Exhibit 10.1
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EXECUTION COPY
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MASTER LICENSE AGREEMENT
FOR
KMC TELECOM V, INC.
This Master License Agreement (the "Agreement") made this 20th day of
June 2000 by and between Fullnet Communications, Inc., an Oklahoma corporation,
having an address at 201 Robert S. Kerr, Suite 210, Oklahoma City, OK 73102
("Licensor") and KMC Telecom V, Inc., a Delaware corporation, having an address
at 1545 Route 206, Suite 300, Bedminster NJ 07921 ("Licensee").
WITNESSETH
WHEREAS, Licensor has entered into leases with landlords of premises,
each of whom has been made a party to the respective Co-Location Schedules
(each, a "Co-Location Schedule", a form of which is attached hereto as Exhibit
D) and Licensor is a tenant in the premises identified under the leases covering
the leasing of portions of office buildings located at certain sites ("Sites");
WHEREAS, Licensee wishes to operate its communications systems at the
Sites, and Licensor is willing to grant to Licensee a license to use a portion
of each Site for such purposes under the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, Licensor
and Licensee hereby agree as follows:
1. Use of Space. Licensor hereby grants to Licensee a license to use a
part of Licensor's premises at each Site (each, a "Space") to
accommodate the number of equipment cabinets or the square footage as
set forth in the Co-Location Schedules (the "License"). Licensor shall
designate the exact location of the Space, which location shall be
reasonably acceptable to the Licensee. Licensor will supply power of
the type and in the amount designated as set forth in Exhibit C. The
Space shall be used solely for the installation and operation of
telecommunications equipment which complies with National Electric Code
Standards and provides "telecommunications services" or "information
services" as those terms are defined in the Communications Act of 1934,
as amended, (the "Equipment") set forth in Exhibit A which may be
amended by Licensee at any time and from time to time, in connection
with Licensee's business. Licensee covenants and agrees that Licensee
shall not use the Space for any other purposes whatsoever unless
otherwise specifically authorized in writing by Licensor. Licensee's
use of the Space is to be conducted in accordance with all security
procedures adopted by Licensor, a copy of which shall have been
delivered to Licensee, provided that Licensor's security procedures
shall not in any way limit Licensee's access to the Space as set forth
in Section 3. Licensee acknowledges that the other licensees may use
parts of the Site (but not the Space) for collocation and other related
activities, but Licensee does not assume any liability for any act or
omission of such other licensees. Licensor may, at its option, upon at
least fifteen (15) days prior notice to Licensee, substitute for the
Space other space at any of the Sites set forth in the respective
Co-Location Schedules, provided that the substitute space contains
approximately an equal area of space and has substantially similar
configuration and is otherwise reasonably acceptable to Licensee. In
addition, the move shall be performed during off peak hours as Licensee
may designate in its sole discretion in order to avoid service
interruption of Licensee's business. Expenses for such move will be
borne by Licensor.
<PAGE>
2. Prohibited Uses. Licensee shall not at any time use or allow any person
to use the Space or do or permit anything to be done or kept in or
about the Space that: (a) violates any certificate of occupancy in
force for such Site, provided a copy of such certificate has been
delivered to Licensee; (b) causes or is likely to cause damage to a
Site or the Space, any equipment, facilities or other systems therein;
(c) constitutes a material violation of any applicable law; (d)
violates a requirement or condition of the standard fire insurance
policy issued for office or data processing buildings at such Site,
provided a copy of such policy has been delivered to Licensee; or (e)
materially interferes with or disrupts the use or occupancy of any area
of a Site, other than a Space, by other lessees, licensees or occupants
of such other areas.
3. Services Provided. Licensor shall provide the support (collectively,
the "Services") for the Licensee's Equipment installed in the Space as
set forth below:
a. Installation Support. Installation support ("Installation
Services") including necessary power connections, floor tile
cutouts or ceiling conduit, equipment and terminal connections
as detailed in the Installation Support Work Description
attached hereto as Exhibit B;
b. Conditioned Environment. Conditioned environment with
controlled access for operation on shared, no-wall basis,
including adequate UPS backed electricity, generator backed
electricity, or building standard commercial power and
computer air conditioning as described in Exhibit C;
c. Security. High-level security at the Space, twenty-four (24)
hours a day, seven (7) days a week, three hundred and sixty
five (365) days per year at each Site which will protect
Licensee's Equipment, critical systems, services and
information resources;
d. Fire Suppression. Fire suppression equipment and services,
twenty-four (24) hours a day, seven (7) days a week, three
hundred and sixty five (365) days per year, which will protect
Licensee's Equipment, critical systems, services and
information resources;
<PAGE>
e. Access to Space. Licensee and its designated representatives
shall have access to the Space twenty-four (24) hours a day,
seven (7) days a week, three hundred and sixty five (365) days
per year; and
f. Any Additional Services. Any additional services other than
the Services set forth herein provided that the fees to be
paid for such additional services shall be mutually agreed
upon by Licensor and Licensee pursuant to a written amendment
of this Agreement.
Licensee acknowledges that Licensor may temporarily interrupt the
Services as necessary for the reasons of mandate by applicable law, utility
stoppage beyond its control, or inspection and repair required to operate and
maintain the plumbing, mechanical and electrical systems of the Site. Licensor
shall provide a fifteen (15) day prior written notice to Licensee of any
scheduled inspections and repairs. Licensor agrees to minimize any interruption
of Services.
4. Licensor Representations and Covenants.
a. Organization; Powers. (i) Licensor is a corporation duly
organized, validly existing and in good standing under the
laws of its jurisdiction of organization and is qualified or
licensed to conduct business in the jurisdiction in which its
principal place of business is located and in every other
jurisdiction where such qualification is necessary, including
but not limited to the jurisdictions set forth in the
Co-Location Schedules; (ii) Licensor has the power and
authority to carry on its business as now conducted; and (iii)
Licensor has the power and authority to execute and deliver
this Agreement, the Co-Location Schedules and any other
documents to which it is a party, and will have the power to
execute and deliver any other instruments to be delivered by
it subsequent to the date hereof.
b. Corporate Authorizations. The execution, delivery and
performance of this Agreement, the Co-Location Schedules and
any other documents to which Licensor is a party:
i. have been duly authorized by Licensor's Board of
Directors or managers and, if necessary, Licensor's
shareholders;
ii. do not violate (1) any law applicable to Licensor;
(2) Licensor's Certificate of Incorporation or other
organization documents, as the case may be; or (3)
any applicable order of any court or other
governmental agency;
iii. do not or will not conflict with, result in a breach
of or constitute (with due notice or lapse of time or
both) a default under leases or any other agreement
to which Licensor is or may become a party;
<PAGE>
iv. do not violate or conflict with the respective leases
which Licensor entered into with the landlords
identified in the Co-Location Schedules, which
landlords have granted Licensor express authority and
permission to enter into this Agreement, the
Co-Location Schedules and any other agreement with
Licensee;
v. constitute legal, valid and binding obligations of
Licensor, enforceable against Licensor in accordance
with their terms.
c. Quiet Enjoyment. Licensor covenants that, if and so long as
Licensee shall fully and faithfully perform and comply with
the provisions set forth under this Agreement, Licensee shall
and may peaceably and quietly have, hold and enjoy the Space
for the Term, free from interference from Licensor, its
successors, assigns and transferees and any other third party
claiming by or through Licensor. Licensor further covenants
that it will use its best efforts to obtain a covenant of
quiet enjoyment for Licensee from each landlord of each Site.
d. Notice of Default. Licensor covenants to provide a copy of all
notices delivered to Licensor from any landlord relating to a
possible or actual default or threat to remove Licensor from
any Site under Licensor's lease with such landlord immediately
upon receipt thereof (the "Lease Default Notice").
5. Equipment Installation and Removal. Licensee shall install the
Equipment in the space. Within 60 days after the expiration or
termination of the License for the Space, Licensee, at its expense,
shall remove from the Space, all of Licensee's property, and Licensee
shall repair any damage to the Space or the Site resulting from the
installation or removal of Licensee's property.
6. Term. The term of the License with respect to each Space shall commence
on the day Licensee first installs Equipment in that Space, as notified
in writing by Licensee to Licensor (the "Commencement Date") and
terminate on the date specified in the respective Co-Location Schedule
(the "Expiration Date"), unless earlier terminated pursuant to the
terms of this Agreement (the "Term"). On or after the Commencement
Date, Licensor shall execute a Memorandum of License Commencement,
which shall specify the Commencement Date. The failure by Licensor or
Licensee to execute a Memorandum of License Commencement shall not
affect the occurrence of the Commencement Date. The term of this
Agreement shall commence on the date hereof and terminate on the later
to occur of (i) January 31, 2004 or (ii) the latest Expiration Date of
the Co-Location Schedule(s) then in effect.
7. License Fees. Licensee shall pay to Licensor the License Fees set forth
on Section 4 of each Co-Location Schedule as consideration for the
License granted and all Services provided to Licensee. All recurring
License Fees are payable monthly in advance on the first day of each
month during the Term with respect to such Co-Location Schedule. In the
event the Commencement Date is not the first day of a month, the
License Fee shall be pro rated for such month. Nonrecurring fees are
due and payable 30 (thirty) days after receipt of invoice by Licensee.
In addition to any fees specified herein, Licensee shall also be
responsible for the payment of sales and/or use taxes, if any, imposed
by any governmental authority or agency in connection with the license
granted hereunder or Services performed hereunder. In the event that
Licensee fails to pay the License Fees set forth in this Section 7
within ten (10) days after such payment is due, then Licensee shall pay
Licensor a late charge equal to 1% per month as an agreed liquidated
amount and as compensation for Licensor's additional reasonable
administrative expense relating to such late payment.
<PAGE>
8. Power. Charges for power are set forth in Exhibit C. Licensor will, at
Licensee's request, provide a DC power plant capable of operating on
batteries for not less than 4 four hours. Licensor will, at Licensee's
request, provide generator back up power. In addition, Licensor will
build a DC plant to accommodate the Licensee's consumption needs for DC
power.
9. Security Deposit. Simultaneously with the execution of each Co-Location
Schedule, Licensee will deposit with Licensor the security deposit set
forth in Section 5 of such Co-Location Schedule ("Security Deposit").
Each Security Deposit shall bear interest and shall be deposited in a
segregated interest bearing account at a financial institution
disclosed to Licensee and shall be security for the payment and
performance by Licensee of all of Licensee's obligations, covenants,
conditions and agreements under this Agreement. Promptly upon
expiration or termination of the Term (or any renewals and extensions
thereof), and in no event later than 75 days after the expiration or
termination of the Term, Licensor shall, (provided the Licensee is not
in default under the terms hereof) return such security deposit to
Licensee with accrued interest, less any reasonable amounts
appropriated and properly documented by Licensor to make good on
Licensee's obligations hereunder.
10. Insurance. At its expense, Licensor shall maintain in full force and
effect at all times while it has any obligations remaining under this
Agreement, policies of insurance written as primary coverage and not
contributing with or in excess of any coverage Licensee may carry.
These policies will be issued by an insurance carrier with a Best's
rating of at least A X which afford the following:
a. All-Risk Property Insurance to insure physical loss or damage,
at replacement value, to the Space. Licensor will be
responsible for insuring its own personal property, machinery
and equipment.
b. Commercial General Liability Insurance, including coverage for
Bodily Injury, Property Damage, Personal Injury and
Contractual Liability in an amount not less than $1,000,000
per occurrence with an annual aggregate of $2,000,000. A
claims made policy is not permitted.
c. Workers' Compensation Insurance in Statutory amounts and
Employer's Liability Insurance in an amount not less than
$500,000 per occurrence.
<PAGE>
At its expense, Licensee shall maintain in full force and effect at all
times while it has any obligations remaining under this Agreement,
policies of insurance written as primary coverage and not contributing
with or in excess of any coverage Licensor may carry. These policies
will be issued by an insurance carrier with a Best's rating of at least
A X which afford the following:
a. All-Risk Property Insurance to insure physical loss or damage,
at replacement value, to the Equipment.
b. Commercial General Liability Insurance, including coverage for
Bodily Injury, Property Damage, Personal Injury and
Contractual Liability in an amount not less than $1,000,000
per occurrence with an annual aggregate of $2,000,000. A
claims made policy is not permitted.
c. Workers' Compensation Insurance in Statutory amounts and
Employer's Liability Insurance in an amount not less than
$500,00 per occurrence.
Certificates of Insurance, evidencing the above coverages with limits
not less than those specified above, shall be delivered to Licensor and
Licensee upon execution of this Agreement and annually thereafter. Such
Certificates of Insurance, with the exception of Workers' Compensation
Insurance, will confirm that each policy listed above has been endorsed
to name KMC Telecom V, Inc., Licensor, their respective subsidiaries,
affiliates, directors, officers, agents, assigns, financing parties and
employees as additional insured.
All Certificates of Insurance shall expressly provide that not less
than (30) days prior written notice be given to Licensee in the event
of a material alteration to or cancellation of the coverage's evidenced
by such certificates with no disclaimer. The limits of insurance
required shall not limit Licensor and Licensee's liability under
Section 11. Failure by Licensee to receive or request such Certificates
does not represent a waiver of the requirements for insurance coverage
noted above.
11 Indemnity. Licensee shall, subject to Section 12 below, indemnify and
hold harmless Licensor against all claims, suits, expenses, losses,
liabilities or damages resulting from any breach by Licensee of any
material provision of this Agreement or from any gross negligence or
willful misconduct of Licensee. Licensor shall, subject to Section 12
below, indemnify and hold harmless Licensee against all claims, suits,
expenses, losses, liabilities or damages resulting from any breach by
Licensor of any material provision of this Agreement or from any gross
negligence or willful misconduct of Licensor.
12 Limitation of Liability. Notwithstanding Section 11 above, in no
event shall either party be liable for incidental, consequential, indirect
damages, lost profits, lost information or any damages to the other or any
of such party's customers' business or property caused by any error in
judgment of, or any action taken or omitted by, the other party, or any
interruption of the Services, unless such error, action, omission or
interruption constitutes or results from gross negligence or willful
misconduct of the other party. Neither party shall be liable for any
claims, suits, expenses, losses, liabilities or damages caused by the other
party's failure to perform its obligations under this Agreement or by its
failure to fulfill its obligations under this Agreement due to causes
beyond its control, including, but not limited to: acts of God,
interruption of power or other utilities, interruption of transportation or
communication services, acts of civil or military authority, national
emergencies, or strike.
<PAGE>
13 Confidentiality. Each party, for itself, its agents, employees
and representatives agrees that it will not divulge any confidential or
proprietary information as identified below which it receives from the
other party, except as may be required in the performance of the Services
or the implementation of the project with respect to which the Services are
rendered; provided, however, that no liability shall arise hereunder as a
result of the dissemination of any information which (i) was in the
possession or control of one party prior to the date of disclosure to that
party by the other party hereunder, or (ii) was in the public domain or
enters the public domain through no improper act by the party to which such
information was disclosed or any of that party's agents or employees, or
(iii) was rightfully given to a party by a source independent of the other
party, and provided further, that each party shall be permitted to disclose
any information to the extent required by applicable law or governmental
authorities. Any information received by Licensor from Licensee in
connection with Licensee or Licensor's performance of Services to Licensee
under this Agreement shall be deemed confidential information hereunder as
well as any information Licensee may receive concerning any third party in
the Space shall be deemed confidential information hereunder. Any report or
other document prepared by Licensor in connection with Licensor's
performance of the Services to Licensee shall be deemed to be confidential
information hereunder.
14 Binding Agreement; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns, except that Licensee shall not be permitted to
assign this Agreement or any interest herein without the prior written
consent of Licensor, which consent shall not be unreasonably withheld.
Licensee will remain fully liable for the payment of fees and for the
performance of all the other obligations of Licensee contained in this
Agreement. The consent by Licensor to any assignment shall not relieve
Licensee of the obligation to obtain the consent of Licensor to any future
assignment. Notwithstanding the foregoing, Licensor acknowledges and agrees
that Licensee may assign or collaterally assign, in whole or in part, its
rights, interests and obligations hereunder without limitation to any of
its affiliates, any party providing financing to the Licensee, and any
successors and assigns of the foregoing without the consent of the
Licensor. Licensee will provide Licensor with notice of any assignment.
Licensor agrees that the holder of any security interest shall not be
prevented or impeded by Licensor from enforcing such security interest and
Licensor shall not terminate any License or this Agreement without the
prior written consent of the assignee. Licensor shall execute all consents
to assignment and/or acknowledgements of any security interest as are
requested by Licensee to give effect to the foregoing. Such
acknowledgements may contain an agreement to allow the holder of such
security interest to cure defaults by Licensee under this Agreement and a
consent to allow the assignment to the successors-in-interest of the holder
of such security interest.
<PAGE>
15 Mutual Cooperation. Licensee shall cooperate with Licensor in
connection with Licensor's performance of the Services. Licensee shall,
with reasonable promptness, provide all information reasonably required by
Licensor for its performance of the Services, and shall make designated
representatives available for regular consultation at such times and places
as Licensor shall reasonably request. Licensor shall cooperate with
Licensee in connection with Licensee's use of the Space. Licensor shall,
with reasonable promptness, provide all information reasonably required by
Licensee for its use of the Space, and shall make designated
representatives available for regular consultation at such times and places
as Licensee shall reasonably request.
16 No Agency Relationship Implied. It is acknowledged and agreed by
Licensee that Licensor performs the Services hereunder solely as an
independent contractor and that no joint venture, partnership, employment,
agency or other relationship is intended, accomplished or embodied in this
Agreement. Licensor shall have the sole and exclusive right to supervise,
manage, control and direct its performance of this Agreement.
17 Default by Licensor. In the event Licensor fails to perform or comply
with any provision of this Agreement within twenty (20) days of Licensee's
written notice to Licensor of its failure to perform or comply with any
other provision of this Agreement, Licensee may terminate the License for
the subject Space for which nonperformance or noncompliance has occurred.
If Licensor is unable to cure within the prescribed twenty (20) days or if
the nonperformance or noncompliance is of a nature that cannot be cured
within twenty (20) days, Licensor shall so notify Licensee and Licensee
shall give Licensor a reasonable amount of time to cure such nonperformance
or noncompliance. If Licensor fails to cure within a reasonable amount of
time, Licensee may terminate the License for the applicable Space. Upon
receipt of a Lease Default Notice which Licensee reasonably believes will
result in a termination of Licensor's lease within thirty (30) days
thereafter, Licensee may immediately notify Licensor of its intention to
terminate the License for the Space covered by such notice and unless
Licensor provides evidence in support of the lease continuing beyond such
30 day period within five (5) days after receipt of such notice, the
Licensee may immediately terminate the License with respect to such Space.
Licensor shall in any event remain fully liable for damages as provided by
law and or all costs and expenses incurred by Licensee on account of any
default, including reasonable attorneys' fees, subject to the limitation of
liability set forth in Section 12. Licensor's obligation to pay all fees
and charges that have been accrued shall survive any termination of any
License.
18 Default by Licensee. In the event Licensee fails to pay monthly or
other fees required to be paid hereunder within fifteen (15) days of
Licensor's written notice to Licensee of its failure to pay when due and
demand for the immediate payment thereof, Licensor may terminate the
License for the subject Space for which fees have not been paid. In the
event Licensee fails to perform or comply with any other provision of this
Agreement within twenty (20) days of Licensor's written notice to Licensee
of its failure to perform or comply with any other provision of this
Agreement, Licensor may terminate the License for the subject Space for
which nonperformance or noncompliance has occurred. If Licensee is unable
to cure within the prescribed twenty (20) days or if the nonperformance or
noncompliance is of a nature that cannot be cured within twenty (20) days,
Licensee shall so notify Licensor and Licensor shall give Licensee a
reasonable amount of time to cure such nonperformance or noncompliance. If
Licensee fails to cure within a reasonable amount of time, Licensor may
terminate the License for the applicable Space. Licensee shall in any event
remain fully liable for damages as provided by law and or all costs and
expenses incurred by Licensor on account of such default, including
reasonable attorneys' fees, subject to the limitation on liability set
forth in Section 12. Licensee's obligation to pay all fees and charges that
have been accrued shall survive any termination of any License. Upon such
termination of any License pursuant to this Section 18, Licensee shall
remain fully liable for all License Fees under such License from such date
of termination through the Expiration Date of the relevant License. All
such amounts shall become immediately due and payable.
<PAGE>
19 Notices. All notices, reports, requests or other communications given
pursuant to this Agreement shall be made in writing, shall be delivered by
hand delivery, overnight courier service or fax, shall be deemed to have
been duly given when delivered, and shall be addressed as follows or to
such other location as either party shall designate via certified return
receipt notification:
To Licensee:
KMC Telecom V, Inc.
1545 Route 206
Suite 300
Bedminster, NJ 07921
Attn: Alan M. Epstein, Esq.
Telephone: (908) 470-2100
Fax: (908) 470-8776
With a copy to:
Scott Stinson
KMC Contract Manager
4250 International Boulevard
Suite B
Norcross, Georgia 30093
Tel: (678) 206-9551
Fax: (678) 206-9596
To Licensor:
Wallace L. Walcher
Fullnet Communications, Inc.
201 Robert S. Kerr
Suite 210
Oklahoma City, OK 73102
Tel.: (405) 232-0958
Fax: (405) 236-8201
<PAGE>
20 Governing Law. This Agreement shall be governed by the laws of the
State of New York, without regard to any conflict of laws principles that
would require applying another State's laws.
21 Jurisdiction and Venue. Each of the parties hereto hereby submits to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York State Court sitting in
New York City for the purposes of all legal proceedings relating to the
execution, validity or enforcement of this Agreement. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum.EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
22 Entire Agreement. The Agreement constitutes the entire agreement
between Licensor and Licensee with respect to the use of the Space and the
Services, and may be modified only by a written instrument signed by a duly
authorized officer on behalf of each party. Any representation or statement
not contained in this Agreement shall not be binding upon Licensor or
Licensee.
<PAGE>
IN WITNESS WHEREOF, an authorized representative of each of the parties
hereof have executed this Agreement on the day and year first written above.
FULLNET COMMUNICATIONS INC.
By: /s/ Wallace L. Walcher
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Name: Wallace L. Walcher
Title: Chief Operating Officer
KMC TELECOM V, INC.,
a Delaware corporation
By:
------------------------------
Name:
Title:
<PAGE>
LIST OF ATTACHMENTS
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Schedule 1 - Sites
Exhibit A - Licensee's Equipment List
Exhibit B - Installation Support Work
Exhibit C - Miscellaneous and Support Charges
Exhibit D - Form of Co-Location Schedule
<PAGE>
SCHEDULE 1
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SITES
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201 Robert S. Kerr, Suite 210, Oklahoma City, OK 73102
<PAGE>
EXHIBIT A
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EQUIPMENT LIST
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Licensee's Name: KMC TELECOM V, INC.
By (signature):
Name:
Title:
City/Site Cabinet ID Equipment Power Heat (BTU) Size Weight
ID (Kva) (HxWxD) (pounds)
Equipment at the sole discretion of KMC Telecom V, Inc.
<PAGE>
EXHIBIT B
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INSTALLATION SUPPORT WORK
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Licensor will provide the following Installation Services:
1. Site Preparation
1.1. Licensor will provide circuit convenience outlets within the vicinity
of Licensee's Space, including for Licensee's use of test equipment.
1.2. Licensor will supply overhead cable ladders in proximity to Licensee's
cabinets for the running of communication circuits.
1.3. Licensor will supply Licensee's cage with adequate amps of DC power A
and B feed (s) and UPS backed AC power to be terminated on a power
distribution frame, with specifications to be provided in the
Co-Location Schedule.
2. Equipment
2.1. Licensee is responsible for all Equipment installation.
2.2. Licensee will provide cabinets at its own expense.
2.3. Licensee to install cabinets at its own expense.
<PAGE>
EXHIBIT C
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MISCELLANEOUS AND SUPPORT CHARGES
---------------------------------
1. Licensor will supply technical support using the Hands, Eyes and Ears
approach. This approach will consist of the following:
1.1. Reporting of the visual status of lights, switches and printed
outputs.
1.2. Re-setting of Equipment, cycle power, review connectors for physical
integrity.
1.3. Reporting to the Licensee any Equipment alarms.
1.4. Swapping of cards and/or plug-ins under Licensee supervision.
1.5. At Licensee's request, Licensor will provide cabling support.
2. Licensor shall provide fire detection, alarm and suppression equipment and
services at all times to protect Licensee's equipment in the Space.
3. Licensor will charge on an hourly basis for additional services not
included in the Services; the actual rate will vary according to location.
3.1. Minimum charge of 1 hour, at the following rates:
3.2. Normal business hours: $95/hr
3.3. Nights and weekends: $135/hr
4. If the hands, eyes and ears approach does not remedy the problems, the
Licensee may bring in Sub-Contractors to perform additional support
services:
4.1. At the Licensee's request, Licensor may provide a list of recommended
Sub-Contractors for each Site.
4.2. Where the Licensee directs Licensor to bring in an outside vendor for
Equipment repair or reconfiguration: 1) this expense will generally be
billed directly to the Licensee by the vendor or 2) where Licensor is
the billed entity it will charge actual cost plus 25%.
5. Flat Fee Power Charges - specifications to be provided by Licensee:
5.1. Non-UPS backed power is charged at 100% x $12 x per amp of circuit
capacity.
5.2. UPS AC backed power is charged at 100 % x $25 x per amp of circuit
capacity.
5.3. DC power is charged at 100% x $20 x per amp of circuit capacity.
<PAGE>
5.4. Rate Increases: In the event that power rates charged Licensor
increase more than 5% above current levels, Licensor reserves the
right to increase the rate proportionately.
6. Cable/Cross Connection Fees:
6.1. Direct Connection Fees:
6.1.1. Cable charges are the responsibility of the Licensee and may be
directly negotiated with the carrier concerned. Within each
Licensor facility, the following cross connection fees apply:
6.1.2. To Carriers: Currently no charge
6.1.3. To other Licensees: $30 per month
6.2. Cross-Connect Fees. Within each Licensor facility, the following cross
connection fees apply:
6.2.1. Install fee per DS1: $25
6.2.2. Install fee per DS3: $75
6.2.3. Install fee per OCX: $250
6.2.4. DS1 monthly charge: $40
6.2.5. DS3 monthly charge: $80
6.2.6. OCX monthly charge: $125
<PAGE>
EXHIBIT D
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FORM OF CO-LOCATION SCHEDULE
Site Name: 201 Robert S. Kerr, Suite 210, Oklahoma City, OK 73102
THIS CO-LOCATION SCHEDULE (the "Co-Location Schedule") dated June 20,
2000, shall be attached to and become a part of the MASTER LICENSE AGREEMENT
dated June 20, 2000 by and between KMC Telecom V, Inc., as Licensee and Fullnet
Communications Inc., as Licensor ("Licensor") ("Master License Agreement").
WITNESSETH:
WHEREAS, Licensor has entered into the Master License Agreement with
KMC Telecom V, Inc., a Delaware corporation; and
WHEREAS, Licensor has entered into a lease with BOK Plaza Associates,
LLC covering the leasing of 201 Robert S. Kerr, Suite 210, Oklahoma City, OK
73102; and
WHEREAS, Licensee wishes to operate its Equipment located at the
Licensor's premises in 201 Robert S. Kerr, Suite 210, Oklahoma City, OK 73102
and Licensor is willing to grant to Licensee a license to use a portion of the
Licensor premises for such purposes under the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, Licensor
and Licensee hereby agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed thereto in the
Master License Agreement.
2. Term. The term of this License (the "Term") shall commence on
the Commencement date and terminate on January 31, 2004.
3. Space. Licensee shall use a part of Licensor's premises (the
"Space") to accommodate five hundred square feet (500 sq. ft.)
of caged space at $45/square foot. Licensor will supply power
of the type and designated in Exhibit B of the Master License
Agreement and in the following amounts: DC Power: A and B
feeds each, 1000 amps; AC Power: 80 amps.
4. License Fees. Licensee shall pay to Licensor the following
fees (License Fees) in accordance with Section 7 of the Master
License Agreement: (i) commencing on the Commencement Date
$44,500.00 per month for the Space and the Services (except
the Installation Services) which includes 100% of the usage of
the type of power, as provided in Exhibit B of the Master
License Agreement; and (ii) upon initiation of installation of
Equipment, a one time payment of $32,700.00 for Installation
Services as provided in Exhibit B of the Master License
Agreement.
<PAGE>
5. Security Deposit. Simultaneously with the execution of the
License, Licensee will deposit with Licensor the sum of
$44,500.00 to be held as Security Deposit in accordance with
Section 9 of the Master License Agreement.
6. Subordination/Conflict. This Co-Location Schedule is in all
respects subject to and subordinate to the terms and
conditions of the Master License Agreement. In the event of
inconsistency between any terms of this Co-Location Schedule
and any terms of the Master License Agreement, the terms of
the Master License Agreement shall control.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this License
as of the day and year first above written.
By: ______________________________
Name:
Title:
KMC TELECOM V, INC.,
a Delaware corporation
By: ______________________________
Name: Wallace L. Walcher
Title: Chief Operating Officer
Fullnet Communications, Inc.,
an Oklahoma corporation
The foregoing is acknowledged and consented to:
BOK Plaza Associates, LLC
------------------------------------
Name:
Title:
<PAGE>
EXECUTION COPY
--------------
ACKNOWLEDGMENT AND CONSENT AGREEMENT
ACKNOWLEDGMENT AND CONSENT AGREEMENT (this ("Agreement"),
dated as of June 20, 2000, by and among Fullnet Communications, Inc. an Oklahoma
Corporation (the "Licensor"), KMC TELECOM V, INC., a Delaware corporation (the
"Licensee"), and [TELECOM V INVESTOR TRUST 2000-A], a [ ] (the "Lessor").
WHEREAS, the Licensee has entered into certain agreements with
the Lessor (the "Financing Documents") pursuant to which the Lessor and certain
other financing parties have agreed to provide lease financing for the
acquisition of certain equipment (the "Equipment") to be used by the Licensee to
provide media gateway services (the "Services");
WHEREAS, in connection with the performance of the Services,
the Licensee and the Licensor have entered into the Master License Agreement,
dated as of June 20, 2000 (the "Master License Agreement"), pursuant to which
the Licensor has granted the Licensee a license to use a portion of certain
premises leased by it to accommodate a portion of the Equipment;
WHEREAS, in order to secure the Licensee's obligations under
the Financing Documents, the Licensee has agreed irrevocably to transfer and
assign for security purposes, and grant a first priority security interest in,
all of its right, title and interest in, to and under (among other things) the
Master License Agreement to the Lessor, pursuant to a security agreement (dated
on or about the date hereof) between the Licensee and the Lessor (the "Security
Agreement"); and
WHEREAS, it is a condition precedent to the consummation of
the lease financing under the Financing Documents that the Licensor shall have
executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
1. Definitions; Interpretation. Capitalized terms used in this
Agreement without definition shall have the respective meanings ascribed thereto
in the Master License Agreement. In this Agreement, unless the context expressly
indicates otherwise, terms defined in the singular shall have the same meanings
when used in the plural and vice versa; references to any law (whether
statutory, administrative or otherwise) shall include all provisions amending,
replacing, succeeding or supplementing such law; references to agreements or
other contractual instruments shall include all amendments, modifications and
supplements thereto; and references to persons or entities shall include such
person's or entity's successors and assigns.
<PAGE>
2. Undertakings Relating to the Financing. The Licensor hereby
acknowledges and agrees for the benefit of the Lessor that:
(a) Consent to Assignment. The Licensor irrevocably consents
to the transfer and assignment for security purposes of the Licensee's
right, title and interest in, and rights and obligations under, the
Master License Agreement to the Lessor pursuant to the Security
Agreement.
(b) Cure Rights. Upon receipt by the Licensor of written
notice from the Lessor that an event of default has occurred and is
continuing under the Financing Documents, the Lessor shall be entitled
to exercise any and all rights of the Licensee under the Master License
Agreement in accordance with its terms. Until such time as the Lessor
seeks to exercise remedies under the Security Agreement in respect of
the Master License Agreement and gives written notice as provided
herein, the Licensor shall continue to deal directly with the Licensee
with respect to its obligations to the Licensee under each of the
Master License Agreement. Upon receipt of written notice from the
Lessor that an event of default has occurred and is continuing under
the Financing Documents and that the Lessor is exercising rights of the
Licensee under the Master License Agreement, the Licensor shall deal
exclusively and directly with the Lessor or its designee(s) or
assignee(s), as the case may be, and not the Licensee.
The Licensor will not, without the prior written consent of
the Lessor, exercise any of its rights set forth in the Master License
Agreement to cancel or terminate, or suspend performance under, the
Master License Agreement due to the Licensee's breach of or failure to
perform any of its obligations under the Master License Agreement:
(1) with respect to a payment default, unless the
Licensor shall have delivered to the Lessor prior written
notice declaring its intention to terminate the Master License
Agreement as a result of a payment default beyond the cure
period provided in Section 18 of the Master License Agreement
and specifying the payment default giving rise thereto, and
before exercising any of its rights set forth in the Master
License Agreement shall have permitted the Lessor or their
designee(s) or assignee(s) an additional cure period of 30
days in which either (x) to cure any such payment default or
(y) to assume liability for the Master License Agreement
pursuant to Section 2(c) below; and
(2) with respect to any breach or default, other than
a payment default, unless the Licensor shall have delivered to
the Lessor prior written notice of its intent to exercise such
right, specifying the nature of the breach or default giving
rise to such right and before exercising any of its rights set
forth in the Master License Agreement shall have permitted the
Lessor or their designee(s) or assignee(s) an additional cure
period of 60 days in which either (x) to cure any such default
by remedying such breach or event or performing or causing to
be performed the obligation in default or (y) to assume
liability for the Master License Agreement pursuant to Section
2(c) below;
<PAGE>
The cure periods set forth in this Agreement shall in no way
limit the Licensor's rights to interest on overdue amounts at the rate
and time provided for in the Master License Agreement, rights to claim
compensation for Licensee events of default or rights to cure any
failure of the Licensee and seek reimbursement therefor.
Except as otherwise expressly provided pursuant to this
Section 2, no curing of or attempt to cure any of the Licensee's
defaults under the Master License Agreement shall be construed as an
assumption by the Lessor of any obligations of the Licensee.
(c) Replacement of Current Licensee by Direct Assumption of
Liabilities. The Lessor or its designee(s) or assignee(s) may elect by
written notice delivered to the Licensor to assume liability for the
Licensee's obligations under the Master License Agreement; provided,
however, that the Lessor or its designee(s) or assignee(s) shall agree
to cure any existing payment default, and non-payment defaults which
are capable of cure by a party other than the Licensee, in each case
within the time periods set forth in subsection (b) above. Except as
set forth in the preceding sentence, the Lessor shall not be liable for
the performance or observance of any of the obligations or duties of
the Licensee under the Master License Agreement, and the assignment of
the Master License Agreement by the Licensee to the Lessor pursuant to
the Security Agreement shall not give rise to any duties or obligations
whatsoever on the part of the Lessor owing to the Licensor. In the
event that the Lessor assumes or is liable under the Master License
Agreement, liability in respect of any and all obligations of any such
person or entity under the Master License Agreement shall be limited
solely to such person's or entity's interest in the Equipment (and no
officer, director, employee, shareholder, affiliate or agent thereof
shall have any liability with respect thereto). In the event that there
are multiple designees or assignees of the Lessor, then each designee
or assignee shall be jointly and severally liable for the Licensee's
obligations under said Master License Agreement.
Upon the exercise by the Lessor of any of the remedies under
the Security Agreement in respect of the Master License Agreement, the
Lessor may assign its rights and interests and the rights and interests
of the Licensee under the Master License Agreement to any person or
entity pursuant to a form of assignment and assumption agreement
reasonably satisfactory to the Licensor, if such person or entity shall
assume liability for all past and future obligations of the Licensee
under the Master License Agreement. Upon such assignment and
assumption, the Lessor shall be relieved of all obligations under the
Master License Agreement assumed pursuant to the preceding paragraph.
(d) Changes to Master License Agreement. The Licensor will
not, without the prior written consent of the Lessor:
(i) consent to or accept any cancellation, termination or
suspension of the Master License Agreement by the Licensee;
<PAGE>
(ii) amend, supplement or otherwise modify any provision of
the Master License Agreement (as in effect on the date
hereof); or
(iii) sell, assign, delegate or otherwise dispose of (by
operation of law or otherwise) any part of its interest in the
Master License Agreement.
(e) Replacement of Master License Agreement in Bankruptcy. In
the event that (i) the Master License Agreement is rejected by a
trustee, liquidator, debtor-in-possession or similar person or entity
in any bankruptcy, insolvency or similar proceeding involving the
Licensee, or (ii) the Master License Agreement is terminated as a
result of any bankruptcy, insolvency or similar proceeding involving
the Licensee and, if within 90 days after such rejection or
termination, the Lessor or its designee(s) or assignee(s) shall so
request, the Licensor will execute and deliver to the Lessor or such
designee(s) or assignee(s) a new Master License Agreement which shall
be for the balance of the remaining term under the original Master
License Agreement before giving effect to such rejection or termination
and shall contain the same conditions, agreements, terms, provisions
and limitations as the original Master License Agreement (except for
any requirements which have been fulfilled by the Licensee and the
Licensor prior to such rejection or termination); provided that the
Lessor or such designee(s) or assignee(s) (i) shall have cured any
existing payment default, and non-payment defaults which are capable of
cure by a party other than the Licensee, in each case within the 90 day
time period set forth above, and (ii) shall execute and deliver the new
Master License Agreement. References in this Agreement to an "Master
License Agreement" shall be deemed also to refer to the new Master
License Agreement in replacement thereof.
(f) Liabilities Limited to Master License Agreement. In
connection with any cure pursuant to this Section 2 of the Licensee's
default(s) under the Master License Agreement or any assumption
pursuant to this Section 2 by any person of the Licensee's liabilities
thereunder, only those obligations and liabilities arising expressly
under the Master License Agreement shall be required to be cured or
assumed, as the case may be.
3. Miscellaneous.
(a) No failure or delay on the part of the Licensor, the
Licensee or the Lessor or any agent or designee of any of the foregoing to
exercise, and no course of dealing with respect to, any right, power or
privilege hereunder shall operate as a waiver thereof, and no single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
(b) The remedies of the Lessor, its designee(s) and/or
assignee(s) and the Licensor provided herein are cumulative and not exclusive of
any remedies provided by law.
<PAGE>
(c) Any notice, request, proposal for changes or
correspondence required or permitted under the terms and conditions of this
Agreement shall be in writing and (i) delivered personally, (ii) transmitted by
facsimile and either (x) recipient acknowledges receipt to sender or (y) sender
is able to deliver to recipient a transmission confirmation, or (iii) sent by an
internationally recognized overnight mail or courier service, with delivery
receipt requested, to the following addresses:
If to Licensee: KMC Telecom V, Inc
1545 Route 206
Suite 300
Bedminster, NJ 07921
Attn: Alan M. Epstein, Esq.
Tel.: (908) 470-2100
Fax: (908) 470-8776
With copy to: Scott Stinson
KMC Contract Manager
4250 International Blvd.
Suite B
Norcross, Georgia 30093
Tel: (678) 206-9551
Fax: (678) 206-9596
If to Licensor: Wallace L. Walcher
Fullnet Communications, Inc.
201 Robert S. Kerr
Suite 210
Oklahoma City, OK 73102
Tel.: (405) 232-0958
Fax: (405) 236-8201
If to Lessor: [Telecom V Investor Trust 2000-A]
[address]
Attn: ___________
Tel: ___________
Fax: ___________
All notices shall be deemed to have been duly given or made
when delivered, or, in the case of telecopy notice, when received.
(d) This Agreement may be amended, waived or modified only by
an instrument in writing signed by the Licensor and the Lessor. Any waiver shall
be effective only for the specified purpose for which it is given.
<PAGE>
(e) This Agreement may be executed in any number of
counterparts, all of which when taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
(f) If any provision hereof is invalid or unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction,
(ii) the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction, and (iii) to the extent practicable, invalid or
unenforceable provisions shall be replaced by valid and enforceable solutions
having the same economic effect on the parties as was intended by the invalid or
unenforceable provisions.
(g) Headings appearing herein are used solely for convenience
and are not intended to affect the interpretation of any provision of this
Agreement.
(h) The agreements of the parties hereto are solely for the
benefit of the Licensor, the Licensee, the Lessor, and shall be binding upon and
inure to the benefit of the respective permitted successors and assigns of each
of the foregoing parties. No other person or entity (other than the foregoing
parties, including their respective permitted successors and assigns) shall have
any rights hereunder.
(i) This Agreement shall be governed by, and construed in
accordance with the law of the State of New York.
(j) Each of the parties hereto hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State Court sitting in New York City
for the purposes of all legal proceedings relating to the execution, validity or
enforcement of this Agreement. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
(k) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
<PAGE>
IN WITNESS WHEREOF, the undersigned by its officer duly
authorized has caused this Agreement to be duly executed and delivered as of the
date first written above.
FULLNET COMMUNICATIONS, INC.
By____________________________________
Name: Wallace L. Walcher
Title: Chief Operating Officer
KMC TELECOM V, INC.
By____________________________________
Name:
Title:
[TELECOM V INVESTOR TRUST 2000-A]
By____________________________________
Name:
Title:
<PAGE>
CO-LOCATION SCHEDULE
Site Name: 201 Robert S. Kerr, Suite 210, Oklahoma City, OK 73102
THIS CO-LOCATION SCHEDULE (the "Co-Location Schedule") dated June 20,
2000, shall be attached to and become a part of the MASTER LICENSE AGREEMENT
dated June 20, 2000 by and between KMC Telecom V, Inc., as Licensee and Fullnet
Communications Inc., as Licensor ("Licensor") ("Master License Agreement").
WITNESSETH:
WHEREAS, Licensor has entered into the Master License Agreement with
KMC Telecom V, Inc., a Delaware corporation; and
WHEREAS, Licensor has entered into a lease with BOK Plaza Associates,
LLC covering the leasing of 201 Robert S. Kerr, Suite 210, Oklahoma City, OK
73102; and
WHEREAS, Licensee wishes to operate its Equipment located at the
Licensor's premises in 201 Robert S. Kerr, Suite 210, Oklahoma City, OK 73102
and Licensor is willing to grant to Licensee a license to use a portion of the
Licensor premises for such purposes under the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, Licensor
and Licensee hereby agree as follows:
7. Defined Terms. Capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed thereto in the
Master License Agreement.
8. Term. The term of this License (the "Term") shall commence on
the Commencement date and terminate on January 31, 2004.
9. Space. Licensee shall use a part of Licensor's premises (the
"Space") to accommodate five hundred square feet (500 sq. ft.)
of caged space at $45/square foot. Licensor will supply power
of the type and designated in Exhibit B of the Master License
Agreement and in the following amounts: DC Power: A and B
feeds each, 1000 amps; AC Power: 80 amps.
10. License Fees. Licensee shall pay to Licensor the following
fees (License Fees) in accordance with Section 7 of the Master
License Agreement: (i) commencing on the Commencement Date
$44,500.00 per month for the Space and the Services (except
the Installation Services) which includes 100% of the usage of
the type of power, as provided in Exhibit B of the Master
License Agreement; and (ii) upon initiation of installation of
Equipment, a one time payment of $32,700.00 for Installation
Services as provided in Exhibit B of the Master License
Agreement.
<PAGE>
11. Security Deposit. Simultaneously with the execution of the
License, Licensee will deposit with Licensor the sum of
$44,500.00 to be held as Security Deposit in accordance with
Section 9 of the Master License Agreement.
12. Subordination/Conflict. This Co-Location Schedule is in all
respects subject to and subordinate to the terms and
conditions of the Master License Agreement. In the event of
inconsistency between any terms of this Co-Location Schedule
and any terms of the Master License Agreement, the terms of
the Master License Agreement shall control.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this License
as of the day and year first above written.
By: ______________________________
Name:
Title:
KMC TELECOM V, INC.,
a Delaware corporation
By: ______________________________
Name: Wallace L. Walcher
Title: Chief Operating Officer
Fullnet Communications, Inc.,
an Oklahoma corporation
The foregoing is acknowledged and consented to:
BOK Plaza Associates, LLC
------------------------------------
Name:
Title:
