<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 18, 1997
REGISTRATION NO. 333-14427
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
MIDCOM COMMUNICATIONS INC.
(Exact name of Registrant as specified in its charter)
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WASHINGTON 4813 91-1438806
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
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1111 THIRD AVENUE
SEATTLE, WA 98101
(206) 628-8000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
---------------------
PAUL P. SENIO
VICE PRESIDENT AND GENERAL COUNSEL
MIDCOM COMMUNICATIONS INC.
1111 THIRD AVENUE
SEATTLE, WA 98101
(206) 628-4900
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
---------------------
Copies to:
THOMAS S. HODGE MICHAEL A. SKINNER JONATHAN K. WRIGHT
HELLER, EHRMAN, WHITE & MCAULIFFE
6100 COLUMBIA CENTER, 701 FIFTH AVENUE
SEATTLE, WASHINGTON 98104
(206) 447-0900
---------------------
Approximate date of commencement of proposed sale to the public:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
---------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------
THIS REGISTRATION STATEMENT SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 8(A) OF THE SECURITIES ACT OF 1933.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the issuance and distribution of the securities being registered. All the
amounts shown are estimated, except the Securities and Exchange Commission
registration fee, the NASD filing fee and the Nasdaq National Market(R) listing
fee.
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Securities and Exchange Commission Registration Fee................... $ 33,704.48
NASD Filing Fee....................................................... 0
Nasdaq National Market(R) Listing Fee................................. 0
Blue Sky Fees and Expenses (includes fees and expenses of counsel).... 5,000
Transfer Agent and Registrar Fees..................................... 0
Accounting Fees and Expenses.......................................... 5,000
Legal Fees and Expenses............................................... 55,000
Printing, Engraving and Delivery Expenses............................. 30,000
Insurance Coverage Acquired for the Offering.......................... 0
Miscellaneous......................................................... 5,000
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Total....................................................... $133,704.48
==========
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a corporation to indemnify its directors,
officers, employees and agents against certain liabilities they may incur in
such capacities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"), provided they acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation. The Registrant's Bylaws (Exhibit 3.2 hereto) require the Registrant
to indemnify its officers and directors to the fullest extent permitted by
Washington law.
Section 23B.08.320 of the WBCA authorizes a corporation to limit or
eliminate its directors' liability to the corporation or its shareholders for
monetary damages for breaches of fiduciary duties, other than for (1) acts or
omissions that involve intentional misconduct or a knowing violation of law, (2)
improper declaration of dividends, or (3) transactions from which a director
derives an improper personal benefit. The Registrant's Amended and Restated
Articles of Incorporation (Exhibit 3.1 hereto) contain provisions limiting the
liability of the directors to the Registrant and to its shareholders to the
fullest extent permitted by Washington law.
The above discussion of the WBCA and the Registrant's Bylaws and Amended
and Restated Articles of Incorporation is not intended to be exhaustive and is
qualified in its entirety by such statute, the Bylaws and the Amended and
Restated Articles of Incorporation, respectively.
The Registrant maintains officers' and directors' liability insurance of on
its directors and officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
On August 22, 1996 and September 6, 1996, the Company completed sales of
$97,743,000 in aggregate principal amount of 8 1/4% Convertible Subordinate
Notes due 2003. PaineWebber Incor-
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<PAGE> 3
porated and Wheat, First Securities, Inc. acted as the Initial Purchasers and
resold the notes to qualified institutional buyers pursuant to Rule 144A
promulgated under the Securities Act, to accredited investors under Regulation D
promulgated under the Securities Act, and to non-U.S. persons pursuant to
Regulation S promulgated under the Securities Act. The Company believes these
transactions are exempt from registration pursuant to Rule 144A, Regulation D
and Regulation S promulgated under Securities Act as transactions not involving
a public offering. The Company filed a Form D and an Amended Form D to perfect
an exemption from registration under Rule 506, as promulgated under Section 4(2)
of the Securities Act, with respect to the sales of the notes to the Initial
Purchasers. The Company has committed to register the notes, and the shares of
the Company's common stock issuable upon conversion of the notes, for public
offer and sale under the Securities Act.
On December 29, 1995, the Company issued to David Wiegand 453,240 shares of
Common Stock valued at $18.25 per share in connection with the acquisition of
ADNET Telemanagement, Inc. The Company believes that the issuance of the shares
was exempt from the registration by virtue of Section 4(2) of the Securities Act
as a transaction not involving a public offering. The Company has committed to
register these shares under the Securities Act under certain circumstances.
On November 6, 1995, the Company issued to the shareholders of Fairfield
County Telephone Corporation ("Fairfield") 98,762 shares of Common Stock valued
at $18.25 per share, including 24,691 shares that were deposited into escrow and
are subject to possible redemption by the Company in exchange for all of the
outstanding capital stock of Fairfield. In January 1997, the Company issued a
total of 38,711 additional shares of Common Stock to the foregoing individuals,
on a pro rata basis, as required by the acquisition documents to compensate for
the decrease in value of the Common Stock since the closing of the acquisition.
The Company believes that the issuance of these shares was exempt from the
registration by virtue of Section 4(2) of the Securities Act as a transaction
not involving a public offering. The Company has committed to register these
shares under the Securities Act under certain circumstances.
In September 1995, the Company issued to GE Capital Communications
Services, Inc. ("GE Capital") a warrant to purchase shares of Common Stock with
an aggregate value of $2,000,000 plus additional consideration in exchange for a
portion of GE Capital's customer base. The Company believes that the issuance of
the warrant was exempt from the registration by virtue of Section 4(2) of the
Securities Act as a transaction not involving a public offering. The warrant
expired upon repayment in full of the note payable to GE Capital in the third
quarter of 1996.
On September 29, 1995, the Company issued to the shareholders of AdVal,
Inc. ("Adval") 250,000 shares of Common Stock valued at $15.25 per share in
exchange for all of the outstanding capital stock of Adval. The Company believes
that the issuance of these shares was exempt from the registration by virtue of
Section 4(2) of the Securities Act as a transaction not involving a public
offering. The Company has committed to register these shares under the
Securities Act under certain circumstances.
On September 1, 1995, the Company issued to Cherry Communications
Incorporated ("Cherry Communications") 317,460 shares of Common Stock valued at
$15.75 per share plus additional consideration in exchange for certain assets of
Cherry Communications. The Company believes that the issuance of these shares
was exempt from the registration by virtue of Section 4(2) of the Securities Act
as a transaction not involving a public offering. The Company has committed to
register these shares under the Securities Act under certain circumstances.
On August 31, 1995, the Company issued to Communications Services of
America, Inc. ("CSA") 20,893 shares of Common Stock valued at $15.25 per share
plus additional consideration in exchange for the customer base of CSA. In
January 1997, the Company issued a total of 10,522 additional shares of Common
Stock to an affiliate of CSA as required by the acquisition documents to
compensate for the decrease in value of the Common Stock since the closing of
the acquisition. The Company believes that the issuance of these shares was
exempt from the registration by virtue
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of Section 4(2) of the Securities Act as a transaction not involving a public
offering. The Company has committed to register these shares under the
Securities Act under certain circumstances.
On August 19, 1995, the Company issued to the sole shareholder of Cel-Tech
International Corp. ("Cel-Tech") 141,935 shares of Common Stock valued at $16.25
per share in exchange for all of Cel-Tech's outstanding capital stock. The
Company believes that the issuance of these shares was exempt from the
registration by virtue of Section 4(2) of the Securities Act as a transaction
not involving a public offering. The Company has committed to register these
shares under the Securities Act under certain circumstances.
Effective April 1, 1995, in connection with amendments to certain
non-competition agreements between the Company and the former shareholders of
Telnet Communications Inc., the Company issued to such shareholders warrants to
purchase an aggregate of 59,500 shares of Common Stock exercisable for $7.44 per
share. The Company believes that the issuance of these warrants was exempt from
registration by virtue of Section 4(2) of the Securities Act as transactions not
involving a public offering. The Company has committed to register the shares
issuable upon exercise of the warrants (but not the warrants) under the
Securities Act under certain circumstances.
On January 20, 1995, the Company issued to Communique Telecommunications,
Inc. ("Communique") 371,875 shares of Common Stock valued at $9.14 per share
plus additional consideration in exchange for certain assets of Communique. The
Company believes that the issuance of these shares was exempt from the
registration by virtue of Section 4(2) of the Securities Act as a transaction
not involving a public offering.
In December 1994, the Company issued to the former shareholder of PacNet,
Inc. ("PacNet") 130,000 shares of Common Stock (113,750 shares after giving
effect to the Company's reverse stock split in April 1995) valued at $11.43 per
share plus additional consideration in exchange for all of PacNet's outstanding
shares of capital stock. In addition, the Company issued to this person an
option to purchase 60,000 shares of Common Stock (54,750 shares after giving
effect to the Company's reverse stock split in April 1995) at an exercise price
of $5.71 per share. The Company believes that the issuance of these shares and
the option were exempt from registration by virtue of Section 4(2) of the
Securities Act as a transaction not involving a public offering. The Company has
committed to register the shares (but not the options or the shares issuable
upon exercise thereof) under the Securities Act under certain circumstances.
On June 10, 1994, the Company issued to Paul Pfleger, Vice Chairman of the
Company's Board of Directors, 859,653 shares of Series A Preferred Stock in
consideration for the assignment by Mr. Pfleger to the Company of notes and
receivables in the aggregate amount of $3,731,729 and the assumption by Mr.
Pfleger of the Company's indebtedness to a third party evidenced by a note in
the original principal amount of $4 million, bearing interest at a rate of 12%
per annum and maturing December 31, 2002. The Company believes that the issuance
of the shares was exempt from registration by virtue of Section 4(2) of the
Securities Act. These shares were redeemed by the Company in connection with the
closing of the Company's initial public offering.
On June 10, 1994, the Company issued to First Union Corporation a warrant
to purchase 1,493,059 shares of Nonvoting Common Stock, at an exercise price of
$0.0001 per share. The Company believes that the issuance of the warrant was
exempt from registration by virtue of Section 4(2) of the Securities Act as a
transaction not involving a public offering. In conjunction with the closing of
the Company's initial public offering, the warrants were amended and fully
exercised resulting in the issuance of 640,478 shares of Common Stock. The
Company has committed to register these shares under the Securities Act under
certain circumstances.
On June 10, 1994, the Company issued to The Robinson-Humphrey Company, Inc.
a warrant to purchase 20,177 shares of Common Stock, at an exercise price of
$0.0001 per share. In connection with the conclusion of that financing the
Company paid a cash fee to Robinson-Humphrey of $444,000. The Company believes
that the issuance of the warrant was exempt from registration by
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<PAGE> 5
virtue of Section 4(2) of the Securities Act as a transaction not involving a
public offering. In conjunction with the closing of the Company's initial public
offering, the warrants were amended and fully exercised resulting in the
issuance of 7,641 shares of Common Stock. The Company has committed to register
these shares under the Securities Act under certain circumstances.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
a. Exhibits.
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EXHIBIT
NUMBER
(REFERENCED TO
ITEM 601 OF
REGULATION S-K)* EXHIBIT DESCRIPTION
- ---------------- -----------------------------------------------------------------------------
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3.1 Articles of Incorporation.(6)
3.2 Bylaws.(1)
4.1 Form of Common Stock Certificate.(1)
4.2 See Exhibits numbered 3.1 and 3.2 for provisions of the Articles of
Incorporation and Bylaws of the Company defining the rights of the holders of
Common Stock.
4.3 Purchase Agreement dated August 15, 1996 among the Company, PaineWebber
Incorporated and Wheat, First Securities, Inc.
4.4 Indenture dated as of August 22, 1996 between the Company and IBJ Schroder
Bank & Trust Company.
4.5 Registration Rights Agreement dated as of August 22, 1996 by and among the
Company, PaineWebber Incorporated and Wheat, First Securities, Inc.
5.1 Opinion of Heller Ehrman White & McAuliffe.
10.1 Senior Subordinated Note and Warrant Purchase Agreement dated as of June 10,
1994 by and among the Company, First Union Corporation and The Robinson-
Humphrey Company, Inc.(1)
10.6 Warrant Agreement dated as of June 10, 1996 by and among the Company, First
Union Corporation and The Robinson-Humphrey Company, Inc.(1)
10.7 Registration Rights Agreement dated as of June 10, 1994 by and among the
Company, First Union Corporation and The Robinson-Humphrey Company, Inc.(1)
10.17 Agreement of Formation and Activities of Russian-American Joint Stock Venture
"Dal Telekom International" dated as of December 5, 1993, by and among the
Company, DalREO, the joint stock company Rostelekom and the state enterprise
Rossvyazinform in the cities of Khabarovsk, Blagoveschensk and Petropavlovsk-
Kamchatski, as amended; Addendum to Agreement Regarding Reorganization of Dal
Telecom International dated as of December 5, 1993, by and between the
Company and DalREO; Amendment to the Agreement on the Joint Venture between
the Company and DalREO dated July 13, 1994; Second Amendment to the Agreement
on the Joint Venture between the Company and DalREO dated December 19, 1994;
Proxy with regard to Voting of Shares of Dal Telecom International dated
December 5, 1993.(1)
10.21 Shareholders Agreement dated as of June 7, 1994 by and among Paul Pfleger,
Ashok Rao, the trust for the benefit of Siddhartha Rao, the trust for the
benefit of Kavita Rao, the trust for the benefit of Divya Rao, the trust for
the benefit of Anjali Rao, John M. Orehek, and the Company.(1)
10.23 Registration Rights Agreement dated as of December 30, 1994 by and between
the Company and Richard W. Stroup.(1)
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EXHIBIT
NUMBER
(REFERENCED TO
ITEM 601 OF
REGULATION S-K)* EXHIBIT DESCRIPTION
- ---------------- -----------------------------------------------------------------------------
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10.25 Revised and Restated 1993 Stock Option Plan, adopted by the Board of
Directors on December 30, 1993 and the shareholders on December 29, 1994, as
amended by the Board of Directors on February 21, 1994, March 28, 1994,
January 19, 1995 and March 21, 1995, such amendments being approved by the
shareholders on October 7, 1994 and March 30, 1995, and further amended by
the Board of Directors on April 25, 1995, July 26, 1995, November 9, 1995,
July 25, 1996 and January 9, 1997.
10.26 1995 Employee Stock Purchase Plan adopted by the Board of Directors and the
shareholders on December 9, 1994.(1)
10.27 Employment Agreement dated as of June 7, 1994 by and between the Company and
Ashok Rao.(1)
10.30 Reseller Service Agreement dated as of December 31, 1992 by and between West
Coast Telecommunications, Inc. and the Company.(1)
10.34 Software License and Services Agreement dated as of October 26, 1993 by and
between ORACLE Corporation and the Company.(1)
10.35 Service Agreement, as amended, dated as of February 7, 1995 by and between
the Company and ORACLE Corporation.(1)
10.36 One Plus Billing and Information Management Services Volume Purchase
Agreement dated March 4, 1995 by and between Zero Plus Dialing, Inc. d/b/a
U.S. Billing and the Company.(1)
10.42 Distributor Agreement dated as of December 28, 1993 by and between the
Company and Quest America L.P. Portions of this exhibit have been omitted
pursuant to an application for an order granting confidential treatment,
which order was granted by the Commission on July 6, 1995. The omitted
portions have been separately filed with the Commission.(1)
10.50 Agreement and Plan of Reorganization dated as of November 8, 1994 by and
among the Company, P.N. Acquisition Corporation, PacNet, Inc. and Richard W.
Stroup.(1)
10.51 Agreement for the purchase of Mid-Com Consultants' Aggregation Customer Base
and Aggregation Plans by Mid-Com Communications, Inc. dated as of January 3,
1995 by and between the Company and Mid-Com Consultants, Inc.(1)
10.52 Asset Purchase Agreement dated as of January 20, 1995 by and between the
Company and Communique Telecommunications, Inc.(1)
10.60 1111 Third Avenue Lease Agreement dated as of March 8, 1994.(1)
10.61 Agreement of Sublease dated January 1, 1994 by and between Bank of New
Zealand and the Company.(1)
10.62 Real Estate Sub-Lease dated as of October 1, 1994 by and between Digital
Telecommunications, Inc. and the Company.(1)
10.66 Option Agreement dated March 6, 1995 by and among Paul H. Pfleger, Ashok Rao,
John M. Orehek and the Company.(1)
10.67 Release and Settlement Agreement dated January 1995. Portions of this exhibit
have been omitted pursuant to an application for an order granting
confidential treatment, which order was granted by the Commission on July 6,
1995. The omitted portions have been separately filed with the Commission.(1)
</TABLE>
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EXHIBIT
NUMBER
(REFERENCED TO
ITEM 601 OF
REGULATION S-K)* EXHIBIT DESCRIPTION
- ---------------- -----------------------------------------------------------------------------
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10.73 Overseas Private Investment Corporation Contract of Insurance against
Business Income Loss.(1)
10.74 Overseas Private Investment Corporation Contract of Insurance against
Expropriation Political Violence.(1)
10.75 Letter Agreement dated May 12, 1995 between First Union Corporation and the
Company.(1)
10.78 Registration Rights Agreement dated as of April 1, 1995 by and among the
Company and Darren Narans, Kevin Narans and Steven Tomsic.(1)
10.79 Stock Purchase Warrant issued on April 1, 1995 by the Company to Darren
Narans granting Darren Narans the right to purchase from the Company 12,250
shares of the Company's Common Stock.(1)
10.80 Stock Purchase Warrant issued on April 1, 1995 by the Company to Kevin Narans
granting Kevin Narans the right to purchase from the Company 23,625 shares of
the Company's Common Stock.(1)
10.81 Stock Purchase Warrant issued on April 1, 1995 by the Company to Steven
Tomsic granting Steven Tomsic the right to purchase from the Company 23,625
shares of the Company's Common Stock.(1)
10.83 Letter Agreement dated June 6, 1995 between First Union Corporation, The
Robinson-Humphrey Company, Inc. and the Company.(1)
10.85 Indemnification and Hold Harmless Agreement dated June 29, 1995 by and among
the Company, Paul H. Pfleger, Black Creek Limited Partnership and Ashok
Rao.(1)
10.86 Carrier Transport Switched Services Agreement dated June 14, 1995 by and
between Sprint Communications Company L.P. and the Company, amended November
1, 1995. Portions of this exhibit have been omitted pursuant to an
application for an order granting confidential treatment, which order was
granted by the Commission on May 31, 1996. The omitted portions have been
separately filed with the Commission.(6)
10.87 Telecommunications Services Agreement dated March 27, 1996 by and between
Worldcom Network Service, Inc. d/b/a WilTel and the Company. Portions of this
exhibit have been omitted pursuant to an application for an order granting
confidential treatment, which order was granted by the Commission on May 31,
1996. The omitted portions have been separately filed with the Commission.(6)
10.88 Customer Base Purchase and Sale Agreement dated as of September 1, 1995
between Cherry Communications Incorporated and the Company.(2)
10.89 Master Equipment Lease Agreement dated as of September 12, 1995 between
Keycorp Leasing Ltd. and the Company.(3)
10.90 Agreement and Plan of Reorganization dated as of September 29, 1995 among the
Company, AV Acquisition Corporation, AdVal, Inc., AdVal Data Corporation,
Theodore D. Berns and Donald D. Dean.(4)
10.91 Credit Agreement dated as of November 8, 1995 among the Company, PacNet,
AdVal, Cel-Tech(the "Borrowers") and Transamerica Business Credit
Corporation, as agent.(6)
10.92 Revolving Note dated December 20, 1995 in the amount of $30,000,000 made by
the Borrowers to the order of Transamerica Business Credit Corporation.(6)
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EXHIBIT
NUMBER
(REFERENCED TO
ITEM 601 OF
REGULATION S-K)* EXHIBIT DESCRIPTION
- ---------------- -----------------------------------------------------------------------------
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10.94 Revolving Note dated December 20, 1995 in the amount of $13,000,000 made by
the Borrowers to the order of Nationsbank of Georgia, N.A.(6)
10.95 Stock Pledge Agreement dated as of November 8, 1995 made by the Company in
favor of Transamerica Business Credit Corporation, as agent.(6)
10.96 Security Agreement dated as of November 8, 1995 made by the Borrowers in
favor of Transamerica Business Credit Corporation, as agent.(6)
10.97 Letter Agreement dated March 6, 1996 between the Borrowers and Transamerica
Business Credit Corporation, as agent.(6)
10.98 Letter Agreement dated March 18, 1996 between the Borrowers and Transamerica
Business Credit Corporation, as agent.(6)
10.99 First Amendment to Credit Agreement dated March 28, 1996 between the
Borrowers and Transamerica Business Credit Corporation, as agent.(6)
10.100 Promissory Note dated March 28, 1996 in the amount of $15,000,000 made by the
Company to the order of Transamerica Business Credit Corporation.(6)
10.101 Warrant Purchase Agreement dated March 28, 1996 between the Company and
Transamerica Business Credit Corporation.(6)
10.102 Warrant issued on March 28, 1996 by the Company to Transamerica Business
Credit Corporation.(6)
10.103 Agreement and Plan of Reorganization dated December 29, 1995 among the
Company, ADNET Telemanagement, Inc., David Wiegand and Maria Wiegand.(5)
10.104 Contract Tariff No. 969 effective February 15, 1996 between the Company and
AT&T Corp.(6)
10.105 Second Amendment to Credit Agreement dated July 26, 1996 among the Company,
PacNet, AdVal, Cel-Tech, Advanced Network Design and Transamerica Business
Credit Corporation, as agent.(7)
10.106 Third Amendment to Credit Agreement dated August 21, 1996 between the
Company, PacNet, AdVal, Cel-Tech and Advanced Network Design and Transamerica
Business Credit Corporation.(8)
10.107 Customer Base Purchase and Sale Agreement dated as of November 1, 1995
between the Company and Cherry Communications Incorporated.(9)
10.109 Distributor Agreement dated April 4, 1996 between the Company and Tie
Communications, Inc.(10)
10.110 Employment Agreement dated May 24, 1996 between the Company and William H.
Oberlin.(11)
10.111 Consulting Agreement dated May 24, 1996 between the Company and John M.
Zrno.(12)
10.112 Consulting Agreement dated May 24, 1996 between the Company and Marvin C.
Moses.(13)
10.113 Settlement Agreement and Release, dated as of December 27, 1996, among David
Wiegand, Maria Wiegand and the Company.
10.114 Consulting Agreement, dated as of November 25, 1996, between the Company and
David Wiegand.
10.115 Stock Option Agreement, dated as of November 25, 1996, between the Company
and David Wiegand.
</TABLE>
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<TABLE>
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EXHIBIT
NUMBER
(REFERENCED TO
ITEM 601 OF
REGULATION S-K)* EXHIBIT DESCRIPTION
- ---------------- -----------------------------------------------------------------------------
<C> <S>
10.116 Amendment to Agreement and Plan of Reorganization, dated as of December 27,
1995, among the Company, David Wiegand and Maria Wiegand, amending the
Agreement and Plan of Reorganization dated December 29, 1995 among the
Company, ADNET Telemanagement, Inc. and David Wiegand.
**10.117 Amendments to Non-Competition Agreements of Maria Wiegand and David Wiegand,
dated as of December 27, 1996, among the Company, Maria Wiegand and David
Wiegand. Portions of this exhibit have been omitted pursuant to an amended
application for an order granting confidential treatment filed with the
Commission on March 18, 1997. The omitted portions have been separately filed
with the Commission.
**10.118 Release and Settlement Agreement, dated October 31, 1996, between the Company
and AT&T Corp. Portions of this exhibit have been omitted pursuant to an
amended application for an order granting confidential treatment filed with
the Commission on March 18, 1997. The omitted portions have been separately
filed with the Commission.
**10.119 Carrier Agreement, dated October 31, 1996, between the Company and AT&T Corp.
Portions of this exhibit have been omitted pursuant to an amended application
for an order granting confidential treatment filed with the Commission on
March 18, 1997. The omitted portions have been separately filed with the
Commission.
11.1 Statement re: computation of per share earnings.(6)
12.1 Statement re: computation of ratios.
21.1 List of significant subsidiaries of the Company.(6)
23.1 Consent of Ernst & Young LLP (See page II-12).
23.2 Consent of Heller Ehrman White & McAuliffe (included in Exhibit 5.1).
24.1 Power of Attorney.
25.1 Form T-1 Statement of Eligibility and Qualification of the Trustee under the
Trust Indenture Act of 1939.
</TABLE>
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* Unless otherwise indicated, exhibit was filed as an identically numbered
exhibit to this Registration Statement on Form S-1 as originally filed with
the Commission on October 18, 1996 and as amended by Amendment No. 1 filed
with the Commission on January 16, 1997.
** Exhibit is filed herewith as a replacement of an identically numbered
exhibit previously filed with Amendment No. 1 to this Registration
Statement on January 16, 1997.
(1) Exhibit is incorporated by reference to an identically numbered exhibit to
the Company's Registration Statement on Form S-1, file no. 33-90814.
(2) Exhibit is incorporated by reference to Exhibit 2.3 filed with the
Company's Current Report on Form 8-K filed with the Commission on December
18, 1995.
(3) Exhibit is incorporated by reference to Exhibit 10.1 filed with the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1995.
(4) Exhibit is incorporated by reference to Exhibit 2.1 filed with the
Company's Current Report on Form 8-K filed with the Commission on October
13, 1995.
(5) Exhibit is incorporated by reference to Exhibit 2.1 filed with the
Company's Current Report on Form 8-K filed with the Commission on January
11, 1996.
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<PAGE> 10
(6) Exhibit is incorporated by reference to an identically numbered exhibit
filed with the Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
(7) Exhibit is incorporated by reference to Exhibit 10.1 filed with the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996.
(8) Exhibit is incorporated by reference to Exhibit 10.2 filed with the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996.
(9) Exhibit is incorporated by reference to Exhibit 2.4 filed with the
Company's Current Report on Form 8-K filed with the Commission on December
18, 1995.
(10) Exhibit is incorporated by reference to Exhibit 10.3 filed with the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996.
(11) Exhibit is incorporated by reference to Exhibit 10.4 filed with the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996.
(12) Exhibit is incorporated by reference to Exhibit 10.5 filed with the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996.
(13) Exhibit is incorporated by reference to Exhibit 10.6 filed with the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996.
b. Financial Statements.
Consolidated Financial Statements filed as part of this Registration
Statement are listed in the Index to the Financial Statements on page F-1.
c. Financial Statement Schedules.
Consolidated Financial Statement Schedules filed as part of this
Registration Statement are listed in the Index to the Financial Statement
Schedules on page S-1. All other schedules have been omitted because the
information is not required or is not applicable, or because the information
required is included in the Consolidated Financial Statements or the Notes
thereto included elsewhere in this Registration Statement.
ITEM 17. UNDERTAKINGS.
(a) Rule 415 Offering.
The undersigned Registrant hereby undertakes:
(1) 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 of 1933;
(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 thereof), which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities as that time shall be deemed
to be the initial bona fide offering thereof;
II-9
<PAGE> 11
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Indemnification for Liabilities
Insofar as indemnification for liabilities arising under 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 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 of 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.
(c) Registration Statement Permitted by Rule 430A
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) 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.
II-10
<PAGE> 12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 2 to this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Seattle, State of Washington, on March 18, 1997.
MIDCOM COMMUNICATIONS INC.
By: /s/ ROBERT J. CHAMBERLAIN
------------------------------------
Robert J. Chamberlain
Executive Vice President
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to this Registration Statement has been signed by the following persons in
the capacities indicated below on the 18th day of March, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- ---------------------------------------------
<S> <C>
WILLIAM H. OBERLIN* President, Chief Executive Officer and
- --------------------------------------------- Director
William H. Oberlin (Principal Executive Officer)
/s/ ROBERT J. CHAMBERLAIN Executive Vice President and Chief Financial
- --------------------------------------------- Officer (Principal Accounting and
Robert J. Chamberlain Financial Officer)
PAUL H. PFLEGER* Director
- ---------------------------------------------
Paul H. Pfleger
JOHN M. OREHEK* Director
- ---------------------------------------------
John M. Orehek
SCOTT B. PERPER* Director
- ---------------------------------------------
Scott B. Perper
KARL D. GUELICH* Director
- ---------------------------------------------
Karl D. Guelich
JOHN M. ZRNO* Director
- ---------------------------------------------
John M. Zrno
MARVIN C. MOSES* Director
- ---------------------------------------------
Marvin C. Moses
DANIEL M. DENNIS* Director
- ---------------------------------------------
Daniel M. Dennis
</TABLE>
*By: /s/ ROBERT J. CHAMBERLAIN
-----------------------------
Robert J. Chamberlain
Attorney-In-Fact
II-12
<PAGE> 13
MIDCOM COMMUNICATIONS INC.
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
(REFERENCED TO
ITEM 601 OF
REGULATION S-K) EXHIBIT DESCRIPTION
- ---------------- --------------------------------------------------------------------------
<C> <S>
10.117 Amendments to Non-Competition Agreements of Maria Wiegand and David
Wiegand, dated as of December 27, 1996, among the Company, Maria Wiegand
and David Wiegand. Portions of this exhibit have been omitted pursuant to
an amended application for an order granting confidential treatment filed
with the Commission on March 18, 1997. The omitted portions have been
separately filed with the Commission.
10.118 Release and Settlement Agreement, dated October 31, 1996, between the
Company and AT&T Corp. Portions of this exhibit have been omitted pursuant
to an amended application for an order granting confidential treatment
filed with the Commission on March 18, 1997. The omitted portions have
been separately filed with the Commission.
10.119 Carrier Agreement, dated October 31, 1996, between the Company and AT&T
Corp. Portions of this exhibit have been omitted pursuant to an amended
application for an order granting confidential treatment filed with the
Commission on March 18, 1997. The omitted portions have been separately
filed with the Commission.
</TABLE>
<PAGE> 1
[*] DESIGNATES MATERIAL FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED,WHICH MATERIAL HAS BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.117
AMENDMENTS TO NON-COMPETITION AGREEMENTS
OF
MARIA WIEGAND AND DAVE WIEGAND
In consideration for the promises and covenants of MIDCOM
Communications Inc. and Maria Wiegand and Dave Wiegand made herein in connection
with that certain Release and Settlement Agreement of even date ("Settlement")
and for other good and valuable consideration, the Non-Competition Agreements of
Maria Wiegand and Dave Wiegand are modified pursuant to A and B respectively as
follows:
A. Maria Wiegand
Section 2 Term is amended to read in its entirety as follows:
"The term of this Agreement shall continue through December 29, 1999."
B. Dave Wiegand
Section 1 Consideration is amended by the addition of the following:
"The payments of $10,000 per month payable to Wiegand for the months of
December 1996 through December 1997 shall be paid in a lump sum
pursuant to the terms and conditions of Section 4 of the Employment
Agreement dated December 29, 1995 between Wiegand and MIDCOM and as a
part of the severance payment defined in Section 2 (a) of the
Settlement."
Section 2 Term is amended to read in its entirety as follows:
"The term of this Agreement shall continue through December 29, 1999."
Subsection 3.3 (a) and (b) Restrictive Covenants are modified to read
in their entirety as follows:
"(a) induce or attempt to induce any current employees of the ADNET
DIVISION of MIDCOM to leave its employ but this restriction will not
prohibit hiring or entering into business relationships with Scott
White, Mike Whitman, Jean Reeves, or any other persons who have left
the employ of the AdNet Division of MIDCOM on their own initiative and
without any inducement on the part of Dave Wiegand."
"(b) except in the regular course of any representation of MIDCOM as a
consultant, directly or indirectly sell or market any long distance
telecommunications services to any MIDCOM subscriber (or prospective
customers whose identity was obtained by Wiegand through his employment
or consulting relationship with MIDCOM or in an unauthorized manner)
except that sales by other persons in any organization with which
Wiegand is affiliated to MIDCOM subscribers shall not violate this
provision if Wiegand does not provide any direct or indirect assistance
in such sales."
1
<PAGE> 2
New Subsection 4.3 is added as follows:
"4.3 Arbitration. Except as to the remedies provided for in Section
4.2, injunctive relief, the parties agree that any dispute, difference or
disagreement in respect of this Non-Competition Agreement and the meaning and
construction hereof shall fully and finally be resolved by binding arbitration
conducted in accordance with the rules of the American Arbitration Association
before a single arbiter agreed upon by the parties. If a single arbiter cannot
be agreed upon within a reasonable time an arbitrator shall be selected in
accordance with the rules of the American Arbitration Association. Any judgment
upon any arbitration award may be entered in any court having jurisdiction
thereof. Venue for any arbitration matters shall be in Portland, Oregon.
New Section 13 is added as follows:
"13. Rights of First Refusal"
13.1 MIDCOM's Rights of First Refusal. If David Wiegand or any
entity or venture which he holds a majority equity or partnership interest of
50% ("the Wiegand Group") shall at any time prior to the first Release Event (as
defined in the Settlement) receive offers or series of offers from any
unaffiliated InterExchange Carrier or other providers of telecommunication
services ("Other Providers") giving the Wiegand Group opportunities to serve as
an independent distributor or certified reseller of long-distance
telecommunications services consisting of i) one plus, ii) 800, iii) calling
card or iv) frame relay services (individually "Covered Service" or jointly
"Covered Services") , the Wiegand Group shall use its best efforts to obtain
bona fide, written offers from such Other Providers and shall subject to
applicable legal or contractual restrictions submit exact copies of such offers
(which may have redacted confidential portions not required to enable MIDCOM to
assess rates and essential terms) to MIDCOM or, if the Wiegand Group is legally
or contractually prohibited from providing an exact copy of such an offer, the
Wiegand Group shall provide to MIDCOM a summary of the terms set forth in such
offer in as much detail as is permissible under applicable laws and contractual
restrictions which are sufficient to MIDCOM for it to make a knowledgeable
decision of its Rights of First Refusal. MIDCOM shall have the right,
exercisable by written notice delivered to the Wiegand Group within ten (10)
days from the date of delivery of each offer for a Covered Service to MIDCOM, to
meet the rates or commissions and the essential terms and conditions contained
in such offer (including without limitation price, payment terms, product mix,
geographic coverage, billing data and delivery accuracy, order provision
accuracy and timeliness, contract period, and commitment level, if any for all
Covered Services included in such offer for the same term specified therein
provided, however, that any service agreement between the parties will include a
right of either party to terminate such agreement in the event the other party
has materially breached its obligations thereunder and has failed to cure such
breach within fifteen (15) days after notice (or such shorter period as may be
provided in the applicable Other Provider offer).
13.2 Terms of Service Agreements. In connection with each
service agreement between MIDCOM and the Wiegand Group entered into pursuant to
this Section 13, (each a "Service Agreement") MIDCOM shall be required to (a)
provision [*]% of switched services within five (5) days of receipt of the
order therefor or otherwise within fourteen (14) days of receipt of the order
therefor, (b) provision [*]% of dedicated services within thirty (30) days of
receipt of the order therefor or otherwise within sixty (60) days of receipt of
the order therefor, and (c) provide to the Wiegand Group complete billing
information for all end users for which MIDCOM is providing services under a
wholesale service agreement within [*] days after the closing of each billing
cycle or period applicable to such end users if such records are available to
MIDCOM from any underlying interexchange telecommunications carrier. In
addition, no billing statement provided by MIDCOM to the Wiegand Group shall
(a) omit more than [*] percent ([*]%) of the records or files for any Covered
Services or customer of the Wiegand Group that should be included therein to
reflect all end user activity during the billing cycle or period to which the
statement is intended to relate, or (b) include errors affecting more than [*]
percent ([*]%) of the records or files or total dollar volume for any Covered
Services or customer of the Wiegand Group included in that statement to the
extent that MIDCOM is the party responsible for maintaining such records or
files. Each Service Agreement between MIDCOM and the Wiegand Group shall
further provide, upon any two occasions during the period thereof that each
party shall have the right to request amendments to any one or more terms of
the Service Agreement affecting a Covered Service or to add or delete a Covered
Service. If the other party does not accept such changes within sixty (60) days
then the change shall take effect but the other party may elect to delete the
affected Covered Service or remove customers therefrom provided further,
however, that in the case of any amendments requested by the Wiegand Group the
Wiegand Group shall have first received an offer (which may be solicited by the
Wiegand Group) from an Other Provider for such Covered Service and terms for
which amendments are being submitted, which shall be provided to MIDCOM in
accordance with the terms of Subsection 13.1.
<PAGE> 3
In case MIDCOM breaches any of its obligations under this Section 13, MIDCOM's
Rights of First Refusal with respect to any other offer made by Other Providers
for any Covered Service shall terminate. If MIDCOM does not exercise its Right
of First Refusal with respect to any offer or if MIDCOM cannot or is not willing
to meet the essential terms and conditions contained in any offer, the Wiegand
Group may after the waiting period provided for herein accept the offer of such
Other Providers pursuant to and on the terms of such offer, provided that if any
Other Provider's offer is not accepted within one hundred twenty (120) days
after delivery of such offer to MIDCOM, or there is a material change in the
terms of the transaction such that the transaction becomes more beneficial to
the Other Provider, MIDCOM shall again have continued Rights of First Refusal
provided in this Section 13. Notwithstanding anything herein to the contrary,
MIDCOM's right to perform services hereunder shall not apply if MIDCOM is not
able or not willing to provide all services offered by the Other Provider or if
any material term or condition of MIDCOM's services is less advantageous to the
Wiegand Group than the comparable term or condition of the Other Provider's
offer. Except as specifically set forth herein, the grounds for termination
between the Wiegand Group and MIDCOM shall in all material respects be the same
as those set forth in the agreements upon which the Rights of First Refusal are
predicated. Furthermore, any performance requirements applicable to MIDCOM set
forth herein shall be minimum requirements subject to and replaced by any higher
service level set forth in the applicable Other Provider's Offer.
13.3 Period of Agreement. In the event the period of any
Service Agreement between MIDCOM and the Wiegand Group expires before the first
Release Event, Rights of First Refusal shall apply to all other offers for any
Covered Service from Other Providers received by the Wiegand Group prior to the
first Release Event, which shall be provided to MIDCOM in accordance with the
terms of Subsection 13.1. Notwithstanding anything herein to the contrary,
MIDCOM's rights under this Section 13 shall terminate immediately upon (1) the
date that Dave Wiegand owns less than three quarters of one percent (3/4%) of
MIDCOM's outstanding
3
<PAGE> 4
common stock and the Wiegands have disposed of more than seventy percent (70%)
of their combined current interests in MIDCOM common stock or options to acquire
such stock or, (2) MIDCOM files a plan of reorganization or a plan of
liquidation under Chapter 11 or Chapter 7 of the federal Bankruptcy Code or
voluntary or involuntary dissolution or liquidation proceedings are commenced by
or against the Company or the Company makes a general assignment for the benefit
of creditors of institutes or consents to a proceeding for appointment of a
receiver or custodian or similar officer.
13.4 Failure to Submit. A failure of the Wiegand Group to
submit offers to MIDCOM pursuant to Section 13 and the Wiegand Group's execution
of a definitive agreement with the Other Provider contrary to MIDCOM rights
under this Section 13 shall be deemed to constitute a breach of this
Non-Competition Agreement by Dave Wiegand entitling MIDCOM to the remedies set
forth in Section 4, but no breach by Dave Wiegand of his obligations hereunder
shall entitle MIDCOM to refuse to perform its obligations to Dave Wiegand under
the Stock Option Agreement between MIDCOM and Dave Wiegand dated November 25,
1996, which obligations are independent of this Agreement and shall remain in
effect notwithstanding any dispute between the parties hereunder.
13.5 Restrictions on the Parties. Neither party shall at any
time during the term of this Agreement or for six months thereafter use
confidential information such as a Customer List to market or provide any
services to the other party's customers.
Except as specifically amended herein, all the remaining terms and
conditions of each of the Non-Competition Agreements of Maria Wiegand and Dave
Wiegand of December 29, 1995 respectively shall remain in full force and effect.
DATED this 27 day of December, 1996.
MIDCOM COMMUNICATIONS INC.
By: /s/ PAUL P. SENIO
------------------------------------
Paul P. Senio
Its: Vice President and General Counsel
/s/ DAVE WIEGAND
- ---------------------------------
Dave Wiegand
/s/ MARIA WIEGAND
- ---------------------------------
Maria Wiegand
4
<PAGE> 1
[*] DESIGNATES MATERIAL FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED, WHICH MATERIAL HAS BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISION.
EXHIBIT 10.118
RELEASE AND
SETTLEMENT AGREEMENT
This Release and Settlement Agreement ("Agreement") is entered into
between AT&T Corp. ("AT&T") and MIDCOM Communications Inc. ("MIDCOM" or
"Customer").
Recitals
WHEREAS, Customer currently subscribes to AT&T long distance service
under Contract Tariff 969 ("CT 969"), which comprises Distributed Network
Service ("DNS") and Software Defined Network ("SDN") service under DNS account
number 019-051-0025-001 and 019-051-0060-001; SDN account numbers 80004889053,
80160234367, 80160659845, 80007135249, 80007178587, 80005760147, 80011401850,
80160849586, 8001175462, 80011420751, 80011420744, 80013144698, 80161554813,
80008642532, 80010794024, 88800010519, 80014112314, 80010020834, 80010020826,
506-905-2972-672, 506-905-2973-673, 506-901-2405-274, 506-901-2340-453; as well
as 800 service under identification numbers 003541, 003542, 003543, 001745,
001701, 002965, 002986 and 003118 (the "Former Service") and
WHEREAS a dispute has arisen concerning[*] ("Payment Dispute"); and
WHEREAS a dispute has arisen concerning[*] (the "AT&T Dispute"); and
WHEREAS a dispute has arisen concerning Customer's commitment under CT
969 ("CT 969 Dispute"); and
WHEREAS, Customer and AT&T desire to fully and finally settle and
resolve the Payment Dispute, the AT&T Disputes and the CT 969 Dispute and to
make provision for the resolutions of the Existing Disputes, and to thereby
avoid the time and expense of litigation;
AT&T/MIDCOM Confidential and Proprietary
<PAGE> 2
THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. New Agreement
AT&T will file revisions to CT 969, in the form attached to this
Agreement as Attachment A. On the date such revisions become effective, and
without any further action being required, Customer's subscription to CT 969
will be discontinued without liability, according to the revised terms of CT
969, in conjunction with Customer's order for service under a separate Carrier
Agreement between AT&T and Customer (the "New Service"). If, however, such
Carrier Agreement is not effective as of the date the revisions to CT 969
become effective, the Customer's subscription to CT 969 will not be
discontinued without liability until the effective date of the Carrier
Agreement.
2. Payments to AT&T
(a) AT&T and Customer agree that as of September 30, 1996, Customer
has paid the total amount owed to AT&T for charges billed through and including
July 1, 1996. (b) Customer will pay AT&T $3.8 million within 30 days after
Customer announces quarterly gross revenues in excess of $75 million or upon
completion of a Change in Control. For purposes of this Agreement, a Change in
Control occurs if, (1) as a result of a tender offer, fifty percent (50%) or
more of the outstanding shares of common stock of MIDCOM is acquired by another
person or entity, or (2) the shareholders of MIDCOM approve a merger involving
the conversion or exchange of fifty percent (50%) or more of the outstanding
shares of common stock of MIDCOM into other securities, cash or property (or
any combination thereof).
3. Existing Disputes
AT&T and Customer acknowledge that bona fide billing disputes exist
between the parties in the amount of $1,117,247.00 as described in Attachment B
to this Agreement ("the Existing Disputes").
4. Arbitration
With respect to the Existing Disputes, Customer or AT&T shall have
the right to commence an arbitration proceeding. The party choosing arbitration
shall submit the dispute(s) to the Center for Public Resources ("CPR"). The
arbitration shall be held in Chicago, Illinois and shall be conducted under the
then-current rules and supervision of the CPR. The Federal Arbitration Act, 9
U.S.C. Sections 1 to 16, will govern the arbitrability of all claims. The
arbitral decision and award shall be binding and judgment on the award may be
entered in any
2
AT&T/MIDCOM Confidential and Proprietary
<PAGE> 3
court of competent jurisdiction. The arbitration will be conducted by a single
arbitrator who is knowledgeable in business information, commercial matters or
the telecommunications field, as applicable, except that either party may
require that the arbitration be conducted by a tribunal of three such
arbitrators by providing Notice of such a demand to the other party before a
single arbitrator is selected. The arbitrator(s) may not limit, expand or
otherwise modify the terms of this agreement and will not have authority to
award damages to either party beyond the limitations of liability provided in
this Agreement.
The arbitrator may not expand the amount sought regarding the
applicable dispute beyond that specified in Section 3. The parties, their
representatives, other participants and the arbitrator shall hold the
existence, content and result of the arbitration in confidence. Each party
shall bear its own costs and expenses if arbitration occurs.
5. Transfer of Obligations
The outstanding Customer obligations, not otherwise extinguished
under this Agreement, which have arisen or which may arise under the Former
Service shall be transferred to the New Service at such time as the New Service
Agreement is effective. Such obligations include all tariffed charges provided
that there are not shortfall or termination charges associated with CT 969 at
the time of termination of CT 969.
6. Releases
The following releases are effective as of the initial service date
of the Carrier Agreement for the New Service:
(a) Customer, on behalf of itself and its employees, agents,
shareholders, officers, subsidiaries, predecessors, affiliates, parent
corporations, if any, joint venturers, successors and assigns, heirs,
executors, administrators and trustees ("Customer Releasors"), hereby
discharges and releases AT&T and its past and present employees, agents,
shareholders, officers, subsidiaries, predecessors, affiliates, parent
corporations, if any, joint venturers, successors and assigns, heirs,
executors, administrators and trustees ("AT&T Releasees"), from any and all
rights, claims, damages, actions, judgments, obligations, attorneys' fees,
indemnities, subrogations, duties, demands, controversies or liabilities, at
law or in equity, known or unknown, matured or unmatured, foreseeable or
unforeseeable, which Customer Releasors now have or ever had against AT&T
Releasees up to the date of this Agreement relating to CT 969 or the resale of
AT&T long distance telecommunications services,
3
AT&T/MIDCOM Confidential and Proprietary
<PAGE> 4
except Customer retains its rights with respect to the Existing Disputes
described in Section 3 of this Agreement.
(b) AT&T, on behalf of itself and its employees, agents, shareholders,
officers, subsidiaries, predecessors, affiliates, parent corporations, if any,
joint venturers, successors and assigns, heirs, executors, administrators and
trustees ("AT&T Releasors"), hereby discharges and releases Customer and its
past and present employees, agents, shareholders, officers, subsidiaries,
predecessors, affiliates, parent corporations, if any, joint venturers,
successors and assigns, heirs, executors, administrators and trustees
("Customer Releases"), from any and all rights, claims, damages, actions,
judgments, obligations, attorneys' fees, indemnities, subrogations, duties,
demands, controversies or liabilities, at law or in equity, known or unknown,
matured or unmatured, foreseeable or unforeseeable, which AT&T Releasors now
have or ever had against Customer Releasees up to the date of this Agreement
relating to its CT 969 service and Customer's resale of AT&T long distance
telecommunications services, except AT&T retains its rights with respect to the
Existing Disputes described in Section 3 of this Agreement, and with respect to
the payments to be made as provided in section 2(b) of this Agreement.
7. Entire Agreement
This Agreement (including any exhibits and CT 969) is the sole, only,
entire and complete agreement of the parties relating in any way to the subject
matter hereof. No statements, promises or representations have been made by any
party to any party, or are relied upon, and no consideration has been or is
offered, promised, expected or held out, other than as stated in this
Agreement. There are no oral or written collateral agreements. All prior
discussions and negotiations regarding the dispute have been, and are, merged
and integrated into, and are superseded by, this Agreement.
8. Breach of Agreement
Except as provided for in Section 4, in the event that either party is
in breach of any material obligation hereunder, the other party, at its option
and without prior Notice to the breaching party, may commence an action against
such breaching party in any court of competent jurisdiction to enforce the
terms and obligations identified in this Agreement.
9. Ownership of Claim
The parties hereto warrant that they have not assigned or transferred,
in any manner, to any person or entity, any right
4
AT&T/MIDCOM Confidential and Proprietary
<PAGE> 5
or interest to which they may be entitled regarding the dispute between the
parties. Each party warrants and represents to the other party that it is the
owner and holder of all rights concerning the claim that is the subject of this
Agreement.
10. No Admission of Liability
This Agreement, the contents thereof or its execution shall not be
construed as any admission of liability by either party.
11. Legal Counsel
Each of the parties represents that in the execution of this
Agreement, and the negotiations leading thereto, it had the opportunity to
consult legal counsel of its own selection. Prior to the execution of this
Agreement by each party, the party's attorney reviewed this Agreement, made any
desired changes and advised to the party with respect to making the settlement
and release provided herein and of executing this Agreement.
12. Applicable Law
This Agreement shall be construed in accordance with and be
governed by the internal laws of the State of New York in effect as of the date
of execution, without regard to the principles of conflicts of law thereof.
13. Enforcement of Agreement
Except as provided in Section 4, if any action at law or in equity,
including an action for declaratory or injunctive relief, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be
entitled to all of its ordinary and necessary costs in prosecuting or defending
said action, including reasonable attorneys' fees, which may be set by the court
in which the action for enforcement if brought, or in a separate action for
that purpose, in addition to any other relief to which the prevailing party may
be entitled.
14. Miscellaneous
(a) The delay or failure of a party to exercise any right, power or
privilege hereunder or failure to strictly enforce any breach or default shall
not constitute a waiver with respect thereto and no waiver of any such right,
power, privilege, breach or default on any one occasion shall constitute a
waiver thereof on any subsequent occasion unless clear and express notice
thereof in writing is provided.
5
AT&T/MIDCOM Confidential and Proprietary
<PAGE> 6
(b) If any provision of this Agreement is held to be invalid or
unenforceable, all other provisions shall nevertheless continue in full force
and effect, except that non-occurrence of the conditions specified in paragraph
2(a) herein shall completely void this Agreement in accordance with the terms
thereof.
15. Confidentiality
The parties agree to use their best efforts to keep both the
fact of and the consideration for this Agreement confidential and agree not
to disclose it to others unless required to do so by legal process issued by a
Court or regulatory agency of competent jurisdiction. If asked about the
dispute, each party shall respond only that the dispute has been resolved to
its satisfaction. MIDCOM may disclose the existence of this Agreement and may
describe, generally, its payment obligations to AT&T under the terms of this
Agreement as necessary to comply with State or Federal rules or regulations.
16. Notices
All notices hereunder shall be in writing and shall be deemed
to have been given pursuant to the following schedule:
Overnight Courier - business day following mail;
Telefax - business day of transmission if sent before
2 p.m. recipient's time;
Personal Delivery - business day of delivery;
Mail - postage prepaid, third business day
following date of mailing (date of postmark);
Certified Mail - three days following date of postmark
TO: MIDCOM Communications Inc.
Attention: President
1600 MIDCOM Tower
1111 Third Avenue
Seattle, Washington 98101
6
AT&T/MIDCOM Confidential and Proprietary
<PAGE> 7
WITH COPY TO:
MIDCOM Communications Inc.
Attn: General Counsel
1600 MIDCOM Tower
1111 Third Avenue
Seattle, Washington 98101
TO: AT&T CORP.
Attn: Michael Oyster
Division Manager
Room 14D13
Bridgewater, New Jersey 08807
WITH COPY TO:
AT&T CORP.
Richard R. Meade, Esq.
Room 3250H3
295 North Maple Avenue
Basking Ridge, New Jersey 07920
17. Amendments
Any amendments, modifications or supplements to this Agreement shall be
valid only if all such amendments, modifications, or supplements are in writing
and are signed by an authorized representative of all parties.
18. Waiver
No waiver of any covenant, condition or limitation herein contained
shall be valid unless the same is made in writing and duly executed by the
party making the waiver. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, whether or not similar. The failure
or neglect of either party on any occasion to enforce any provision of this
Agreement shall not restrain or limit such party from enforcing such provisions
upon any other occasion or occasions if such party elects to do so, and no
written waiver of any breach of this Agreement shall be deemed to be a
continuing waiver of such breach unless so expressly stated. Any waiver shall be
null and void if the party requesting such waiver has not provided a full and
complete disclosure of all material facts relevant to the waiver requested.
19. Assignment
This Agreement is not assignable by any party.
7
AT&T/MIDCOM Confidential and Proprietary
<PAGE> 8
20. Captions/References
The captions in this Agreement are inserted solely for the
purpose of facilitating easy reference and shall not be construed in any way as
part of this Agreement, or as altering the provisions of this Agreement.
References herein to Articles, Sections, Schedules or Exhibits are, unless
otherwise stated, references to the specified Article, Section, Schedule or
Exhibit hereof or hereto.
21. Multiple Originals
This Agreement is intended to have multiple executed originals.
The parties agree that each executed original is as valid and binding as any
other executed original.
IN WITNESS whereof, the parties have affixed their signatures
effective as of the date first above written.
AT&T Corp. MIDCOM Communications Inc.
By: /s/ L. I. ZINGALE By: /s/ WILLIAM H. OBERLIN
------------------------------- ---------------------------------
(Signature) (Signature)
Lance Zingale William H. Oberlin
------------------------------- ----------------------------------
(Name) (Name)
Specialized Mkts. V.P. President & CEO
------------------------------- ------------------------------------
(Title) (Title)
10/31/96 10/31/96
------------------------------- ------------------------------------
(Date Executed) (Date Executed)
8
AT&T/MIDCOM Confidential and Proprietary
<PAGE> 9
Description: Ex-10.118
ATTACHMENT A
TO AT&T RELEASE AND
SETTLEMENT AGREEMENT
CARRIER AGREEMENT
BETWEEN
MIDCOM COMMUNICATIONS INC. AND AT&T CORP.
[Filed as Exhibit 10.119 to Amendment No. 2 to the
Company's Registration Statement on Form S-1,
File No. 333-14427]
<PAGE> 10
Description: Ex-10.118
ATTACHMENT B
TO AT&T RELEASE AND
SETTLEMENT AGREEMENT
AT&T / MIDCOM Communications
Summary of Amounts Owed From MIDCOM to AT&T
Outstanding Amount Per Letter of Intent $ 8,174,386
Mathematical Error on Financial Overview (1,897,270)
Additional Invoices for June Usage Excluded
From the Amount Specified on the
Letter of Intent 360,473
Disputes Per the Financial Overview 1,069,708
-----------
Gross Amount Per AT&T 7,707,295
EBO Credits Applied to Stand Alone
Accounts That MIDCOM Did
NOT Receive Magnetic Media (684,109)
EBO Credits Applied To 3,542 Customers
That MIDCOM Did NOT Receive
Timely Agings Nor Sufficient Time
To Perform Collection Efforts (138,349)
New Dispute For Stand Alone Accounts That
MIDCOM Did NOT Receive
Magnetic Media (46,450)
Tax Disputes (144,544)
Dispute For Old Traffic (received odrs approx.
1 year after call was made) (103,795)
-----------
Net Amount Owed By MIDCOM To AT&T For
Usage Through 6/30/96 $ 6,590,048
===========
<PAGE> 1
[*] DESIGNATES MATERIAL FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED, WHICH MATERIAL HAS BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.119
CARRIER AGREEMENT
BETWEEN
MIDCOM COMMUNICATIONS INC.
AND
AT&T CORP.
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 2
-i-
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. GENERAL TERMS AND CONDITIONS ........................................ 1
1.1. Services Provided .......................................... 1
1.2. Duration of Agreement ...................................... 1
1.3. Applicability of AT&T Tariffs .............................. 2
1.4. Provisioning ............................................... 2
1.5. Billing and Payment ........................................ 2
1.6. Deposits ................................................... 5
2. USE OF THE SERVICES ................................................. 6
2.1. Resale of Services ......................................... 6
2.2. Abuse of the Services ...................................... 6
2.3. Fraudulent Use of the Services ............................. 7
2.4. Interference, Impairment or Improper Use ................... 8
3. TERMINATION OF AGREEMENT ............................................ 8
3.1. Termination for Material Non-Compliance .................... 8
3.2. Termination for Nonpayment ................................. 9
3.3. Termination for Breach of Warranty by CUSTOMER ............. 9
4. LIMITATIONS OF LIABILITY AND INDEMNIFICATIONS ....................... 10
4.1. Limitations of Liability ................................... 10
4.2. Indemnifications ........................................... 11
5. WARRANTIES .......................................................... 12
5.1. Warranties by CUSTOMER ..................................... 12
</TABLE>
AT&T/MIDCOM CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 3
-ii-
TABLE OF CONTENT
Page
5.2. Warranties by AT&T.......................................... 13
5.3. Disclaimer of Other Warranties.............................. 14
6. INTELLECTUAL PROPERTY ISSUES.......................................... 14
6.1. Restrictions Against Use of Name and Brand Identification... 14
6.2. Inconsistent Use............................................ 15
6.3. No Patent or Software License............................... 18
6.4. Confidentiality............................................. 18
7. DISPUTE RESOLUTION.................................................... 21
7.1. Mediation................................................... 21
7.2. Arbitration................................................. 22
7.3. Court Proceedings........................................... 23
8. MISCELLANEOUS TERMS AND CONDITIONS.................................... 23
8.1. Combination with Other Services or Offers................... 23
8.2. Assignment and Delegation................................... 23
8.3. Affiliate................................................... 24
8.4. Independent Parties......................................... 24
8.5. Acknowledgement of Right to Compete......................... 24
8.6. No Third-Party Beneficiaries................................ 25
8.7. Access to Customer's Premises............................... 25
8.8. Network Equipment........................................... 25
8.9. Force Majeure............................................... 25
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 4
-iii-
TABLE OF CONTENT
Page
8.10. Loss....................................................... 26
8.11. Notices.................................................... 26
8.12. Modification And Waiver.................................... 27
8.13. Severability............................................... 28
8.14. Choice of Law.............................................. 28
8.15. Compliance with Laws....................................... 28
8.16. Export Regulation Compliance............................... 28
8.17. Entire Agreement........................................... 29
8.18. Index of Defined Terms..................................... 29
ATTACHMENTS
A Service Description
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 5
THIS CARRIER AGREEMENT is made and entered into by and between MIDCOM
Communications Inc., a corporation organized and existing under the laws of the
Washington and having an office at 1111 Third Avenue, Seattle, Washington 98101
("CUSTOMER") and AT&T Corp., a corporation organized and existing under the
laws of the State of New York and having an office at 295 North Maple Avenue,
Basking Ridge, New Jersey 07920 ("AT&T").
1. GENERAL TERMS AND CONDITIONS
1.1. SERVICES PROVIDED.
AT&T shall provide the telecommunications services described in
Attachment A (collectively referred to as the "Services") to CUSTOMER pursuant
to the rates, terms and conditions of this Carrier Agreement, including the
Attachment hereto (collectively referred to as the "Agreement"), and (to the
extent necessary to comply with applicable laws and regulations) pursuant to the
rates, terms and conditions of AT&T's state tariffs governing the Services.
1.2. DURATION OF AGREEMENT.
(a) This Agreement shall become effective on the date it is
executed by both parties (the "Effective Date"). The rates, terms and
conditions of this Agreement will not apply to the Services until the first day
of the Term.
(b) The Term of this Agreement shall be as specified in Attachment
A. The Agreement may be terminated prior to the end of the Term only as
specifically provided in this Agreement.
(c) The provisions of this Agreement will apply with respect to all
Services provided under this Agreement during the Term. Any Services provided
after the Term is over shall be provided on such terms as then generally apply
to AT&T customers for the same services with no term, revenue or volume
commitments.
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 6
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1.3. APPLICABILITY OF AT&T TARIFFS.
AT&T's tariffs filed with the F.C.C. shall apply to the Services to the
extent provided in Attachment A.
1.4. PROVISIONING.
CUSTOMER is responsible for placing any orders as necessary for AT&T to
provision the Services. CUSTOMER shall provide provisioning information as is
required according to AT&T's standard ordering procedures applicable to
CUSTOMER.
1.5. BILLING AND PAYMENT.
(a) CUSTOMER is liable for all amounts due to AT&T under this
Agreement. AT&T will provide to CUSTOMER a single monthly bill on magnetic tape
for each of the Services, except that, at AT&T's option, the billing for more
than one of the Services may be combined on a single monthly bill on magnetic
tape. Said bill or bills will be sent to one CUSTOMER location designated by
CUSTOMER.
(b) Payment of charges under this Agreement is due, and CUSTOMER's
obligation to pay such charges is enforceable, upon presentation of a bill to
CUSTOMER or CUSTOMER's designate. Payment shall be made to AT&T by electronic
funds transfer, or by such other payment method as the parties may agree in
writing. Except as provided in Section 1.5(c), payment shall be considered
timely if made within one month after the date of the bill.
(c) The following payment provisions will apply until such time as
CUSTOMER either establishes a record of timely payment for at least one year,
or posts a deposit (or other assurance of payment satisfactory to AT&T) equal
to three months' net charges, but in no event less than [*].
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 7
- 3 -
(1) Beginning October 21, 1996, and every Monday thereafter
(or the next business day if the Monday is a holiday), CUSTOMER will
submit to AT&T an estimated weekly payment (the "Weekly Payment") to be
applied to CUSTOMER's account for Services provided under this
Agreement. Customer's failure to submit any Weekly Payment in full on
or before the due date established may result in disconnection of
service upon five days' prior written notice.
(2) The Weekly Payment for October 21, 1996 will be [*].
The Weekly Payment thereafter shall be [*], subject to modification as
follows. At least once every three months, AT&T, in consultation with
CUSTOMER, shall determine CUSTOMER's average weekly charges for the
three most recently-available billing months (based on net billed
amounts, and taking disputed charges into account only to the extent
deemed appropriate by AT&T). If the then-effective Weekly Payment
amount is more than ninety percent (90%) of such average weekly charges,
AT&T shall establish a new Weekly Payment amount approximately equal to
ninety percent (90%) of such average weekly charges. If the
then-effective Weekly Payment amount is less than ninety percent (90%)
of such average weekly charges, AT&T may establish a new Weekly Payment
amount approximately equal to ninety percent (90%) of such average
weekly charges. The new Weekly Payment amount will become effective ten
(10) days after AT&T provides written notice to CUSTOMER of the new
amount. Except as provided in Section 1.5(c)(4) and 1.5(d), disputed
charges shall not be withheld from the Weekly Payment amount.
(3) The Weekly Payments will be applied first against any
amounts past due, and then against current charges. A true-up payment
will be due with the last Weekly
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 8
- 4 -
Payment of each calendar month. The true up payment will be equal to
the sum of the amount shown as due on the DNS invoice dated the 29th of
the prior calendar month and the SDN and Inbound Services invoices dated
the 1st of the calendar month in which the Weekly Payment is made,
subject to adjustment for disputes as described in Section 1.5(d). If
the sum of such amounts is negative (i.e., there is a net credit due to
CUSTOMER) for two consecutive months, AT&T will adjust the amount of the
Weekly Payment pursuant to Section 1.5(c)(2).
(4) If CUSTOMER requests a credit ????? account, CUSTOMER's
Director of Revenue Accounting at AT&T shall review the account status
with the AT&T District Manager responsible for collection of charges
from CUSTOMER and apply reasonable and normal business standards to
promptly determine whether or not the credit should be applied to
CUSTOMER's account. If the AT&T District Manager agrees in writing to
reduce (in whole or in part) one or more Weekly Payments as a result of
such a credit, then CUSTOMER may make Weekly Payments adjusted in the
manner so specified by AT&T.
(d) If CUSTOMER provides to AT&T a written bona fide dispute of a
charge before payment is due for that charge, payment will be considered timely
if made within fifteen (15) days after AT&T sustains the charge as correct.
CUSTOMER may withhold payment of charges under this Section for any calls for
which AT&T has not provided standard call detail records on magnetic tape or
other electronic media (unless AT&T's failure to provide such records is
attributable to CUSTOMER); payment of such charges will be considered timely if
made within thirty (30) days after AT&T thereafter provides such call detail
records. Payment by CUSTOMER of a disputed charge does not preclude CUSTOMER
from continuing to dispute
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 9
- 5 -
the charge, nor does acceptance by AT&T of a partial payment preclude AT&T from
collecting the unpaid amount (notwithstanding any restrictive endorsements).
(e) CUSTOMER shall be solely responsible for rendering bills to and
collecting charges from its own customers. Failure of CUSTOMER to bill or
collect charges shall not excuse in whole or in part CUSTOMER's
responsibilities to AT&T under this Agreement, including but not limited to the
responsibility to render to AT&T timely payment of charges.
(f) If CUSTOMER does not make timely payment of any charge(s) other
than bona fide disputes, AT&T may apply a late payment charge equal to 1% of
such charge(s) for each whole month and pro rata for any partial month between
the date on which the payment would have been considered timely and the date on
which the payment is made to AT&T, except that if such charge is found to be in
excess of the maximum amount allowed by applicable payment charge shall be the
maximum amount allowed by applicable law.
(g) CUSTOMER is responsible for safeguarding the service from use
by ???? persons, and to pay all charges for use of the service by any persons
whether or not a CUSTOMER.
1.6 DEPOSITS.
AT&T may at any time require CUSTOMER to furnish a deposit under the
same terms and conditions that apply to deposits under AT&T Tariff F.C.C. No. 1,
Section 2.5.6., as it exists on the Effective Date.
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 10
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2. USE OF THE SERVICES
2.1 RESALE OF SERVICES.
(a) CUSTOMER may (1) resell the Services directly (e.g., through
CUSTOMER's own employees, agents and/or independently contracted sales
representatives) to entities that will actually use the service (referred to in
this Agreement as "End Users") and/or (2) resell the Services directly to other
resellers for ultimate resale to End Users (which ultimate resale may but need
not be through one or more other intermediaries). All resellers and other
intermediaries in the sales chain between CUSTOMER (including its employees,
agents and independently contracted sales representatives) and an End User are
referred to in this Agreement as "Intermediate Resellers".
(b) AT&T has no relationship with CUSTOMER's End Users or
Intermediate Resellers under this Agreement and has no obligation to
communicate with, or provide support to CUSTOMER's End Users or Intermediate
Resellers. AT&T shall not use information provided by CUSTOMER in connection
with the provision of the Services in support of AT&T's own marketing efforts.
2.2 ABUSE OF THE SERVICES.
The abuse of Service is prohibited. The following activities constitute
abuse:
(a) Using Service to make calls that might reasonably be expected
to frighten, abuse, torment, or harass another, or
(b) Using Service in such a way that it interferes unreasonably
with the use of Service or AT&T's network by others.
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 11
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2.3. FRAUDULENT USE OF THE SERVICES.
The fraudulent use of, or the intended or attempted fraudulent use of
Service is prohibited. In any instance in which AT&T believes in good faith
that there is fraudulent use of Service, AT&T may, immediately and upon written
notice to the Customer, and without liability on the part of AT&T, restrict,
suspend or discontinue providing Service. In the event that Customer does not
provide to AT&T within five (5) business days of the temporary restriction of
service acceptable proof that said use has ceased and that appropriate measures
have been taken to prevent its recurrence, AT&T may immediately and without
further notice discontinue service and CUSTOMER shall be liable for a
Termination Charge as provided in Attachment A. If the event giving rise to the
right to restrict, suspend, or discontinue service is limited to one or more
specific locations, 800/888 numbers or calling cards, AT&T shall, to the extent
practicable, limit the restriction, suspension or discontinuance to those
locations, 800/888 numbers or calling cards. This Agreement does not obligate
AT&T to monitor, notify CUSTOMER about, or prevent fraudulent use of Service.
The following activities constitute fraudulent use:
(a) Using Service to transmit any message or code, locate a person,
or otherwise give or obtain information, without payment for Service (AT&T shall
not apply this provision to CUSTOMER differently than it generally applies to
comparable provision of AT&T Tariff F.C.C. No. 1 to other customers);
(b) Using or attempting to use Service with the intent to avoid the
payment, either in whole or in part, of any charges by any means or device;
(c) Using Service to carry calls that originate on the network of a
facilities-based interexchange carrier other than AT&T and terminate
disproportionately to locations for which
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 12
- 8 -
the cost to AT&T of terminating switched access is above the average cost of
terminating switched access, based on the published access tariffs of local
exchange companies; or
(d) Using the Services to carry calls that originate on the network
of a facilities-based interexchange carrier other than AT&T and terminate
disproportionately to locations for which the cost to AT&T of terminating
switched access is above AT&T's average cost of terminating switched access.
2.4. INTERFERENCE, IMPAIRMENT OR IMPROPER USE.
Customer may not use Service in any manner that subjects AT&T personnel
or non-AT&T personnel to hazardous conditions or results in immediate harm to
the AT&T network or other AT&T services. In any instance in which AT&T believes
in good faith that Service is being used in such manner, AT&T may immediately
restrict Service on a temporary basis. In such cases, AT&T will make a
reasonable effort to give the Customer prior notice. In the event that Customer
does not provide to AT&T within five (5) business days of the temporary
restriction of service acceptable proof that said use has ceased and that
appropriate measures have been taken to prevent its recurrence, AT&T may
immediately and without further notice terminate service and CUSTOMER shall be
liable for a Termination Charge as provided in Attachment A.
3. TERMINATION OF AGREEMENT
3.1. TERMINATION FOR MATERIAL NON-COMPLIANCE.
If either party fails to comply with one or more of the material terms
and conditions of this Agreement, the other party may provide written notice of
such failure to the party in noncompliance and such party shall have ninety
(90) days following receipt of such notice to cure the noncompliance. If such
cure is not demonstrated to the reasonable satisfaction of the party
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 13
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claiming the noncompliance within the ninety (90) day period, such party may
immediately terminate without liability this Agreement and the Services
provided hereunder upon written notice to the party in noncompliance provided
within sixty (60) days after the end of the cure period. In the event of a
termination under this Section, CUSTOMER shall be liable for a Prorated
Shortfall Charge to the extent provided in Attachment A. This Section shall not
apply to a termination for nonpayment.
3.2. TERMINATION FOR NONPAYMENT.
Except as otherwise provided in Section 1.5(d), if CUSTOMER fails to
make payment of charges due under this Agreement, AT&T may deny and/or restrict
the Services upon at least five (5) days' prior written notice to CUSTOMER.
Upon payment of all such charges, the denial and/or restriction of the Services
will be removed, except that if AT&T denies and/or restricts the Services for
nonpayment and CUSTOMER fails to pay the charges that gave rise to the denial
of Services within fifteen (15) days after the date on which such denial of
Services began, AT&T may immediately terminate without liability this Agreement
and the Services provided hereunder. In the event of a termination under this
Section of the entire Agreement, CUSTOMER shall be liable for a Termination
Charge as provided in Attachment A.
3.3. TERMINATION FOR BREACH OF WARRANTY BY CUSTOMER.
If at any time during the term of this Agreement CUSTOMER is in
material noncompliance with any of its Warranties under this Agreement, AT&T
may provide written notice of such non-compliance to CUSTOMER and CUSTOMER
shall have thirty (30) days following receipt of such notice to cure such
non-compliance. If such cure is not demonstrated to the reasonable satisfaction
of AT&T within the thirty (30) day period, AT&T may immediately terminate this
Agreement and the Services provided hereunder without liability upon written
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 14
- 10 -
notice to CUSTOMER. In the event of a termination under this Section, CUSTOMER
shall be liable for a Termination Charge as provided in Attachment A.
4. LIMITATIONS OF LIABILITY AND INDEMNIFICATIONS
4.1. LIMITATIONS OF LIABILITY.
(a) AT&T's liability, if any, for any claim or suit by CUSTOMER for
damages associated with the installation, provision, termination, maintenance,
repair or restoration of any of the Services shall not exceed an amount equal
to the charge under this agreement for the affected service for the period
during which the service was affected. Any liability for damages shall be in
addition to any credit allowance that may otherwise be due.
(b) IN NO EVENT SHALL AT&T OR CUSTOMER BE LIABLE TO EACH OTHER IN
CONNECTION WITH THE INSTALLATION, PROVISION, TERMINATION, MAINTENANCE, REPAIR,
RESTORATION, USE OR RESALE OF THE SERVICES FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOST PROFITS OR DIMINISHED BUSINESS VALUE, REGARDLESS OF THE FORM
OF ACTION WHETHER IN CONTRACT, INDEMNITY WARRANTY, STRICT LIABILITY OR TORT,
INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE.
(c) AT&T is not liable for damages caused by service, channels, or
equipment which it does not furnish.
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 15
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(d) Nothing in this Section shall limit either party's liability
for damages to individuals or their estates for bodily injury or death
proximately caused by that party's negligence. The limitations of liability set
forth in this Agreement shall survive failure of an exclusive remedy.
4.2 INDEMNIFICATIONS.
(a) AT&T shall be indemnified, defended, and held harmless by
CUSTOMER against all claims, losses, or damages awarded, to the extent that
they arise from the use of the Services, regardless of the form of action,
whether in contract, tort (including AT&T's active or passive negligence),
warranty, or strict liability, involving:
(1) Claims for libel, slander, invasion of privacy, or
infringement of copyright arising from any communication not initiated
by AT&T or its agent;
(2) Claims for patent infringement arising from combining or
using the Services in connection with facilities or equipment furnished
by others, provided that such claim would not have arisen if the
Services had not been combined or used in connection with facilities or
equipment furnished by others;
(3) Claims arising out of the use of the Services in an
explosive atmosphere;
(4) Claims brought against AT&T by any of CUSTOMER's
Intermediate Carriers or End Users related to the Services provided to
CUSTOMER under this Agreement.
(b) CUSTOMER shall be indemnified, defended and held harmless by
AT&T against all claims, losses or damages awarded, to the extent that they
arise from use of the Services, regardless of the form of action, whether in
contract, tort (including CUSTOMER's active or passive negligence), warranty,
strict liability, intellectual property infringement or
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 16
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misappropriation involving claims of patent, copyright, trademark or trade
secret infringements arising solely from the use of the Services.
(c) If, in connection with any claim, lawsuit, or demand brought by
a third party against either party (the "Indemnified Party"), the Indemnified
Party asserts it is entitled to indemnification and defense from the other party
(the "Indemnifying Party") pursuant to this Agreement, the Indemnified Party
shall provide prompt written notice to the Indemnifying Party of such claim,
lawsuit or demand, and shall tender the defense of such claim, lawsuit, or
demand to the Indemnifying Party. The Indemnifying Party shall cooperate in
every reasonable manner with the defense or settlement of such claim, lawsuit,
or demand. The Indemnifying Party shall not be liable for settlements by the
Indemnified Party of any such claim, demand, or lawsuit unless the Indemnifying
Party has approved the settlement in advance or unless the defense of the claim,
demand, or lawsuit has been tendered to the Indemnifying Party, in writing, and
the Indemnifying Party has failed promptly to undertake the defense.
5. WARRANTIES
5.1 WARRANTIES BY CUSTOMER.
The provision of service to CUSTOMER is expressly conditioned upon CUSTOMER
making and remaining in compliance with the following Warranties.
(a) CUSTOMER is an interexchange telecommunications common carrier
and has obtained the required operating authority in all states in which it
conducts business, as well as all authority required by the FCC, for resale of
telecommunications services.
(b) CUSTOMER is and will remain at all times in material compliance
with all federal and state laws and regulations applicable to its resale of the
Services obtained under this
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 17
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Agreement, including but not limited to those laws and regulations applicable to
the authorization and proof of authorization necessary to convert an End-Users
former service to Customer's service as the End-User's Primary Interexchange
Carrier.
(c) CUSTOMER will utilize the Service provided under this Agreement
only for lawful purposes, including but not limited to resale of service to End
Users and/or Intermediate Resellers.
(d) CUSTOMER will exercise its best commercially reasonable efforts
to ensure that its Intermediate Resellers or End Users do not engage in any
activity which, if done by CUSTOMER directly, would place CUSTOMER in material
noncompliance with any of the provisions of this Agreement.
(e) The person executing this Agreement on behalf of CUSTOMER is
fully authorized to do so.
5.2 WARRANTIES BY AT&T.
(a) AT&T is an interexchange telecommunications common carrier and
has obtained the required operating authority in all states in which it
conducts business, as well as all authority required by the FCC, for the sale
of telecommunications services.
(b) AT&T is and will remain at all times in material compliance
with all federal and state laws and regulations applicable to the sale and
provision of Service to CUSTOMER under this Agreement.
(c) The person executing this Agreement on behalf of AT&T is fully
authorized to do so.
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 18
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5.3 DISCLAIMER OF OTHER WARRANTIES.
AT&T (INCLUDING ITS SUBSIDIARIES, AFFILIATES, PREDECESSORS, SUCCESSORS
AND ASSIGNS) MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS PROVIDED IN
SECTION 5.2, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES PROVIDED PURSUANT
TO THIS AGREEMENT.
6. INTELLECTUAL PROPERTY ISSUES
6.1 RESTRICTIONS AGAINST USE OF NAME AND BRAND IDENTIFICATION.
(a) Neither party will (1) use the other party's corporate logos,
trade dress, or other symbols that serve to identify and distinguish such other
party from its competitors (or use confusingly similar corporate logos, trade
dress or such other symbols), or (2) conduct business under the other party's
corporate or trade names, logos, trademarks, service marks, trade dress,
or other symbols that serve to identify and distinguish such other party from
its competitors (or under any confusingly similar corporate or trade names,
logos, trademarks, service marks, trade dress or such other symbols).
(b) Except with the express written authorization of AT&T, neither
CUSTOMER nor any Intermediate Reseller will, in connection with any marketing,
sales or other activity, (1) use the AT&T's corporate or trade names,
trademarks, or service marks (or use confusingly similar corporate or trade
names, trademarks, or service marks), or (2) indicate or imply to any End User,
potential End User, or other entity that AT&T is the underlying carrier from
which CUSTOMER or an Intermediate Reseller obtains the service it is reselling
to the End User.
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(c) Neither CUSTOMER nor any Intermediate Reseller will indicate or
imply to any Intermediate Reseller, End User, potential End User, or other
entity that (1) AT&T is selling or providing service to any End User, (2)
CUSTOMER or any Intermediate Reseller is affiliated with AT&T or authorized by
AT&T to sell or provide service to any End User, potential End User, or other
entity, or (3) CUSTOMER or any Intermediate Reseller is selling or providing
service to any End User, potential End User, or other entity jointly, in
collaboration, or in partnership with AT&T, or as the agent of AT&T.
Notwithstanding the foregoing, CUSTOMER may, if required by law, disclose to a
governmental agency that AT&T provides the Services to CUSTOMER.
(d) CUSTOMER will (1) notify its Intermediate Resellers of the
restrictions against use of AT&T's corporate or trade names, logos, trademarks,
service marks, trade dress, or other symbols that serve to identify and
distinguish AT&T from its competitors (or any confusingly similar corporate or
trade names, logos, trademarks, service marks, trade dress or such other
symbols), and (2) direct such Intermediate Resellers to comply with such
restrictions and to provide a similar notification and directions to any other
Intermediate Resellers to which the first Intermediate Reseller may provide
service.
6.2 INCONSISTENT USE.
(a) If AT&T finds that CUSTOMER (or any Intermediate Reseller), is
using AT&T's corporate or trade names, logos, trademarks, service marks, trade
dress or other symbols that serve to distinguish AT&T from its competitors in a
manner inconsistent with Section 6.1. of this Agreement (an "Inconsistent Use"),
AT&T shall provide notice of such Inconsistent Use to CUSTOMER. The exclusive
means and remedy for settling any dispute between the parties as to whether a
particular use constitutes an Inconsistent Use shall be an arbitration conducted
under the Non-Administered Arbitration Rules (the "Rules") of the CPR Institute
for Dispute Resolution
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
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(the "CPR Institute"), except as otherwise provided in this Agreement. In the
case of a conflict between this Agreement and the Rules, this Agreement will
govern.
(b) If AT&T provides notice to CUSTOMER of an Inconsistent Use, and,
within 30 days after the receipt of such notice, CUSTOMER either (1) cures the
Inconsistent Use or takes appropriate commercially reasonable efforts to prevent
an Intermediate Reseller from continuing such use (which efforts shall include
ceasing to provide service to the Intermediate Reseller, if necessary), (2)
demonstrates that no Inconsistent Use occurred, or (3) demonstrates that no
person responsible for the Inconsistent Use was either CUSTOMER, an Affiliate of
CUSTOMER, an Intermediate Reseller, or an employee, agent or independently
contracted sales representative of any of them, then there shall be no loss of
discount arising out of the use that gave rise to the notice. If CUSTOMER
thereafter seeks to contest AT&T's determination that the use was an
Inconsistent Use, CUSTOMER must institute an arbitration under the Section. If
CUSTOMER does not obtain a ruling in such arbitration that the use was not an
Inconsistent Use, CUSTOMER shall be precluded from repeating such use (and shall
take appropriate, commercially reasonable measures to ensure that no
Intermediate Reseller repeats such use).
(c) If AT&T provides notice to CUSTOMER of an Inconsistent Use, and
CUSTOMER does not avoid the withholding of discount by accomplishing one of the
steps described in (1) through (3) of Section 6.2(b) within the specified
period, the discounts and credits set forth in Attachment A will not apply
beginning as of the date AT&T's notice is given and ending as of the date that
CUSTOMER accomplishes one of the steps described in (a) through (c) of Section
6.2(b). Any such suspension of discounts shall not relieve CUSTOMER from its
obligations to comply with any other conditions contained in this Agreement.
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(d) If CUSTOMER seeks to contest AT&T's determination that the use
was an Inconsistent Use, CUSTOMER shall institute an arbitration as provided
below. If CUSTOMER does not institute such an arbitration, CUSTOMER shall be
precluded from contesting AT&T's determination that the use was an Inconsistent
Use. If the Arbitrator decides that the use giving rise to the notice was not
an Inconsistent Use, any discounts that were not applied as a result of the use
will be restored and applied to CUSTOMER's account as a credit.
(e) To institute an arbitration under this subsection, CUSTOMER
shall submit the dispute to a tribunal of three arbitrators to be selected
jointly by the parties, or, at the option of either party, to be selected by the
procedures established under the then-current rules of the CPR Institute for the
selection of arbitrators. Each of the arbitrators shall be an attorney with not
less than ten (10) years experience in the practice of trademark law. The
parties shall cooperate in good faith to achieve a prompt resolution of the
arbitration. In the event that the parties, in consultation with the CPR
Institute, determine that a panel of three qualified arbitrators cannot be
appointed pursuant to this procedure, the parties will work in good faith, in
consultation with the CPR Institute, to implement an alternative process for
appointing a panel of three qualified arbitrators.
(f) The arbitration panel will determine whether the use that gave
rise to the notice constitutes an Inconsistent Use, and the parties will comply
with such interpretation. Judgment on the award of the arbitration panel may be
entered in any court or administrative body having jurisdiction.
(g) Initially, all administrative fees of the CPR Institute and all
Arbitrator compensation ("Arbitration Fees") shall be borne equally by CUSTOMER
and AT&T. At the conclusion of the arbitration, the arbitration panel shall
award to the prevailing party (as
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determined by the arbitration panel), the Arbitration Fees paid by such party.
Each party shall bear the expense of its own counsel, experts, witnesses,
preparation and presentation of proofs, travel, and other out-of-pocket
expenses.
6.3 NO PATENT OR SOFTWARE LICENSE.
No license under patents or software copyrights is granted by AT&T or
shall be implied or arise by estoppel, with respect to the Services provided
under this Agreement.
6.4 CONFIDENTIALITY.
(a) Information furnished or disclosed by one party or its agent or
representative (the "Disclosing Party") to the other party or its agent or
representative (the "Receiving Party") in connection with or in contemplation
of this Agreement, or relating to current or anticipated voice and data
telecommunications needs of CUSTOMER (including but not limited to lists of
CUSTOMER's customers and/or End Users, other information about CUSTOMER's
customers and/or End Users, proposals, contracts, tariff and contract drafts,
specifications, drawings, network designs and design proposals, pricing
information, strategic plans, computer software and documentation, and other
technical or business information related to current and anticipated AT&T or
CUSTOMER products and services), shall be deemed "Confidential Information".
(b) If such information is in written, graphic or other tangible
form, it shall be deemed Confidential Information only if it is indicated by
appropriate markings or statements to be confidential or proprietary, provided,
however, that all written or oral pricing, contract, and tariff proposals
exchanged between the parties (including proposals exchanged in contemplation
of this Agreement) shall be deemed Confidential Information, whether or not
expressly indicated by markings or statements to be confidential or
proprietary.
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(c) Confidential Information shall be deemed the property of the
Disclosing Party and shall be returned to the Disclosing Party upon request
either at the end of the Term or at an earlier time if the information is no
longer needed for the purposes described in subsection (e) below.
(d) The terms and conditions of this Agreement shall be deemed
Confidential Information as to which each party shall be both a Disclosing
Party and a Receiving Party. Information that was previously known to the
Receiving Party free of any obligation to keep it confidential or is
independently developed by the Receiving Party shall not be deemed Confidential
Information. The Receiving Party shall not be required to hold in confidence
any Confidential Information that is made public by the Disclosing Party or a
third party.
(e) A Receiving Party shall hold all Confidential Information in
confidence during the Term and for a period of twelve (12) months following the
termination of this Agreement. During that period, the Receiving Party: (1)
shall use such Confidential Information only for the purposes of evaluation,
negotiation, discussion between the parties, preparation of proposals, provision
or use of AT&T products and/or services and otherwise carrying out the intent of
this Agreement; (2) shall reproduce such Confidential Information only to the
extent necessary for such purposes; (3) shall restrict disclosure of such
Confidential Information to such of its employees or its Affiliate's employees
as have a need to know such information for such purposes only; (4) shall advise
any employees to whom such Confidential Information is disclosed of the
obligations assumed in this Agreement; (5) shall not disclose any Confidential
Information to any third party (not including disclosure to an employee of an
Affiliate pursuant to (3)) without prior written approval of the Disclosing
Party except as expressly provided in this Agreement; and (6) shall use at least
the same degree of care as it uses with regard to its own proprietary or
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confidential information to prevent the disclosure, unauthorized use or
publication of Confidential Information.
(f) In the absence of a contrary instruction by a party, such
party's Affiliates, and the agents and employees of its Affiliates, shall be
deemed agents of such party for purposes of receipt or disclosure of
Confidential Information. Accordingly, any receipt or disclosure of
Confidential Information by a party's Affiliate, or by an agent or employee of
such Affiliate, shall be deemed a receipt or disclosure by the party.
(g) CUSTOMER may disclose Confidential Information to a person or
entity (other than a direct competitor of AT&T) retained by CUSTOMER to provide
advice, consultation, analysis, legal counsel or any other similar services
("Consulting Services") in connection with this Agreement or the service
provided hereunder (such person or entity hereinafter referred to as
"Consultant") only with AT&T's prior permission and only after CUSTOMER
provides to AT&T a copy of a written agreement by such Consultant (in a form
satisfactory to AT&T): (a) to use such Confidential Information only for the
purpose of providing Consulting Services to CUSTOMER, and (b) to be bound by
the obligations of a Receiving Party under this Agreement with respect to such
Confidential Information.
(h) A Receiving Party may disclose Confidential Information if such
disclosure is in response to an order or request from a court, the FCC or other
regulatory body; provided, however, that before making such disclosure, the
Receiving Party shall first give the Disclosing Party reasonable notice and
opportunity to object to the order or request, and/or to obtain a protective
order covering the Confidential Information to be disclosed. If the FCC
determines that legal requirements, including the Communications Act of 1934,
as amended, or the regulations promulgated thereunder, require the filing of
this Agreement with the Commission, or
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
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if the FCC (or a state regulatory entity with applicable jurisdiction)
otherwise requires the filing of this Agreement pursuant to authority granted
by law or regulation, the party required to make with such filing shall file
the Agreement to the extent required and each party to this Agreement shall
request confidential treatment in connection with such filing.
(i) In the event of a breach or threatened breach by a Receiving
Party or its agent or representative of the terms of this Section, the
Disclosing Party shall be entitled to an injunction prohibiting such breach in
addition to such other legal and equitable remedies as may be available to it
in connection with such breach. Each party acknowledges that the Confidential
Information of the other Party is valuable and unique and that the use or
disclosure of such Confidential Information in breach of this Agreement will
result in irreparable injury to the other party.
7. DISPUTE RESOLUTION
Except as provided in Section 6.2, if a dispute arises between the
parties relating to this Agreement or to the Services provided under this
Agreement, or to the provision, use, sale, or resale of the Services (a
"Dispute"), the parties will use good faith efforts to resolve the Dispute
promptly and fairly by negotiation. If the parties are unable to resolve the
Dispute through negotiation, the parties shall follow the dispute resolution
procedures provided in this Section.
7.1 MEDIATION.
If the parties are unable to resolve a Dispute by negotiation, the
parties shall submit it to mediation conducted by a mediator to be selected
jointly by the parties or, at the option of either party, to be selected by the
procedures established under the then-current rules of the CPR Institute for
the selection of a mediator. The parties, their representatives, other
participants and the mediator shall hold existence, content and result of the
mediation in confidence. The
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
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mediation shall conclude at such time as either party (or the mediator) notifies
the other party (or, for the mediator, both parties) in writing that the parties
are at an impasse and that continued efforts at mediation are unlikely to be
productive.
7.2. ARBITRATION.
(a) If a Dispute in which the total amount in controversy (based on
the written positions taken by the parties in the course of mediation) is ten
million dollars ($10,000,000) or less, or any Dispute (regardless of the amount
in controversy) regarding the payment, nonpayment or applicability of charges
(including shortfall or termination charges), is not successfully resolved by
negotiation or mediation, it shall be subject to binding arbitration under the
then-current Rules and supervision of the CPR Institute. The arbitration will
be held in Chicago, Illinois. The Federal Arbitration Act, 9 U.S.C. Sections 1
to 16, not New York law, will govern the arbitrability of all claims. The
arbitral decision and award will be final and binding, and either party may
enter it in any court with jurisdiction.
(b) The arbitration will be conducted by a single arbitrator who is
knowledgeable in business information, commercial matters or the
telecommunications field, as applicable, except that either party may require
that the arbitration be conducted by a tribunal of three such arbitrators by
providing written notice of such a demand to the other party before a single
arbitrator is selected. The arbitrator(s) may not limit, expand or otherwise
modify the terms of this Agreement and will not have authority to award damages
to either party beyond the limitations of liability provided in this Agreement.
(c) Each party will bear its own attorney's fees and related costs
and expenses associated with the arbitration. The parties will pay the
arbitrator(s) fees and other similar costs and expenses of the arbitration as
the Rules provide.
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(d) The parties, their representatives, other participants and the
arbitrator(s) shall hold the existence, content and result of the arbitration
in confidence except that the prevailing party shall have the right to enter
the arbitration award in a court of competent jurisdiction if such entry is
necessary to enforce the terms of the award.
(e) Neither party may bring a legal proceedings before a court or
administrative body a case in court in connection with a Dispute subject to
this Section 7.2. If a party disregards this restriction, files such a legal
proceeding, and fails to dismiss it promptly upon being notified of this
provision, that party will pay the other party's costs and expenses, including
attorney's fees, incurred after the notice in defending the legal proceeding.
7.3 COURT PROCEEDINGS.
If a Dispute not subject to Section 7.2 is not successfully resolved by
negotiation or mediation, it may be the subject of legal proceedings brought
before a court or administrative body having jurisdiction over the Dispute, and
will be submitted to arbitration only by written agreement of the parties.
8. MISCELLANEOUS TERMS AND CONDITIONS.
8.1 COMBINATION WITH OTHER SERVICES OR OFFERS.
This Agreement may not be used in combination with any other AT&T
Carrier Agreement, AT&T Contract Tariff, AT&T Tariff, promotions or other
offerings or pricing arrangements for any AT&T services.
8.2 ASSIGNMENT AND DELEGATION.
Neither party may assign its rights under this Agreement, in whole or
in part, to a third party (other than an Affiliate of the assigning party),
without the express prior written consent of
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
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the other party, which consent will not be unreasonably withheld. CUSTOMER may
delegate its obligations under this Agreement without the consent of AT&T, but
CUSTOMER shall remain liable for the performance of all such obligations
notwithstanding any such delegation. This provision shall not restrict
CUSTOMER's right to resell the Service. No resale of the Service, assignment of
rights, or delegation of duties shall release the original party from its
obligations under this Agreement.
8.3. AFFILIATE.
As used in this Agreement, an entity is an "Affiliate" of a party if
such entity directly or indirectly controls, is controlled by, or is under
common control with such party.
8.4. INDEPENDENT PARTIES.
The employees and agents of either party to this Agreement are solely
the employees or agents of that party, and not employees or agents of the other
party. Neither party is responsible for the employment, control, or conduct of
the other party's employees. AT&T's relationship with CUSTOMER, and CUSTOMER's
relationship with AT&T, under this Agreement will be that of an independent
contractor, and nothing herein will be construed to constitute either party (or
any of its Affiliates, employees, or agents), an employee, agent, fiduciary,
joint venturer or partner of the other party.
8.5. ACKNOWLEDGEMENT OF RIGHT TO COMPETE.
CUSTOMER acknowledges and understands that it remains at all times
solely responsible for the success and profits of its business. AT&T makes no
promises, warranties or representations regarding CUSTOMER's business success or
prospects of business success in connection with the provision of the Services.
CUSTOMER acknowledges and understands that
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AT&T will continue to market AT&T services directly to the public (including
actual and potential End Users, Intermediate Resellers, and competitors of
CUSTOMER) and that such marketing will from time to time bring AT&T into direct
or indirect competition with CUSTOMER. CUSTOMER acknowledges and understands
that nothing in this Agreement restricts in any way the rights of AT&T to engage
in competition with CUSTOMER or to market its services to competitors of
CUSTOMER.
8.6. NO THIRD-PARTY BENEFICIARIES.
This Agreement does not create any claim or right of action, nor is it
intended to confer any benefit on any third party, including but not limited to
any End-User or Intermediate Reseller.
8.7. ACCESS TO CUSTOMER'S PREMISES.
The Customer is responsible for arranging premises access at any
reasonable time so that AT&T personnel may install, repair, maintain, inspect or
remove Service components. Premises access must be made available at a time
mutually agreeable to the Customer and AT&T.
8.8. NETWORK EQUIPMENT.
AT&T shall retain title to all of its network equipment and facilities
used to provide Services under this Agreement.
8.9. FORCE MAJEURE.
Neither party nor its Affiliates, subsidiaries, subcontractors, or
parent corporation shall be liable in any way for delay, failure in performance,
loss or damage due to any of the following: fire, strike, embargo, explosion,
power blackout, earthquake, volcanic action, flood, war, water, the elements,
labor disputes, civil or military authority, acts of God, acts of the public
enemy, inability to secure raw materials, inability to secure products, acts or
omissions of carriers, or
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
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other causes beyond its reasonable control, whether or not similar to the
foregoing; provided, however, that any failure or inability by CUSTOMER to
resell Services provided under this Agreement or to collect payment from its
Intermediate Resellers or End-Users shall not excuse CUSTOMER from performing
its obligations under this Agreement.
8.10. LOSS.
CUSTOMER is liable to AT&T for the replacement cost of AT&T-provided
equipment installed at CUSTOMER's premises in the event of loss of said
equipment for any reason, including but not limited to theft, but not including
loss caused by a defect in the equipment itself.
8.11. NOTICES.
Any notice to the other party under this Agreement shall be given in
writing to the following individual or such individual's designated agent, and
either (a) delivered by hand, (b) sent by United States mail, postage prepaid,
to the following address, or (c) transmitted by facsimile to the following
facsimile number:
If to AT&T:
AT&T CORP.
ATTN: Michael Oyster
55 Corporate Drive
Rm. 14D13
Bridgewater, New Jersey 08807 Fax: (908) 658-2237
With Copy to:
AT&T CORP.
ATTN: Richard R. Meade, Esq.
Rm: 3250H3
295 North Maple Avenue
Basking Ridge, New Jersey 07920
AT&T CORP.
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<PAGE> 31
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If to CUSTOMER:
MIDCOM Communications Inc.
President
1600 MIDCOM Tower
1111 Third Avenue
Seattle, Washington 98101
With Copy to:
MIDCOM Communications Inc.
General Counsel
1600 MIDCOM Tower
1111 Third Avenue
Seattle, Washington 98101
The name, address or facsimile number for notice may be changed by
giving notice in accordance with this Section. If mailed in accordance with
this Section, notice shall be deemed given when actually received by the
individual addressee or designated agent or three (3) business days after
mailing, whichever is earlier. If transmitted by facsimile in accordance with
this Section, notice shall be deemed given when actually received by the
individual addressee or designated agent or one (1) business day after
transmission, whichever is earlier.
8.12 MODIFICATION AND WAIVER.
This Agreement may be modified only by a writing signed by authorized
representatives of both parties. The failure of a party to enforce any right
under this Agreement at any particular point in time shall not constitute a
continuing waiver of any such right with respect to the remaining term of this
Agreement, or the waiver of any other right under this Agreement.
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 32
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8.13 SEVERABILITY.
If any portion of this Agreement shall be found to be invalid or
unenforceable, such portion shall be void and of no effect, but the remainder
of the Agreement shall continue in full force and effect unless the Agreement
fails of its essential purpose without the voided portion.
8.14 CHOICE OF LAW.
The domestic law of the State of New York, except its conflict-of-laws
rules, shall govern the construction, interpretation, and performance of this
Agreement, except to the extent superseded by federal law.
8.15 COMPLIANCE WITH LAWS.
Each party is responsible for its own compliance with all laws and
regulations affecting its business, including but not limited to the collection
and remittance of all taxes and other levies imposed by law. Nothing contained
in this Agreement shall require either party to take any action prohibited or
omit to take any action required by applicable law, the Federal Communications
Commission or any other regulatory authorities.
8.16 EXPORT REGULATION COMPLIANCE.
To ensure compliance with Section 799.4(f) of the U.S. Export
Administration regulations, 15 C.F.R. 799.4(f), each party to this Agreement
hereby assures the other party that it does not intend to transmit, directly or
indirectly, any technical information received from the other party, or any
immediate product produced directly by use of such information, to Afghanistan,
the People's Republic of China, Iraq, any Group Q, S, W, Y or Z country
specified in Supplement No. 1 to Section 770 of the U.S. Export Administration
regulations. 15 C.F.R. 770, Supp. No. 1, or any citizen or resident of any of
the foregoing countries.
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8.17 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior written or oral
agreements, proposals, representations, statements or understandings.
8.18 INDEX OF DEFINED TERMS.
The following terms are defined in this Agreement at the indicated page:
Affiliate, 24
Agreement, 1
Arbitration Fees, 17
AT&T, 1
Confidential Information, 18
Consultant, 20
Consulting Services, 20
CPR Institute, 15
CUSTOMER, 1
Disclosing Party, 18
Dispute, 21
Effective Date, 1
End Users, 5
Inconsistent Use, 15
Indemnified Party, 11
Indemnifying Party, 12
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Intermediate Resellers, 6
Receiving Party, 18
Rules, 15
Services, 1
Term, 1
Weekly Payment, 3
* * *
AT&T and CUSTOMER, acting through their duly authorized
representatives, hereby agree to the terms set forth in this Agreement, and
warrant that their respective signatories whose signatures appear below have
been and are of the date of this Agreement duly authorized by all necessary and
appropriate corporate action to execute this Agreement.
MIDCOM COMMUNICATIONS INC. AT&T CORP.
By: /s/ WILLIAM H. OBERLIN By: /s/ L. R. ZINGALE
----------------------------- -----------------------------
William H. Oberlin L. R. Zingale
-------------------------------- --------------------------------
(Typed or printed name) (Typed or printed name)
President & CEO Spec. Mkts. V.P.
-------------------------------- --------------------------------
(Title) (Title)
10/31/96 10/31/96
-------------------------------- --------------------------------
(Date) (Date)
AT&T/CUSTOMER CONFIDENTIAL AND PROPRIETARY DRAFT
<PAGE> 35
ATTACHMENT A PAGE 1 OF 33
SERVICES AND SERVICE DESCRIPTIONS
ATTACHMENT A: SERVICES AND SERVICE DESCRIPTIONS
1. DOMESTIC INTERSTATE AND INTERNATIONAL SERVICES. The following domestic
interstate and international services are provided pursuant to this Agreement:
1.1. AT&T SDN SERVICES (AT&T TARIFF F.C.C. NO. 1) CONSISTING OF:
a) AT&T Custom Software Defined Network (SDN) Service as
described and defined in AT&T Tariff F.C.C. No. 1, as
amended from time to time.
b) AT&T Global Software Defined Network (GSDN) Service as
described and defined in AT&T Tariff F.C.C. No. 1, as
amended from time to time.
1.2. AT&T DNS SERVICES (AT&T TARIFF F.C.C. NO. 1) CONSISTING OF:
a) AT&T Distributed Network Service (DNS) Interstate as
described and defined in AT&T Tariff F.C.C. No. 1, as
amended from time to time.
1.3. AT&T MEGACOM SERVICES (AT&T TARIFF F.C.C. NO. 1) CONSISTING OF:
a) AT&T MEGACOM Service as described and defined in AT&T
Tariff F.C.C. No. 1, as amended from time to time.
b) AT&T MEGACOM Service - International Calling Capability
as described and defined in AT&T Tariff F.C.C. No. 1, as
amended from time to time.
1.4. AT&T 800 SERVICES (AT&T TARIFF F.C.C. NO. 2) CONSISTING OF:
a) AT&T MEGACOM 800 Service-Domestic as described and
defined in AT&T Tariff F.C.C. No. 2, as amended from
time to time.
b) AT&T MEGACOM 800 Service-Canada as described and
defined in AT&T Tariff F.C.C. No. 2, as amended from
time to time.
c) AT&T MEGACOM 800 Service-Mexico as described and
defined in AT&T Tariff F.C.C. No. 2, as amended from
time to time.
d) AT&T MEGACOM 800 Service-Overseas as described and
defined in AT&T Tariff F.C.C. No. 2, as amended from
time to time.
e) AT&T 800 READYLINE Service-Domestic as described and
defined in AT&T Tariff F.C.C. No. 2, as amended from
time to time.
f) AT&T 800 READYLINE Service-Canada as described and
defined in AT&T Tariff F.C.C. No. 2, as amended from
time to time.
g) AT&T 800 READYLINE Service-Mexico as described and
defined in AT&T Tariff F.C.C. No. 2, as amended from
time to time.
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 36
ATTACHMENT A PAGE 2 OF 33
SERVICES AND SERVICE DESCRIPTIONS
h) AT&T 800 READYLINE Service-Overseas as described and
defined in AT&T Tariff F.C.C. No. 2, as amended from
time to time.
i) AT&T 800 READYLINE Service-Puerto Rico and Virgin
Islands as described and defined in AT&T Tariff F.C.C.
No. 2, as amended from time to time.
1.5 AT&T PRIVATE LINE SERVICES (AT&T TARIFF F.C.C. NO. 9)
CONSISTING OF:
a) AT&T ACCUNET T1.5 Service as described and defined in
AT&T Tariff F.C.C. No. 9, as amended from time to time.
b) AT&T ACCUNET T45 Service as described and defined in
AT&T Tariff F.C.C. No. 9, as amended from time to time.
1.6. AT&T LOCAL CHANNEL SERVICES (AT&T TARIFF F.C.C. No. 11)
CONSISTING OF:
a) AT&T TERRESTRIAL 1.544 Mbps Local Channel Services as
described and defined in AT&T Tariff F.C.C. No. 11, as
amended from time to time.
b) AT&T TERRESTRIAL 45 Mbps Local Channel Services as
described and defined in AT&T Tariff F.C.C. No. 11, as
amended from time to time.
1.7. AT&T WHOLESALE PREPAID CARD SERVICES (AT&T TARIFF F.C.C. No. 1)
CONSISTING OF:
a) AT&T Whole Prepaid Card Service as described and defined
in AT&T Tariff F.C.C. No. 1, as amended from time to
time.
2. DOMESTIC INTRASTATE SERVICES. The following intrastate services are
provided pursuant to AT&T's state tariffs governing such service:
2.1 AT&T Custom Software Defined Network (SDN) Service as described
and defined in AT&T Tariff F.C.C. No. 1., as amended from time
to time.
2.2 AT&T Distributed Network Service (DNS) as described and defined
in AT&T Tariff F.C.C. No. 1, as amended from time to time.
2.3 AT&T MEGACOM Service as described and defined in AT&T Tariff
F.C.C. No. 1, as amended from time to time.
2.4 AT&T MEGACOM 800 Service as described and defined in AT&T Tariff
F.C.C. No. 2., as amended from time to time.
2.5 AT&T 800 READYLINE Service as described and defined in AT&T
Tariff F.C.C. No. 2., as amended from time to time.
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 37
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SERVICES AND SERVICE DESCRIPTIONS
3. SERVICE TERM. The term of this Agreement is 18 months beginning with
the first day of the first full billing month within 30 days of the effective
date of this Agreement (hereinafter referred to as the Customer's Initial
Service Date, or "CISD") for the Services provided under this Carrier
Agreement. There is no renewal option.
4. MINIMUM VOLUME COMMITMENTS.
4.1 The Minimum Semi-Annual Revenue Commitments (MSARCs) are as
follows:
(a) For months 1 through 6, the MSARC is $105,000,000 of
total charges billed for Services provided during those
months, net of all discounts and credits ("Net
Billing"). The Customer may, within five (5) days
following the Signing Agreement, reduce the MSARC for
months 1 through 6 to $5,000,000, by paying a commitment
reduction charge of $5,000,000 to AT&T.
(b) For months 7 through 12 the MSARC is $4,500,000 of Net
Billing.
(c) For months 13 through 18 the MSARC is $4,200,000 of Net
Billing.
4.2. During months 7 through 12, any Net Billing in excess of the
MSARC for that period will be applied against the MSARC for the final
semi-annual period.
If the Customer's Net Billing does not meet or exceed the MSARC
in any given semi-annual period, the Customer will be billed, in addition to
the actual billed charges, the difference between the MSARC and the Net Billing
for that semi-annual period.
5. USAGE RATES. The Contract Prices for the Services provided pursuant to
this Agreement are as follows:
5.1. The Contract Price for AT&T SDN Service - Domestic Interstate
Schedule A and A-PV (excluding NRA) calls is [*] for the initial 18 seconds
and [*] for each additional 6 seconds or fraction thereof for all day parts
and mileage bands for months 1 through 6 and [*] for the initial 18 seconds
and [*] for each additional 6 seconds or fraction thereof for all day parts
and mileage bands for months 7 through 18.
5.2. The Contract Price for AT&T SDN Service - Domestic Interstate
Schedule B and B-PV (excluding NRA) calls is [*] for the initial 18 seconds
and [*] for each
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<PAGE> 38
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SERVICES AND SERVICE DESCRIPTIONS
additional 6 seconds or fraction thereof for all day parts and mileage bands
for the length of the Service Term.
5.3. The Contract Price for the AT&T DNS Services provided under
this Agreement is the same as the undiscounted Recurring and Nonrecurring Rates
and Charges specified in AT&T Tariff F.C.C. No. 1, as amended from time to time.
5.4. The Contract price for the AT&T MEGACOM Service provided under
this Agreement is the same as the undiscounted Recurring and Nonrecurring Rates
and Charges specified for said Service in AT&T Tariff F.C.C. No. 1, as amended
from time to time, except that the following usage rate applies for AT&T
MEGACOM Service-Domestic Interstate calls which originate at an IXC Switch.
(a) The Contract Price for AT&T MEGACOM Service-Domestic
Interstate Service which originate at an IXC Switch is [*] for the initial
18 seconds and [*] for each additional 6 seconds or fraction thereof for
all day parts and mileage bands for Intra-Mainland, Mainland-Hawaii,
Mainland-Alaska, Hawaii-Alaska, Mainland-Puerto Rico/U.S. Virgin Islands
Service, Puerto Rico-Mainland and Puerto Rico-Alaska/Hawaii/U.S. Virgin Islands
Service.
(b) An IXC Switch is a telecommunications switch with the
following characteristics: (a) it is owned and operated by the Customer; (b) it
has the capability to be used for the transmission of calls that are routed by
a Local Exchange Carrier to the IXC Switch using Feature Group D access; (c) it
is capable of interconnecting circuits or transferring calling between
circuits; (d) it has a capacity of at least 100,000 access lines; and (e) it is
used by Customer to provide Common Carrier service to end-users.
5.5. The Contract price for the AT&T MEGACOM Service - International
Calling Capability provided under this Agreement is the same as the
undiscounted Recurring and Nonrecurring Rates and Charges specified for said
Service in AT&T Tariff F.C.C. No. 1, as amended from time to time, except that
the usage rates specified in Section 7.A. and 7.B. applies during the times
specified in those Sections for AT&T MEGACOM Service - International calls which
originate at an IXC Switch.
5.6. The Contract price for the AT&T MEGACOM 800 Service provided
under this Agreement is the same as the undiscounted Recurring and
Nonrecurring Rates and Charges specified for said Service in AT&T Tariff F.C.C.
No. 2, as amended from time to time, except for the MEGACOM 800 - Domestic
Interstate usage which is [*] per hour for all day parts and mileage bands.
For the MEGACOM 800 Service - Domestic Interstate calls which terminate at an
IXC Switch under this Agreement, the Contract price will be [*] per hour for
all day parts and mileage bands.
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 39
ATTACHMENT A PAGE 5 OF 33
SERVICES AND SERVICE DESCRIPTIONS
5.7. The Contract Price for AT&T 800 READYLINE Service - Domestic
calls is [*] per hour for all day parts and mileage bands for months 1
through 5; and [*] per hour for all day parts and mileage bands for months 7
through 18.
5.8. The Contract Price for AT&T TERRESTRIAL 1.544 Mbps Local
Channel Services provided under this Agreement is the same as the undiscounted
Recurring and Nonrecurring Rates and Charges as described and defined in AT&T
Tariff F.C.C. No. 11, as amended from time to time.
5.9. The Contract Price for AT&T TERRESTRIAL 45 Mbps Local Channel
Services provided under this Agreement is the same as the undiscounted
Recurring and Nonrecurring Rates and Charges as described and defined in AT&T
Tariff F.C.C. No. 11, as amended from time to time.
5.10. The Contract Price for AT&T ACCUNET T1.5 Service provided under
this Agreement is the same as the undiscounted Recurring and Nonrecurring Rates
and Charges as described and defined in AT&T Tariff F.C.C. No. 9, as amended
from time to time, except for ACCUNET T1.5 IOCs which terminate in an IXC
Switch. The Contract Price will be: [*] per month, if the Interoffice Channel
is less than 100 miles in length; [*] plus [*] per mile per month, if the
Interoffice Channel is greater than or equal to 100 miles in length.
5.11. The Contract Price for AT&T ACCUNET T45 Service provided under
this Agreement is the same as the undiscounted Recurring and Nonrecurring Rates
and Charges as described and defined in AT&T Tariff F.C.C. No. 9, as amended
from time to time, except for ACCUNET T45 IOCs which terminate in a IXC Switch.
The Contract Price will be: [*] per month, if the Interoffice Channel is less
than 100 miles in length; [*] plus [*] per mile per month, if the Interoffice
Channel is greater than or equal to 100 miles in length.
6. DISCOUNTS. Volume discounts applicable to the Services provided
pursuant to this Agreement are as follows:
6.1 AT&T SDN SERVICES: The customer will receive the following
discounts each month in lieu of those specified for the Term and Volume Plan
(TVP) in AT&T Tariff F.C.C. No. 1.
Gross Domestic SDN Services Usage Discount
--------------------------------- --------
All Usage [*]
Gross International GSDN Services Usage
---------------------------------------
Between $0 up to $10,000 [*]
over $10,000 up to $20,000 [*]
CONFIDENTIAL AND PROPRIETARY
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[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 40
ATTACHMENT A PAGE 6 OF 33
SERVICES AND SERVICE DESCRIPTIONS
over $20,000 up to $30,000 [*]
over $30,000 up to $300,000 [*]
over $300,000 [*]
Supplemental Discount off Net International GSDN Services Usage
Above $0 [*]
6.2 AT&T DNS SERVICES: The customer will receive the following
discounts each month in lieu of those specified for the DNS Term Plan in AT&T
Tariff F.C.C. No. 1.
Gross Domestic Direct Dialed (1+) DNS Services Usage Discount
$0 to $10,000 [*]
$10,000 to $20,000 [*]
$20,000 and above [*]
Gross International Direct Dial (1+) DNS Services Usage
$0 to $5,000 [*]
$5,000 to $15,000 [*]
$15,000 to $60,000 [*]
$60,000 to $200,000 [*]
$200,000 and above [*]
6.3 AT&T MEGACOM 800 SERVICE - DOMESTIC.
(a) The customer will receive the following monthly discount
for AT&T MEGACOM 800 Service - domestic gross usage in lieu of any other term
plan or discounts for calls that terminate at an IXC Switch.
Monthly Domestic Gross Revenue Discount
All usage [*]
(b) The customer will receive the following monthly discount
for AT&T MEGACOM 800 Service - Domestic gross usage in lieu of any other term
plan or discounts for calls that do not terminate at an IXC Switch.
Monthly Domestic Gross Revenue Discount
All usage [*]
CONFIDENTIAL AND PROPRIETARY
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[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 41
ATTACHMENT A PAGE 7 OF 33
SERVICES AND SERVICE DESCRIPTIONS
6.4. AT&T 800 READYLINE SERVICE - DOMESTIC. The customer will
receive the following monthly discount for AT&T 800 READYLINE Service - domestic
interstate gross usage in lieu of any other term plan or discounts.
Monthly Domestic Gross Revenue Discount
All usage [*]
7. ADDITIONAL DISCOUNTS, CREDITS, WAIVERS.
7.1. AT&T will apply a domestic DNS credit, each month, in the
billing month following the initial application of the discounts specified in
6.2. above, in an amount equal to the difference between (a) all qualified
domestic DNS gross usage less a [*] discount and (b) the net billed domestic DNS
usage.
7.2. AT&T will apply a domestic Interstate DNS credit, each month
during months 1 through 6, in the billing month following the initial
application of the discounts specified in 6.2. equal to the difference between
(a) all qualified interstate minutes times [*] and (b) the net billed
charges for the qualified interstate usage. During months 7 through 18, AT&T
will apply a domestic DNS credit, in the billing month following the initial
application of the discounts specified in 6.2. above, equal to the difference
between (a) all qualified interstate minutes times [*] and (b) the net
billed charges for the qualified interstate usage.
7.3. AT&T will apply an international DNS credit, each month, in the
billing month following the initial application of the discounts specified in
6.2. above, equal to [*] of the net qualified international usage.
8. CLASSIFICATIONS, PRACTICES AND REGULATIONS. Except as otherwise provided
in this Agreement, the terms, conditions, regulations and charges for AT&T SDN
Services, AT&T DNS Services and AT&T MEGACOM Services as set forth in AT&T
Tariff F.C.C. No. 1; for AT&T MEGACOM 800 and AT&T 800 READYLINE Service as set
forth in AT&T Tariff F.C.C. No. 2; for AT&T ACCUNET T1.5 and AT&T ACCUNET T45
Service as set forth in AT&T Tariff F.C.C. No. 9; and for AT&T Terrestrial 1.544
and T45 Mbps Local Channel Service as set forth in AT&T Tariff F.C.C. No. 11
apply, as these tariffs may be amended from time to time.
9. MONITORING CONDITIONS. The Customer must satisfy the following Service
Requirements which will be monitored at the end of twelve (12) months and at the
end of the Service Term.
9.1. Customer guarantees at least [*] over the 18 month period
will be usage from Services specified in [*], preceding.
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 42
ATTACHMENT A PAGE 8 OF 33
SERVICES AND SERVICE DESCRIPTIONS
9.2. The Customer must have an Average Length of Call (ALOC) of at
least 2.5 minutes each for all AT&T Services provided in this Agreement.
9.3. The Customer must have at least two IXC switches at the time of
ordering the Service.
If the Customer fails to satisfy the above Monitoring Conditions, AT&T
will notify the Customer in writing of the specific failure(s) and the Customer
will be billed and shall pay within 30 days an amount equal to 20% of all usage
billed for those Services to which each unfulfilled Monitoring Condition is
applicable during the Monitoring Period.
10. DISCONTINUANCE WITHOUT TERMINATION LIABILITY. The Customer may
discontinue this Agreement without incurring a Termination Charge as defined in
Paragraph 11., below, at the end of six months provided the Customer has
satisfied the total sum of the MSARC's during the first six months of the
Service Term.
11. TERMINATION CHARGE FOR DISCONTINUANCE PRIOR TO END OF AGREEMENT TERM.
If the Customer discontinues this Agreement prior to the expiration of the
Agreement Term without the consent of AT&T, or if AT&T terminates this
Agreement or the Services provided pursuant to this Agreement due to Customer's
breach of this Agreement, the Customer will pay a Termination Charge. The
Termination Charge will be an amount equal to 100% of the unsatisfied MSARC's
for the AT&T Services remaining in the term of this Agreement at the time of
discontinuance. Payment is due within 30 days.
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 43
ATTACHMENT A PAGE 9 OF 33
SERVICES AND SERVICE DESCRIPTIONS
12. AT&T MEGACOM SERVICE INTERNATIONAL USAGE RATES
12.1. INTERNATIONAL USAGE RATES - The countries listed in 12.1. will
receive the AT&T MEGACOM Service International usage rates for the initial and
additional rate periods and will be effective for a 90 day period beginning with
the Customer's CISD. The countries which are not listed in 12.1. will receive
the rates that are specified in 12.2 during this period. After 90 days, the
Customer will receive only the rates listed in 12.2.
(a) CANADA RATE SCHEDULE - This schedule applies to Customer dialed
calls to stations in Canada from the U.S. Mainland.
<TABLE>
<CAPTION>
----------------------------------------------------------------------
DAY RATE EVENING RATE NIGHT RATE
Mon-Fri Mon-Fri /Sat-Sun Mon-Sun
8AM-6PM 6PM-12Mid/8AM-12Mid 12Mid-8AM
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Initial Each Add'l Initial Each Add'l Initial Each Add'l
Rate 30 Secs. 6 Secs. 30 Secs. 6 Secs. 30 Secs. 6 Secs.
Mileage or Frac't or Frac't or Frac't or Frac't or Frac't or Frac't
- ------- --------- --------- --------- --------- --------- ---------
0-4000 [*] [*] [*] [*] [*] [*]
</TABLE>
(b) MEXICO RATE SCHEDULE - The following rates for calls between
the U.S. Mainland and the point of connection at the international boundary
apply for all days of the week including holidays.
<TABLE>
<CAPTION>
Standard
--------------------------- -------------------------------
Mon-Fri Sun Mon-Fri Sat/Sun
7:00AM-7:00PM 5PM-Mid 7:00PM-7:00AM All Day/Mid-5PM
--------------------------- -------------------------------
Initial Each Add'l Initial Each Add'l
Rate 30 Seconds 6 Seconds 30 Seconds 6 Seconds
Mileage or Fraction or Fraction or Fraction or Fraction
- ------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
0- 10 [*] [*] [*] [*]
11- 22 [*] [*] [*] [*]
23- 55 [*] [*] [*] [*]
56- 124 [*] [*] [*] [*]
125- 292 [*] [*] [*] [*]
293- 430 [*] [*] [*] [*]
431- 925 [*] [*] [*] [*]
926-3000 [*] [*] [*] [*]
</TABLE>
The rates for calls between the point of connection at the international
boundary and Mexico are as specified in AT&T F.C.C. Tariff No. 1, Section
6.5.4.E.3.III.
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 44
ATTACHMENT A PAGE 10 OF 33
SERVICES AND SERVICE DESCRIPTIONS
(c) ALL OTHER COUNTRIES - The following rates apply for all days of
the week including holidays. The Initial Period is the first 18 seconds or
fraction thereof and the Additional Period is each additional 6 seconds or
fraction thereof.
<TABLE>
<CAPTION>
COUNTRY STANDARD DISCOUNT ECONOMY
- ------- -------- -------- -------
<S> <C> <C> <C> <C>
Australia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 2PM-8PM 8PM-3AM 3AM-2PM
Brazil Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-6PM 6PM-12M 12M-8AM
Cayman Initial Period - [*] [*] [*]
Islands Add'l Period - [*] [*] [*]
Rate Period - 8AM-5PM 5PM-11PM 11PM-8AM
Chile Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-6PM 6PM-12M 12M-8AM
Costa Rica Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 8AM-5PM 11PM-8AM
Dominican Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
France Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Germany Initial Period - [*] [*] [*]
Federal Add'l Period - [*] [*] [*]
Republic of Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Guatemala Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 8AM-5PM 11PM-8AM
Hong Kong Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Italy Initial Period - [*] [*] [*]
</TABLE>
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
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Customer's Initials
<PAGE> 45
ATTACHMENT A PAGE 11 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C>
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Japan Initial Period - [*] [*] [*]
(Including Add'l Period - [*] [*] [*]
Okinawa) Rate Period - 2PM-8PM 8PM-3AM 3AM-2PM
Korea, Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 2PM-8PM 8PM-3AM 3AM-2PM
Netherlands Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Philippines Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-2AM 2AM-11AM 11AM-5PM
South Africa, Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12PM-5PM 5PM-6AM
Switzerland Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Thailand Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-2AM 2AM-11AM 11AM-5PM
United Kingdom Initial Period - [*] [*] [*]
(Including the Add'l Period - [*] [*] [*]
Channel Islands, Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
England, Isle of
Man, Northern
Ireland, Scotland
and Wales)
Uruguay Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-12M 7AM-4PM 12M-7AM
</TABLE>
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 46
ATTACHMENT A PAGE 12 OF 33
SERVICES AND SERVICE DESCRIPTIONS
12.2 INTERNATIONAL USAGE RATES - The countries listed in 12.2 will receive
the following AT&T MEGACOM Service International usage rates for the initial
and additional rate periods effective at the conclusion of the 90 day period
specified in 12.1.
(A) CANADA RATE SCHEDULE - This schedule applies to Customer dialed
calls to stations in Canada from the U.S. Mainland.
<TABLE>
<CAPTION>
RATES
----------------------------------------------------------------------------------------
DAY RATE EVENING RATE NIGHT RATE
Mon-Fri Mon-Fri / Sat-Sun Mon-Sun
8AM-6PM 6PM-12Mid / 8AM-12Mid 12Mid-8AM
----------------------------------------------------------------------------------------
Int'l 30 Each Add'l Int'l 30 Each Add'l Int'l 30 Each Add'l
Rate Secs. or 6 Secs. or Secs. or 6 Secs. or Secs. or 6 Secs. or
Mileage Fraction Fraction Fraction Fraction Fraction Fraction
- --------- -------- ---------- -------- ---------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
0- 18 [*] [*] [*] [*] [*] [*]
19- 80 [*] [*] [*] [*] [*] [*]
81- 140 [*] [*] [*] [*] [*] [*]
141- 220 [*] [*] [*] [*] [*] [*]
221- 345 [*] [*] [*] [*] [*] [*]
346- 630 [*] [*] [*] [*] [*] [*]
631-1200 [*] [*] [*] [*] [*] [*]
1201-1610 [*] [*] [*] [*] [*] [*]
1611-4000 [*] [*] [*] [*] [*] [*]
</TABLE>
(B) MEXICO RATE SCHEDULE - This schedule applies to Customer dialed
calls to stations in Mexico from the U.S. Mainland. The following rates for
calls between the U.S. Mainland and the point of connection at the
international boundary apply for all days of the week including holidays.
<TABLE>
<CAPTION>
Standard Economy
------------------------------- -------------------------------
Mon-Fri Sun Mon-Fri Sat-Sun
7:00AM-7:00PM 5PM-Mid 7:00PM-7:00AM All Day/Mid-5PM
------------------------------- -------------------------------
Initial Each Add'l Initial Each Add'l
Rate 30 Seconds 6 Seconds 30 Seconds 6 Seconds
Mileage or Fraction or Fraction or Fraction or Fraction
- --------- ------------- ------------- ------------- --------------
<S> <C> <C> <C> <C>
0- 10 [*] [*] [*] [*]
11- 22 [*] [*] [*] [*]
23- 55 [*] [*] [*] [*]
56- 124 [*] [*] [*] [*]
125- 292 [*] [*] [*] [*]
293- 430 [*] [*] [*] [*]
431- 925 [*] [*] [*] [*]
926-3000 [*] [*] [*] [*]
</TABLE>
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 47
ATTACHMENT A PAGE 13 OF 33
SERVICES AND SERVICE DESCRIPTIONS
The rates for calls between the point of connection at the international
boundary and Mexico are as specified in AT&T F.C.C. Tariff No. 1, Section
3.2.4.L.5.
(c) ALL OTHER COUNTRIES - This schedule applies to Customer dialed calls
to stations in All Other Countries from the U.S. Mainland. The following rates
apply for all days of the week including holidays. The Initial Period is the
first 18 seconds or fraction thereof and the Additional Period is each
additional 6 seconds or fraction thereof.
<TABLE>
<CAPTION>
COUNTRY STANDARD DISCOUNT ECONOMY
- ------- -------- -------- -------
<S> <C> <C> <C> <C>
Albania, Initial Period - [*] [*] [*]
Socialist Add'l Period - [*] [*] [*]
Republic of Date Period - 7AM-1PM 1PM-6PM 6PM-7AM
Algeria Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6PM-12N 12N-5PM 5PM-6AM
American Samoa Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Andorra Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Angola Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Anguilla Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Antarctica Initial Period - [*] [*] [*]
(Casey) Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Antarctica Initial Period - [*] [*] [*]
(Scott) Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Antigua Initial Period - [*] [*] [*]
</TABLE>
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
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Customer's Initials
<PAGE> 48
ATTACHMENT A PAGE 14 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C>
(Barbuda) Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Argentina Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-6PM 6PM-12M 12M-8AM
Armenia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Aruba Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Ascension Island Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Australia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 2PM-8PM 8PM-3AM 3AM-2PM
Austria Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Azerbaijan Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Bahamas Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-5PM 5PM-11PM 11PM-8AM
Bahrain Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-3PM 9PM-8AM 3PM-9PM
Bangladesh, Initial Period - [*] [*]
People's Add'l Period - [*] [*]
Republic of Rate Period - 6AM-6PM 6PM-6AM
Barbados Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
</TABLE>
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 49
ATTACHMENT A PAGE 15 OF 33
SERVICES AND SERVICE DESCRIPTIONS
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Belarus Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Belgium Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Belize Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 8AM-5PM 11PM-8AM
Benin, Initial Period - [*] [*] [*]
People's Add'l Period - [*] [*] [*]
Republic of Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Bermuda Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-5PM 5PM-11PM 11PM-8AM
Bhutan Initial Period - [*] [*]
Add'l Period - [*] [*]
Rate Period - 6PM-6AM 6AM-6PM
Bolivia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-12M 7AM-4PM 12M-7AM
Bosnia- Initial Period - [*] [*]
Hercegovena Add'l Period - [*] [*] [*]
Rate Period - 1PM-12MID 7AM-1PM 12MID-7AM
Botswana Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Brazil Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-6PM 5PM-12M 12M-8AM
British Initial Period - [*] [*] [*]
Virgin Islands Add'l Period - [*] [*] [*]
(Including Rate Period - 8AM-5PM 5PM-11PM 11PM-8AM
Anegada,
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 50
ATTACHMENT A PAGE 16 OF 33
SERVICES AND SERVICE DESCRIPTIONS
Camanoe Island,
Guana Island,
Jost Van Dyke,
Little Thatch,
Marina Cay,
Mosquito Island,
North Sound,
Peter Island,
Salt Island,
Tortola and
Virgin Gorda)
Brunei Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Bulgaria Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Burkina Faso Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Burma Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Burundi Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Cambodia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-2AM 2AM-11AM 11AM-5PM
Cameroon, United Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Cape Verde Initial Period - [*] [*] [*]
Islands Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Cayman Islands Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 51
ATTACHMENT A PAGE 17 OF 33
SERVICES AND SERVICE DESCRIPTIONS
Rate Period - 8AM-5PM 5PM-11PM 11PM-8AM
Central African Initial Period - [*] [*] [*]
Republic Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Chad Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Chile Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-6PM 6PM-12M 12M-8AM
China, People's Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 5PM-2AM 2AM-11AM 11AM-5PM
Christmas & Initial Period - [*] [*] [*]
Cocos Islands Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Colombia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-12M 7AM-4PM 12M-7AM
Comoros, Federal Initial Period - [*] [*] [*]
and Islamic Add'l Period - [*] [*] [*]
Republic of Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Congo, Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Cook Islands Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Costa Rica Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 8AM-5PM 11PM-8AM
Croatia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-12MID 7AM-1PM 12MID-7AM
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 52
ATTACHMENT A PAGE 18 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Cyprus Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-11PM 1PM-6PM 6PM-7AM
Czech Republic Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-12M 12M-7AM
Denmark Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Diego Garcia Initial Period - [*] [*]
Add'l Period - [*] [*]
Rate Period - 6AM-6PM 6PM-6AM
Djibouti, Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Dominica Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Dominican Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Ecuador Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-12M 7AM-4PM 12M-7AM
Egypt, Arab Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
El Salvador Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 8AM-5PM 11PM-8AM
Equatorial Initial Period - [*] [*] [*]
Guinea, Add'l Period - [*] [*] [*]
Republic of Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Eritrea Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
</TABLE>
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 53
ATTACHMENT A PAGE 19 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Estonia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Ethiopia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Faeroe Islands Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Falkland Islands Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-6PM 6PM-12M 12M-8AM
Federated States Initial Period - [*] [*] [*]
of Micronesia Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Fiji Islands Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-2AM 9AM-5PM 2AM-9AM
Finland Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
France Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
French Antilles Initial Period - [*] [*] [*]
(Martinique, Add'l Period - [*] [*] [*]
St. Barthelemy, Rate Period - 8AM-5PM 5PM-11PM 11PM-8AM
and St. Martin)
French Guiana Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-6PM 6PM-12M 12M-8AM
French Polynesia Initial Period - [*] [*] [*]
(Including the Add'l Period - [*] [*] [*]
Islands of Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
</TABLE>
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 54
ATTACHMENT A PAGE 20 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C>
Moorea and)
Tahiti)
Gabon Republic Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Gambia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Georgia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Germany, Initial Period - [*] [*] [*]
Federal Add'l Period - [*] [*] [*]
Republic of Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Ghana Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Gibraltar Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Greece Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Greenland Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Grenada Initial Period - [*] [*] [*]
(Including Add'l Period - [*] [*] [*]
Carriacou) Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Guadeloupe Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-5PM 5PM-11PM 11PM-8AM
Guam Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
</TABLE>
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 55
ATTACHMENT A PAGE 21 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C>
Guantanamo Initial Period - [*] [*] [*]
(U.S. Naval Base) Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Guatemala Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 8AM-5PM 11PM-8AM
Guinea-Bissau Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Guinea, People's Initial Period - [*] [*] [*]
Revolutionary Add'l Period - [*] [*] [*]
Republic Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Guyana Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-6PM 6PM-12M 12M-8AM
Haiti Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Honduras Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 8AM-5PM 11PM-8AM
Hong Kong Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Hungary Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Iceland Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-8PM 7AM-1PM 8PM-7AM
India Initial Period - [*] [*]
Add'l Period - [*] [*]
Rate Period - 6AM-6PM 6PM-6AM
Indonesia Initial Period - [*] [*] [*]
</TABLE>
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 56
ATTACHMENT A PAGE 22 OF 33
SERVICES AND SERVICE DESCRIPTIONS
Add'l Period - [*] [*] [*]
Rate Period - 5PM-2AM 2AM-11AM 11AM-5PM
Iran Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Iraq Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Ireland Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Israel Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-5PM MID-8AM 5PM-MID
Italy Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Ivory Coast, Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Jamaica Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Japan Initial Period - [*] [*] [*]
(Including Add'l Period - [*] [*] [*]
Okinawa) Rate Period - 2PM-8PM 8PM-3AM 3AM-2PM
Jordan Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-5PM MID-8AM 5PM-MID
Kazakhstan Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Kenya, Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 7AM-5PM 5PM-1AM 1AM-7AM
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 57
ATTACHMENT A PAGE 23 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C>
Kiribati Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Korea, Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 2PM-8PM 8PM-3AM 3AM-2PM
Kuwait Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-5PM 5PM-1AM 1AM-7AM
Kyrgyzstan Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-2AM 7AM-1PM 2AM-7AM
Laos Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Latvia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Lebanon Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-3PM 9PM-8AM 3PM-9PM
Lesotho Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-5PM 5PM-1AM 1AM-7AM
Liberia Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Libyan Arab Initial Period - [*] [*] [*]
People's Add'l Period - [*] [*] [*]
Socialist Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Jamahiriya
Liechtenstein Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
</TABLE>
CONFIDENTIAL AND PROPRIETARY
between
[AT&T LOGO]
AND MIDCOM COMMUNICATIONS, INC.
___________________
Customer's Initials
<PAGE> 58
ATTACHMENT A PAGE 24 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C> <C>
Lithuania Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 1PM-2AM 7AM-1PM 2AM-7AM
Luxembourg Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-1PM 1PM-6PM 6PM-7AM
Macao Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6PM-2AM 2AM-11AM 11AM-5PM
Macedonia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 1PM-12MID 7AM-1PM 12MID-7AM
Madagascar, Initial Period -- [*] [*] [*]
Democratic Add'l Period -- [*] [*] [*]
Republic of Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Malawi Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Malaysia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-2AM 2AM-11AM 11AM-5PM
Maldives, Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 6PM-1AM 1AM-11AM 11AM-6PM
Mali, Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Malta, Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-1PM 1PM-6PM 6PM-7AM
Marshall Islands Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Mauritania, Initial Period -- [*] [*] [*]
Islamic Add'l Period -- [*] [*] [*]
</TABLE>
[AT&T LOGO]
<PAGE> 59
ATTACHMENT A PAGE 25 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C> <C>
Republic of Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Mauritius Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Mayotte Island Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Moldova Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 1PM-2AM 7AM-1PM 2AM-7AM
Monaco Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-1PM 1PM-6PM 6PM-7AM
Mongolian Initial Period -- [*] [*] [*]
People's Add'l Period -- [*] [*] [*]
Republic Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Montserrat Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 4PM-10PM 7AM-4PM 10PM-7AM
Morocco, Initial Period -- [*] [*] [*]
Kingdom of Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Mozambique Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Namibia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Nauru Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Nepal Initial Period -- [*] [*]
Add'l Period -- [*] [*]
Rate Period -- 6AM-6PM 6PM-6AM
</TABLE>
[AT&T LOGO]
<PAGE> 60
ATTACHMENT A PAGE 26 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C> <C>
Netherlands Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-1PM 1PM-6PM 6PM-7AM
Netherlands Initial Period -- [*] [*] [*]
Antilles Add'l Period -- [*] [*] [*]
(Bonaire, Rate Period -- 8AM-5PM 5PM-11PM 11PM-8AM
Curacao, Saoa,
St. Eustatius
and St. Maarten)
Nevis Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 4PM-10PM 7AM-4PM 10PM-7AM
New Caledonia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
New Zealand Initial Period -- [*] [*] [*]
(Including Add'l Period -- [*] [*] [*]
Chatham Island) Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Nicaragua Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM 8AM-5PM 11PM-6AM
Niger Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Nigeria, Federal Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-5PM 5PM-1AM 1AM-7AM
Nieu Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Norfolk Island Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Norway (Including Initial Period -- [*] [*] [*]
Svalbard) Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-1PM 1PM-6PM 6PM-7AM
</TABLE>
[AT&T LOGO]
<PAGE> 61
PAGE 27 OF 33
ATTACHMENT A
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C > <C> <C>
Oman Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 8AM-3PM 9PM-8AM 3PM-9PM
Pakistan Initial Period -- [*] [*]
Add'l Period -- [*] [*]
Rate Period -- 6AM-6PM 6PM-6AM
Palau, Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Panama, Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM ?-5PM 11PM-8AM
Papua New Guinea Initial Period -- [*] [*] [*]
(Admiralty Add'l Period -- [*] [*] [*]
Islands, Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Bougainville,
New Britain and
New Ireland)
Paraguay Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 8AM-6PM 6PM-12M 12M-8AM
Peru Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 4PM-12M 7AM-4PM 12M-7AM
Philippines Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-2AM 2AM-11AM 11AM-5PM
Poland, People's Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-1PM 1PM-12M 12M-7AM
Portugal Initial Period -- [*] [*] [*]
(Including Add'l Period -- [*] [*] [*]
Azores and Rate Period -- 1PM-8PM 7AM-1PM 8PM-7AM
Madeira Islands)
</TABLE>
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ATTACHMENT A
SERVICES AND SERVICE DESCRIPTIONS PAGE 28 OF 33
<TABLE>
<S> <C> <C> <C> <C> <C>
Qatar Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-5PM 5PM-1AM 1AM-7AM
Reunion Island Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Romania, Initial Period -- [*] [*] [*]
Socialist Add'l Period -- [*] [*] [*]
Republic of Rate Period -- 1PM-2AM 7AM-1PM 2AM-7AM
Russia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 1PM-2AM 7AM-1PM 2AM-7AM
Rwanda Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Saipan Initial Period -- [*] [*] [*]
(Including Add'l Period -- [*] [*] [*]
Rota and Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Tinian)
San Marino Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-1PM 1PM-6PM 6PM-7AM
Sao Tome Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Saudi Arabia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-5PM 5PM-1AM 1AM-7AM
Senegal Republic Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Seychelles Initial Period -- [*] [*] [*]
Islands Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Sierra Leone Initial Period -- [*] [*] [*]
</TABLE>
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ATTACHMENT A PAGE 29 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C> <C>
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Singapore, Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Slovakia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-1PM 1PM-12M 12M-7AM
Slovenia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 1PM-12MID 7AM-1PM 12MID-7AM
Solomon Islands Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
South Africa, Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Spain (Including Initial Period -- [*] [*] [*]
Balearic Add'l Period -- [*] [*] [*]
Islands, Canary Rate Period -- 7AM-1PM 1PM-6PM 6PM-7AM
Islands, Ceuta
and Melilla)
Sri Lanka Initial Period -- [*] [*]
Democratic Add'l Period -- [*] [*]
Socialist Rate Period -- 6AM-6PM 6PM-6AM
Republic of
St. Helena Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
St. Kitts Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 4PM-10PM 7AM-4PM 10PM-7AM
St. Lucia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 4PM-10PM 7AM-4PM 10PM-7AM
</TABLE>
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ATTACHMENT A PAGE 30 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C> <C>
St. Pierre Initial Period - [*] [*] [*]
& Miquelon Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
St. Vincent and Initial Period - [*] [*] [*]
The Grenadines Add'l Period - [*] [*] [*]
Rate Period - 4PM-10PM 7AM-4PM 10PM-7AM
Suriname, Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
Rate Period - 8AM-6PM 6PM-12M 12M-8AM
Swaziland Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 6AM-12N 12N-5PM 5PM-6AM
Sweden Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Switzerland Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Syrian Arab Initial Period - [*] [*] [*]
Republic Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Taiwan Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Tajikistan Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Tanzania Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Thailand Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-2AM 2AM-11AM 11AM-5PM
Togo, Republic of Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
</TABLE>
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ATTACHMENT A
SERVICES AND SERVICE DESCRIPTIONS PAGE 31 OF 33
<TABLE>
<S> <C> <C> <C> <C> <C>
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Tonga Islands Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-2AM 9AM-5PM 2AM-9AM
Trinidad & Initial Period -- [*] [*] [*]
Tobago, Add'l Period -- [*] [*] [*]
Democratic Rate Period -- 4PM-10PM 7AM-4PM 10PM-7AM
Republic of
Tunisia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Turkey Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 7AM-1PM 1PM-6PM 6PM-7AM
Turkmenistan Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 1PM-2AM 7AM-1PM 2AM-7AM
Turks & Caicos Initial Period -- [*] [*] [*]
Islands Add'l Period -- [*] [*] [*]
Rate Period -- 8AM-5PM 5PM-11PM 11PM-8AM
Tuvalu Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 5PM-11PM 10AM-5PM 11PM-10AM
Uganda Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 1PM-2AM 7AM-1PM 2AM-7AM
Ukraine Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 1PM-2AM 7AM-1PM 2AM-7AM
United Arab Initial Period -- [*] [*] [*]
Emirates Add'l Period -- [*] [*] [*]
(Abu Dhabi, Rate Period -- 8AM-3PM 9PM-8AM 3PM-9PM
Ajman, Dubai,
Fujairah, Ras
al Khaimah,
Sharjah, and
</TABLE>
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ATTACHMENT A PAGE 32 OF 33
SERVICES AND SERVICE DESCRIPTIONS
<TABLE>
<S> <C> <C> <C> <C>
Umn al Qaiwain)
United Kingdom Initial Period - [*] [*] [*]
(Including the Add'l Period - [*] [*] [*]
Channel Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Islands, England,
Isle of Man,
Northern Ireland,
Scotland and
Wales
Uruguay Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 4PM-12AM 7AM-4PM 12M-7AM
Uzbekistan Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 1PM-2AM 7AM-1PM 2AM-7AM
Vanuatu Initial Period - [*] [*] [*]
Republic Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Vatican City Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 7AM-1PM 1PM-6PM 6PM-7AM
Venezuela Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 8AM-6PM 6PM-12M 12M-8AM
Vietnam, Initial Period - [*] [*] [*]
Socialist Add'l Period - [*] [*] [*]
Republic of Rate Period - 5PM-2AM 2AM-11AM 11AM-5PM
Wallis and Initial Period - [*] [*] [*]
Futuna Add'l Period - [*] [*] [*]
Islands Rate Period - 5PM-11PM 10PM-5PM 11PM-10AM
Western Samoa Initial Period - [*] [*] [*]
Add'l Period - [*] [*] [*]
Rate Period - 5PM-11PM 10AM-5PM 11PM-10AM
Yemen, Initial Period - [*] [*] [*]
Republic of Add'l Period - [*] [*] [*]
</TABLE>
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ATTACHMENT A
SERVICES AND SERVICE DESCRIPTIONS PAGE 33 OF 33
<TABLE>
<S> <C> <C> <C> <C> <C>
(Including Aden Rate Period -- 8AM-3PM 9PM-8AM 3PM-9PM
& Almahrah)
Yugoslavia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 1PM-12MID 7AM-1PM 12MID-7AM
Zaire, Initial Period -- [*] [*] [*]
Republic of Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Zambia Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
Zimbabwe Initial Period -- [*] [*] [*]
Add'l Period -- [*] [*] [*]
Rate Period -- 6AM-12N 12N-5PM 5PM-6AM
</TABLE>
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