Parties hereby
agree to negotiate with respect to any such invalid or unenforceable part to the
extent necessary to render such part valid and enforceable.
CUSTOMER:
CYBERNET
Witness: By: /s/ Felix L. Boccucci, Jr.
-----------------------------
Name: Felix L. Boccucci, Jr.
-----------------------------
Title: Chief Financial Officer
----------------------------
/s/ Dixie B. Noles Date: May 1, 1997
- ------------------------------------ -----------------------------
DELTACOM:
Witness: By: /s/ Doug Shumate
-----------------------------
Name: Doug Shumate
-----------------------------
Title:
-----------------------------
/s/ Date:
- ------------------------------------ -----------------------------
-6-
<PAGE> 7
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1
Service Description
SERVICES OFFERED
DeltaCom will provide the following services to Customer consisting of, but not
be limited to, the following:
Domestic and International Outbound Dedicated Services
Operator Services
Domestic Directory Assistance (NPA-555-1212)
"Extended" rates apply to [_______________________________].
The following services will be billed in increments of [_________]:
[___________________________]
The following services will be billed in increments of [__________________
__________________________________________________________] therereafter:
[________________________________]
The following services will be billed [_______________]:
[_____________________________________________]
ACCESS
[_____________________________________________________________________________
______________________________________________________________________________
______]
EXCLUSIVE PROVIDER
To the extent consistent with equal access requirements or any other legal or
regulatory requirements, Customer agrees that DeltaCom shall be the exclusive
provider of Customer's switched network services described in Attachment 1.1.
This exclusivity provision shall not prohibit or restrict in any manner Customer
from utilizing its own internal switch network services.
-7-
<PAGE> 8
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.1
Base Rates
Customer shall be responsible for payment of all facility cost for any "long
haul" facilities, e.g., T1 facilities between Customer's locations and
DeltaCom's switch, to receive the following described rates:
Domestic Outbound Dedicated Services:
[__________________]
[_________________]
[___________________________]
International Outbound Dedicated Services:
[_________________________]
[_____________________________]
Domestic Directory Assistance (NPA-555-1212):
[____________________________________________________________________________
______]
[___________________________________________]
Customer listings (local service) must be listed with Bell for DA service
availability. This is to be provided to Customer by ITC/VTC or directly to Bell
or Customer.
Operator Services - see Exhibit A
Tariffed approved name for branded services by Customer must be filed and
provided to Operator Service group.
Separate trunk group from Operator Service switch to VTC will be required for
branding purposes.
There will be a [____] charge for the initial customized (branded) recording.
Any changes to the recording will incur a [___] for implementation.
Facility Cost
[_______] transport cost from DeltaCom POP located in Montgomery to DMS switch
located in West Point.
These charges are quoted to Customer at [________________]
[_______] transport cost from DeltaCom POP located in West Point to DeltaCom
switch located in Birmingham.
Call Recording
[________________________________________________________________________
_______________________________________________________________________]
-8-
<PAGE> 1
EXHIBIT 10.52
***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.***
LICENSE AGREEMENT FOR POLE
ATTACHMENT AND/OR CONDUIT OCCUPANCY
<PAGE> 2
LICENSE AGREEMENT FOR POLE ATTACHMENTS AN/OR CONDUIT OCCUPANCY IN
FLORIDA
------------------
(AREA/STATE)
DATED SEPTEMBER 15, 1993
-------------------
BETWEEN
BELLSOUTH TELECOMMUNICATIONS, INC.
(LICENSOR)
AND
BEACH CABLE, INC.
(LICENSEE)
TO SERVE
THE CITY OF PANAMA CITY BEACH
and
THE UNINCORPORATED AREAS OF BAY COUNTY, FLORIDA
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE PAGE
- ------- ----
<S> <C> <C>
Preface
I Definitions 3
II Scope of Agreement 5
III Fees and Charges 5
IV Advance Payment 6
V Specifications 7
VI Legal Requirements 7
VII Issuance of Licenses 8
VIII Make-Ready Work 9
IX Construction, Maintenance And Removal of Communications Facilities 12
X Termination of Licenses 16
XI Inspection of Licensee's Communications Facilities 16
XII Unauthorized Attachment, Utilization, Or Occupancy 16
XIII Security Interest 17
XIV Liability And Damages 18
XV Insurance 19
XVI Authorization Not Exclusive 20
XVII Assignment Of Rights 20
XVIII Failure to Enforce 20
XIX Termination of Agreement 21
XX Term of Agreement 22
XXI Notices 22
XXII Supersedure of Previous Agreement(s) 23
</TABLE>
<TABLE>
<CAPTION>
APPENDICES
- ----------
<S> <C>
I Schedule of Fees and Charges
II Multiple Pole Attachment and Conduit Occupancy License
Applications
III Administrative Forms and Notices
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT
- -------
<S> <C>
A Map of Area Covered by Agreement
</TABLE>
- 1 -
11/91
<PAGE> 4
LICENSE AGREEMENT
THIS AGREEMENT, executed this 15th day of September, 1993 between
BellSouth Telecommunications, Inc. d/b/a Southern Bell Telephone and Telegraph,
a corporation organized and existing under the laws of the State of Georgia,
having its principal office in the City of Atlanta, Georgia, hereinafter called
Licensor, and Beach Cable, Inc., a corporation (partnership, or other legal
entity) organized and existing under the laws of the State of Florida and
registered to do business in the State of Florida, having its principal office
in the city of Panama City and local office in Panama City Beach hereinafter
called Licensee;
W I T N E S S E T H
WHEREAS, Licensee proposes to furnish communications services in (general
description of area) Those Political Entities Listed on the Title Page or
Amendments subsequent to the date of this Agreement. _________________________
_____________________________________________________ being more particularly
shown on the attached map designated as Exhibit "A"; and
WHEREAS, Licensee desires to place and maintain aerial and underground
communications facilities within the area described above and desires to place
such communications facilities on poles, anchors, and in the conduit system of
Licensor; and
WHEREAS, Licensor is willing to permit, under certain conditions on a
revocable, nonexclusive license basis, to the extent it may lawfully do so, the
placement of said communications facilities on or within Licensor's facilities
where reasonably available in the area described above and where such use will
not interfere with Licensor's service requirements or the use of its facilities
by others;
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, the parties do hereby mutually covenant and agree
as follows:
- 2 -
7/92
<PAGE> 5
ARTICLE I
DEFINITIONS
As used in this Agreement:
A) Anchor
An assembly (rod and fixed object or plate owned solely or in part by
the Licensor or by others), designed to resist the pull of a guy
strand, for which the Licensor is responsible for authorizing the
attachment of Licensee's communications facilities.
B) Conduit
A structure, usually underground, containing one or more ducts.
C) Conduit Occupancy
Occupancy of a conduit system by any item of Licensee's communications
facilities.
D) Conduit System
Any combination of ducts, conduits, manholes, handholes, and vaults
joined to form an integrated whole, which is owned solely or in part
by the Licensor.
E) Duct
A single enclosed raceway for wire conductors or cables.
F) Guy Strand
A metal cable attached to a pole and anchor (or another pole) for the
purpose of increasing pole stability.
G) Joint Owner
A person, firm, corporation or other legal entity sharing ownership of
a pole and/or anchor with Licensor.
H) Joint User
A joint owner or party which may attach to a pole or anchor or occupy
a conduit either solely or partially owned by the Licensor, in return
for granting the Licensor equivalent rights of attachment to poles,
anchors and/or occupancy of conduit which it owns, either solely or
partially.
I) Licensee's Communications Facilities
All facilities, including but not limited to cables, equipment and
associated hardware, owned and utilized by the Licensee which are
attached to a pole or anchor or occupy a conduit system.
- 3 -
11/91
<PAGE> 6
J) Manhole
A subsurface enclosure which personnel may enter and use for the
purpose of installing, operating and maintaining communications
facilities.
K) Make-Ready Work
All work, including but not limited to rearrangement and/or transfer
of existing facilities, replacement of a pole or other changes
required to accommodate the Licensee's communications facilities on a
pole, anchor or in a conduit system.
L) Prelicense Survey
All work required, including field inspection and administrative
processing, to determine the make-ready work necessary to accommodate
Licensee's communications facilities on a pole, anchor or in a duct.
M) Pole
A pole owned solely or in part by the Licensor and/or by others for
which Licensor is responsible for authorizing the attachment of
Licensee's communications facilities.
N) Pole Attachment
Any item of Licensee's communications facilities affixed to a pole.
O) Service Requirements
Are multitudes of situations causing activity on the part of either
party's employees. Activity of importance to this agreement includes
new construction, removal of existing facilities and transfer, and/or
rearrangement of existing facilities. This activity may be caused by,
but is not limited to, increased plant retirements, emergencies, third
party attachments, changes in plans, etc.
P) Rearrangement of Attachments
Is the moving of attachments from one position to another on the same
pole.
Q) Transfer of Attachments
Is the moving of attachments from one pole and placing of these onto
another pole.
R) Unauthorized Attachments
Is any attachment of facilities by the Licensee to Licensor's pole(s)
or occupancy of Licensor's conduit system without prior license
authorization in accordance with Article VII; or any attachment of
facilities to Licensor's pole(s) or occupancy of Licensor's conduit
system outside of those political entities listed on the Title Page or
any Amendments subsequent to the date of the License Agreement.
- 4 -
11/91
<PAGE> 7
ARTICLE II
SCOPE OF AGREEMENT
A) Subject to the provisions of this Agreement, Licensor agrees to issue
to Licensee for any lawful communications purpose, revocable,
nonexclusive licenses authorizing the attachment of Licensee's
communications facilities to poles or anchors, the utilization of
anchor/guy strands, or the placement of Licensee's communications
facilities in Licensor's conduit system within (general description of
area) Those Political entities listed on the Title Page or any
Amendments subsequent to the date of the License Agreement. __________
______________________________________________________________________
______________________________________________________________________
B) No use, however extended, of poles, anchors, anchor/guy strands or
conduit systems or payment of any fees or charges required under this
Agreement shall create or vest in Licensee any easements or any other
ownership of property rights of any nature in such poles, anchors, guy
strands or conduit systems. Licensee's rights herein shall be and
remain a mere license. Neither this Agreement nor any license granted
hereunder shall constitute an assignment of any of Licensor's rights
to use the public or private property at locations of such poles,
anchors, guy strands and conduit systems.
C) Licensor's right to locate and maintain its poles, anchors, guy
strands, and conduit systems and to operate its facilities in
conjunction therewith in such a manner as will best enable it to
fulfill its own service requirements is in no manner limited by this
Agreement.
D) Nothing contained in this Agreement shall be construed to compel
Licensor to construct, reconstruct, retain, extend, place or maintain
any pole, anchor, guy strand, duct or other facility for use by the
Licensee not needed for Licensor's own service requirements.
E) Nothing contained in this Agreement shall be construed as a
limitation, restriction, or prohibition against Licensor with respect
to any agreement or arrangement which Licensor has heretofore entered
into, or may in the future enter into, with others not parties to this
Agreement regarding the poles, anchors, guy strands, and conduit
systems covered by this Agreement. The rights of Licensee shall at
all times be subject to any such existing and future agreement or
arrangement.
ARTICLE III
FEES AND CHARGES
A) Licensee agrees to pay to Licensor all fees and charges applicable in
connection with the attachment of its communications facilities to a
pole, anchor, utilization of an anchor/guy strand, or occupancy of a
conduit system as specified in APPENDIX I.
- 5 -
11/91
<PAGE> 8
Where Licensor's communication facilities are attached to poles or
anchors owned by power distribution companies or authorities or any
other company or authority and where presurvey and/or make-ready work
is required by Licensor on said poles to accommodate Licensee's
facilities, Licensee shall pay the Licensor for all such work in
accordance with the provisions of this Agreement in the same manner as
if the poles or anchors belonged to Licensor.
B) Nonpayment of any amount due under this Agreement shall constitute a
default by Licensee of this Agreement,
C) Whereas Licensor desires to protect the interest of its rate payers,
employees, and shareholders, Licensor may require a bond in a form
satisfactory to Licensor or other satisfactory evidence of financial
security in such amount as Licensor from time to time may require to
guarantee the performance of all Licensee obligations hereunder. The
amount of the bond or financial security shall not operate as a
limitation upon the obligations of the Licensee hereunder; and
D) At the expiration of six months from the date of this Agreement
changes in the amount of the fees and charges specified in Appendix I
may be made by Licensor upon at least 60 days prior written notice to
Licensee, and Licensee agrees to pay such changed fees and charges.
Notwithstanding any other provision of this Agreement, Licensee may
terminate his Agreement at the end of such notice period if the change
in fees and charges is not acceptable to Licensee, by giving Licensor
written notice of its election to terminate this Agreement at least 10
days prior to the end of such notice period.
E) Licensee shall pay all applicable fees and charges due within 30 days
after receipt of the bill.
F) Amendments to fees and charges shall be effected by the separate
execution of APPENDIX I which shall become a part of and be governed
by the terms and conditions of this Agreement.
ARTICLE IV
ADVANCE PAYMENT
A) Licensee shall make an advance payment to the Licensor prior to:
1) any undertaking by Licensor of a prelicense survey or the
administrative processing portion of such a survey in an amount
specified by Licensor sufficient to cover the estimated charges for
completing the specific work operation required, and
2) performance by Licensor of any make-ready work required in an
amount specified by Licensor sufficient to cover the estimated
charges for completing the required make-ready work.
B) The amount of the advance payment required (Appendix III, Form B-1)
will be credited against the payment due the Licensor for
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performing the prelicense survey or portion thereof and/or make-ready work or
having it performed by others.
C) Where the advance payment is less than the charge by the Licensor for
such work, Licensee agrees to pay Licensor within 30 days of receipt
of the bill all sums due in excess of the amount of the advance
payment.
D) Where the advance payment exceeds the charge by the Licensor for such
work, Licensor shall refund within 30 days of issuance of the bill the
difference to Licensee.
ARTICLE V
SPECIFICATIONS
A) Licensee's communications facilities shall be placed and maintained in
accordance with the requirements and specifications of the current
editions of the Bell System Manual of Construction Procedures (Blue
Book), the National Electrical Code (NEC), the National Electrical
Safety Code (NESC), all of which are incorporated by reference in this
Agreement, the rules and regulations of the Occupational Safety and
Health Act (OSHA) and any governing authority having jurisdiction over
the subject matter. Where a difference in specifications may exist,
the more stringent shall apply.
B) If any part of Licensee's communications facilities is not placed and
maintained in accordance with A) preceding, and Licensee has not
corrected the violation within 60 days from receipt of written notice
thereof from Licensor, Licensor may at its option correct said
condition. Licensor will attempt to notify Licensee in writing prior
to performing such work whenever practicable. However, when in the
opinion of the Licensor such conditions pose an immediate threat to
the safety of the Licensor's employees or the public, interfere with
the performance of the Licensor's service obligations, or pose an
immediate threat to the physical integrity of the Licensor's
facilities, the Licensor may perform such work and/or take such action
that it deems necessary without first giving written notice to the
Licensee and without subjecting itself to any liability. As soon as
practicable thereafter, Licensor will advise Licensee in writing of
the work performed or the action taken and will endeavor to arrange
for reaccommodation of Licensee's facilities so affected. The
Licensee shall be responsible for paying the Licensor for all costs
incurred by the Licensor for all work, action, and reaccommodation
performed by Licensor under this subsection.
ARTICLE VI
LEGAL REQUIREMENTS
A) Licensee shall be responsible for obtaining from the appropriate
public and/or private authority any required authorization to
construct, operate and/or maintain its communications facilities on
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public and/or private property before it attaches its communications
facilities to poles and anchors, utilizes anchor/guy strands or
occupies conduit located on such public and/or private property. In
the absence of evidence satisfying the above, Licensor reserves the
right to revoke or refuse to issue a license.
B) No license granted under this Agreement shall extend to any pole,
anchor, guy strand or portion of a conduit system where the attachment
or placement of Licensee's communications facilities would result in a
forfeiture of rights of Licensor, or joint users, to occupy the
property on which such poles, anchors, guy strands or conduit systems
are located. If the existence of Licensee's communications facilities
on a pole, anchor, guy strand, or in a conduit system would cause a
forfeiture of the right of the Licensor or joint user, or both, to
occupy such property Licensee agrees to remove its communications
facilities forthwith upon receipt of written notification from the
Licensor. If said communications facilities are not so removed,
Licensor may perform and/or have performed such removal after the
expiration of 60 days from the receipt of said written notification
without liability on the part of the Licensor and Licensee agrees to
pay Licensor or joint user or both, the cost thereof and for all
losses and damages that may result.
C) The parties hereto shall at all times observe and comply with, and the
provisions of the Agreement are subject to, all laws, ordinances, and
regulations which in any manner affect the rights and obligations of
the parties hereto under this Agreement, so long as such laws,
ordinances or regulations remain in effect.
ARTICLE VII
ISSUANCE OF LICENSES
A) Before Licensee shall attach to any pole, anchor, utilize any
anchor/guy strand, or occupy any portion of a conduit system, Licensee
shall make written application for and have received written license
from the Licensor. (Appendix III, Forms A-1 and A-2 and/or D-1
through D-4).
B) Licensee agrees to limit the filing of applications for attachment
licenses to include not more than 300 poles, 300 associated anchors
and/or anchor/guy utilizations on any one application and 1500 poles,
1500 associated anchors and/or anchor/guy utilizations on all
applications which are pending approval by Licensor at any one time.
Such limitations will apply to poles, anchors and anchor/guy strands
located within a single plant construction district of Licensor.
Licensor, in its sole judgment, may permit the preceding limitations
to be exceeded if so requested in writing by the Licensee when the
circumstances of a particular job warrant such. Licensee further
agrees to designate a desired priority of completion of the prelicense
survey and make-ready work for each application relative to
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<PAGE> 11
all other of its applications on file with Licensor at the same time.
ARTICLE VIII
MAKE-READY WORK
A) Poles, Anchors, Guys
1) When an application for attachment (Appendix III, Form A-1) to
a pole, anchor or utilization of an anchor/guy strand is
submitted by Licensee, a prelicense survey will be required to
determine the adequacy of the existing poles, anchors, and/or
guys to accommodate Licensee's communications facilities.
Utilization of the existing available capacity of an
anchor/guy strand, when such utilization does not result in a
reduction of the holding capacity below the level normally
required by the Licensor for safety or other purposes will be
permitted at the option of the Licensor and upon agreement by
the Licensee to payment of the charges as specified in
APPENDIX I.
2) The field inspection portion of the prelicense survey, which
requires the visual inspection of existing poles, anchors and
guy strands, will be performed by a representative of the
Licensor unless by mutual agreement, it is decided that a
representative of the Licensee may conduct this portion of the
prelicense survey. Joint users and/or Licensee may
participate in the field inspection at the option of the
Licensor. The administrative processing portion of the
prelicense survey, which includes the processing of the
application, the preparation of the make-ready work orders,
the coordination of work requirements and schedules with joint
users and other attachees and the random field verification of
any field inspection results data developed and furnished to
the Licensor by the Licensee will be performed by the
Licensor.
(a) Before the Licensor performs any portion of the
prelicense survey, the Licensor will advise the
Licensee in writing of the estimated charges that
will apply and receive written authorization and
advance payment, as provided for in Article IV, from
the Licensee (Appendix III, Form B-1). Licensee
shall have 90 days from receipt of Form B-1 to make
the required payment and indicate its written
authorization for completion of the required
prelicense survey and acceptance of the resulting
charges. Failure to respond in the specified period
will result in cancellation of the application.
(b) When the Licensee performs the field inspection
portion of the prelicense survey the field inspection
results data will be furnished to the Licensor in a
format specified by the Licensor and according to
standards of accuracy and completeness satisfactory
to the Licensor. In view of
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Licensor's common carrier obligations to maintain
safe, adequate service, Licensor retains the right to
redo the field inspection portion of the prelicense
survey if in the sole judgment of the Licensor the
data furnished by the Licensee does not comply with
the performance standards as prescribed by the
Licensor. The Licensee shall pay the Licensor for
the total expense incurred by the Licensor to redo
the field inspection.
3) Licensor reserves the right to refuse to grant a license for
attachment to a pole or anchor, or utilization of an
anchor/guy strand when Licensor determines that the available
capacity on such pole, anchor and/or guy strand is required
for its exclusive use or that of a joint user or governmental
entity with pole attachment rights and that the pole, anchor,
or guy strand may not reasonably be rearranged or replaced to
accommodate Licensee's communications facilities.
4) In the event Licensor determines that a pole and/or anchor to
which Licensee desires to attach or an anchor/guy strand which
Licensee desires to utilize is inadequate or otherwise needs
rearrangement of the existing facilities thereon to
accommodate the Licensee's communications facilities, Licensor
will advise the Licensee in writing of the estimated
make-ready charges that will apply (Form B-1).
Licensee shall have 90 days from the receipt of Form B-1 to
make the required payment and indicate its written
authorization for completion of the required make-ready work
and acceptance of the resulting charges. Failure to respond
in the specified period will result in cancellation of the
application.
5) Make-ready work will be performed by the Licensor following
receipt of the required written authorization and advance
payment from the Licensee. Licensee shall pay the Licensor
for all make-ready work completed in accordance with the
provisions of this Agreement and Licensee shall reimburse the
owners of other facilities attached to such poles and/or
anchors for any expense incurred by them in transferring or
rearranging their facilities to accommodate Licensee's pole
attachments. Licensee shall not be entitled to any monies
paid to the Licensor for pole, anchor or guy strand
replacements or for rearrangement of facilities on a pole or
anchor by reason of the use by the Licensor, joint user,
governmental entity or other authorized Licensees of any
additional capacity resulting from such replacement or
rearrangement.
6) License applications received by Licensor from two or more
Licensees for attachment to the same pole, anchor, or
utilization of the same anchor/guy strand will be processed by
Licensor in accordance with the procedures detailed in
APPENDIX II.
7) Whenever it is necessary for Licensor to replace its pole to
accommodate Licensee's communications facilities, Licensor
will
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<PAGE> 13
grant Licensee the option, where possible and acceptable to
the Licensor and joint user, to become the owner of the pole
and its associated guys and/or anchors, upon payment of all
replacement costs on a fully installed basis. This option is
subject to the further conditions that:
(a) Licensee grants Licensor and any existing joint user or
authorized attachee the right to attach their
respective facilities to such replacement pole and/or
associated anchor upon the same terms and conditions as
set forth in this Agreement, and,
(b) Any governmental entity having attachment rights to
said pole and associated anchor shall be granted
similar attachment rights under the same terms and
conditions as apply to the pole being replaced.
Should Licensee exercise this option and become the owner of
the pole and associated guy strands and/or anchors, it agrees
to maintain the pole and associated guy strands and/or anchors
in a safe and serviceable condition for attachment of Licensor
and joint user facilities for as long as Licensee owns an
interest in the pole.
8) Licensee shall notify Licensor whenever it is necessary for
Licensor to rearrange its existing facilities on a pole or
anchor owned by another party or transfer its facilities to a
replacement pole or anchor owned by another party in order to
accommodate the Licensee. The cost of such rearrangement
and/or transfer will be included in the make ready work for
which Licensee shall pay Licensor.
B) Conduit System
1) When an application for conduit occupancy is submitted by the
Licensee, a prelicense survey by the Licensor will be required
to determine the availability of the conduit system to
accommodate Licensee's communications facilities. Licensor
will advise the Licensee in writing of the estimated charges
that will apply for such prelicense survey and receive written
authorization and advance payment (as provided for in Article
IV) from the Licensee before undertaking such a survey (Form
B-1). A representative of the Licensee may accompany the
Licensor's representative on the field inspection portion of
such prelicense survey. Licensee shall have 90 days from
receipt of Form B-1 to make the required payment and indicate
its written authorization for completion of the required
prelicense survey and acceptance of the resulting charges.
Failure to respond in the specified period will result in
cancellation of the application.
2) License applications received by Licensor from two or more
Licensees for occupancy of the same conduit system will be
processed by Licensor in accordance with the procedures
detailed in APPENDIX II.
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<PAGE> 14
3) The Licensor retains the right, in its sole judgment, to
determine the availability of space in a conduit system. In
the event the Licensor determines that rearrangement of the
existing facilities in the conduit system is required before
Licensee's communications facilities can be accommodated,
Licensor will advise the Licensee in writing of the estimated
make-ready charges that will apply for such rearrangement work
(Form B-1). Licensee shall have 90 days from the receipt of
Form B-1 to make the required payment and indicate its written
authorization for completion of the required make-ready work
and acceptance of the resulting charges. Failure to respond
within the specified period will result in cancellation of the
application.
4) Should Licensor or any governmental entity with whom Licensor
has an agreement granting such entity priority access to
and/or occupancy of Licensor's conduit system need, for its
own service requirements, any of the conduit capacity occupied
by Licensee's communications facilities and, if Licensor
advises Licensee that Licensee's communications facilities can
be accommodated otherwise in Licensor's conduit system,
Licensee shall be required to rearrange its communications
facilities in the manner designated by the Licensor and at the
expense of Licensee. If Licensee has not so rearranged its
communications facilities within 60 days of receipt of written
notice from Licensor, Licensor may perform or have performed
such rearrangement without any liability on the part of the
Licensor and Licensee shall be liable for the full costs
thereof.
C) In performing all make-ready work to accommodate Licensee's
communications facilities, Licensor will endeavor to include such work
in its normal work load schedule.
ARTICLE IX
CONSTRUCTION, MAINTENANCE AND REMOVAL OF COMMUNICATIONS FACILITIES
A) Licensee shall, at its own expense, construct and maintain its
communications facilities on poles and/or anchors, and in conduit
systems covered by this Agreement in a safe condition and in a manner
acceptable to Licensor, so as not to physically conflict or
electrically interfere with the facilities attached thereon or placed
therein by the Licensor, joint users, or other authorized licensees.
B) Licensor shall specify the point of attachment on each pole or anchor
to be occupied by Licensee's communications facilities. Where
communications facilities of more than one Licensee are involved,
Licensor will attempt to the extent practical, to designate the same
relative position on each pole or anchor for each Licensee's
communications facilities.
C) Licensee shall notify the Licensor in writing (Appendix III, Form G)
at least 30 days before adding to, relocating, replacing or other-
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<PAGE> 15
wise modifying its facilities attached to a pole and/or anchor where
additional space or holding capacity may be required on either a
temporary or permanent basis. Maintaining and/or modifying existing
facilities and installing or removing service connections will not
require prior authorization or notice.
D) The Licensee must obtain prior written authorization from the Licensor
approving of the work and the party performing such work before the
Licensee shall install, remove, or provide maintenance of its
communications facilities in any of Licensor's conduit systems.
Licensor shall not withhold such authorization without good cause.
Licensor retains the right to specify what, if any, work shall be
performed by Licensor at Licensee's expense.
E) In each instance where Licensee's communications facilities are to be
placed in Licensor's conduit system, Licensor shall designate the
particular duct(s) to be occupied, the location and manner in which
Licensee's communications facilities will enter and exit Licensor's
conduit system and the specific location and manner of installation
for any associated equipment which is permitted by Licensor to occupy
the conduit system. Licensor reserves the right to exclude or limit
the type, number and size of Licensee's communications facilities
which may be placed in Licensor's conduit system.
F) Licensor's manholes shall be opened only as permitted by Licensor's
authorized employees or agents. Licensee shall be responsible for
obtaining any necessary authorization from appropriate authorities to
open manholes and conduct work operations therein. Licensee's
employees, agents or contractors will be permitted to enter or work in
Licensor's manholes only when an authorized employee or agent of
Licensor is present or prior written authorization waiving this
requirement is granted by the Licensor. Licensor's authorized
employee or agent shall have the authority to suspend Licensee's work
operations in and around Licensor's manholes if, in the sole
discretion of said employee or agent, any hazardous conditions arise
or any unsafe practices are being followed by Licensee's employees,
agents, or contractors. Licensee agrees to pay Licensor the charges,
as determined in accordance with the terms and conditions of APPENDIX
I, for having Licensor's employee or agent present when Licensee's
work is being done in and around Licensor's manholes. The presence of
Licensor's authorized employee or agent shall not relieve Licensee of
its responsibility to conduct all of its work operations in and around
Licensor's manholes in a safe and workmanlike-manner, in accordance
with the terms of this Agreement.
G) Should Licensor, joint user or governmental entity having pole, anchor
or anchor/guy strand accommodation rights, for its own service
requirements, need to attach additional facilities to any poles or
anchors to which Licensee is attached or avail itself of the holding
capacity of an anchor/guy strand being utilized by the Licensee,
Licensee will either rearrange its facilities on the pole or anchor or
transfer them to a replacement pole or anchor, as determined by
Licensor so that the additional facilities of Licen-
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<PAGE> 16
sor, joint user or governmental entity may be accommodated. The cost
of such rearrangement and/or transfer will be at the sole expense of
the Licensee. If Licensee does not rearrange or transfer its
communications facilities within 30 days after receipt of written
notice from Licensor requesting such rearrangement or transfer,
Licensor or joint user may perform or have performed such
rearrangement or transfer without liability on the part of Licensor or
joint user and Licensee shall be liable for the full costs thereof.
H) Licensee, at its expense will remove its communications facilities
from poles, anchors, or portions of a conduit system within 60 days
after:
(1) termination of the license covering such attachment or conduit
occupancy; or
(2) the date Licensee replaces its existing facilities on a pole
with the placement of substitute facilities on the same pole
or another pole, or replaces its existing facilities in one
duct with the placement of substitute facilities in another
duct.
Licensee shall remain liable for and pay to the Licensor all fees and
charges pursuant to provisions of this Agreement until all of
Licensee's facilities are physically removed from such poles, anchors
and portions of conduit systems.
If Licensee fails to remove its facilities within the specified
period, Licensor shall have the right to remove such facilities at
Licensee's expense and without any liability on the part of the
Licensor for damage to such facilities and/or without any liability
for any interruption of Licensee's services.
I) In the event Licensor desires at any time to abandon any of its poles
on which Licensee has a licensed attachment and is the only attachee,
Licensor shall give Licensee notice in writing to that effect at least
sixty (60) days prior to the date on which Licensor intends to abandon
such pole. At the expiration of said period any license previously
issued to Licensee by Licensor will automatically terminate, and:
1) If no attachments remain on such pole, it shall be removed by
Licensor; or
2) If the Licensor shall have no attachments on such pole but the
Licensee does, Licensor may, without liability, remove
Licensee's attachments from such pole and remove the poles
unless;
a) Licensee presents to Licensor, for its files, a
certified copy of the county's plat book page where
Licensee has recorded its right-of-way to the land
surrounding the pole in question, or
b) Licensee presents to Licensor, for its files, a copy
of the
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<PAGE> 17
right-of-way permit issued by the controlling
governmental organization, and
c) Licensee accepts from Licensor and pays a bill for
purchase of the pole in question at a price
determined by the Licensor, then,
d) Licensor shall transfer ownership of such pole to
Licensee, and Licensee shall thereafter save harmless
the Licensor from all obligations, liability,
damages, costs, expenses, or charges incurred because
of, or arising out of, the presence or condition of
such pole or any attachments thereto.
J) In the event Licensor desires at any time to abandon any of its poles
on which a joint user has an attachment and on which Licensee has a
licensed attachment, Licensor shall give both parties sixty (60) days
prior notice in writing of such intent, unless the Joint Use Agreement
applicable thereto requires a longer period of notice to the joint
user, who shall be given the notice according to the Agreement terms.
At the expiration of said notification period, any license previously
issued by the Licensor to the Licensee shall automatically terminate,
and:
1) If no attachments remain on such pole, it shall be removed by
Licensor; or
2) If the Licensor shall have no attachments on such pole but the
joint user and Licensee do, Licensor will transfer ownership
of said pole to the joint user in the manner described in the
Joint Use Agreement without further liability to the Licensor;
or
3) If the Licensor shall have no attachments on such pole and the
joint user shall have no attachments on such pole but the
Licensee does, Licensor may, without liability, remove the
pole unless the conditions in 1), 2) a) or b) and c) then d)
above are met.
K) When Licensee's communications facilities are removed from a pole,
anchor or conduit system, no reattachment to the same pole or anchor
or replacement in the same portion of a conduit system shall be made
until:
1) The Licensee has first complied with all of the provisions of
this Agreement as though no such pole or anchor attachment or
conduit occupancy had previously been made, and
2) All outstanding charges due Licensor for such previous
attachment and/or occupancy have been paid in full.
L) Licensee shall advise Licensor in writing as to the date on which the
removal of its communications facilities from each pole, anchor,
and/or portion of conduit system has been completed.
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<PAGE> 18
ARTICLE X
TERMINATION OF LICENSES
A) Any license issued under this Agreement shall automatically terminate
when Licensee ceases to have authority to construct and operate its
communications facilities on public or private property at the
location of the particular pole, anchor, guy strand or portion of
conduit system covered by the license.
B) Licensee may at any time terminate its license with respect to the
attachment to a pole or anchor, utilization of an anchor/guy strand or
occupancy of a portion of conduit system and remove its communications
facilities by giving Licensor written notice of such intention
(Appendix III, Forms E & F). Once Licensee's communications
facilities have been removed they shall not be reattached to such pole
or anchor, utilize such anchor/guy strand or occupy the same portion
of a conduit system until Licensee has complied with all provisions of
this Agreement as though no previous license has been issued.
ARTICLE XI
INSPECTION OF LICENSEE'S COMMUNICATIONS FACILITIES
A) Licensor reserves the right to make periodic inspections of any part
of Licensee's communications facilities attached to Licensor's poles,
anchors, or occupying Licensor's conduit system, and Licensee shall
reimburse Licensor for the expense of such inspections as specified in
APPENDIX I.
B) The frequency and extent of such inspection by Licensor will depend
upon Licensee's performance in relation to the requirements of
ARTICLES V, VII and IX herein.
C) Licensor will give Licensee advance written notice of such
inspections, except in those instances where, in the sole judgment of
Licensor, safety considerations justify the need for such an
inspection without the delay of waiting until a written notice has
been forwarded to Licensee.
D) The making of periodic inspections or the failure to do so shall not
operate to impose upon Licensor any liability of any kind whatsoever
nor relieve Licensee of any responsibility, obligations or liability
assumed under this Agreement.
ARTICLE XII
UNAUTHORIZED ATTACHMENT, UTILIZATION, OR OCCUPANCY
A) If any of Licensee's communications facilities shall be found
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<PAGE> 19
attached to poles or anchors, utilizing anchor/guy strands or
occupying conduit systems for which no license is outstanding, or is
outside those political entities listed on the Title Page or any
Amendments subsequent to the date of this License Agreement, Licensor,
without prejudice to its other rights or remedies under this Agreement
including termination of licenses of this Agreement, may impose a
charge and require Licensee to submit in writing, within 15 days after
receipt of written notification from Licensor of the unauthorized
attachment, utilization, or conduit occupancy, a pole or anchor
attachment, anchor/guy strand utilization, or conduit occupancy
license application, or the necessary documentation to initiate an
Amensment to this License Agreement to incorporate the additional
service area(s). If such application is not received by the Licensor
within the specified time period, Licensee may be required at
Licensor's option to remove its unauthorized attachment or occupancy
or cease its unauthorized utilization within 60 days of the final date
of submitting the required application, or Licensor may at Licensor's
option remove Licensee's facilities without liability, and the expense
of such removal shall be borne by Licensee.
B) For the purpose of determining the applicable charge, any unauthorized
pole or anchor attachment, anchor/guy strand utilization or conduit
system occupancy shall be treated as having existed for a period of 2
years prior to its discovery or for the period beginning with the
effective date of this License Agreement, whichever period shall be
the shorter.
The fees and charges as specified in APPENDIX I, shall be due and
payable forthwith whether or not Licensee is permitted to continue the
pole or anchor attachment, anchor/guy strand utilization or conduit
occupancy.
C) No act or failure to act by Licensor with regard to said unlicensed
use shall be deemed as a ratification of the unlicensed use; and if
any license should be subsequently issued, said license shall not
operate retroactively or constitute a waiver by Licensor of any of its
rights or privileges under this Agreement or otherwise; provided,
however, that Licensee shall be subject to all liabilities,
obligations and responsibilities of this Agreement in regards to said
unauthorized use from its inception.
ARTICLE XIII
SECURITY INTEREST
Should Licensor under any applicable Article of this Agreement remove
Licensee's facilities from the poles, anchors, or conduit systems covered by
this Agreement, Licensor will deliver to Licensee the facilities so removed
upon payment by Licensee of the cost of removal, storage and delivery, and all
other amounts due Licensor. At anytime, licensee, upon request of Licensor,
shall grant Licensor a security interest in all of Licensee's communications
facilities now or hereafter attached to poles, anchors, or placed in conduit
systems pursuant to this Agreement, and Licensee agrees to perform all acts
necessary to perfect Licensor's security interest under the terms of the
Uniform commercial Code, or applicable lien or security laws then in effect.
If the terms of Licensee's loan agreements and debentures preclude the grant of
liens or
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<PAGE> 20
security interests to Licensor, Licensee shall grant to Licensor, at anytime,
upon Licensor's request, other permissible assurance of security for
performance satisfactory to Licensor to cover any such aforementioned amounts
due Licensor. Nothing in this Article shall operate to prevent Licensor from
pursuing, at its option, any other remedies under this Agreement or in law or
equity, including public or private sale of facilities under security interest
or lien.
ARTICLE XIV
LIABILITY AND DAMAGES
A) Licensor shall exercise precaution to avoid damaging the
communications facilities of the Licensee and shall make an immediate
report to the Licensee of the occurrence of any such damage caused by
its employees, agents or contractors. Licensor agrees to reimburse
the Licensee for all reasonable costs incurred by the Licensee for the
physical repair of such facilities damaged by the negligence of
Licensor. However, Licensor shall not be liable to Licensee for any
interruption of Licensee's service or for interference with the
operation of Licensee's communications facilities, or for any special,
indirect, or consequential damages arising in any manner, including
Licensor's negligence, out of the use of poles, anchors, guy strands,
or conduit systems or Licensor's actions or omissions in regards
thereto and Licensee shall indemnify and save harmless Licensor from
and against any and all claims, demands, causes of action, costs and
attorneys' fees of whatever kind resulting therefrom.
B) Licensee shall exercise precaution to avoid damaging the facilities of
Licensor and of others attached to poles, anchors, or occupying a
conduit system and shall make an immediate report to the owner of any
and all direct and indirect loss from such damage caused by Licensee's
employees, agents or contractors.
C) Licensee shall indemnify, protect and save harmless the Licensor,
Licensor's other licensees, and joint users from and against any and
all claims, demands, causes of action, damages and costs, including
attorney's fees, incurred by the Licensor, the Licensor's other
licensees and joint users as a result of acts by the Licensee, its
employees, agents or contractors, including but not limited to the
cost of relocating poles, anchors, guys, or conduit system resulting
from a loss of right-of-way or property owner consents and/or the cost
of defending those rights and/or consents.
D) The Licensee shall indemnify, protect and save harmless the Licensor,
Licensor's other licensees, and joint users from and against any and
all claims, demands, causes of actions and costs, including attorneys'
fees, for damages to property and injury or death to persons,
including but not limited to payments under any Worker's Compensation
Law or under any plan for employee's disability and death benefits,
which may arise out of or be caused by the erection, rearrangement,
maintenance, presence, use or removal of Licensee's
- 18 -
11/91
<PAGE> 21
facilities, or by their proximity to the facilities of all parties
attached to a pole, anchor and/or guy, or placed in a conduit system,
or by any act or omission of the Licensee's employees, agents or
contractors on or in the vicinity of the Licensor's poles, anchors,
guys or conduit system.
E) The Licensee shall indemnify, protect and save harmless the Licensor,
Licensor's other licensees, and joint users from any and all claims,
demands, causes of action and costs, including attorneys' fees, which
arise directly or indirectly from the construction and operation of
Licensee's facilities, including but not limited to taxes, special
charges by others, claims and demands for damages or loss from
infringement of copyright, for libel and slander, for unauthorized use
of television or radio broadcast programs and other program material,
and from and against all claims, demands and costs, including
attorney's fees, for infringement of patents with respect to the
construction, maintenance, use and operation of Licensee's facilities
in combination with poles, anchors, guys, conduit systems or
otherwise.
F) Licensee shall promptly advise the Licensor of all claims relating to
damage of property or injury to or death of persons, arising or
alleged to have arisen in any manner, directly or indirectly, by the
erection, maintenance, repair, replacement, presence, use or removal
of the Licensee's facilities. Copies of all accident reports and
statements made to Licensee's insurer by the Licensee or others shall
be furnished promptly to the Licensor.
ARTICLE XV
INSURANCE
A) Licensee shall obtain and maintain insurance, including endorsements
insuring the contractual liability and indemnification provisions of
this Agreement, issued by an insurance carrier satisfactory to
Licensor to protect the Licensor, other licensees, and joint users
from and against all claims demands, causes of action, judgments,
costs, including attorneys' fees, expenses and liabilities of every
kind and nature which may arise or result, directly or indirectly from
or by reason of such loss, injury or damage as covered in this
Agreement including ARTICLE XIV preceding.
B) The amounts of such insurance:
1) against liability due to damage to property shall be not less
than $300,000 as to any one occurrence and $500,000 aggregate,
and
2) against liability due to injury or death of persons shall be
not less than $500,000 as to any one person and $1,000,000 as
to any one occurrence.
- 19 -
11/91
<PAGE> 22
C) Licensee shall submit to Licensor certificates by each company
insuring Licensee to the effect that it has insured Licensee for all
liabilities of Licensee covered by this Agreement and that it will not
cancel or change any such policy of insurance issued to Licensee
except after 60 days written notice to Licensor.
D) Licensee shall also carry such insurance as will protect it from all
claims under any Worker's Compensation Law in effect that may be
applicable to it.
E) All insurance required in accordance with B) and C) preceding must be
effective before Licensor will authorize attachment to a pole and/or
anchor, utilization of an anchor/guy strand or occupancy of a conduit
system and shall remain in force until such Licensee's facilities have
been removed from all such poles, anchors, or conduit system. In the
event that the Licensee shall fail to maintain the required insurance
coverage, Licensor may pay any premium thereon falling due, and the
Licensee shall forthwith reimburse the Licensor for any such premium
paid.
ARTICLE XVI
AUTHORIZATION NOT EXCLUSIVE
Nothing herein contained shall be construed as a grant of any exclusive
authorization, right or privilege to Licensee. Licensor shall have the right
to grant, renew and extend rights and privileges to others not parties to this
Agreement, by contract or otherwise, to use any pole, anchor, guy, or conduit
system covered by this Agreement,
ARTICLE XVII
ASSIGNMENT OF RIGHTS
A) Licensee shall not assign or transfer this Agreement or any license or
any authorization granted under this Agreement and this Agreement
shall not inure to the benefit of Licensee's successors or assigns,
without the prior written consent of Licensor. Licensor shall not
unreasonably withhold such consent,
B) In the event such consent or consents are granted by Licensor, then the
provisions of this Agreement shall apply to and bind the successors and
assigns of the Licensee.
ARTICLE XVIII
FAILURE TO ENFORCE
Failure of Licensor to enforce or insist upon compliance with any of the terms
or conditions of this Agreement or to give notice or declare this Agreement or
any authorization granted hereunder terminated shall not constitute a general
waiver or relinquishment of any term or condition
- 20 -
11/91
<PAGE> 23
of this Agreement, but the same shall be and remain at all times in full force
and effect.
ARTICLE XIX
TERMINATION OF AGREEMENT
A) Subject to provisions of Article XVII hereof, should Licensee cease to
provide its communications services in the area covered by this
Agreement, then all of Licensee's rights, privileges and
authorizations under this Agreement, including all licenses issued
hereunder, shall automatically terminate as of the date following the
final day that such communications services are provided.
B) Licensor shall have the right to forthwith terminate this entire
Agreement or any license issued hereunder whenever Licensee is in
default of any term of this Agreement, including, but not limited to,
the following conditions:
(1) If Licensee's communications facilities are used or maintained
in violation of any law or in aid of any unlawful act or
undertaking; or
(2) If Licensee attaches to any poles and/or anchors, utilizes any
anchor/guy strands, or occupies any portion of a conduit
system without having first been issued a license therefor; or
(3) If any authorization which may be required of the Licensee by
any governmental or private authority for the construction,
operation, and maintenance of the Licensee's communications
facilities is denied or revoked; or
(4) If the insurance carrier shall at any time notify Licensor or
Licensee that the policy or policies of insurance, required
under ARTICLE XV hereof, will be cancelled or changed and if
in the sole judgment of Licensor the requirements of ARTICLE
XV will no longer be satisfied, this Agreement may be
terminated upon the effective date of such cancellation or
change.
C) Licensor will promptly notify the Licensee in writing of any
condition(s) applicable to B) above. Licensee shall take immediate
corrective action to eliminate any such condition(s) and shall confirm
in writing to Licensor within 30 days following receipt of such
written notice that the cited condition(s) has (have) ceased or been
corrected. If Licensee fails to discontinue or correct such
conditions and fails to give the required confirmation, Licensor may
immediately terminate this Agreement,
D) In the event of termination of this Agreement or any of Licensee's
rights, privileges or authorizations hereunder, Licensee shall remove
its communications facilities from Licensor's poles, anchors and
conduit system within six months from the date of termination;
provided, however, that Licensee shall be liable for and pay all
- 21 -
11/91
<PAGE> 24
fees and charges pursuant to terms of this Agreement to Licensor until
Licensee's communications facilities are actually removed from
Licensor's poles, anchors and conduit system.
E) If Licensee does not remove its communications facilities from
Licensor's poles, anchors and conduit system within the applicable
time periods specified in this Agreement, Licensor shall have the
right to remove them at the expense of Licensee and without any
liability on the part of Licensor to Licensee therefor.
F) In the event any of the arrangements, fees and charges provided for
under this Agreement are hereafter offered under tariff filed by
Licensor and in effect with a regulatory commission, this Agreement
with respect to those arrangements, fees and charges shall terminate
and shall be superseded by said tariff. Said termination is to become
effective on the day preceding the day when said tariff becomes
effective, and in such event with respect to those arrangements, fees
and charges not included in said tariff, the Licensee may at its
option within 60 days from the effective date of said tariff terminate
this Agreement.
ARTICLE XX
TERM OF AGREEMENT
A) Unless sooner terminated as herein provided, this Agreement shall
continue in effect for a term of one year from the date hereof, and
thereafter until either party hereto terminates this Agreement by
giving the other party at least six months prior written notice
thereof. Such six months notice of termination may be given to take
effect at the end of the original one year period or thereafter.
B) Termination of this Agreement or any licenses issued hereunder shall
not affect Licensee's liabilities and obligations incurred hereunder
prior to the effective date of such termination.
ARTICLE XXI
NOTICES
All written notices required under this Agreement shall be given by posting
the same in first class mail to Licensee as follows:
(Name) Shawn Wright
(Title) President
(Company) BEACH CABLE
(Address) P.O. Box 2462
(City, State and Zip Code) Panama City, Florida 32402
(Telephone) (904) 235-1113
- 22 -
11/91
<PAGE> 25
and to Licensor as follows:
(Name) R. E. Christian, Jr.
(Title) License Agreement Coordinator
(Company) Southern Bell Tel. & Tel. Co.
(Address) 301 W. Bay Street - 21JJ1 SBT
(City, State, and Zip Code) Jacksonville, Florida 32202
or to such address as the parties hereto may from time to time specify in
writing.
ARTICLE XXII
SUPERSEDURE OF PREVIOUS AGREEMENT(S)
This Agreement supersedes all previous agreements, whether written or oral,
between Licensor and Licensee for attachment and maintenance of Licensee's
communications facilities on poles, anchors, and in conduit systems within the
geographical area covered by this Agreement; and there are no other provisions,
terms or conditions to this Agreement except as expressed herein. All
currently effective licenses heretofore granted pursuant to such previous
agreements shall be subject to the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate on the day and year first above written.
BELLSOUTH TELECOMMUNICATIONS, INC.
-----------------------------------------
Name of Licensor
/s/ Jo C. Philips BY: /s/ C.J. Sanders
- ---------------------------- -------------------------------------
Witness Signature
/s/ Ludie R. Hallicy Its: Vice President - Network
- ---------------------------- ------------------------------------
Witness Operations/South
------------------------------------
Title
BEACH CABLE
-----------------------------------------
Name of Licensee
(Seal) BY: /s/ Shawn Wright
- ---------------------------- -------------------------------------
Attest Signature
/s/ Christina Andrews Its: President
- ---------------------------- ------------------------------------
Witness Title
-23 -
7/92
<PAGE> 26
APPENDIX I
***INFORMATION IN THIS APPENDIX HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE
COMMISSION.***
<PAGE> 27
FLTV930023
Appendix 1
Page 1 of 3
APPENDIX 1
SCHEDULE OF FEES AND CHARGES
THIS APPENDIX 1, effective January 1, 1998, is an integral part of the
License Agreement between BellSouth Telecommunications, Inc. (Licensor) and
Beach Cable, Inc. (Licensee), dated September 15, 1993, and contains the fees
and charges governing the use of Licensor's poles, anchors and conduit systems
by Licensee's communications facilities in Panama City.
A) Attachment, Utilization, and Occupancy Fees
1) General
a) Attachment, utilization, and occupancy fees commence of
the first day of the calendar month following the date
the License is issued for such attachment, utilization or
occupancy. Such fees cease as of the final day of the calendar
month preceding the month in which the attachment or occupancy
is physically removed or the utilization is discontinued.
b) A one month minimum is applicable for all attachment,
utilization and occupancy accommodations.
c) Fees shall be payable annually on the first day of July.
d) The total attachment and occupancy fees due hereunder, shall
be based upon the number of poles, anchors and duct feet
of conduit for which licenses have been issued before the first
day of July each year. Each annual payment shall include a
proration of the monthly attachment and occupancy charges
applicable for attachments and occupancy initially authorized by
the Licensor during the preceding twelve (12) month period.
e) In the event any of the arrangements, fees and charges provided
for under this Agreement are hereafter offered under
tariff filed by Licensor and in effect with a regulatory
commission, this Agreement with respect to those arrangements,
fees and charges shall terminate and shall be superseded by said
tariff. Said termination is to become effective on the day
preceding the day when said tariff becomes effective.
<PAGE> 28
FLTV930023
Appendix 1
Page 2 of 3
2) Fees
Licensee shall pay to Licensor the following fees:
POLE AND/OR ANCHOR ACCOMMODATIONS
ANNUAL FEE
Per pole/anchor attached [____]
CONDUIT OCCUPANCY ACCOMMODATIONS
ANNUAL FEE
Per foot of duct occupied [____]
i) For the purpose of determining the duct feet chargeable, the duct
considered occupied shall be measured from the center to center of
adjacent manholes, or from the center of a manhole to the end of a
duct not terminated in a manhole.
ii) The above rates are not applicable for crossings of any navigable
waterway or special construction situations. Rates for such
crossings will be calculated on an individual case basis.
<PAGE> 29
FLTV930023
Appendix 1
Page 3 of 3
B) Charges
1) Computation
Charges for all work performed by Licensor or by it
authorized representative in connection with the furnishing of
pole, anchor and conduit system accommodations as covered by
this Agreement shall be based upon the full cost, plus [___] of
such amount, to the Licensor for performance of such work. Such
charges will apply for, but not be limited to, prelicense
survey, make-ready work, inspection and removal of Licensee's
communications facilities and supervision, at the option of the
Licensor, of Licensee performed work in and around the immediate
vicinity of a conduit system or pole.
2) Pole and/or Anchor Replacements
The charge for replacement of a pole, or anchor required
to accommodate Licensee's communications facilities, in
accordance with ARTICLE VIII, A) 7) shall be based on Licensor's
fully installed costs less salvage value, if any.
C) Payment Date
Failure to pay all fees and charges within 30 days after
presentment of the bill therefor or on the specified payment date,
whichever is later, shall constitute a default of this Agreement.
Licensee: Licensor:
Beach Cable, Inc. BELLSOUTH TELECOMMUNICATIONS, INC.
By: /s/ Frank Atkinson By /s/ T. C. Kellerman, Jr.
-------------------------- --------------------------------
(Signature)
Its General Manager Its Network Vice President
-------------------------- -------------------------------
(Title)
Witness: /s/ Robin Schwab Witness: /s/ Ludie R. Hallicy
--------------------- --------------------------
Witness: Witness: /s/ Kathleen T. Yedlicka
--------------------- --------------------------
<PAGE> 30
Appendix II
<PAGE> 31
APPENDIX II
PROCEDURE FOR PROCESSING MULTIPLE POLE AND/OR ANCHOR ATTACHMENT,
ANCHOR/GUY STRAND UTILIZATION AND CONDUIT OCCUPANCY LICENSE APPLICATION
THIS APPENDIX II, effective as of ______________________, is an integral part
of the License Agreement between BellSouth Telecommunications, Inc. (Licensor)
and Beach Cable, Inc., (Licensee) dated _________________________ and contains
the procedure for processing multiple License applications.
A) MULTIPLE APPLICANTS
Applications received from multiple applicants for the same pole,
anchor, anchor/guy strand or conduit system will be classified as
follows:
1) simultaneous - received by the
Licensor on the same business
day.
2) non-simultaneous - received by the
Licensor on different business
days.
B) PROCESSING
1) simultaneous applications - Processing of simultaneous
applications will be
done concurrently.
Authorization for attachment,
utilization or occupancy will
be granted simultaneously to
all multiple applicants
involved.
2) non-simultaneous application - Initial applicant will be
offered the following
Options in writing immediately
following receipt, by the
Licensor, of an
application(s). Copies of
such written notification to
the initial applicant will be
sent to the additional
applicant(s).
Option 1 - Application(s) of the initial applicant will be processed on
the basis that there is no application on file from another
applicant for the same pole, anchor, anchor/guy strand or
conduit system.
Option 2 - Application(s) of initial applicant and additional
applicant(s) will be processed in accordance with B) 1)
preceding.
- 1 -
7/92
<PAGE> 32
APPENDIX II
3) Initial Applicant
All work in progress on application(s) filed by an
initial applicant will be suspended by the Licensor from the
date of its written notification as required in 2) preceding
until the initial applicant notifies the Licensor, in writing,
of the Option it elects. Such written notification, by the
initial applicant will be required no later than 20 days
following its receipt of the aforementioned notification from
the Licensor; otherwise the Licensor will deem the initial
applicant to have elected Option 1. Licensor will notify the
additional applicant(s), in writing, of the Option elected by
the initial applicant.
4) Additional Applicant(s)
Option 2 will be subject to acceptance by all multiple
applicants involved. The additional applicant(s) will have 10
days from receipt of written notification from the Licensor
advising that the initial applicant has selected Option 2, to
accept or reject by written notification to the Licensor the
conditions applicable to simultaneous attachment, utilization
or occupancy; otherwise the Licensor will deem the additional
applicant(s) to have rejected acceptance of treatment as
simultaneous applicants.
C) CONDITIONS APPLICABLE TO SIMULTANEOUS APPLICATIONS:
1) Field Inspection
The field inspection will be performed by a representative of
the Licensor, unless by mutual agreement the parties agree
that individually or collectively the Licensees will be
responsible for completion of the required inspection, to
determine the make-ready work necessary to accommodate
attachment or utilization of their respective communications
facilities on a simultaneous basis. Field inspections for
conduit occupancy applications will be performed by a
representative of the Licensor.
a) If multiple applicants choose Option 2 and wish to be
responsible for the associated field inspection, such
indication must be included in the written
notification required by Appendix II B) 3) and B) 4)
preceding.
b) Field inspection results data must comply with
Article VIII A) 2) a) of this Agreement.
2) Make-Ready Work
Multiple applicants must develop a mutually agreeable order of
pole, anchor, anchor/guy strand or conduit system availability
and overall make-ready work completion schedule.
a) When multiple applicants cannot reach such mutual
agreement within 15 days from receipt of written
notification from the Licensor of the estimated
charges for the required make-ready
- 2 -
11/91
<PAGE> 33
APPENDIX II
work, the Licensor may at its option offer as an
alternative to complete the total make-ready work
required for all multiple applicants before
simultaneously granting attachment, utilization or
occupancy authorization for all multiple applications
involved.
b) Any multiple applicant who fails to agree to the
alternative arrangement will be considered by the
Licensor to have cancelled its application(s)
relative to the poles, anchors, anchor/guy strands or
conduit systems involved on pending applications of
another applicant(s).
3) Costs
Each multiple applicant will be charged an equal share of the
total actual make-ready costs incurred by the Licensor to
accommodate simultaneous attachment, utilization or occupancy
by the multiple applicants.
C) CONDITIONS APPLICABLE TO NON-SIMULTANEOUS APPLICATIONS
1) Field Inspection
Field inspections will be performed by a
representative of the Licensor, unless by mutual
agreement a Licensee agrees to be responsible for
completion of his respective field inspection, to
determine the make-ready work necessary to
accommodate attachment, utilization or occupancy of
the respective communications facilities.
a) If multiple applicants are involved and
either party chooses Option 1, the field
inspections will be made separately. If
either applicant wishes to be responsible for
their associated field inspection, such
indication must be included in the written
notification required by Appendix II B) 3) or
B) 4) or in the original application required
by Article VIII A) 1) of this Agreement.
b) Field inspection results data must comply
with Article VIII A) 2) b) of this Agreement.
c) Field inspection results developed by a
multiple applicant in accordance with Article
VIII A) 2) (b), must be submitted to the
Licensor within 30 days of the most recent
date upon which the applicant's pending
application(s) have been classified as
non-simultaneous. Failure of an applicant to
comply with this requirement will be
considered by the Licensor as a cancellation
of the application(s) involved.
2) Pre-License Survey costs
Each multiple applicant will be charged the
applicable prelicense survey costs incurred by the
Licensor relative to a determination
- 3 -
11/91
<PAGE> 34
APPENDIX II
of the make-ready work required to accommodate
attachment, utilization or occupancy of the
individual applicant's communications facilities on a
non-simultaneous basis.
3) Make-Ready Completion Schedule
The date of receipt (earliest taking precedence) by
the Licensor of applications filed in accordance with
Article VII B) will determine the priority of
make-ready work completion by the Licensor. Any
change in priority of pole, anchor, anchor/guy strand
or conduit availability will require an appropriate
change in make-ready work completion of the
application(s) involved and be subject to the
Licensor's ability to accommodate the specific
change(s) required in its established work schedule.
4) Make-Ready Work Costs
Make-ready work costs will be allocated as follows:
a) The initial applicant will be charged the
total cost incurred by the Licensor to
accommodate the attachment, utilization or
occupancy of the initial applicant's
communications facilities on poles, anchors
or in conduits on a non-simultaneous basis.
b) The additional applicant(s) will be charged
the total cost incurred by the Licensor to
accommodate the attachment, utilization or
occupancy of the additional applicant's
communications facilities on poles, anchors
or in conduits for which prior attachment,
utilization or occupancy authorization has
been granted to another applicant.
E) PRE-LICENSE SURVEY COMPLETION - LICENSOR
In performing all field inspections and associated
administrative processing for which it may be responsible, the
Licensor will endeavor to include such work in its normal work
load schedule.
F) CHANGES IN APPENDIX
This Appendix may be changed in whole or in part at any time
during the term of this Agreement at the sole option of the
Licensor upon the giving of not less than 60 days written
notice thereof to the Licensee and to substitute in place
thereof such other provisions as the Licensor may deem
necessary as relative to multiple attachments to poles and
anchors, utilization of anchor/guy strands or conduit
occupancy of the Licensor.
- 4 -
11/91
<PAGE> 35
APPENDIX II
BEACH CABLE BELLSOUTH TELECOMMUNICATIONS, INC.
- ---------------------------------- ----------------------------------
Name of Licensee Name of Licensor
By: /s/ Shawn Wright BY: /s/ C. J. Sanders
------------------------------- -----------------------------------
Signature Signature
Its: President Its: Vice President - Network
---------------------------- ----------------------------------
Title Operations/South
----------------------------------
Title
Attest: (Seal) Witness: /s/ Jo C. Philips
--------------------------- --------------------
Witness: /s/ Christina Andrews Witness: /s/ Ludie R. Hallicy
------------------------- ---------------------
- 5 -
7/92
<PAGE> 36
APPENDIX III
<PAGE> 37
APPENDIX III
ADMINISTRATIVE FORMS AND NOTICES
THIS APPENDIX III, effective as of __________________________, is an integral
part of the License Agreement between BellSouth Telecommunications, Inc.
(Licensor), and Beach Cable, Inc. (Licensee), dated ___________________ and
contains the administrative forms governing the use of Licensor's poles,
anchors, guy strands, and conduit system by Licensee's communications
facilities.
INDEX OF ADMINISTRATIVE FORMS
<TABLE>
<S> <C>
Application and Pole Attachment License A-1
Pole, Anchor and Guy Strand Details A-2
Pole Survey Form A-3
Authorization for Prelicense Survey and/or Make-Ready Work B-1
Itemized Estimate - Pole, Anchor and/or Guy Strand C-1
Make-Ready Work Charges
Itemized Estimate - Conduit Make-Ready Work and C-2
Charges
Summary Estimate - Pole Attachment/Conduit Occupancy C-3
Application and Conduit Occupancy License D-1
Conduit System Diagram D-2
Cable to Occupy Conduit D-3
Equipment Housings to be Placed in Manholes D-4
Notification of Surrender or Modification of Pole E
Attachment License by Licensee
Notification of Surrender or Modification of Conduit F
Occupancy License by Licensee
</TABLE>
7/92
<PAGE> 38
Form A-I APPENDIX III
1 of 2
BEACH CABLE
-----------
APPLICATION AND POLE ATTACHMENT LICENSE (Name of Licensee)
- --------------------------------------- 8128 Front Beach Road Suite C
-----------------------------
(Street Address)
Panama City Beach, Florida
--------------------------
(City and State)
-------------------------------
(Date)
DISTRICT ENGINEER
NETWORK OPERATIONS
BELLSOUTH TELECOMMUNICATIONS, INC.
- -----------------------------
- -----------------------------
In accordance with the terms and Conditions of the License Agreement
between us, dated ____________________, 19__, application is hereby made for a
nonexclusive license to attach communication facilities to ______ poles,
anchors, and/or utilize anchor/guy strands, as indicated on the attached sketch
and Form A-2. This request will be designated:
POLE ATTACHMENT (P.A.) Application No. P.A. ______________ (1), located
________________________________________________________________________________
Licensee hereby requests Licensor to provide the following estimate(s)
of the Cost to Complete the required prelicensing survey work (indicate by
initialing). Such estimate(s) does (do) not bind the Licensee to acceptance of
Licensor's completion of the Field Inspection portion of the prelicense survey:
___ Administrative Processing (Licensee wishes to
conduct Field Inspection)
___ Administrative Processing and Field Inspection
Please initiate a Form B-1 for this application.
By: /s/ Shawn Wright
------------------------------------
(Signature of authorized person)
Its: President
-----------------------------------
(Title of authorized person)
Tel. No.
-------------------------------
(1) Individual applications to be numbered in sequential ascending order
by Licensee for each License Agreement. Licensor will process applications
in sequential ascending order according to the application numbers assigned
by the Licensee.
7/92
<PAGE> 39
Appendix III
Form A-I
2 of 2
Application and Pole Attachment License (continued)
The above referenced License _______________ is hereby granted to attach the
communications facilities described in this application to ________________
poles, _____________________ anchors, and or utilize ________________________
anchor/guy strands, as indicated on the attached Form A-2. Southern Bell
authorization has been assigned to this request. A copy of Form(s)
______________ is/are attached for you files.
By:
-----------------------------------
District Engineer
-----------------
Tel. No.
-----------------------------
Date
----------------------------------
<PAGE> 40
Appendix III
Page _____ of ______
Form A-2
- --------------------------
(Licensee)
- -------------------------- -------------------------------------------
(P.A. Applic. No.) (Area) (1)
POLE, ANCHOR AND GUY STRAND DETAILS
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------
LICENSEE (2) LICENSOR
------------------------------------------------------------------------------------------------------------------------
Pole No. (4) Location (5) Make-Ready Anchor A/GS Attachments License License
Required (6) Use (7) Use (8) (9) No. Date
<S> <C>
------------------------------------------------------------------------------------------------------------------------
1.
------------------------------------------------------------------------------------------------------------------------
2.
------------------------------------------------------------------------------------------------------------------------
3.
------------------------------------------------------------------------------------------------------------------------
4.
------------------------------------------------------------------------------------------------------------------------
5.
------------------------------------------------------------------------------------------------------------------------
6.
------------------------------------------------------------------------------------------------------------------------
7.
------------------------------------------------------------------------------------------------------------------------
8.
------------------------------------------------------------------------------------------------------------------------
9.
------------------------------------------------------------------------------------------------------------------------
10.
------------------------------------------------------------------------------------------------------------------------
11.
------------------------------------------------------------------------------------------------------------------------
12.
------------------------------------------------------------------------------------------------------------------------
13.
------------------------------------------------------------------------------------------------------------------------
14.
------------------------------------------------------------------------------------------------------------------------
15.
------------------------------------------------------------------------------------------------------------------------
16.
------------------------------------------------------------------------------------------------------------------------
17.
------------------------------------------------------------------------------------------------------------------------
18.
------------------------------------------------------------------------------------------------------------------------
19.
------------------------------------------------------------------------------------------------------------------------
20.
------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 41
[POLE SURVEY FORM
APPEARS HERE]
<PAGE> 42
APPENDIX III
Form B-I
1 of 2
AUTHORIZATION FOR PRELICENSE SURVEY AND/OR MAKE-READY WORK
DISTRICT ENGINEER
NETWORK OPERATIONS
- ------------------------------- -----------------------------------
LICENSEE -----------------------------------
The following is a summary of the estimated charges for:
Pole Attachment Application No. P.A. -
----- ------
Conduit Occupancy Application No. C.O. -
----- ------
Located:
-----------------------------------------------------------------------
PRELICENSE SURVEY:
<TABLE>
<CAPTION>
Hours Rate/Hour + % Total
----- --------- --- -----
<S> <C> <C> <C> <C> <C>
Pole
- ----
Field Inspection (If requested) $
-------- ------------ ------ -------
*Summary Estimate
-------- ------------- ------ -------
*Itemized Estimate
-------- ------------- ------ -------
*Includes Administrative
Processing
Conduit
- -------
**Summary Estimate
-------- ------------- ------ -------
**Itemized Estimate
-------- ------------- ------ -------
**Includes Field Inspection and
Administrative Processing
</TABLE>
If you wish us to complete the required survey work, please forward a
check in the amount of $ _______ for a Summary Estimate or $______________ for
an Itemized Estimate.
If you have chosen to conduct the Field Inspection portion of the pole
survey, you may proceed with the inspection and forward inspection details to
us upon your completion of the inspection along with a check in the amount of
$_____________ for a Summary Estimate or $______________ for an Itemized
Estimate.
Upon completion of this work the above estimate will be adjusted to
reflect the actual costs incurred.
------------------------- -------------
District Engineer Date
11/91
<PAGE> 43
APPENDIX III
Form B-I
2 of 2
Authorization For Prelicense Survey and/or Make-Ready Work (Continued)
Attached is a check in the amount of $_____________________ for the following:
________ Prelicense Survey
________ Summary Estimate
________ Itemized Estimate
You are hereby authorized to proceed with the work necessary to
furnish us a make-ready cost estimate.
________ Prelicense Field Survey prepared by Licensee is attached.
------------------------------- -----------
Authorized Representative Date
of Licensee
The attached Form(s) ________________ indicate(s) the total estimated cost
for the above referenced make-ready work.
Should you desire to have this make-ready work accomplished please
forward a check to this office in the amount of $____________. Upon completion
of this work, the above estimated amount will be adjusted to reflect the actual
costs incurred.
________No make-ready work ----------------------- -----------
required District Engineer Date
Attached is a check in the amount of $_____________________ for the
above referenced make-ready work. Please proceed with the work.
------------------------------- ----------
Authorized Representative Date
of Licensee
Southern Bell make-ready work completed
------------------------------
Date
11/91
<PAGE> 44
APPENDIX III
FORM C-1
ITEMIZED ESTIMATE OF POLE MAKE-READY WORK AND CHARGES
Sheet ______ of _______
- --------------------------------
LICENSEE
- -------------------------------------------- ------------------------
POLE LOCATED in MUNICIPALITY, COUNTY, STATE Date Prepared
<TABLE>
<C> <C> <C>
- ------------------------------- ------------------------- ---------------------------
License Application Number Exchange or Wire Center Customer Work Order Number
</TABLE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
POLE INFORMATION MAKE READY WORK REQUIREMENTS MATERIAL (5) LABOR (6)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Licensor Location Rate
Pole No. (1) (2) Description of Work No. & Item Unit Cost Total Hours Hour Total
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 45
EXPLANATION OF COLUMN
(1) Designate pole number by Company
T -- Telephone E -- Electric (Circle Company that
will be Licensor)
(2) Name of Street, Road, Highway, Route, etc.
<TABLE>
<S> <C> <C> <C>
(3) Work Description, e.g., Lwr 2 Cal' Rse rack 2'
Lwr TOP Ca 1' Pic A&G
Lwr Ca & Term 18' Lwr Fire Alm 1'
Rpl Pole Rse Transf 1'
</TABLE>
<TABLE>
<S> <C>
(4) Indicate Company to perform work operations, e.g., T -- Telephone P -- Pole
E -- Electric M --Municipality
C --CATV O --Other Licensee
F --Fire
T/C -- Optional-Either Telephone or CATV
</TABLE>
(5) List Non-exempt Material Only.
(6) Indicate labor hours and costs required to perform work operations
listed in (3).
11/91
<PAGE> 46
APPENDIX III
FORM C-2
ITEMIZED ESTIMATE OF CONDUIT MAKE-READY WORK AND CHARGES
- -------------------------- Sheet _______ of _______
LICENSEE
- ------------------------------------------ -------------------------
CONDUIT LOCATED in MUNICIPALITY, COUNTY, STATE Date Prepared
<TABLE>
<CAPTION>
<S> <C> <C>
- --------------------------------- ---------------------------------- ------------------------------------
License Application Number Exchange or Wire Center Customer Work Order Number
</TABLE>
<TABLE>
<S> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
Conduit Information Make Ready Work Requirements Material (4) Labor (5)
- ----------------------------------------------------------------------------------------------------------------------------------
Location Description of Work
- ------------------------------- (3) Rate/
Street (1) Section (2) No. & Item Unit Cost Total Hours Hour Total
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 47
EXPLANATION OF COLUMN
(1) Name of Street, Road, Highway, Route, etc.
(2) Conduct Section involved, e.g., MH102 to MH103, MH102 to pole 103,
etc.
(3) Work description, e.g., Pump out manhole, rod duct, mark duct, clear
duct, replace 100X cable, etc.
(4) List non-exempt material only.
(5) Indicate labor hours and costs required to perform work operation
listed in (3).
11/91
<PAGE> 48
Form C-3
APPENDIX III
ITEMIZED ESTIMATE/SUMMARY ESTIMATE
<TABLE>
<S> <C>
Pole Attachment
- ----------------------- Application No. ------------------------------------
Licensee ---------------- Date Prepared
Conduit Occupancy
- ------------------------ Application No. ------------------------------------
Area ---------------- Authorization No.
- ------------------------ ------------------------------------
Application No. Wire Center or Exchange
</TABLE>
<TABLE>
<CAPTION>
Make Ready Hours Rate/Hour Total
---------- ----- --------- -----
<S> <C> <C> <C>
Labor $ $
--------- --------- -------------
*Engineering &
Administration --------- $ $
--------- -------------
Material
$
-------------
$
-------------
Subtotal $
+ 10% -------------
Total $
-------------
*Less previous payments
under this authorization $
-------------
Amount due $
-------------
</TABLE>
* If this authorization includes the make-ready survey and the
associated payments, Engineering and Administrative costs for the make-ready
survey should be included in the estimated amount above.
11/91
<PAGE> 49
APPENDIX III
Form D.1
APPLICATION AND CONDUIT OCCUPANCY LICENSE
----------------------------------
(Name of Licensee)
----------------------------------
(Street Address)
----------------------------------
(City and State)
----------------------------------
(Date)
District Engineer - Network Operations
BellSouth Telecommunications, Inc.
- -----------------------------------------------------
- -----------------------------------------------------
In accordance with the terms and conditions of the License Agreement
between us, dated ____________, 19__, application is hereby made for a license
to occupy the conduit system shown on Form D-2, with the cable and equipment
detailed on Forms D-3 and D-4. This request will be designated:
CONDUIT OCCUPANCY (C.O.) Application Number CO-_____________ (1)
Licensee hereby requests Licensor to provide an estimate of the cost
to complete the prelicensing survey work. Completion of such estimate does not
constitute Licensee's authorization for completion of the prelicense survey by
Licensor.
By:
-----------------------------------------
(Signature of Authorized Person)
Its:
----------------------------------------
(Title of Authorized Person)
Tel. No.
------------------------------------
The above referenced License _____________________ is hereby granted
to occupy Licensor's conduit system, as indicated on attached Form D-2, with
cable, equipment and facilities specified on the attached Forms D-3 and D-4.
Duct footage this license _______________________.
By:
-----------------------------------------
District Engineer
Tel. No.
------------------------------------
(1) Individual applications to be numbered in sequential ascending order
by Licensee for each License Agreement. Licensor will process
applications in sequential ascending order according to the
application numbers assigned by the Licensee.
<PAGE> 50
FORM D-3
APPENDIX III
CABLE TO OCCUPY CONDUIT
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------
METALLIC MAX
SHEATH OR VOLTAGE
CABLE SHEILD TO GND. MAX CURRENT
DESIGNA- O.D. WT. LBS. ----------- TYPE OF --------- IN ANY TYPE OF
TION INCHES PER FOOT YES | NO CABLE AC | DC CONDUCTOR JACKET
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
</TABLE>
1. CABLE DESIGNATION: Assign letter, alphabetically, to each different
type of cable to be installed.
2. O.D. (Inches): Outside diameter of the cable.
3. WT. LBS. PER FOOT: Self-explanatory
4. METALLIC SHEATH OR SHIELDS: Self-explanatory
5. TYPE OF CABLE: If coaxial cable show number of tubes. If pair cable
show pair size and gauge (e.g., 16-22)
6. MAX. VOLTAGE TO GND.: Self-explanatory
7. MAX. CURRENT IN ANY CONDUCTOR: Self-explanatory
8. TYPE OF JACKET: Enter type of material of the outer jacket or sheath
(Polyethylene, PVC, lead, etc.).
<PAGE> 51
EXHIBIT A
---------
[Diagram of Beach Cable Construction Phases Appears Here]
<PAGE> 52
APPENDIX III
FORM D-4
EQUIPMENT HOUSING TO BE PLACED IN MANHOLES
<TABLE>
<S> <C> <C> <C> <C> <C>
- ---------------- ---------- -------- ----- ------ -------
TYPE HEIGHT WIDTH DEPTH WEIGHT LOCATION
- ---------------- ---------- -------- ----- ------ -------
- ---------------- ---------- -------- ----- ------ -------
- ---------------- ---------- -------- ----- ------ -------
- ---------------- ---------- -------- ----- ------ -------
- ---------------- ---------- -------- ----- ------ -------
- ---------------- ---------- -------- ----- ------ -------
- ---------------- ---------- -------- ----- ------ -------
- ---------------- ---------- -------- ----- ------ -------
- ---------------- ---------- -------- ----- ------ -------
- ---------------- ---------- -------- ----- ------ -------
- ---------------- ---------- -------- ----- ------ -------
</TABLE>
11/91
<PAGE> 53
FORM E
APPENDIX III
(2)Individual applications to be numbered in sequential ascending order by
Licensee for each license application. Licensor will process applications in
sequential ascending order according to the application numbers assigned by the
Licensee.
NOTIFICATION OF SURRENDER OF
POLE ATTACHMENT LICENSE BY LICENSEE
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY
------------------------------------------------
Street Address
------------------------------------------------
City State Zip
------------------------------------------------
Date
In accordance with the terms and conditions of the License Agreement
between us, dated ______________, 19__, notice is hereby given that the license
covering attachments to the following poles is surrendered effective
_____________________.
Pole License No. _________________, Dated __________________, 19__.
Pole No. Date Facilities Removed
- -------- -----------------------
-------------------------------
(Name of Licensee)
By:
----------------------------
Title:
-------------------------
- --------------------------------------------------------------------------------
Date Notice Received By
--------------------- --------------------------------
Total Poles Discontinued
--------------------------
11/91
<PAGE> 54
FORM F
APPENDIX III
NOTIFICATION OF SURRENDER OF
CONDUIT OCCUPANCY LICENSE BY LICENSEE
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY
------------------------------------------------
Street Address
------------------------------------------------
City State Zip
------------------------------------------------
Date
In accordance with the terms and conditions of the License Agreement
between us, dated ______________, 19__, notice is hereby given that the license
covering occupancy of the following conduit is surrendered effective
_____________________.
Conduit License No. _________________, Dated __________________, 19__.
Conduct Location Facility Date Facilities Removed
- ---------------- -------- -----------------------
-------------------------------------
(Name of Licensee)
By:
----------------------------------
Title:
-------------------------------
- --------------------------------------------------------------------------------
Date Notice Received By
--------------------- --------------------------------
Duct Footage Discontinued
--------------------------
11/91
