**Exhibit 10.37**

**INDEFEASIBLERIGHT OF USE AGREEMENT AND MASTER SERVICEAGREEMENTDARK FIBERS**

**By and Between**

**AGL NETWORKS, LLC**

**and**

**Mountain Telecommunications, Inc.**

**DATED:January 24, 2005**

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**INDEFEASIBLERIGHT OF USE AGREEMENTDARK FIBERS**

THIS INDEFEASIBLE RIGHT OF USE AGREEMENT (this “Agreement”) ismade and entered into as of January 24, 2004, (“Effective Date”)by and between AGL Networks, LLC, a Delawarelimited liability company (“AGLN”), and Mountain Telecommunications,Inc., an Arizona corporation (“User”).

WHEREAS, AGLN owns or acquired a fiber optic communication system whichincludes the User Dark Fibers and Optional Dark Fibers; and

WHEREAS, User desires to receive from AGLN, and AGLN desires to grantto User, certain indefeasible rightsof use in the User Dark Fibers and Optional Dark Fibers, all upon and subjectto the terms and conditions contained in this Agreement.

NOW, THEREFORE, in consideration of the premises and mutual promisesand covenants contained herein, andfor other good and valuable consideration, the receipt and sufficiency of whichare hereby acknowledged, the Partieshereby agree as follows:

**1.             Definitions.**

**1.1         **In addition to the terms defined elsewhere inthis Agreement, the following capitalized terms and derivatives thereofshall have the meanings respectively ascribed to them in this Section 1.1.

“Acceptance Date” is defined in Section 6.2.

“Affiliate” shall mean, with respect to any Person, any other Person, whodirectly or indirectly controls, iscontrolled by, or is under common control with that Person. As used in this definition, “control” means the possession,directly or indirectly, of the power to direct or cause the direction of the management or policies of aPerson, whether by way of equity ownership, contract or otherwise.

“AGLN System” shall mean the integrated multi-conduit, multi-ring fiberoptic communication system comprisedof Innerducts and other conduit tubing, Manholes, Handholes and theCable located therein. As used in this Agreement, the term “AGLN System” refersonly to the multi-conduit, multi-ring fiberoptic communication system owned by AGLN and does not include (i) the telecommunications equipment andfacilities of AGLN or any other Person located within such system and (ii)Lateral Spurs.

“Agreement” shall mean this Indefeasible Right of Use Agreement, asamended, supplemented or modifiedfrom time to time.

“As-Built Drawings” shall mean drawings in accordance with thespecifications set forth in Exhibit C.

“Associated Property” shall mean, with respect to each Segment, thefollowing described tangible andintangible property necessary for the use of the User Dark Fibers for thepurposes

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describedin this Agreement; (a) AGLN’s rights in all Underlying Rights, subject to theterms, conditions and limitations thereof, and (b) User Handholes, ifany. As used in this Agreement, the term “AssociatedProperty” does not include (i) any Cable or other telecommunications equipmentof AGLN or any other Person, (ii) Handholes other than the UserHandholes, (iii) Manholes, (iv) the Innerductin which the User Dark Fibers are housed or (v) any Lateral Spurs.

“Cable” shall mean fiber optic cable, the fiber optic strands containedtherein (including the User Dark Fibers), and any other communicationstransmission media which may be included in the AGLN System and in any LateralSpurs, and associated splicing connections and splice boxes located in the AGLN System and in any LateralSpurs.

“Committed Delivery Dates” shall mean subject to Events of Force Majeureand any other extensions of timeprovided for in this Agreement, the dates set forth in Exhibit C, or in an applicable Service Order.

“Confidential Information” shall mean, subject to Section 18.1(d), anydata or information, other thanTrade Secrets, that is of value to a Party and is not generally known tocompetitors of such Party. To theextent consistent with the foregoing, Confidential Information includesinformation that (i) concerns theoperations, facilities, plans, affairs and businesses of a Party, the financialaffairs of a Party, and the relations of a Party with its customers,employees and service providers, or (ii) is markedconfidential, restricted, proprietary or with a similar designation.Confidential Information also includes any information which a Partyobtains from a third Person which such Person treats as proprietary or designates as confidential information, whether or notowned or developed by such Person.

“Costs” shall mean actual, direct reasonable costs paid or payable inaccordance with the establishedaccounting procedures generally used by AGLN and which AGLN utilizes in billingthird parties for reimbursableprojects, including the following: (i) internal labor costs (including wages, salaries and benefits) and overhead allocable tosuch labor costs equal to thirty percent (30%) of such labor costs, and(ii) other direct costs and out-of-pocket expenses on a pass-through basis(e.g., equipment, materials, supplies, contractservices, etc.).

“Demarcation Point” shall mean a boundary point at the splice point or patch pointat each end of the User Dark Fiberswhere a cable from the Customer System is joined to the User Dark Fibers. The side of the Demarcation Point on whichthe AGLN System is located shall be called the “Network Side.” The other side shall be called the “PremiseSide.”

“Dollars” or “$” shall mean U.S. Dollars.

“Estimated Route Miles” shall mean the Parties’ best estimate of totallinear miles for the User Route, as set forth in Exhibit A.

“Handhole” shallmean a structure similar in function to a Manhole, but which is too small for personnel to enter. As used in thisAgreement, the term “Handhole” refers only to handhole structures ownedby AGLN and located on the System Route and does not include Cable or other telecommunications equipment or facilities ofAGLN or any other Person located within such handhole structures.

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“Impositions”shall mean all taxes, fees, levies, imposts, duties, charges or withholdings ofany nature (including ad valorem, real property, gross receipts, franchise,license and permit fees), together with any penalties, fines or interestthereon arising out of the transactions contemplated by this Agreement and/orimposed upon the AGLN System, or any part thereof, or upon the User DarkFibers, the User Equipment or any other property or facilities of User, or anypart thereof, by any federal, state or local government or other public taxingauthority.

“Innerduct” shallmean a single, enclosed HDPE tube and space within that tube used to encloseand carry Cable.

“Interest Rate”shall mean the lower of (i) the highest rate permitted by law, or (ii) one andone-half percent (1.5%) per month, compounded monthly.

“Lateral Spur”shall mean a discrete fiber optic communication system segment, span or spurthat branches off from the AGLN System and that contains less than all of theducts and Innerducts and Cable included in the AGLN System.

“Manhole” shallmean a below ground level enclosure entered through a hole on the surfacecovered with a cast iron, cast aluminum, steel or concrete manhole cover, whichpersonnel may enter and use for the purpose of installing, operating andmaintaining facilities associated with a fiber optic communications system. Asused in this Agreement, the term “Manhole” refers only to manhole structuresowned by AGLN and located on the System Route and does not include Cable orother telecommunications equipment and facilities of AGLN or any other Personlocated within such manhole structures.

“Party” shall meaneach of AGLN and User and “Parties” shall mean AGLN and User.

“Person” shallmean any individual, corporation, partnership, limited liability company, jointventure, association, joint-stock company, trust, unincorporated organization,government or any agency or political subdivision thereof or any other entity.

“Ring” shall meana contiguous assembly of the AGLN System that starts and ends at the samelocation as generally identified in Exhibit B.

“Route Miles”shall mean, with respect to each Service Order, the number of linear routemiles (to the nearest thousandth of a mile) as constructed and based upon theAs-Built Drawings of such Service Order.

“Segment” shallmean one of the discrete segments, spans or portions of a Ring as generallyidentified in Exhibit B.

“Service Order” isdefined in Section 3.5.

“System Route”shall mean actual route of the AGLN System as generally identified in ExhibitB.

“Trade Secret”shall mean any information of a Party, without regard to form, includingtechnical or non-technical data, a formula, a pattern, a compilation, aprogram, a device, a method, a

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technique, a drawing, aprocess, financial data, financial plans, product plans, business plans,software programs (including the object and source code thereto) or a list(whether in written form or otherwise) of actual or potential customers orsuppliers, which is not commonly known by or available to the public and whichinformation (i) derives economic value, actual or potential, from not beinggenerally known to and not being readily ascertainable by proper means by otherPersons who can obtain economic value from its disclosure or use and (ii) isthe subject of efforts that are reasonable under the circumstances to maintainits secrecy. Trade Secrets also include any information described in thisparagraph which a Party obtains from a third Person which such Person treats asproprietary or designates as trade secrets, whether or not owned or developedby such Person.

“Underlying Rights”shall mean all deeds, leases, easements, rights-of-way agreements, licenses,franchises, permits, grants and other rights, titles and interests that arenecessary for the construction, installation, maintenance, operation, use orrepair of the AGLN System, Innerducts, Lateral Spurs, User Equipment, Cable orUser Dark Fibers, as applicable.

“User Equipment”shall mean any optronic, electronic, optical, or power equipment, and any otherfacilities, material or equipment owned, possessed or utilized by User, or anyother Person in connection with the operation of the User Dark Fibers,including all Innerducts (and other conduit tubing) and Cable in any LateralSpur owned by User and connecting to any of the User Dark Fibers.

“User Handhole”shall mean any Handhole that serves as a Connecting Point to any of the UserDark Fibers and that is constructed by AGLN for User pursuant to the provisionsof Section 9.3.

“User Route” isthe route of the User Dark Fibers in the System Route particularly described ordepicted in Exhibit B or in a Service Order along which the User Dark Fibersare or will be located.

**1.2**          The following terms have therespective meanings ascribed to them in the Section indicated in the tablebelow:
|  Term                         | ** ** | **Section** | ** ** |
|------------------------------------|------------|-------------|------------|
|                               |       |        |       |
| Connecting  Points                 |       | 9.1         |       |
| Connecting  Services               |       | 9.2         |       |
| Events of Force  Majeure           |       | 21.1        |       |
| Fiber Acceptance  Testing          |       | 6.1         |       |
| Final Payment                      |       | 4.1(c)      |       |
| Finally  Determined Taxes and Fees |       | 16.5(b)     |       |
| Initial Payment                    |       | 4.1(a)      |       |
| IRU                                |       | 3.1         |       |
| IRU Effective  Date                |       | 8.1         |       |
| IRU Fee                            |       | 4.1         |       |
| Optional User  Dark Fibers         |       | 3.1         |       |
| Routine  Maintenance               |       | 10.1        |       |
| Acceptance Date                    |       | 6.2         |       |
| Completion Notice                  |       | 6.1         |       |
| Service Affecting  Condition       |       | 10.2        |       |
| Term                               |       | 8.1         |       |
| User Dark Fibers                   |       | 3.1         |       |
| User Media                         |       | 9.1         |       |
| Underlying Rights  Requirements    |       | 12.1        |       |
| User Maintenance Fee               |       | Exhibit D   |       |

 

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**2.**             **The AGLN System**

**2.1         **The AGLN Systemgenerally will follow the route and will connect the Segments as generallyidentified in Exhibit B to form the Rings as generally identified in Exhibit B.AGLN shall use commercially reasonable efforts to deliver to User the User DarkFibers for each Service Order on or before the respective Committed DeliveryDate set forth in Exhibit C or the applicable Service Order.

**2.2**          The specific route and location ofeach Ring of the AGLN System, including the specific location of Manholes andHandholes, is subject to the Underlying Rights and AGLN’s absolute discretion;provided, however, that the AGLN System will connect each Segment to form anintegrated multi-conduit Ring as generally identified in Exhibit B. At the endof each Segment, AGLN will terminate the User Dark Fibers at a fiberdistribution panel, fiber splice kit or other appropriate terminal apparatus asdetermined by AGLN.

**2.3         **Notwithstandinganything to the contrary contained in this Agreement, AGLN may elect to acquireany portion of the AGLN System from third parties (whether by lease, sublease,indefeasible right of use or otherwise) in lieu of constructing and installingthe AGLN System with respect to such portion.

**2.4         **Notwithstandinganything to the contrary contained in this Agreement, AGLN may assign orsubcontract to a third Person any or all of AGLN’s duties or obligations toUser under this Agreement (including AGLN’s duties or obligations underSections 5, 6, 9 and 10 herein), provided that AGLN shall remain obligated toUser under the terms of this Agreement for any such duties.

**3.             Grant of Rights in the AGLNSystem**

**3.1         **As of the AcceptanceDate for the initial User Dark Fibers and for the User Dark Fibers in each ServiceOrder, AGLN grants to User and User receives from AGLN (a) an exclusiveindefeasible right of use in the fiber optic strands of the Cable which will bespecifically identified by AGLN in the AGLN System (the “User Dark Fibers”),and (b) the associated and nonexclusive right to use the Associated Property,all such rights upon and subject to the terms and conditions set forth in thisAgreement (collectively, the “IRU”).

**3.2**          Except as expressly set forth herein,the IRU does not include the right of User to own, control, maintain, modify orrevise the User Dark Fibers or the Associated Property, the right of physicalaccess to the AGLN System, the right to encumber the AGLN System in any manner,or the right to use the AGLN System.

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**3.3**          User acknowledges and agreesthat during the Term technological advances in optical fiber are likely tooccur. Notwithstanding anything to the contrary contained in this Agreement, AGLN shall have the right to, upon not less thanone hundred twenty (120) days written notice to User, substitute an equal number of dark fibers for the User Dark Fiberswithin any Segment or portion thereof(which alternative dark fibers shall thereupon constitute User Dark Fibers),provided that in such event, suchsubstitution (a) shall be effected at the sole cost of AGLN, (b) shall be performed in accordance with the specificationsand procedures set forth in Exhibit C, (c) shall incorporate fiber opticstrands meeting or exceeding the specifications set forth in Exhibit C and shall be tested in accordance with the FiberAcceptance Testing, (d) shall not change the Connecting Points, and AGLN shall use commercially reasonable efforts to minimize anyinterruption or interface with theoperation of the User Dark Fibers. Neither this Agreement nor the IRU granted hereby conveys any form or type of title in anyreal or personal property, including the AGLN System, any Segment, the User Dark Fibers or any portion of any of theforegoing. The Parties intend thatthis Agreement constitutes a true lease of the User Dark Fibers and not a saleof the User Dark Fibers.

**3.4         **Each ofAGLN and User represents and covenants with the other that it will report, forboth federal and all state income taxation purposes, income and deductions inaccordance with Section 467 of theInternal Revenue Code of 1986, as amended, and with the applicable, final regulations that were issued by the TreasuryDepartment on May 17, 1999, as amended or modified from time to time. If either AGLN or User, orboth, fails to report income and deductions in accordance with the Internal Revenue Code, such failure shallconstitute a breach or failure to fully and punctually observe the covenants of this Agreement and will entitlethe non-performing Party to exerciseits rights under Sections 13 and 19 herein.

**3.5**          Fromtime to time, User may order additional services from AGLN. If AGLN accepts a request, the Parties will execute a service order(a “Service Order”) setting forth, without limitation, the number of User Dark Fibers, Demarcation Points,Committed Delivery Date, estimatedinstallation charges, if any, and all fees and any other relevant terms agreedupon by the Parties. Upon executionby AGL and User, each new Service Order is automatically incorporated into andsubject to the terms of this Agreement.

**4.             Payment**

**4.1         **In consideration of the grant of the IRU hereunderby AGLN to User, User agrees to payto AGLN for the Dark Fiber in each Service Order any non recurring charges andmonthly recurring fees as specified in the applicable Service Order (the “IRUFee”).

**4.2**          All payments made by User hereunder in excess of $50,000 shall be madeby wire transfer of immediatelyavailable funds in accordance with wire instructions to be provided by AGLN. Payments of all other amounts by Userhereunder may be made by wire transfer or by company check of immediately available funds payable to AGLN.

**4.3**                 If User fails to make any payment under this Agreement when due, then,in addition to such sum and to anyother rights and remedies that AGLN may have, User shall pay interest on such unpaid amount at the Interest Rate, whichshall accrue during the time such payment remains

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outstanding. Notwithstanding theforegoing, no interest shall accrue on any payment that is disputed in good faith by User while such dispute ispending. If such dispute is later resolved in favor of AGLN, such amount shallbear interest from the date when due until paid at the Interest Rate.

**4.4**          In addition to the amountspayable under Section 4.1, User shall be responsible to pay directly orreimburse AGLN, as requested by AGLN, for all other sums, costs, fees andexpenses that are required to be paid underthis Agreement, including the User Maintenance Fee for Routine Maintenance. Except for the IRU Fee and the UserMaintenance Fee (which are payable on the due dates set forth in Section4.1 and Exhibit D, respectively), AGLN will invoice User for all sums, costs,fees and expenses owed by User to AGLN, and User shall pay such invoices withinthirty (30) days of the invoice date. The User Maintenance Fee shall be paid atthe time or times and in the manner setforth in Exhibit D. AGLN reserves the right to direct payment of the IRU Fee,the User Maintenance Fee and anyother fees or charges to AGLN or to any other party.

**4.5**          All payments made by User underthis Article 4 shall be made without any deduction or withholding for or onaccount of any Imposition. If User makes any deduction or withholding from any payment due to AGLN, then,notwithstanding anything to the contrary contained in this Agreement,the gross amount payable by User to AGLN shall be increased so that after anysuch deduction or withholding for such Impositions or any additional deductionor withholding on account of any Impositioncaused by such additional gross-up payment, the net amount received by AGLN will not be less than what AGLN would have receivedhad no deduction or withholding been required.User may prepay, without penalty, any portion of the IRU Fee set forth in theapplicable Service Order prior tosuch payment’s due date.

**5.             Inspection of the AGLN System**

**5.1                **Usershall have the right, upon written request, to inspect the installation,splicing and testing of the User DarkFibers; provided that User shall not enter a Manhole or access a Handhole. On User’s written request, AGLN shall makeavailable for inspection by User, at AGLN’s offices during AGLN’s normal business hours, copies of allinformation, documents, agreements, reports, permits, drawings andspecifications that are material to the grant of the IRU to User, to the extentthat their terms or other legalrestrictions permit disclosure. AGLN may redact confidential or proprietary business terms.

**5.2**                 AGLN shall have full and complete control and responsibility fordetermining any routing configurationsof the AGLN System and the location and configurations of all Manholes and Handholes. User shall have full and completecontrol and sole responsibility for selecting, purchasing and installing telecommunications equipment, for determiningnetwork and service configurations or designs, for regrooming,rearrangement or consolidation of channels or circuits and for all related functions with regard to the useof the User Dark Fibers and the Associated Property; provided, that Usershall not enter a Manhole or access a Handhole.

**5.3**                 User acknowledges andagrees that AGLN is not supplying nor is AGLN obligated to supply to User any optronics or electronics oroptical or electrical equipment, or other equipment, or

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anyelectrical power or power equipment, all of which are solely the responsibilityof User, nor is AGLN responsible for performing any work other than asexpressly specified in this Agreement.

**6.                    Testing and Acceptance of User Dark Fibers**

**6.1                **AGLN shall test the User Dark Fibers in accordancewith the procedures specified in Exhibit C (“Fiber Acceptance Testing”). AGLNshall provide User reasonable advance notice of the date and time of each Fiber Acceptance Testingsuch that User shall have the opportunity to have User personnel present to observe the FiberAcceptance Testing. When AGLN has determined that the results of the Fiber Acceptance Testing showthat the User Dark Fibers, with respect to all Segments included within a Service Order, have been installed and areoperating in conformity with the applicable specifications set forth inExhibit C, AGLN shall promptly provide User written notice of the same (a “Completion Notice”) and a copy ofsuch test results.

**6.2**          Within ten (10) days of receipt of a Completion Notice, User shallprovide AGLN with a written noticeaccepting or rejecting the User Dark Fibers with respect to such Service Order,specifying in reasonable detail, ifrejected, the defect or failure in the Fiber Acceptance Testing. If User fails to notify AGLN of its acceptance orrejection of the Completion Notice within ten (10) days following User’sreceipt of the same, User shall be deemed to have accepted the User Dark Fibers with respect to such Service Order. The dateof such notice of acceptance or deemed acceptanceof the User Dark Fibers with respect to an entire Service Order shall be the “AcceptanceDate.” In the event of any goodfaith rejection by User, AGLN shall take such action as reasonably necessary, and as expeditiously as practicable, tocorrect or cure such defect or failure, and the process of Fiber Acceptance Testing, notice to User and acceptance shallbe repeated with respect to such rejected User Dark Fibers. Theforegoing notwithstanding, if User uses any portion of any Dark Fiber to carry traffic prior to acceptance, suchuse shall constitute acceptance of such portion of such Dark Fiber.

**6.3**                 As soon as reasonably practicable after the Acceptance Date for eachService Order, AGLN shall provide Userwith the As-Built Drawings for such Service Order  and technical specifications of the User Dark Fibers and associated splices locatedwithin such Segment.

**7.                    Installationof User Equipment.**

**7.1                **Theinstallation, use, repair, maintenance and replacement of User Equipment shallbe the sole responsibility of User, and AGLNshall have no obligation or liability under this Agreement or otherwise to install, maintain, repair orreplace any User Equipment.

**7.2**                 User represents,warrants and covenants that it will use and operate the User Dark Fibers and use, operate, maintain, repair andreplace the User Equipment in compliance with and subject to the Underlying Rights Requirements andall applicable codes, ordinances, laws, rules and regulations. Notwithstanding anything to thecontrary contained herein, User shall secure, prior to the IRU Effective Date with respect to eachService Order, and shall maintain in full force and effect during the Term, any and all necessary approvals,consents, rights-of-way, permits, franchises, licenses, Underlying Rights or similar approvals from all governmentaland other authorities or Personswhich are necessary or required to be obtained for the (i) installation, use,operation, maintenance, repair andreplacement of the User Equipment on the Premise Side of the Demarcation

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Points, and (ii) the useand operation of the User Dark Fibers by User on the Premise Side of theDemarcation Points.

**7.3**          User shall not use its facilities,including without limitation the User Dark Fibers and the User Equipment, in away that interferes in any way with or adversely affects the use of the AGLNSystem or any Cable therein or other equipment and facilities of any Person(including AGLN) using the AGLN System. User’s facilities, including withoutlimitation the User Dark Fibers and the User Equipment, shall not endanger ordamage the AGLN System and shall not create an unreasonable risk of damage toproperty or injury or death to any individual or to the public. Useracknowledges that the AGLN System includes or will include other participants,including AGLN and other owners and users of telecommunications systems.

**7.4**          AGLN shall have the right, but not theduty, to make periodic or spot inspections at any time of User’s facilitiesplaced within the AGLN System, including the User Equipment, all at reasonabletimes during regular business hours, and the right, but not the duty, to bepresent at and to monitor all work by User relating to the AGLN System,including any access to any User Handholes. Such inspections and monitoring may be conducted for the purpose ofdetermining whether facilities placed in the AGLN System and work relating tothe AGLN System are in compliance with the terms of this Agreement. AGLN maycharge User for the Costs of inspection and monitoring only if the inspectionor monitoring reflects that User is in substantial noncompliance with the termsof this Agreement. If AGLN reasonably determines that any User Equipment is notin compliance with the terms of this Agreement, User shall, upon written noticefrom AGLN, bring its facilities into material compliance within forty-eight(48) hours of such written notice or, at a minimum, commence curative measureswithin twenty-four (24) hours and exercise reasonable diligence to completesuch measures as soon as possible thereafter. If User fails to take curativeaction within forty-eight (48) hours or if the non-compliance is of a characterwhich poses an immediate and substantial threat of damage to property, injuryor death to any Person, or interference/impairment of the AGLN System or anyuse of the AGLN System by AGLN or any other Person using the AGLN System, thenAGLN may take such action as it deems appropriate to correct the violation,including the interruption of electrical power to any User Equipment, directingUser or any contractor of User to immediately suspend work relating to the AGLNSystem, and limiting, terminating or refusing access to any part of the AGLNSystem. In addition, should AGLN, in its sole discretion, determine thatconditions exist that jeopardize the health or safety of persons or property,or that a violation exists of any of the Underlying Rights Requirements,including Arizona Department of Transportation regulations or OccupationalSafety & Health Administration regulations, then AGLN may direct that allwork or use by User or others relating to the AGLN System be immediately andtemporarily suspended until such time as the Parties may resolve the violationor condition. Such temporary suspension shall not entitle either Party to anydamages from the other Party for delay in performance. AGLN will endeavor, butis not required, to provide notice to User prior to taking such action andshall have no liability to User for any damages arising from such action,except to the extent that such action by AGLN constitutes willful misconduct.If User undertakes the curative measures, upon completion of the work, Usershall provide to the AGLN record documents, to include As-Built Drawings,indicating all work performed. If AGLN performs the curative measure, AGLN shallprovide to the User record documents, to include As-Built Drawings, regardingthe curative measures taken to bring User’s facilities into compliance. Allwork shall be performed in accordance with Exhibits C, D and E, as applicable.User shall pay and reimburse AGLN for one hundred percent (100%) of all Costsincurred by AGLN in taking such action plus a management fee equal to fifteenpercent (15%) of such Costs, within thirty (30) days of User’s receipt of AGLN’sinvoice therefor.

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**8              Term and Renewal**

**8.1         **The IRU with respectto the User Dark Fibers shall become effective on the relevant Acceptance Datefor the User Dark Fibers in such Service Order (the “IRU Effective Date”).Subject to Sections 8.2, 8.3 and 8.4 and Articles 11 and 19, the IRU shall extendfor the period thereafter that is set forth in the applicable Service Order(the “Term”).

**8.2         **User may extend theTerm with respect to the User Dark Fibers in each Segment that is part of aRing (as delineated in Exhibit B) so that the Term of the IRUs granted withrespect to the User Dark Fibers in all Segments within such Ring expirecontemporaneously with the Term of the IRU with respect to the User Dark Fibersin the last Segment comprising such Ring. In the event that User desires so toextend the Term of the IRU with respect to the User Dark Fibers in any ServiceOrder, User shall deliver to AGLN, at least six (6) months but no more thantwelve (12) months prior to the expiration of the Term respecting such IRU,written notice of its election to so extend the Term for such IRU together withan additional IRU Fee (pro rated for the duration of the extension allowed) tocompensate for the extension of the Term. For example, if the Term of an IRUfor the User Dark Fibers in a Service Order is twenty (20) years, and isextended by one year, then the additional annual IRU Fee would be l/20th of theamount of the IRU Fee for the User Dark Fibers in that Service Order.

**8.3         **If at any time Userin its absolute discretion determines that, with respect to any Segment, theUser Dark Fibers located in such Segment have reached the end of their usefullife, or User otherwise desires not to retain the IRU with respect to the UserDark Fibers in such Segment, User shall have the right to abandon such IRU bywritten notice to AGLN. In the case of abandonment, this Agreement shallterminate as to the User Dark Fibers in such Segment, and User shall not beentitled to a refund of any of the consideration paid. Upon such termination,all fees, costs, and other expenses with respect to the User Dark Fibers insuch Segment shall be immediately due and payable to AGLN by User.

**8.4         **Subject to theParties reaching agreement on the amount of the additional payment to be madeby User to AGLN upon any such extension, User shall have the option to extendthe Term of the IRU granted hereunder for two (2) consecutive ten-year periods.To exercise such extension option, User must notify AGLN in writing at leasttwelve (12) months but not more than eighteen (18) months prior to the expirationdate of the initial or previously extended Term, specifying in reasonabledetail the Segment(s) of the User Route to which such extension notice applies.Such additional payment by User shall be due on the date of commencement ofsuch extension period, and shall be ratably allocated to each year of suchextension period commencing on such commencement date. Unless the Parties reachagreement on the amount of the additional payment to be made by User, Usershall not have the right to extend the Term past the expiration date of theInitial Term or the expiration date of the then-current extension period (ifany), and in no event shall User have the right to extend the Term past theexpiration date of the second ten-year extension period (if any).

**9.             Manholes and Connection Services**

**9.1         **AGLN agrees that itwill connect User’s fiber optic cable, fiber optic strands or other compatibletransmission media (“User Media”) with the User Dark Fibers at the Manholes and

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Handholes requested by User in accordance with Section9.2 and, subject to Section 9.3 at other technically feasible connecting pointsalong the User Route (collectively, the “Connecting Points”), at a fiberdistribution panel, fiber splice kit or other appropriate terminal apparatus asdetermined by AGLN.

**9.2**          Notwithstanding anything contained inthis Agreement to the contrary, any and all work with respect to the User DarkFibers, any Connecting Point and the AGLN System shall be performed by AGLN. IfUser desires that AGLN perform any additional work (other than as set forth in **Sections 9.1 —****9.3**hereof), with respect to the User Dark Fibers, anyConnecting Point or the AGLN System, User shall notify AGLN in writing of suchrequest. AGLN, in its absolute discretion, shall determine if such requestedwork (i) is feasible from a technical standpoint and with respect to theUnderlying Rights Requirements and (ii) will not delay the construction of, orotherwise interfere with, the AGLN System. If AGLN determines that such workcan proceed, AGLN shall submit to User in writing an estimate of the Costs tobe incurred in connection with such work and an estimate of the time requiredto perform such work. If User elects to proceed with such work, then User andAGLN shall amend the Agreement to reflect the Costs associated with thecompletion of the additional work.

**10.          Maintenance and Repair of the AGLNSystem**

**10.1       **From and after the IRUEffective Date with respect to each Segment, the maintenance of the AGLN Systemand Cable shall be provided in accordance with the maintenance requirements andprocedures set forth in Exhibit D, and in accordance with the fiberspecifications set forth in Exhibit C. User agrees to pay the User MaintenanceFee for Routine Maintenance and to reimburse AGLN for non-Routine Maintenancein accordance with the provisions of this **Section10**and Exhibit D.

(a)           RoutineMaintenance. During the Term, AGLN shall provide, or cause to be providedby contractors selected by AGLN, all required Routine Maintenance of the AGLNSystem and the User Dark Fibers in accordance with the provisions set forth inExhibit D. “Routine Maintenance” means the work specifically identified asRoutine Maintenance in Exhibit D, provided that Routine Maintenance excludes(i) work for which User is obligated to reimburse AGLN pursuant to otherSections of this Agreement (including Article 9), (ii) work necessitated byUser’s negligence or willful misconduct, or (iii) User’s elective maintenanceor repair requests.

(b)           Non-RoutineMaintenance. Except as provided in the last sentence of this Section10.1(b), User shall pay and reimburse AGLN for User’s proportionate share ofall Costs incurred by AGLN in connection with non-Routine Maintenance of theAGLN System and the User Dark Fibers (including repairs required as a result ofCable cuts or natural or man-made disasters), within thirty (30) days of User’sreceipt of AGLN’s invoice therefor. User’s proportionate share of such Costsshall be determined and allocated as follows: (a) if the affected portion ofthe AGLN System includes any Innerduct other than the Innerduct housing theUser Dark Fibers, the total Costs first shall be allocated equally among all ofthe affected Innerducts and the Innerducts housing other dark fiber; and thenthe Costs allocated to the Innerduct housing the User Dark Fibers shall beallocated based on the ratio to which the number of User Dark Fibers bears tothe total number of fibers in such Innerduct; or (b) if the affected portion ofthe AGLN System does not consist of any Innerduct other than the Innerducthousing the User Dark Fibers, the Costs shall be allocated based on the ratioto which the number of User Dark Fibers bears to the total number of-fiberswithin the

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affected portion of theAGLN System. Notwithstanding the first sentence of this **Section 10.1(b)**,****to the extent such non-Routine Maintenance relates to (i)work necessitated by User’s negligence or willful misconduct or (ii) User’selective maintenance or repair requests, User shall pay and reimburse AGLN forone hundred percent (100%) of all Costs incurred by AGLN in connection withsuch non-Routine Maintenance plus a management fee for such work equal tofifteen percent (15%) of such Costs, within thirty (30) days of User’s receiptof AGLN’s invoice therefor.

**10.2       **From and after the IRUEffective Date with respect to each Segment, in the event that all or any partof the AGLN System within such Segment is damaged or destroyed such that aService Affecting Condition exists regarding a Dark Fiber, AGLN shall usecommercially reasonable efforts to resolve such Service Affecting Conditionutilizing the procedures described in Exhibit D. Notwithstanding anythingcontained herein to the contrary, AGLN shall not incur any liability to User byreason of a Service Affecting Condition, except its obligation to resolve suchService Affecting Condition as set forth in this Section 10.2, and User shallnot be entitled to any credits for IRU Fees or for any other payment paid or tobe paid by User pursuant to this Agreement by reason of such Service AffectingCondition. For purposes of this Section 10.2, “Service Affecting Condition”shall be as defined in **Section 5 of Exhibit D**,****except where the condition is caused by adeficiency in the User Equipment, in which event it shall not be a ServiceAffecting Condition.

**10.3       **User shall have noright to physically access the AGLN System, or the Cable or to maintain,adjust, align or attempt to repair the User Dark Fibers or AGLN System. In noevent whatsoever shall User physically access the AGLN System to maintain,adjust, align, cut, repair or replace the AGLN System or attempt to do any ofthe foregoing.

**11.           Permits; Underlying Rights;Relocation**

**11.1       **Subject to the termsand provisions of this Agreement, AGLN agrees to obtain and maintain during theTerm all Underlying Rights necessary for its construction, installation,maintenance and repair of the AGLN System. The IRU is subject to the terms ofthe Underlying Rights, and subject to the terms under which the UnderlyingRights are owned or held by the grantor of the Underlying Rights, includingcovenants, conditions, restrictions, easements, reversionary and otherinterests, bonds, mortgages and indentures, and other matters, whether or notof record, and to the rights of tenants and licensees in possession. The IRUgranted hereunder is further subject and subordinate to the prior right of thegrantor of the Underlying Rights to use the right of way for other activities,including railroad operations, telecommunications uses, pipeline operations orany other purposes, and to the prior right of AGLN to use its rights grantedunder the Underlying Rights. The rights granted to User herein, if any, aremade expressly subject to each and every limitation, restriction, condition orreservation in or affecting the Underlying Rights. Nothing herein shall beconstrued to be a representation, warranty or covenant of AGLN’s right, titleor interest with respect to any of the Underlying Rights or with respect toUser’s right to benefit from any of the Underlying Rights.

**11.2       **Upon the expiration,non-recognition or other termination of an Underlying Right that is necessaryin order to grant, continue or maintain an IRU granted hereunder in accordancewith the terms and conditions hereof, AGLN shall use commercially reasonableefforts to obtain an alternate right of way for the affected portion of theAGLN System. The Parties shall share the Costs of obtaining an alternate rightof way in the manner described in Section 11.4.

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**11.3       **If, after theAcceptance Date with respect to any Segment, AGLN is required by a third Personwith legal authority to so require (including the grantor of an UnderlyingRight) or by the occurrence of an Event of Force Majeure, or if User agrees torelocate any portion of the AGLN System, with respect to such Segment,including any of the facilities used or required in providing the IRU, AGLNshall have the right either to proceed with such relocation, including theright, in good faith, to reasonably determine the extent of, the timing of, andmethods to be used for such relocation, or (if applicable) to pay such amountsto the Person requiring such relocation as are necessary to avoid the need forsuch relocation; provided that any such relocation shall be constructed andtested in accordance with the specifications and drawings set forth in ExhibitC, and incorporate materials meeting or exceeding the specifications set forthin Exhibit C. In the event of any such relocation, AGLN shall use commerciallyreasonable efforts to minimize any service interruptions. The Parties shallshare the Costs of relocating the affected portion of the AGLN System, or theamounts paid to the Person requiring such relocation to avoid relocation, inthe manner described in Section 11.4.

**11.4       **The Costs of obtainingalternate right of way as described in Section 11.2 and the Costs of relocatingthe affected portion of the AGLN System (or the amounts paid to the Personrequiring relocation to avoid relocation) as described in Section 11.3 shall beallocated between the Parties as follows: (a) if the affected portion of theAGLN System includes any Innerduct other than the Innerduct housing the UserDark Fibers, the total Costs first shall be allocated equally among all of theaffected Innerducts and the Innerducts housing other dark fiber; and then theCosts allocated to the Innerduct housing the User Dark Fibers shall beallocated based on the ratio to which the number of User Dark Fibers bears tothe total number of-fibers in such Innerduct; or (b) if the affected portion ofthe AGLN System does not consist of any Innerduct other than the Innerducthousing the User Dark Fibers, the Costs shall be allocated based on the ratioto which the number of User Dark Fibers bears to the total number of fiberswithin the affected portion of the AGLN System.

**11.5       **AGLN shall deliver toUser updated As-Built Drawings with respect to the relocated portions of theAGLN System as soon as reasonably practicable following the completion of suchrelocation.

**12.           Operation and Use of the AGLNSystem**

**12.1       **User represents andwarrants that it will use the User Dark Fibers and Optional Dark Fibers, theUser Equipment, the Lateral Spurs (if any) and the Associated Property incompliance with and subject to the Underlying Rights Requirements and any otherapplicable government codes, ordinances, laws, rules and regulations.Notwithstanding anything to the contrary contained herein, it shall be User’ssole responsibility to secure, or cause to be secured, prior to the IRUEffective Date, and maintain in full force and effect during the Term, any andall Underlying Rights and approvals, consents, rights of way, permits,franchises, licenses or similar approvals from all governmental and otherauthorities and any other Person which are necessary or required to be obtainedby User for AGLN to grant the IRU to User and for the use and operation of theUser Dark Fibers and Optional Dark Fibers, the User Equipment and theAssociated Property by User. Upon request of AGLN, User will deliver to AGLN copiesof such approvals, consents, rights-of-way, permits, franchises, licenses orsimilar approvals.

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**12.2       **AGLN agrees andacknowledges that it has no right to use the User Dark Fibers and Optional DarkFibers during the Term hereof and that, from and after the IRU Effective Dateand subject to Section 23.3, AGLN shall keep the User Dark Fibers and OptionalDark Fibers free from (i) any liens or encumbrances of any third Personattributable to AGLN and (ii) any other rights or claims of any third Person attributableto AGLN, which in either case are superior to the rights of User.

**12.3       **Subject to thelimitations set forth in this Agreement and to the restrictions set forth inthe Underlying Rights, User shall use the User Dark Fibers and Optional DarkFibers and the Associated Property solely for the purpose of lawfully providingTelecommunications Service, as defined by the Communications Act of 1934, asamended by the Telecommunications Act of 1996. User agrees and acknowledgesthat it has no right to use any of the Cable that is part of the AGLN System,other than the User Dark Fibers and Optional Dark Fibers. User shall keep anyand all of the AGLN System free from any liens, rights or claims of any thirdPerson attributable to User, except that User may encumber the IRU in the UserDark Fibers and Optional Dark Fibers granted to User, on the condition thatUser shall provide to AGLN an agreement from any such lien holder that theinterest of any lien holder is subordinate to the interest of AGLN and otherinterests and rights in and to the User Dark Fibers and Optional Dark Fibersand the Associated Property.

**12.4       **User and AGLN shallpromptly notify each other of any matters pertaining to, or the occurrence (orimpending occurrence) of, any event which would be reasonably likely to giverise to any damage or impending damage to or loss of the AGLN System that areknown to such Party.

**12.5       **User and AGLN eachagrees to cooperate with and support the other in complying with anyrequirements applicable to their respective rights and obligations hereunder.Without limiting the generality of the foregoing, User agrees to provide toAGLN, promptly upon request by AGLN, a detailed description of its uses of theUser Dark Fibers and Optional Dark Fibers and Associated Property and any otherinformation regarding its use of the User Dark Fibers and Optional Dark Fibersand the Associated Property reasonably requested by AGLN in order to enableAGLN to comply with any reporting requirements imposed on AGLN under any of theUnderlying Rights.

**13.          Indemnity**

**13.1       **Subject to theprovisions of Article 14, AGLN hereby agrees to indemnify, defend, protect andhold harmless User and its Affiliates, and their employees, officers, directorsand agents (the “User Indemnified Persons”), from and against, and assumesliability for all suits, actions, damages, claims, losses, fines, judgments,costs and expenses (including reasonable attorneys’, accountants’ and experts’fees and disbursements) of any character (“Claims”) (a) suffered or incurred bythe User Indemnified Persons or any of them because of the death of any Person,or any injuries or damage received or sustained by any Persons or propertywhich in whole or in part arise on account of the negligent acts or omissionsof AGLN in the construction of the AGLN System and/or in the performance ornon-performance of its repair and maintenance obligations or exercise of itsrights under this Agreement, including any material violation by AGLN of anyregulation, rule, statute or court order of any governmental authorityapplicable thereto; or (b) under the workers compensation laws asserted by anyemployee of AGLN or its agents, contractors, customers or any other Personproviding goods or services for or on behalf of any of the foregoing inconnection with this

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Agreementsuffered or incurred by the User Indemnified Persons or any of them. AGLN’sindemnification obligations hereunder shall not be applicable to any Claims tothe extent caused by, arising out of or in connection with the negligence,intentional acts or omissions or misconduct of the User Indemnified Persons orany of them.

**13.2       **User hereby agrees to indemnify, defend,protect and hold harmless AGLN and its Affiliates, and their employees,officers, directors and agents (the “AGLN Indemnified Persons”), from andagainst, and assumes liability for all Claims (as defined in **Section 13.1**)****(a) suffered or incurred by the AGLN Indemnified Persons orany of them because of the death of any Person, or any injuries or damage receivedor sustained by any Persons or property (including without limitation, the AGLNSystem) which in whole or in part arise on account of the negligent acts oromissions, negligent or otherwise, of User in the performance ornon-performance of its obligations or exercise of its rights under thisAgreement, including any material violation by User of any Underlying RightRequirements or any regulation, rule, statute or court order of anygovernmental authority applicable thereto (b) under the workers compensationlaws asserted by any employee of User or its agents, contractors, customers orany other Person providing goods or services to any of the foregoing inconnection with this Agreement, and suffered or incurred by the AGLNIndemnified Persons or any of them; (c) suffered or incurred by the AGLNIndemnified Persons or any of them and arising out of or resulting from User’s(i) use or operation of the User Dark Fibers or the Associated Property, or theuse, operation, installation, repair, maintenance or replacement of the UserEquipment, (ii) the conduct of User’s business, including without limit, theprovision of any services or the content of any video, voice or data carriedthrough the User Dark Fibers or (iii) the violation of any Underlying Rights Requirementsapplicable to User; or (d) suffered or incurred by AGLN Indemnified Persons orany of them and arising out of, caused by, related to or based upon acontractual or other relationship between such claiming party and User as itrelates to the User Dark Fibers, the User Equipment, the Underlying RightsRequirements or this Agreement, including any claim for interruption of serviceor in respect of service quality. User’s indemnification obligations hereundershall not be applicable to any Claims to the extent caused by the negligence,intentional acts or omissions or misconduct of AGLN Indemnified Persons or anyof them.

**13.3       **Any Party seeking indemnification hereunder (“Indemnitee”)shall promptly notify User or AGLN, as appropriate, of the nature and amount ofsuch claim and the method and means proposed by the Indemnitee for defending orsatisfying such claim. The Parties shall consult and cooperate with each otherrespecting the defense and satisfaction of such claim, including the selectionof and direction to legal counsel, and neither Party shall pay or settle anysuch claim without the prior written consent of the other Party, which consentshall not be unreasonably withheld, conditioned or delayed.

**13.4       **Subject to Sections 13.5 and 14, nothingcontained herein shall operate as a limitation on the right of either Partyhereto to bring an action for damages against any third Person, includingindirect, special or consequential damages, based on any acts or omissions ofsuch third Person as such acts or omissions may affect the construction,operation or use of the User Dark Fibers or the AGLN System, except as may belimited by Underlying Rights Requirements; provided, however, that each Partyhereto shall assign such rights or claims, execute such documents and dowhatever else may be reasonably necessary to enable the other Party to pursueany such action against such third Person.

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**13.5       **Notwithstanding the foregoing provisions ofthis Article 13, to the extent AGLN is required under the terms and provisionsof any Underlying Rights to indemnify the grantor or provider thereof from andagainst any and all claims, demands, suits, judgments, liabilities, losses orexpenses arising out of or related to such Underlying Rights, regardless of thecause and regardless of whether such claims, demands, suits, judgments,liabilities, losses or expenses arise from the sole or partial negligence,actions or inaction of such grantor or provider and its employees, servants,agents, contractors, subcontractors or other Persons using the property coveredby such Underlying Right, User hereby releases such grantor or provider fromthe same, regardless of whether such claims, suits, judgments, liabilities,losses or expenses arise from the sole or partial negligence, willfulmisconduct or other action or inaction, of such grantor or provider or itsemployees, servants, agents, contractors, subcontractors or other Persons usingthe property covered by such Underlying Right.

**14.           Limitationof Liability**

**14.1       **NOTWITHSTANDING ANY PROVISION OF THISAGREEMENT TO THE CONTRARY, EXCEPT TO THE EXTENT CAUSED BY ITS GROSS NEGLIGENCEOR WILLFUL MISCONDUCT, NEITHER AGLN OR ITS AFFILIATES OR USER OR ITS AFFILIATESSHALL BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY OR CUSTOMERS FOR ANY SPECIAL,INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL COSTS, LIABILITIES OR DAMAGES,WHETHER FORESEEABLE OR NOT, INCLUDING WITHOUT LIMITATION, ECONOMIC LOSS OR LOSTBUSINESS OR PROFITS, DAMAGES ARISING FROM THE USE OR PERFORMANCE OF THE AGLNSYSTEM, THE USER DARK FIBERS, EQUIPMENT OR SOFTWARE OR DAMAGE TO OR LOSS OF USETHEREOF, ANY INTERRUPTION OF SERVICE, OR ANY DELAY, ERROR OR LOSS OF DATA ORINFORMATION ARISING IN ANY MANNER OUT OF, OR IN CONNECTION WITH, THIS AGREEMENTAND SUCH PARTY’S PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THISAGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT(INCLUDING STRICT LIABILITY), ALL CLAIMS FOR WHICH ARE HEREBY SPECIFICALLYWAIVED.

**14.2       **The Parties acknowledge and agree that on andafter the relevant Acceptance Date, User’s sole rights and remedies withrespect to any defect in or failure of the User Dark Fibers and the AssociatedProperty to perform in accordance with the applicable vendor’s or manufacturer’sspecifications for such User Dark Fibers and Associated Property shall belimited to User’s exercise of rights pursuant to the particular vendor’s ormanufacturer’s warranty with respect thereto. Each such warranty, to the extentpermitted by the terms thereof shall be assigned to User upon its request;provided such assignment is without detriment to AGLN’s rights under or withrespect to such warranties. AGLN makes no warranty and shall have noobligations as to such User Dark Fibers and the Associated Property followingthe relevant Acceptance Date.

**14.3.      **The Parties expressly agree that no claim forlosses or damages whatsoever in connection with this Agreement shall be mademore than two (2) years after the date that the event giving rise to such claimis known or reasonably should have been known to the Party making such claim,and no claim for indemnity under the provisions of Article 13 shall be mademore than two (2) years after the first notice of any claim received by theParty claiming under such indemnity provision.

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**14.4       **Notwithstanding any provision of thisAgreement to the contrary, the maximum liability to User if any, of AGLN or itsAffiliates in connection with this Agreement shall be limited, in theaggregate, to a provable amount which shall be no greater than the aggregateunamortized amount of the IRU Fees that have been paid by User to AGLN for theUser Dark Fibers in the affected Service Order of the AGLN System for which theClaim is based and at the time the Claim is made; provided, however, that thislimitation of maximum liability shall not apply to damages arising from thewillful misconduct of AGLN or its Affiliates; and provided further, that thislimitation shall not restrict either Party’s right to proceed for injunctiverelief.

**15.          Insurance**

**15.1       **During the Term, each Party shall obtain andmaintain for itself and its contractors and subcontractors not less than theinsurance set forth below:

(a)           Commercialgeneral liability insurance for bodily injury (including death) and propertydamage which provides limits of not less than ten million dollars ($10,000,000)per occurrence and ten million dollars ($10,000,000) annual aggregate asrespects products/completed operations, independent contractor’s andcontractual liability and contractually assumed risks, if applicable; Coverageshall be endorsed to include the insurer’s waiver of subrogation in favor ofthe other Party;

(b)           Automobileinsurance for bodily injury (including death) and property damage that providestotal limits of not less than ten million dollars ($10,000,000) per accident toall owned, non-owned and hired vehicles; Coverage shall be endorsed to includethe insurer’s waiver of subrogation in favor of the other Party; and

(c)           Workers’Compensation and employers’ liability insurance of not less than Arizonastatutory limits. The policy shall include broad form all-states/other statescoverage. Coverage shall be endorsed to include the insurer’s waiver ofsubrogation in favor of the other Party.

The above minimum requirements as to insurance coverage shall not limitthe liability of either Party under this Agreement. The above limits may besatisfied using a combination of primary and excess coverage. Additionally,AGLN shall be deemed to have satisfied the conditions of this **Article**if it maintains a self-insuranceprogram with retention limits no greater than one million dollars ($1,000,000),together with excess liability insurance for the remaining limits.

**15.2       **Each Party shall obtain and maintain theinsurance policies required above with insurance companies authorized to dobusiness in the State of Arizona, and having an A.M. Best Rating of A orbetter. The other Party, its Affiliates, and their officers, directors andemployees, and any other Person entitled to indemnification hereunder, shall benamed as additional insureds to the extent of such indemnification. Each Partyshall provide the other Party with a certificate or certificates of insurancetogether with declaration pages in a form satisfactory to such other Partyshowing that the Party has complied with the insurance requirements of thisSection. Upon request, User shall furnish AGLN with a certified copy of eachpolicy, including the provisions establishing premiums. Certain deductibleclauses of either Party’s insurance which are not considered excessive, overlybroad, or harmful to the interest of the other Party will be allowed. Eachinsurance policy

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shall contain a provisionproviding the other Party with thirty (30) days advanced notice of anycancellation or material change in coverage.

**15.3       **Allproof of insurance submitted by User to AGLN shall clearly set forth allexclusions and deductible clauses. Standard exclusions in User’s policies willbe allowed provided they are not inconsistent with the requirements of this Article15. Allowance of any additional exclusions will be in the sole discretion ofAGLN. Regardless of the allowance of exclusions or deductions by AGLN, Usershall be responsible for the deductible limit of the policy and all exclusionsconsistent with the risks User assumes under this Agreement and as imposed bylaw.

**16.          Taxes,Fees and Other Governmental Impositions**

**16.1       **TheParties acknowledge and agree that it is their mutual objective and intent to(a) minimize the aggregate Impositions payable with respect to the AGLN System,and (b) share such Impositions according to their respective interests in theAGLN System or as otherwise allocated in this Article. They agree to cooperatewith each other and coordinate their efforts to achieve such objectives inaccordance with the provisions of this Article.

**16.2       **AGLNshall be responsible for and shall timely pay any and all Impositions withrespect to the construction or operation of the AGLN System which Impositionsare (a) imposed or assessed with respect to a particular Segment prior to therelevant Segment Acceptance Date; or (b) imposed or assessed in exchange forthe approval of the original construction of the AGLN System; or (c) that wereassessed in return for the original right to install the AGLN System on publicproperty or in public right of way. User shall be liable and shall reimburseAGLN for payments of any and all federal, state and local sales, use or similarImpositions, as applicable, with respect to the grant of the IRU, the use ofthe User Dark Fibers, and the other transactions under this Agreement, and withrespect to the User Equipment, User Media and other property or facilities ofUser.

**16.3       **Exceptas to Impositions described in Section 16.2, User shall be responsible for andshall pay or promptly reimburse AGLN for all Impositions (a) imposed on, basedon, or otherwise measured by the gross revenues, gross receipts, gross income,net revenues, net receipts or net income received by or accrued to User withrespect to the ownership or use of the User Dark Fibers; (b) measured by (i)volume or amount of space occupied by the length of the AGLN System in the Userroute; (ii) paid by AGLN to the grantor or provider of any of the UnderlyingRights to the extent imposed on, based on, or otherwise measured by the grossrevenues, gross receipts, gross income, net revenues, net receipts or netincome received by or accrued to AGLN with respect to the IRU Fee, the UserMaintenance Fee or any other amounts payable by User to AGLN under this Agreement;or (c) which have been separately assessed, allocated to, or imposed on theUser Dark Fibers, the User Equipment or other facilities of User. If the UserDark Fibers are the only fibers from the point where the User Dark Fibers leavethe AGLN System to a User facility, User shall be solely responsible for anyand all Impositions imposed on or with respect to such fibers and all UserEquipment associated with such fibers. To the extent such Impositions are notseparately assessed, allocated to or imposed on the User Dark Fibers, the UserEquipment or other facilities of User, AGLN will pay all such Impositions. AGLNshall notify User of such Imposition, and User shall promptly reimburse AGLNfor User’s appropriate share of such Impositions. To the extent suchImpositions arise pursuant to Section 16.5(b), AGLN will pay such Impositionsand shall notify User of such Imposition, and User shall promptly reimburseAGLN in the amount of such Imposition.

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**16.4       **AGLNshall have the right to contest any Imposition (including by nonpayment of suchImposition). The out-of-pocket costs and expenses (including reasonableattorneys’ fees) incurred by AGLN in any such contest shall be shared by AGLNand User in the same proportion as to which the parties would have shared insuch Impositions as they were assessed. Any refunds or credits resulting from acontest brought pursuant to this Section 16.4 shall be divided between AGLN andUser in the same proportion as separately determined or as originally assessed.In any such event, AGLN shall provide timely notice of such challenge to User.

**16.5       **Usershall have the right to protest by appropriate proceedings any Imposition. Insuch event, User shall indemnify and hold AGLN harmless from any expense, legalaction or cost, including reasonable attorneys’ fees, resulting from User’sexercise of its rights hereunder.

(a)           The foregoingnotwithstanding, AGLN, at its option and at its own expense, shall have theright to direct and manage any contest regarding an Imposition that relates tothe AGLN System that affects the interest of AGLN; subject, however, toreasonable and appropriate consultation with User. User agrees to cooperatewith AGLN in any such contest.

(b)           If User hasexhausted all its rights of appeal in protesting any Imposition and has failedto obtain the relief sought in such proceedings or appeals (“Finally DeterminedTaxes and Fees”), User and AGLN may agree to relocate a portion of the AGLNSystem to avoid the jurisdiction that imposes or assesses such Finally DeterminedTaxes and Fees (subject to the consent and participation of the other interestholders in the affected portion of the AGLN System). If User and AGLN do notdetermine to relocate the affected portion of the AGLN System, User shall havethe right to terminate its use of the User Dark Fibers in the affected portionof the AGLN System. Such termination shall be effective on the date specifiedby User in a notice of termination, but not earlier than ninety (90) days afterthe notice. Upon such termination, the IRU in the affected portion of the AGLNSystem shall immediately terminate, and the User Dark Fibers in the affectedportion of the AGLN System shall thereupon revert to AGLN without reimbursementof any of the IRU Fee or other payments previously made or due with respectthereto.

**16.6       **AGLNand User agree to cooperate fully in the preparation of any returns or reportsrelating to the Impositions. AGLN and User further acknowledge and agree thatthe provisions of this Article are intended to allocate the Impositions onprocedures and methods of computation that are in effect on the date of thisAgreement. Material changes in such procedures and methods could significantlyalter the fundamental economic assumptions of the Parties underlying thisAgreement. Accordingly, the Parties agree that, if such procedures or methodsof computation change materially, the Parties will negotiate in good faith anamendment to this Article 16 to preserve, to the extent reasonably practicable,the economic intent and effect of this Article.

**16.7**        Within ninety (90) days after theAcceptance Date for the first User Dark Fibers to be accepted by User, Usershall provide AGLN a reseller certificate for the State of Arizona. User shall,upon AGLN’s reasonable written request no more than twice in any one (1) yearperiod, provide AGLN additional reseller certificates or similar documentationfor the State of Arizona to assist AGLN in avoiding charging User sales, use,excise, or other taxes on the User Dark Fibers or any other product or serviceAGLN provides under this Agreement.

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**17.          Notices**

**17.1**        Notices. All notices, statements,demands, requests, consents, approvals, authorizations, offers, agreements,appointments, designations, or other direction or communication hereunder by anyparty to another shall be (a) in writing, (b) effective on the first businessday following the date of receipt, and (c) delivered by one of the followingmeans: (i) by personal delivery; (ii) by prepaid, overnight package delivery orcourier service; (iii) by the United States Postal Service, first class,certified mail, return receipt requested, postage prepaid; (iv) by computeremail or (v) by prepaid telecopier, telex, or other similar means of electroniccommunication (followed by confirmation on the same or following day byovernight delivery or by mail as aforesaid). All notices given under thisAgreement shall be addressed as follows:
|                 | USER:                     | Mountain Telecommunications, Inc. |
|-----------------|---------------------------|-----------------------------------|
|            |                      | 1430 W. Broadway, Suite A-200     |
|            |                      | Attn: Wilmot Wickramasuriya       |
|            |                      | Facsimile: (602) 850-9599         |
|            |                      |                              |
|            | With a copy to:           | Greenberg Traurig, LLP            |
|            |                      | 2375 E. Camelback Road, Suite 700 |
|            |                      | Phoenix, Arizona 85016            |
|            |                      | Attn: Robert S. Kant              |
|            |                      | Facsimile: (602) 445-8100         |
|            |                      |                              |
|            | AGLN:                     | AGL Networks, LLC                 |
|            |                      | 2 Allen Center                    |
|            |                      | 1200 Smith Street, Suite 900      |
|            |                      | Houston, TX 77002                 |
|            |                      | Attn: Contract Management         |
|            |                      | Facsimile: 832-397-1722           |
|            |                      |                              |
| With a copy to: | Associate General Counsel |
|            |                      | AGL Resources, Inc.               |
|            |                      | 10 Peachtree Place                |
|            |                      | 15th Floor                   |
|            |                      | Atlanta, Georgia 30308            |
|            |                      | Facsimile: 404-584-3714           |

 

or to such other postaladdresses, email addresses, or telecopier numbers of which the parties havebeen advised in writing by any of the above-described means. Personal deliveryto a party or to any officer, partner, agent, or employee of such party at itsaddress herein shall constitute receipt. A Party’s rejection or other refusalto accept notice shall also constitute receipt. Each party agrees to promptlygive the other party notice of any change in its above listed, respectivepostal addresses, email addresses, telecopier numbers or contact persons.

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**18.          Confidentiality**

**18.1**        (a)           Unlessby mutual agreement of the Parties, or except to the extent directed by a courtof competent jurisdiction or required by applicable law, AGLN and User shallnot disclose this Agreement or the terms hereof to any Person other than suchParty’s Affiliates or such Party’s officers, employees, and consultants, whoare similarly bound hereby.

(b)           Each Party acknowledges that it (the “ReceivingParty”) may be furnished with, receive or otherwise have access to TradeSecrets or Confidential Information of the other Party (the “Disclosing Party”).The Receiving Party shall not, except as expressly authorized or directed bythe Disclosing Party, use, copy, or disclose, or permit any unauthorized Personaccess to, any Trade Secrets belonging to the Disclosing Party or any thirdPerson; except that the Receiving Party may disclose Trade Secrets of theDisclosing Party to its consultants and financial and legal advisors (hereinafter“Consultants”), provided such Consultants have a need to know and have executednondisclosure agreements obligating such Consultants to keep the Trade Secretsof the Disclosing Party confidential, or are otherwise bound by similarconfidentiality obligations.

(c)           During the Term and for a period oftwo (2) years after the expiration or termination of this Agreement, whethersuch termination is at the instance of either Party, the Receiving Party willnot use, copy, or disclose, or permit any unauthorized Person access to, anyConfidential Information belonging to the Disclosing Party or any third Person;except that the Receiving Party may disclose Confidential Information of theDisclosing Party to its Consultants provided such Consultants have a need toknow and have executed nondisclosure agreements obligating such Consultants tokeep the Confidential Information of the Disclosing Party confidential, or areotherwise bound by similar confidentiality obligations.

(d)           For purposes of this Agreement, theterms “Trade Secrets” and “Confidential Information” shall not include anymaterials or information to the extent that such materials or information: (i)are or become publicly known or generally utilized by others engaged in thesame business or activities in which the Disclosing Party utilized, developedor otherwise acquired such information; or (ii) are known to the ReceivingParty prior to the receipt of such materials or information from the DisclosingParty; or (iii) are furnished to others by the Disclosing Party with norestriction on disclosure. Failure to mark any of the Trade Secrets orConfidential Information as confidential shall not affect its status as TradeSecrets or Confidential Information under this Agreement.

(e)           Because of the unique nature of theTrade Secrets and Confidential Information, each Party understands and agreesthat the Disclosing Party will suffer irreparable harm in the event that aParty fails to comply with any of its obligations under this Section and thatmonetary damages will be inadequate to compensate the Disclosing Party for suchbreach. Accordingly, the Parties agree that the Disclosing Party will, inaddition to any other remedies available to it at law or in equity, beentitled, without requirement to post bond, to injunctive relief to enforce theterms of this Article 18.

(f)            Either Party may make disclosure asrequired by a court order or as otherwise required by law or in any legal orarbitration proceeding relating to this Agreement. If either Party is requiredby law or by interrogatories, requests for information or documents, subpoena,civil investigative demand or similar process to disclose the ConfidentialInformation, it will provide the

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other Party with promptprior written notice of such request or requirement so that such Party may seekan appropriate protective order and/or waive compliance with this Section. TheParty whose consent to disclose information is requested shall respond to suchrequest, in writing, within five (5) working days of the request by eitherauthorizing the disclosure or advising of its election to seek a protectiveorder, or if such Party fails to respond within the prescribed period thedisclosure shall be deemed approved.

**18.2       **Nothing herein shallbe construed as granting any right or license under any copyrights, inventions,or patents now or hereafter owned or controlled by AGLN.

**18.3**        Upon termination of this Agreement forany reason or upon request of AGLN, User shall return all ConfidentialInformation, together with any copies of same, to AGLN. The requirements ofconfidentiality set forth herein shall survive the return of such ConfidentialInformation.

**18.4       **User shall not,without first obtaining the written consent of AGLN, use any trademark or tradename of AGLN or refer to the subject matter of this Agreement or AGLN in anypromotional activity or otherwise, nor disclose to others any specificinformation about the subject matter of this Agreement. Neither Party shallissue any publication or press release relating directly or indirectly to thisAgreement without the prior written consent of both Parties.

**18.5       **The provisions of thisArticle 18 shall survive expiration or other termination of this Agreement.

**19.          Default**

**19.1       **A default shall bedeemed to have occurred under this Agreement if:

(a)           in the case of a failure to pay anyamount when due under this Agreement, a Party fails to pay such amount withinten (10) days after the date such payment is due; or

(b)           in the case of any other materialbreach of a Party’s obligations, warranties or covenants under this Agreement,the breaching Party fails to cure such breach within thirty (30) days afterreceiving notice from the non-breaching Party specifying such breach, providedthat if the breach is of a nature that is curable but that cannot be curedwithin thirty (30) days, a default shall not have occurred so long as thebreaching Party in good faith has commenced to cure within said time period andthereafter diligently pursues such cure to completion; or

(c)           in the case of repetitious orpersistent non-material breaches of this Agreement occurring within anyconsecutive twelve-month period, the breaching Party fails to prevent a furthersimilar breach of this Agreement from occurring during the six-month period immediatelyfollowing the date of occurrence of the latest such breach, provided thatwritten notice had been given by the non-breaching Party to the breaching Partyof its belief that such breaches have occurred or are occurring and specifyingthe dates that such breaches are believe to have occurred, and provided thatthe breaching Party had a reasonable period of time to adopt suitable controlsor to take other appropriate action to prevent such further breach; or

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(d)           in the case of any material misrepresentationby a Party; or

(e)           in the case a Party: (i) applies foror consents to the appointment of, or the taking of possession by a receiver,custodian, trustee, or liquidator of itself or of all or a substantial part ofits property, (ii) makes a general assignment for the benefit of its creditors,(iii) commences a voluntary proceeding under the Federal Bankruptcy Code orunder any other law relating to relief from creditors generally, or (iv) failsto contest in a timely or appropriate manner, or acquiesces in writing to, anypetition filed against it in an involuntary proceeding under the BankruptcyCode or under any other law relating to relief from creditors generally, or anyapplication for the appointment of a receiver, custodian, trustee, or liquidatorof itself or of all or a substantial part of its property, or its liquidation,reorganization, dissolution, or winding-up.

**19.2       **In the event of adefault:

(a)           if the default consists of a failureof User to pay to AGLN any part of the IRU Fee or a failure of User to pay toAGLN any other amount(s) totaling more than one hundred thousand dollars($100,000), then AGLN may, in addition to any other remedies that it may haveunder this Agreement or at law or in equity, in its sole discretion, (i) immediatelyterminate this Agreement with respect to the Segment(s) for which such part ofthe IRU Fee or other amount(s) relate and (ii) apply any and all amounts heldby AGLN for User toward the payment of amounts then or thereafter payable byUser hereunder.

(b)           In the event of any other defaulthereunder, the non-defaulting Party may avail itself of one or more of thefollowing remedies: (i) take such actions, at the sole cost and expense of thedefaulting party, as it determines, in its sole discretion, are necessary tocorrect the default; (ii) pursue any remedies it may have under applicable lawor principles of equity, including specific performance; and (iii) terminatethis Agreement, by giving the defaulting party written notice of termination.

**19.3       **Notwithstandinganything to the contained in this Agreement to the contrary, User’s sole andexclusive remedy for any failure by AGLN to deliver the User Dark Fibers by theCommitted Delivery Date shall be limited to those contained in this Section19.3.

(a)           In the event AGLN shall have failedto deliver the User Dark Fibers in any Segment within one hundred eighty (180)days after the Committed Delivery Date for the User Dark Fibers in such ServiceOrder (as such date may be extended by Events of Force Majeure or otherwiseunder the terms of this Agreement), then User shall have the right, at itsoption, either (i) to cancel this Agreement solely with respect to such ServiceOrder and receive a refund of the portion of the Initial Payment allocable tothe User Dark Fibers in such Service Order, or (ii) to keep the User DarkFibers in such Service Order. If User elects to so cancel, neither Party shallhave any further duties, liabilities or obligations to the other Party (exceptfor AGLN’s obligation to so refund the appropriate portion of the IRU Fee)under this Agreement with respect to such canceled Service Order.

(b)           In the event AGLN shall have failedto deliver the User Dark Fibers in any Service Order within twelve (12) monthsafter the Committed Delivery Date for the User Dark Fibers in such ServiceOrder (as such date may be extended by Events of Force Majeure or otherwiseunder the terms of this Agreement), and User has not exercised its rights under**Section 19.3(a),**then thisAgreement shall automatically terminate solely with respect to such ServiceOrder and AGLN shall

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refund to User theportion of the Initial Payment allocable to the User Dark Fibers in suchService Order, and AGLN shall have no further duties, liabilities orobligations hereunder with respect to such Service Order.

**19.4       **This Agreement may beterminated by either Party, upon ten (10) days written notice to the otherParty, if such Party receives final notification from any governmental agencythat its performance under this Agreement is a violation of the terms of theCommunications Act of 1934, as amended by the Telecommunications Act of 1996(the “Act”), provided that, with respect to such notice being given to a Party,such Party must:

(i)            modify its performance under theAgreement, if possible, so that such Party’s performance under the Agreement isno longer in violation of the Act; and

(ii)           enter into good faith negotiationswith the other Party for a minimum period of three (3) months following suchnotice to restructure the terms and conditions of the Agreement so that suchparty’s performance under the Agreement is no longer in violation of the Act.

The terminationrights under this Section 19.5 may be exercised only to the extent themodifications described in Subsections 19.5(i) and (ii) above cannot be made.

**20.          Termination**

**20.1       **This Agreement shallautomatically terminate on the expiration or termination of the Term withrespect to User Dark Fibers in each Service Order, or earlier as provided inthis Agreement. Upon the expiration of the Term or other termination of thisAgreement, the IRU with respect to User Dark Fibers in each such Service Ordershall immediately terminate, all rights of User to use the AGLN System, theUser Dark Fibers in and any User Handholes within such Service Order shallcease, all rights to the use of the User Route and the User Dark Fibers shallrevert to AGLN, and AGLN shall owe User no further duties, obligations orconsideration.

**20.2**        Except as otherwise provided in Section8.3, User shall, within thirty (30) days of such termination, remove all UserEquipment and User Media used in connection with the User Dark Fibers. Usershall accomplish such removal at User’s sole expense, under AGLN’s supervisionand in a manner that does not damage the AGLN System. User shall be responsiblefor and shall indemnify AGLN from and against any damage, loss, cost or expensecaused by such removal. If User fails to remove its property within suchperiod, the property shall be deemed abandoned and AGLN may dispose of the samein any manner it deems reasonably appropriate, at User’s expense.

**20.3       **Termination of thisAgreement shall not affect the rights or obligations of either Party that havearisen before the date of termination or expiration.

**21.          Force Majeure**

**21.1       **AGLN shall not be indefault under this Agreement if and to the extent that any failure or delay inAGLN’s performance of one or more of its obligations hereunder is caused by anyof the following conditions, and AGLN’s performance of such obligation or obligationsshall be excused and extended for and during the period of any such delay: actof God or nature, including an

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earthquake, flood orhurricane; fire; lack of or delay in transportation; government codes,ordinances, actions, laws, rules, regulations or restrictions; acts ofterrorism, war or civil disorder; strikes or other labor disputes; failure of athird Person to grant or to recognize an Underlying Right (provided that AGLNhas made timely and reasonable commercial efforts to obtain the same);inability of AGLN to obtain access to the AGLN System; or any other causebeyond the reasonable control of AGLN (collectively, “Events of Force Majeure”).AGLN shall notify the User in writing of the existence of the event relied onand the cessation or termination of said Event of Force Majeure, and AGLN shallexercise reasonable commercial efforts to minimize the time of any such delay.

**22.          Dispute Resolution**

**22.1       **Except as otherwiseprovided in Sections 18.1(e) and 25.4(c), and this Article 22, any dispute,controversy or claim between the parties relating to, arising out of or inconnection with this Agreement (or any subsequent agreements or amendmentsthereto), including as to its existence, enforceability, validity,interpretation, performance or breach or as to indemnification or damages,including claims in tort, whether arising before or after the termination ofthis Agreement (any such dispute, controversy or claim being herein referred toas a “Dispute”) shall be settled without litigation and only by use of thefollowing alternative dispute resolution procedure:

(a)           At the written request of a Party,each Party shall appoint a knowledgeable, responsible representative to meetand negotiate in good faith to resolve any Dispute. The discussions shall beleft to the discretion of the representatives. Upon failure to reach agreement,the representatives may utilize other alternative dispute resolution proceduressuch as mediation to assist in the negotiations. Discussions and correspondenceamong the Parties’ representatives for purposes of these negotiations shall betreated as confidential information developed for the purposes of settlement,exempt from discovery and production, and without the concurrence of bothparties shall not be admissible in the arbitration described below, or in anylawsuit. Documents identified in or provided with such communications, whichare not prepared for purposes of the negotiations, are not so exempted and may,if otherwise admissible, be admitted in the arbitration.

(b)           If negotiations between therepresentatives of the Parties do not resolve the Dispute within 60 days of theinitial written request, the Dispute shall be submitted to binding arbitrationby a single arbitrator pursuant to the Commercial Arbitration Rules, as thenamended and in effect, of the American Arbitration Association (the “Rules”).Either Party may demand such arbitration in accordance with the procedures setout in the Rules. The arbitration shall take place in Phoenix, Arizona. Thearbitration hearing shall be commenced within 60 days of such Party’s demandfor arbitration. The arbitrator shall have the power to and will instruct eachParty to produce evidence through discovery (i) that is reasonably requested bythe other Party to the arbitration in order to prepare and substantiate itscase and (ii) the production of which will not materially delay the expeditiousresolution of the dispute being arbitrated; each Party hereto agrees to bebound by any such discovery order. The arbitrator shall control the scheduling(so as to process the matter expeditiously) and any discovery. The Parties maysubmit written briefs. At the arbitration hearing, each Party may make writtenand oral presentations to the arbitrator, present testimony and written evidenceand examine witnesses. No Party shall be eligible to receive, and thearbitrator shall not have the authority to award, exemplary or punitivedamages. The arbitrator shall rule on the Dispute by issuing a written opinionwithin 30 days after the close of hearings. The arbitrator’s decision shall bebinding and final. Judgment upon the award rendered by the arbitrator may beentered in any court having jurisdiction.

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(c)           Each Party will bear its own costsand expenses in submitting and presenting its position with respect to anyDispute to the arbitrator; *provided,however,*that if the arbitrator determines that the position takenin the Dispute by the nonprevailing Party taken as a whole is unreasonable, thearbitrator may order the nonprevailing Party to bear such fees and expenses,and reimburse the prevailing Party for all or such portion of its reasonablecosts and expenses in submitting and presenting its position, as the arbitratorshall reasonably determine to be fair under the circumstances. Each Party tothe arbitration shall pay one-half of the fees and expenses of the arbitratorand the American Arbitration Association.

(d)           Notwithstanding any other provisionof this Agreement, (i) either Party may commence an action to compel compliancewith this Section 22.1 and (ii) if any Party, as part of a Dispute, seeksinjunctive relief or any other equitable remedy, including specificenforcement, then such Party shall be permitted, without requirement to postbond, to seek such injunctive or equitable relief in any federal or state courtor competent jurisdiction before, during or after the pendency of a mediationor arbitration proceeding under this Article 22.

**22.2       **If any Party files ajudicial or administrative action asserting claims subject to arbitration asprescribed herein, and the other Party successfully stays such action orcompels arbitration of said claims, the Party filing said action shall pay theother Party’s costs and expenses incurred in seeking such stay or compellingarbitration, including reasonable attorneys’ fees.

**23.          Assignment and TransferRestrictions**

**23.1       **Except as providedbelow in this Section 23.1 and as provided in Section 23.2, User may nottransfer or assign all or any part of this Agreement or of its interest underthis Agreement, or delegate any duties, burdens, or obligations arisinghereunder, without AGLN’s prior express written consent, which consent may notbe unreasonably withheld. In no event whatsoever shall User transfer, sell,assign, condo, swap, exchange, lease, sublease, license, sublicense or grantindefeasible or other rights of use in or to any one or more of the User DarkFibers or User’s interest therein, or enter into any other arrangement with anyPerson for such Person’s use of any one or more of the User Dark Fibers. Atransfer, assignment or other action in violation of this Article 23 shallconstitute a material breach of this Agreement and shall be null and void. Ifany such consent is given, User nevertheless shall remain fully and primarily liablefor all obligations of User under this Agreement. Nothing in this section shallbe construed to restrict the sale of Telecommunications Services by User.

**23.2       **User may transfer andassign this Agreement in whole, but not in part, to a Permitted Assignee. Asused herein, the term “Permitted Assignee” shall mean (a) any Affiliate ofUser, (b) any Person that purchases all or substantially all of the assets ofUser, or any other Person formed by or surviving the merger or consolidation ofUser and any other Person or (c) any Person that purchases all or substantiallyall of the assets of User that are used in the provision of telecommunicationsservices in the Phoenix metropolitan area, including User’s rights hereunder tothe User Dark Fibers and all of the User Equipment. Upon any assignment to aPermitted Assignee, the assignor shall remain responsible for performance underthis Agreement. Any Permitted Assignee shall expressly assume in writing allobligations and liabilities with respect to the Agreement which arise after theeffective date of assignment or transfer, prior to or upon the effectiveness ofsuch assignment. Any and all increased payments to grantors or providers of any

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Underlying Right and anyother additional fees, charges, costs or expenses which result under theUnderlying Rights or otherwise as a result of any Permitted Assignment ortransfer of this Agreement by User shall be paid by User.

**23.3**        Nothing shall be deemed or construed toprohibit AGLN from assigning or otherwise transferring this Agreement, or anyof its rights or interests herein, in whole or in part, or from selling,transferring, leasing, licensing, granting indefeasible rights of use in orentering into similar agreements or arrangements with other Persons respecting anyInnerducts or other conduit tubing, Cable, fibers (other than the User DarkFibers), or Associated Property constituting a part of the AGLN System. If inconnection with any assignment of this Agreement by AGLN, AGLN causes suchassignee to contemporaneously therewith agree in writing to perform all of AGLN’sobligations under this Agreement, then AGLN shall be released from liabilityhereunder. AGLN may encumber the AGLN System provided any such encumbrancecreated after the date of this Agreement shall be subject to the rights of Userhereunder. AGLN may pledge or assign its rights under this Agreement to itsLender(s) for the purpose of securing financing for its construction,maintenance, or extension of the AGLN System.

**24.          Representations, Warranties andAcknowledgments**

**24.1       **By execution of thisAgreement, each Party represents and warrants to the other:

(a)           That the representing Party has fullright and authority to enter into and perform this Agreement in accordance withthe terms hereof and thereof, and that by entering into or performing thisAgreement, the representing Party is not in violation of its charter or bylaws,or any law, regulation or agreement by which it is bound or to which it issubject;

(b)           That the execution, delivery andperformance of this Agreement by such Party has been duly authorized by allrequisite corporate action, that the signatories for such Party hereto areauthorized to sign this Agreement, and that the joinder or consent of any otherParty, including a court or trustee or referee, is not necessary to make validand effective the execution, delivery and performance of this Agreement by suchParty.

**24.2       **EXCEPT AS EXPRESSLYPROVIDED HEREIN, AGLN MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TOTHE USER DARK FIBERS, THE AGLN SYSTEM, THE ASSOCIATED PROPERTY, OR ANY WORKPERFORMED OR TO BE PERFORMED UNDER THIS AGREEMENT, INCLUDING ANY AND ALLWARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR USE, AND ALLSUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. THE WARRANTIES SET FORTH INTHIS AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE BY AGLN TO USER WITH RESPECTTO THIS AGREEMENT AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN ORORAL, STATUTORY, EXPRESS OR IMPLIED.

**25.          General**

**25.1        Binding Effect.**ThisAgreement and each of the Parties’ respective rights and obligations under thisAgreement, shall be binding on and shall inure to the benefit of the Partieshereto and each of their respective permitted successors and assigns.

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**25.2        Waiver.**Thefailure of either Party hereto to enforce any of the provisions of thisAgreement, or the waiver thereof in any instance, shall not be construed as ageneral waiver or relinquishment on its part of any such provision, but thesame shall nevertheless be and remain in full force and effect.

**25.3        Governing Law.**ThisAgreement shall be governed by and construed in accordance with the domesticlaws of the State of Arizona, without giving effect to its principles ofconflicts of laws. Any litigation based hereon, or arising out of or inconnection with a default by either Party in the performance of its obligationshereunder, shall be brought and maintained exclusively in the courts of theState of Arizona or in the United States District Court in Phoenix, Arizonawithin Maricopa County, and each Party hereby irrevocably submits to thejurisdiction of such courts for the purpose of any such litigation andirrevocably agrees to be bound by any judgment rendered thereby in connectionwith such litigation and waives any right to claim that such court or courtsare inconvenient.

**25.4        Rules of Construction.**

(a)           The captions or headings in thisAgreement are strictly for convenience and shall not be considered ininterpreting this Agreement or as amplifying or limiting any of its content.Words in this Agreement which import the singular connotation shall beinterpreted as plural, and words which import the plural connotation shall beinterpreted as singular, as the identity of the parties or objects referred tomay require. The words “include,” “includes,” and “including,” shall be deemedto be followed by the phrase “without limitation.” The words “hereof,” “herein,”and “hereunder” and words of similar import when used in this Agreement shallrefer to this Agreement as a whole and not to any particular provision of thisAgreement. Unless otherwise expressly provided herein, any agreement,instrument or statute defined or referred to herein or in any agreement orinstrument that is referred to herein means such agreement, instrument orstatute as from time to time amended, modified or supplemented, including (inthe case of agreements or instruments) by waiver or consent and (in the case ofstatutes) by succession of comparable successor statutes and references to allattachments thereto and instruments incorporated therein. All accounting termsnot otherwise defined in this Agreement will have the meanings subscribed tothem under generally accepted accounting principles as in effect from time totime in the United States.

(b)           Unless expressly defined herein,words having well known technical or trade meanings shall be so construed. Alllisting of items shall not be taken to be exclusive, but shall include otheritems, whether similar or dissimilar to those listed, as the context reasonablyrequires.

(c)           The Parties hereby agree that therights and remedies set forth in this Agreement shall be each Party’s sole andexclusive rights and remedies against the other Party for any claims arisingunder this Agreement and relating to any breaches of the representations,warranties or covenants contained in this Agreement. Notwithstanding theforegoing, the Parties agree that if any breach or threatened breach of therepresentations, warranties or covenants of this Agreement would cause irreparableinjury to a Party and money damages would not provide an adequate remedy tosuch Party, then, in addition to the rights and remedies available to suchParty pursuant to this Agreement, such Party shall have the right to obtainequitable relief in the form of a temporary or permanent injunction or orderfor a specific performance, without the requirement of posting of bond.

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(d)           Except as set forth in **Section 25.6,**nothing in this Agreement isintended to provide any legal rights to anyone not an executing party of thisAgreement.

(e)           This Agreement has been fullynegotiated between and jointly drafted by the Parties.

(f)            All actions, activities, consents,approvals and other undertakings of the Parties shall be performed in areasonable and timely manner, it being expressly acknowledged and understoodthat time is of the essence in the performance of obligations required to beperformed by a date expressly specified herein. Except as specifically setforth herein, for the purpose of this Agreement the standards and practices ofperformance within the telecommunications industry in the relevant market shallbe the measure of a Party’s performance.

**25.5        Entire Agreement.**ThisAgreement constitutes the entire and final agreement and understanding betweenthe Parties with respect to the subject matter hereof and supersedes all prioragreements relating to the subject matter hereof, which are of no further forceor effect. The Exhibits, Schedules and Attachments referred to herein areintegral parts hereof and are hereby made a part of this Agreement. To theextent that any of the provisions of any Exhibit hereto are inconsistent withthe express terms of this Agreement, the terms of this Agreement shall prevail.This Agreement may only be modified or supplemented by an instrument in writingexecuted by each Party and delivered to the Party relying on the writing.

**25.6        No Personal Liability.**NoParty shall seek to impose any liability relating to, or arising from, thisAgreement against any employee, officer or director of the other Party. Each ofsuch Persons is an intended beneficiary of the mutual promises set forth inthis Section and shall be entitled to enforce the obligations of this Section.

**25.7        Relationship of the Parties.**Therelationship between User and AGLN shall not be that of partners, agents, orjoint venturers for one another, and nothing contained in this Agreement shallbe deemed to constitute a partnership or agency agreement between them for anypurposes, including federal income tax purposes. User and AGLN, in performingany of their obligations hereunder, shall be independent contractors orindependent parties and shall discharge their contractual obligations at theirown risk subject, however, to the terms and conditions hereof. Neither Partyshall have the authority to bind the other Party by contract or otherwise or tomake any representations or guarantees on behalf of the other Party.

**25.8        Severability.**Ifany section, subsection, sentence, clause, phrase, or other portion of thisAgreement is, for any reason, declared invalid, in whole or in part, by anycourt, agency, commission, legislative body, or other authority of competentjurisdiction, such portion shall be deemed a separate, distinct, andindependent portion. Such declaration shall not affect the validity of theremaining portions hereof, which other portions shall continue in full forceand effect.

**25.9        Remedies.**Unlessotherwise expressly limited or excluded herein, all remedies provided in thisAgreement are cumulative and non-exclusive, and are in addition to all otherremedies available at law or in equity, including without limitation anyactions for damages.

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**25.10      Counterparts.**ThisAgreement may be executed in one or more counterparts, all of which takentogether shall constitute one and the same instrument.

Remainder of PageIntentionally Blank

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In confirmation oftheir consent and agreement to the terms and conditions contained in thisAgreement and intending to be legally bound hereby, the parties have executedthis Agreement as of the date first above written.
| **AGLN:**  |   |   |   | **AGL NETWORKS, LLC**                  |
|------------|--------|--------|--------|----------------------------------------|
| ** ** |   |   |   | ** **                             |   |   |
| ** ** |   |   |   | ** **                             |   |   |
|       |   |   |   | By:                                    |     /s/ Richard P. Fehl |   |
|       |   |   |   | Name: Richard P.  Fehl                 |   |
|       |   |   |   | Title: EVP and  COO                    |   |
|       |   |   |   | Date: 1/30/05                          |   |
|       |   |   |   |                                   |   |   |
|       |   |   |   |                                   |   |   |
| **USER:**  |   |   |   | **MOUNTAIN TELECOMMUNICATIONS, INC.,** |
| ** ** |   |   |   | **an Arizona corporation**             |
| ** ** |   |   |   | ** **                             |   |   |
| ** ** |   |   |   | ** **                             |   |   |
|       |   |   |   | By:                                    |     /s/ Wilmot Wickramasuriya |   |
|       |   |   |   | Name: Wilmot  Wickramasuriya           |   |
|       |   |   |   | Title: President                       |   |
|       |   |   |   | Date: 26 January 2005                  |   |
|            |        |        |        |                                        |  |  |  |  |

 

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**EXHIBITA**ServiceOrder FormToINDEFEASIBLE RIGHT OF USE AGREEMENT AND MASTER SERVICEAGREEMENTBy and BetweenAGL NETWORKS, LLCAndMOUNTAIN COMMUNICATIONS, INC.DATED: January 24, 2005

Service Order Number: One (1) Date: January 24, 2005

This Service Order 1 isfor the installation and utilization of Dark Fiber, pursuant to theIndefeasible Right of User Agreement dated January 24, 2005, between AGLNetworks, LLC (“AGLN”) and Mountain Telecommunications, Inc. (“User”).

**Grant of Rights:**

Pursuant to the Agreementand as of the date of this Service Order 1, AGLN grants to User and Userreceives from AGLN (i) an exclusive indefeasible right of use in six (6) fiberoptic strands of the Cable in Ring A, as indicted in Attachment 1 to thisService Order 1, and **six (6)** fiberoptic strands in Ring B, as indicted in Attachment 2 to this Service Order 1which will be specifically identified by AGLN, in the AGLN System (the “UserDark Fibers”) and the associated and nonexclusive right to use theAssociated Property, all such rights upon and subject to the terms andconditions set forth in this Service Order 1 and the Agreement (collectively,the “IRU”).

**Description of Dark Fiber:**

Ring A.6 fibers over 21.8 route miles (131 fiber miles) connecting 4 Lateral Spurs, asfurther described in Attachment 1 to this Service Order 1 at the followinglocations:

PHNXAZEA - 2946 E Van Buren StPHNXAZMA - 211 W Monroe StPHNXAZNE - 3640 E Indian SchoolPHNXAZNO - 215 E Indian School

Ring B.6 fibers over 33.5 route miles (201 fiber miles) connecting 2 Lateral Spurs, asfurther described in Attachment 2 to this Service Order 1 at the followinglocations:

MTI CO - 7850 S. Hardy Drive, TempeTEMPAZMA - 25 W. 5th Street, Tempe

**IRU Feeand Payment Terms:**

Subject to the terms andconditions of Section 4 of the Agreement, User agrees to pay to AGLN for theDark Fiber a fee in the amount specified below:

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|        | (a)    | $65,000 nonrecurring charge payable as follows: |    |   |
|--------|--------|-------------------------------------------------|---------|--------|
|   |   | $30,000 upon Execution of this Service Order 1  |    |   |
|   |   | $35,000 upon Acceptance of User Dark Fibers     |    |   |
|   | (b)    | Monthly IRU Fee months 1-48 of the Term:        | $21,000 |   |
|   | (c)    | Monthly IRU Fee months 49-240 of the Term:      | $10,000 |   |
|   | (d)    | Monthly IRU Fee includes Routine Maintenance.   |    |   |
|        |        |                                                 |         |        |  |  |  |

 

The parties understandand agree that User may pay off the remaining IRU fee balance at any timeduring the Term. The amount due shall be the Early Pay Off Amount as calculatedusing the IRU Payoff Schedule attached and incorporated herein as Attachment 3to this Service Order 1.
| **Completion Date:** | Ring A: 120 Days after execution of this Service  Order 1. |
|----------------------|------------------------------------------------------------|
|                 | Ring B: 120 Days after execution of this Service  Order 1. |

 

**Service Order 1 IRU Term:**20Years

**SpecialRequirements:**User shall be responsible for securing thenecessary access agreements and coordination at any Bell (QWEST) central officelocation to ensure that the completion Date can be met. In the event that allother Lateral Spur locations are completed and User has not secured thenecessary access to Bell (QWEST) central office locations in time to allow AGLNto complete work at this location, AGLN may continue with the test acceptanceand turnover procedures to the degree that they can be completed based on Userprovided access to the Lateral Spur locations and invoice for the servicesunder this Service Order Number One as if all locations were completed by theCompletion date.

AGREED AND ACCEPTED:

AGL Networks, LLC
| By:      |  /s/ Richard P. Fehl   |   |
|----------|-----------------------------|--------|
| Name:    |  Richard P. Fehl       |   |
| Title:   |   E.V.P. - C.O.O. |   |
| Date:    |   1/30/05         |   |
| Address: |  Houston, TX           |   |
|     |                        |
|     |                        |
| USER     |                        |
|     |                        |
| By:      |  /s/ Michael Charel    |   |
| Name:    |  Michael  Charel       |   |
| Title:   |   Vice  President |   |
| Date:    |   26  Jan 05      |   |
|          |                             |        |  |  |  |  |

 

----

Attachment 1To  Service Order 1

**RingA**

Ring A: 4 Nodes, 6 Fibers including laterals — 21.8Route Miles

****

----

**RingA Lateral Drawings**

211 W. Monroe St, Phoenix, AZ: Six (6) Fibers withdual entry into Qwest CLEC Express manholes. AGLN will provide diverse paths tothe Qwest CLEC Express manholes as shown below. The Demarcation Point will bein AGLN’s negative-one manhole for the diverse entry laterals. Qwest willprovide the required cable length information from the User termination pointinside the building to the Qwest CLEC Express manholes, install the terminationpanels, and provide hand-off instructions as required by Qwest. Micro cablesmight need to be used to save space. AGLN will hand-off the cables per User’sinstructions. AGLN will install the cables as identified by Qwest and provideenough slack for either AGLN/ILEC or User to pull from the CLEC Expressmanholes and on into the Central Office.

****

----

**215 W. Indian School Rd, Phoenix, AZ:**Six (6) Fibers with dual entry into Qwest CLEC Expressmanholes. AGLN will provide diverse paths to the Qwest CLEC Express manholes asshown below. The Demarcation Point will be in AGLN’s negative-one manhole forthe diverse entry laterals. Qwest will provide the required cable lengthinformation from the User termination point inside the building to the QwestCLEC Express manholes, install the termination panels, and provide hand-offinstructions as required by Qwest. Micro cables might need to be used to savespace. AGLN will hand-off the cables per User’s instructions. AGLN will installthe cables as identified by Qwest and provide enough slack for either AGLN/ILECor User to pull from the CLEC Express manholes and on into the Central Office.

****

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**3640 E. Indian School Rd, Phoenix,AZ:**Six (6) Fibers with dual entry into Qwest CLEC Expressmanholes. AGLN will provide diverse paths to the Qwest CLEC Express manholes asshown below. The Demarcation Point will be in AGLN’s negative-one manhole forthe diverse entry laterals. Qwest will provide the required cable lengthinformation from the User termination point inside the building to the Qwest CLECExpress manholes, install the termination panels, and provide hand-offinstructions as required by Qwest. Micro cables might need to be used to savespace. AGLN will hand-off the cables per User’s instructions. AGLN will installthe cables as identified by Qwest and provide enough slack for either AGLN/ILECor User to pull from the CLEC Express manholes and on into the Central Office.

****

----

**2946 E. Van Buren St, Phoenix, AZ:**Six(6) Fibers with dual entry into Qwest CLEC Express manholes. AGLN will provide diversepaths to the Qwest CLEC Express manholes as shown below. The Demarcation Pointwill be in AGLN’s negative-one manhole for the diverse entry laterals. Qwestwill provide the required cable length information from the User terminationpoint inside the building to the Qwest CLEC Express manholes, install thetermination panels, and provide hand-off instructions as required by Qwest.Micro cables might need to be used to save space. AGLN will hand-off the cablesper User’s instructions. AGLN will install the cables as identified by Qwestand provide enough slack for either AGLN/ILEC or User to pull from the CLECExpress manholes and on into the Central Office.

****

----

Attachment 2To Service Order 1

**RingB**

Ring B: 2 Nodes, 6 Fibers including laterals — 33.5 RouteMiles

****

----

**RingB Lateral Drawings**

**25 W. 5****th, Tempe, AZ:**Six(6) Fibers with dual entry into Qwest CLEC Express manholes. AGLN will providediverse paths to the Qwest CLEC Express manholes as shown below. TheDemarcation Point will be in AGLN’s negative-one manhole for the diverse entrylaterals. Qwest will provide the required cable length information from theUser termination point inside the building to the Qwest CLEC Express manholes,install the termination panels, and provide hand-off instructions as requiredby Qwest. Micro cables might need to be used to save space. AGLN will hand-offthe cables per User’s instructions. AGLN will install the cables as identifiedby Qwest and provide enough slack for either AGLN/ILEC or User to pull from theCLEC Express manholes and on into the Central Office.

****

----

**7850 S. Hardy Drive, Tempe AZ:**Six(6) Fibers with dual entry into User Switch site via existing building JunctionBoxes. AGLN will provide diverse paths to the User building as shown below. TheDemarcation Point will be at AGLN’s FDP for the diverse entry laterals. Userwill provide the required cable length information from the User terminationpoint (FDP) inside the building to the existing junction boxes, install anyrequired fiber termination panels, and provide hand-off instructions asrequired. AGLN will hand-off the cables per User’s instructions. AGLN willinstall the cables and provide enough storage slack for as mutually agreed uponbetween parties

****

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Attachment 3ToService Order 1

IRU Payoff Schedule

| Payment  Month (1st  of month) | ** ** | **Monthly IRU  Fee** | ** ** | **Early Payoff  Amount** | ** ** |
|------------------------------------------|------------|---------------------------|------------|-------------------------------|------------|
| 1                                        |       |                      | $          | 21,000                        |       | $ | 1,400,000.00 |   |
| 2                                        |       |                      | $          | 21,000                        |       | $ | 1,391,645.25 |   |
| 3                                        |       |                      | $          | 21,000                        |       | $ | 1,383,213.90 |   |
| 4                                        |       |                      | $          | 21,000                        |       | $ | 1,374,705.22 |   |
| 5                                        |       |                      | $          | 21,000                        |       | $ | 1,366,118.53 |   |
| 6                                        |       |                      | $          | 21,000                        |       | $ | 1,357,453.09 |   |
| 7                                        |       |                      | $          | 21,000                        |       | $ | 1,348,708.20 |   |
| 8                                        |       |                      | $          | 21,000                        |       | $ | 1,339,883.11 |   |
| 9                                        |       |                      | $          | 21,000                        |       | $ | 1,330,977.10 |   |
| 10                                       |       |                      | $          | 21,000                        |       | $ | 1,321,989.42 |   |
| 11                                       |       |                      | $          | 21,000                        |       | $ | 1,312,919.33 |   |
| 12                                       |       |                      | $          | 21,000                        |       | $ | 1,303,766.07 |   |
| 13                                       |       |                      | $          | 21,000                        |       | $ | 1,294,528.87 |   |
| 14                                       |       |                      | $          | 21,000                        |       | $ | 1,285,206.97 |   |
| 15                                       |       |                      | $          | 21,000                        |       | $ | 1,275,799.58 |   |
| 16                                       |       |                      | $          | 21,000                        |       | $ | 1,266,305.93 |   |
| 17                                       |       |                      | $          | 21,000                        |       | $ | 1,256,725.23 |   |
| 18                                       |       |                      | $          | 21,000                        |       | $ | 1,247,056.67 |   |
| 19                                       |       |                      | $          | 21,000                        |       | $ | 1,237,299.46 |   |
| 20                                       |       |                      | $          | 21,000                        |       | $ | 1,227,452.77 |   |
| 21                                       |       |                      | $          | 21,000                        |       | $ | 1,217,515.78 |   |
| 22                                       |       |                      | $          | 21,000                        |       | $ | 1,207,487.68 |   |
| 23                                       |       |                      | $          | 21,000                        |       | $ | 1,197,367.62 |   |
| 24                                       |       |                      | $          | 21,000                        |       | $ | 1,187,154.76 |   |
| 25                                       |       |                      | $          | 21,000                        |       | $ | 1,176,848.25 |   |
| 26                                       |       |                      | $          | 21,000                        |       | $ | 1,166,447.23 |   |
| 27                                       |       |                      | $          | 21,000                        |       | $ | 1,155,950.84 |   |
| 28                                       |       |                      | $          | 21,000                        |       | $ | 1,145,358.19 |   |
| 29                                       |       |                      | $          | 21,000                        |       | $ | 1,134,668.42 |   |
| 30                                       |       |                      | $          | 21,000                        |       | $ | 1,123,880.61 |   |
| 31                                       |       |                      | $          | 21,000                        |       | $ | 1,112,993.89 |   |
| 32                                       |       |                      | $          | 21,000                        |       | $ | 1,102,007.33 |   |
| 33                                       |       |                      | $          | 21,000                        |       | $ | 1,090,920.03 |   |
| 34                                       |       |                      | $          | 21,000                        |       | $ | 1,079,731.06 |   |
| 35                                       |       |                      | $          | 21,000                        |       | $ | 1,068,439.49 |   |
| 36                                       |       |                      | $          | 21,000                        |       | $ | 1,057,044.38 |   |
| 37                                       |       |                      | $          | 21,000                        |       | $ | 1,045,544.77 |   |
| 38                                       |       |                      | $          | 21,000                        |       | $ | 1,033,939.72 |   |

 

----

 

| 39 |   |   | $ | 21,000 |   | $ | 1,022,228.24 |   |
|----|--------|--------|---|--------|--------|---|--------------|--------|
| 40 |   |   | $ | 21,000 |   | $ | 1,010,409.38 |   |
| 41 |   |   | $ | 21,000 |   | $ | 998,482.14   |   |
| 42 |   |   | $ | 21,000 |   | $ | 986,445.52   |   |
| 43 |   |   | $ | 21,000 |   | $ | 974,298.54   |   |
| 44 |   |   | $ | 21,000 |   | $ | 962,040.16   |   |
| 45 |   |   | $ | 21,000 |   | $ | 949,669.38   |   |
| 46 |   |   | $ | 21,000 |   | $ | 937,185.16   |   |
| 47 |   |   | $ | 21,000 |   | $ | 924,586.46   |   |
| 48 |   |   | $ | 21,000 |   | $ | 911,872.23   |   |
| 49 |   |   | $ | 10,000 |   | $ | 899,041.42   |   |
| 50 |   |   | $ | 10,000 |   | $ | 897,193.81   |   |
| 51 |   |   | $ | 10,000 |   | $ | 895,329.27   |   |
| 52 |   |   | $ | 10,000 |   | $ | 893,447.62   |   |
| 53 |   |   | $ | 10,000 |   | $ | 891,548.73   |   |
| 54 |   |   | $ | 10,000 |   | $ | 889,632.42   |   |
| 55 |   |   | $ | 10,000 |   | $ | 887,698.53   |   |
| 56 |   |   | $ | 10,000 |   | $ | 885,746.92   |   |
| 57 |   |   | $ | 10,000 |   | $ | 883,777.40   |   |
| 58 |   |   | $ | 10,000 |   | $ | 881,789.83   |   |
| 59 |   |   | $ | 10,000 |   | $ | 879,784.03   |   |
| 60 |   |   | $ | 10,000 |   | $ | 877,759.84   |   |
| 61 |   |   | $ | 10,000 |   | $ | 875,717.09   |   |
| 62 |   |   | $ | 10,000 |   | $ | 873,655.60   |   |
| 63 |   |   | $ | 10,000 |   | $ | 871,575.21   |   |
| 64 |   |   | $ | 10,000 |   | $ | 869,475.75   |   |
| 65 |   |   | $ | 10,000 |   | $ | 867,357.03   |   |
| 66 |   |   | $ | 10,000 |   | $ | 865,218.89   |   |
| 67 |   |   | $ | 10,000 |   | $ | 863,061.13   |   |
| 68 |   |   | $ | 10,000 |   | $ | 860,883.60   |   |
| 69 |   |   | $ | 10,000 |   | $ | 858,686.09   |   |
| 70 |   |   | $ | 10,000 |   | $ | 856,468.43   |   |
| 71 |   |   | $ | 10,000 |   | $ | 854,230.44   |   |
| 72 |   |   | $ | 10,000 |   | $ | 851,971.93   |   |
| 73 |   |   | $ | 10,000 |   | $ | 849,692.70   |   |
| 74 |   |   | $ | 10,000 |   | $ | 847,392.58   |   |
| 75 |   |   | $ | 10,000 |   | $ | 845,071.36   |   |
| 76 |   |   | $ | 10,000 |   | $ | 842,728.86   |   |
| 77 |   |   | $ | 10,000 |   | $ | 840,364.87   |   |
| 78 |   |   | $ | 10,000 |   | $ | 837,979.21   |   |
| 79 |   |   | $ | 10,000 |   | $ | 835,571.68   |   |
| 80 |   |   | $ | 10,000 |   | $ | 833,142.06   |   |
| 81 |   |   | $ | 10,000 |   | $ | 830,690.17   |   |
| 82 |   |   | $ | 10,000 |   | $ | 828,215.80   |   |
| 83 |   |   | $ | 10,000 |   | $ | 825,718.73   |   |
| 84 |   |   | $ | 10,000 |   | $ | 823,198.77   |   |
| 85 |   |   | $ | 10,000 |   | $ | 820,655.70   |   |
| 86 |   |   | $ | 10,000 |   | $ | 818,089.31   |   |
| 87 |   |   | $ | 10,000 |   | $ | 815,499.38   |   |
| 88 |   |   | $ | 10,000 |   | $ | 812,885.71   |   |
| 89 |   |   | $ | 10,000 |   | $ | 810,248.07   |   |
| 90 |   |   | $ | 10,000 |   | $ | 807,586.24   |   |

 

----

 

| 91  |   |   | $ | 10,000 |   | $ | 804,900.00 |   |
|-----|--------|--------|---|--------|--------|---|------------|--------|
| 92  |   |   | $ | 10,000 |   | $ | 802,189.14 |   |
| 93  |   |   | $ | 10,000 |   | $ | 799,453.41 |   |
| 94  |   |   | $ | 10,000 |   | $ | 796,692.60 |   |
| 95  |   |   | $ | 10,000 |   | $ | 793,906.47 |   |
| 96  |   |   | $ | 10,000 |   | $ | 791,094.79 |   |
| 97  |   |   | $ | 10,000 |   | $ | 788,257.33 |   |
| 98  |   |   | $ | 10,000 |   | $ | 785,393.85 |   |
| 99  |   |   | $ | 10,000 |   | $ | 782,504.11 |   |
| 100 |   |   | $ | 10,000 |   | $ | 779,587.88 |   |
| 101 |   |   | $ | 10,000 |   | $ | 776,644.90 |   |
| 102 |   |   | $ | 10,000 |   | $ | 773,674.93 |   |
| 103 |   |   | $ | 10,000 |   | $ | 770,677.74 |   |
| 104 |   |   | $ | 10,000 |   | $ | 767,653.05 |   |
| 105 |   |   | $ | 10,000 |   | $ | 764,600.64 |   |
| 106 |   |   | $ | 10,000 |   | $ | 761,520.23 |   |
| 107 |   |   | $ | 10,000 |   | $ | 758,411.57 |   |
| 108 |   |   | $ | 10,000 |   | $ | 755,274.41 |   |
| 109 |   |   | $ | 10,000 |   | $ | 752,108.48 |   |
| 110 |   |   | $ | 10,000 |   | $ | 748,913.52 |   |
| 111 |   |   | $ | 10,000 |   | $ | 745,689.26 |   |
| 112 |   |   | $ | 10,000 |   | $ | 742,435.44 |   |
| 113 |   |   | $ | 10,000 |   | $ | 739,151.78 |   |
| 114 |   |   | $ | 10,000 |   | $ | 735,838.01 |   |
| 115 |   |   | $ | 10,000 |   | $ | 732,493.85 |   |
| 116 |   |   | $ | 10,000 |   | $ | 729,119.03 |   |
| 117 |   |   | $ | 10,000 |   | $ | 725,713.26 |   |
| 118 |   |   | $ | 10,000 |   | $ | 722,276.26 |   |
| 119 |   |   | $ | 10,000 |   | $ | 718,807.74 |   |
| 120 |   |   | $ | 10,000 |   | $ | 715,307.42 |   |
| 121 |   |   | $ | 10,000 |   | $ | 711,774.99 |   |
| 122 |   |   | $ | 10,000 |   | $ | 708,210.18 |   |
| 123 |   |   | $ | 10,000 |   | $ | 704,612.68 |   |
| 124 |   |   | $ | 10,000 |   | $ | 700,982.19 |   |
| 125 |   |   | $ | 10,000 |   | $ | 697,318.41 |   |
| 126 |   |   | $ | 10,000 |   | $ | 693,621.03 |   |
| 127 |   |   | $ | 10,000 |   | $ | 689,889.75 |   |
| 128 |   |   | $ | 10,000 |   | $ | 686,124.25 |   |
| 129 |   |   | $ | 10,000 |   | $ | 682,324.22 |   |
| 130 |   |   | $ | 10,000 |   | $ | 678,489.35 |   |
| 131 |   |   | $ | 10,000 |   | $ | 674,619.31 |   |
| 132 |   |   | $ | 10,000 |   | $ | 670,713.79 |   |
| 133 |   |   | $ | 10,000 |   | $ | 666,772.45 |   |
| 134 |   |   | $ | 10,000 |   | $ | 662,794.97 |   |
| 135 |   |   | $ | 10,000 |   | $ | 658,781.01 |   |
| 136 |   |   | $ | 10,000 |   | $ | 654,730.25 |   |
| 137 |   |   | $ | 10,000 |   | $ | 650,642.35 |   |
| 138 |   |   | $ | 10,000 |   | $ | 646,516.96 |   |
| 139 |   |   | $ | 10,000 |   | $ | 642,353.73 |   |
| 140 |   |   | $ | 10,000 |   | $ | 638,152.34 |   |
| 141 |   |   | $ | 10,000 |   | $ | 633,912.41 |   |
| 142 |   |   | $ | 10,000 |   | $ | 629,633.61 |   |

 

----

 

| 143 |   |   | $ | 10,000 |   | $ | 625,315.57 |   |
|-----|--------|--------|---|--------|--------|---|------------|--------|
| 144 |   |   | $ | 10,000 |   | $ | 620,957.94 |   |
| 145 |   |   | $ | 10,000 |   | $ | 616,560.34 |   |
| 146 |   |   | $ | 10,000 |   | $ | 612,122.43 |   |
| 147 |   |   | $ | 10,000 |   | $ | 607,643.81 |   |
| 148 |   |   | $ | 10,000 |   | $ | 603,124.13 |   |
| 149 |   |   | $ | 10,000 |   | $ | 598,563.00 |   |
| 150 |   |   | $ | 10,000 |   | $ | 593,960.05 |   |
| 151 |   |   | $ | 10,000 |   | $ | 589,314.89 |   |
| 152 |   |   | $ | 10,000 |   | $ | 584,627.13 |   |
| 153 |   |   | $ | 10,000 |   | $ | 579,896.39 |   |
| 154 |   |   | $ | 10,000 |   | $ | 575,122.27 |   |
| 155 |   |   | $ | 10,000 |   | $ | 570,304.37 |   |
| 156 |   |   | $ | 10,000 |   | $ | 565,442.28 |   |
| 157 |   |   | $ | 10,000 |   | $ | 560,535.62 |   |
| 158 |   |   | $ | 10,000 |   | $ | 555,583.96 |   |
| 159 |   |   | $ | 10,000 |   | $ | 550,586.90 |   |
| 160 |   |   | $ | 10,000 |   | $ | 545,544.01 |   |
| 161 |   |   | $ | 10,000 |   | $ | 540,454.88 |   |
| 162 |   |   | $ | 10,000 |   | $ | 535,319.08 |   |
| 163 |   |   | $ | 10,000 |   | $ | 530,136.19 |   |
| 164 |   |   | $ | 10,000 |   | $ | 524,905.77 |   |
| 165 |   |   | $ | 10,000 |   | $ | 519,627.39 |   |
| 166 |   |   | $ | 10,000 |   | $ | 514,300.61 |   |
| 167 |   |   | $ | 10,000 |   | $ | 508,924.99 |   |
| 168 |   |   | $ | 10,000 |   | $ | 503,500.06 |   |
| 169 |   |   | $ | 10,000 |   | $ | 498,025.40 |   |
| 170 |   |   | $ | 10,000 |   | $ | 492,500.53 |   |
| 171 |   |   | $ | 10,000 |   | $ | 486,924.99 |   |
| 172 |   |   | $ | 10,000 |   | $ | 481,298.34 |   |
| 173 |   |   | $ | 10,000 |   | $ | 475,620.08 |   |
| 174 |   |   | $ | 10,000 |   | $ | 469,889.76 |   |
| 175 |   |   | $ | 10,000 |   | $ | 464,106.89 |   |
| 176 |   |   | $ | 10,000 |   | $ | 458,270.99 |   |
| 177 |   |   | $ | 10,000 |   | $ | 452,381.58 |   |
| 178 |   |   | $ | 10,000 |   | $ | 446,438.16 |   |
| 179 |   |   | $ | 10,000 |   | $ | 440,440.24 |   |
| 180 |   |   | $ | 10,000 |   | $ | 434,387.33 |   |
| 181 |   |   | $ | 10,000 |   | $ | 428,278.90 |   |
| 182 |   |   | $ | 10,000 |   | $ | 422,114.47 |   |
| 183 |   |   | $ | 10,000 |   | $ | 415,893.50 |   |
| 184 |   |   | $ | 10,000 |   | $ | 409,615.50 |   |
| 185 |   |   | $ | 10,000 |   | $ | 403,279.92 |   |
| 186 |   |   | $ | 10,000 |   | $ | 396,886.25 |   |
| 187 |   |   | $ | 10,000 |   | $ | 390,433.94 |   |
| 188 |   |   | $ | 10,000 |   | $ | 383,922.47 |   |
| 189 |   |   | $ | 10,000 |   | $ | 377,351.30 |   |
| 190 |   |   | $ | 10,000 |   | $ | 370,719.86 |   |
| 191 |   |   | $ | 10,000 |   | $ | 364,027.62 |   |
| 192 |   |   | $ | 10,000 |   | $ | 357,274.00 |   |
| 193 |   |   | $ | 10,000 |   | $ | 350,458.46 |   |
| 194 |   |   | $ | 10,000 |   | $ | 343,580.42 |   |

 

----

 

| 195 |   |   | $ | 10,000 |   | $ | 336,639.31 |   |
|-----|--------|--------|---|--------|--------|---|------------|--------|
| 196 |   |   | $ | 10,000 |   | $ | 329,634.55 |   |
| 197 |   |   | $ | 10,000 |   | $ | 322,565.56 |   |
| 198 |   |   | $ | 10,000 |   | $ | 315,431.75 |   |
| 199 |   |   | $ | 10,000 |   | $ | 308,232.52 |   |
| 200 |   |   | $ | 10,000 |   | $ | 300,967.27 |   |
| 201 |   |   | $ | 10,000 |   | $ | 293,635.40 |   |
| 202 |   |   | $ | 10,000 |   | $ | 286,236.30 |   |
| 203 |   |   | $ | 10,000 |   | $ | 278,769.36 |   |
| 204 |   |   | $ | 10,000 |   | $ | 271,233.94 |   |
| 205 |   |   | $ | 10,000 |   | $ | 263,629.42 |   |
| 206 |   |   | $ | 10,000 |   | $ | 255,955.17 |   |
| 207 |   |   | $ | 10,000 |   | $ | 248,210.55 |   |
| 208 |   |   | $ | 10,000 |   | $ | 240,394.91 |   |
| 209 |   |   | $ | 10,000 |   | $ | 232,507.60 |   |
| 210 |   |   | $ | 10,000 |   | $ | 224,547.96 |   |
| 211 |   |   | $ | 10,000 |   | $ | 216,515.34 |   |
| 212 |   |   | $ | 10,000 |   | $ | 208,409.06 |   |
| 213 |   |   | $ | 10,000 |   | $ | 200,228.45 |   |
| 214 |   |   | $ | 10,000 |   | $ | 191,972.82 |   |
| 215 |   |   | $ | 10,000 |   | $ | 183,641.49 |   |
| 216 |   |   | $ | 10,000 |   | $ | 175,233.76 |   |
| 217 |   |   | $ | 10,000 |   | $ | 166,748.93 |   |
| 218 |   |   | $ | 10,000 |   | $ | 158,186.30 |   |
| 219 |   |   | $ | 10,000 |   | $ | 149,545.14 |   |
| 220 |   |   | $ | 10,000 |   | $ | 140,824.76 |   |
| 221 |   |   | $ | 10,000 |   | $ | 132,024.40 |   |
| 222 |   |   | $ | 10,000 |   | $ | 123,143.35 |   |
| 223 |   |   | $ | 10,000 |   | $ | 114,180.86 |   |
| 224 |   |   | $ | 10,000 |   | $ | 105,136.19 |   |
| 225 |   |   | $ | 10,000 |   | $ | 96,008.57  |   |
| 226 |   |   | $ | 10,000 |   | $ | 86,797.26  |   |
| 227 |   |   | $ | 10,000 |   | $ | 77,501.48  |   |
| 228 |   |   | $ | 10,000 |   | $ | 68,120.46  |   |
| 229 |   |   | $ | 10,000 |   | $ | 58,653.42  |   |
| 230 |   |   | $ | 10,000 |   | $ | 49,099.56  |   |
| 231 |   |   | $ | 10,000 |   | $ | 39,458.10  |   |
| 232 |   |   | $ | 10,000 |   | $ | 29,728.23  |   |
| 233 |   |   | $ | 10,000 |   | $ | 19,909.13  |   |
| 234 |   |   | $ | 10,000 |   | $ | 10,000.00  |   |

 

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EXHIBIT BAGLN ROUTE MAP

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EXHIBIT CConstruction

1.                                       GENERAL

The intent of thisdocument is to outline the specifications for construction of a conduit networksystem. Deviations from the specifications may occur in those circumstanceswhere either (i) strict compliance is impractical due to physical (includingenvironmental) field conditions, Underlying Right issues or code restrictions,or (ii) AGLN has acquired a portion of the Segment from a third party. In allcases, the standards contained in this document or the standards of thefederal, state, local or private agency having jurisdiction, whichever isstricter, shall be followed. Aerial systems are not acceptable alternatives andare not addressed in these specifications and standards.

2.                                       COMPLIANCE

All work will be done instrict accordance with federal, state, local, and applicable private rules andlaws regarding safety and environmental issues, including those set forth byOSHA and the EPA. In addition, all work and the resulting conduit system willcomply with the current requirements of all governing entities (FCC, NEC, DEC,and other national, state, and local codes).

3.                                       MATERIAL

The conduit shall be HDPEwith a minimum of SDR-11. Steel or PVC conduit shall be minimum Schedule 40wall thickness. Steel conduit will be joined with threaded collars or welding.Microduct shall be HDPE 12mm OD by 10 mm ID with microribs inside.

Any exposed steelconduit, brackets, or hardware shall be hot-dipped galvanized afterfabrication.

Manholes shall have aminimum H-20 loading rating. All manholes will have locking lids (pentahead orsimilar). Dimensions will typically be 4 by 8 by 6 feet or 4 by 4 by 4 feet (Wby L by H).

Handholes shall have aminimum load rating of H-20. Dimensions will typically be 30 by 48 by 36 inches(W by L by H), or sufficient in size to hold cable slack for laterals. EMSmarkers will be fabricated in the lids of handholes. All handholes will havelocking lids (pentahead or similar).

4.                                       MINIMUM DEPTHS

On backbone segments theminimum cover required in the placement of conduit shall be forty-two inches

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(42”). Additional depthwill be required in ditches, forty-eight inches (48”) and across streams,washes, culvert outfalls, and other waterways, sixty inches (60”). Forlaterals, direct bury, and other non backbone applications the minimum depthshall be twenty-four (24”).

At locations whereconduit crosses other subsurface utilities or other structures, the conduitshall be installed to provide a minimum of twelve inches (12”) verticalclearance and the applicable minimum depth can be maintained; otherwise, theconduit will be installed under the existing utility or other structure. If,however, adequate clearance cannot be obtained and the conduit must be placedabove, steel conduit shall be used.

On backbone segments inrock, the conduit depth shall be 36 to 42 inches in HDPE, 24 to 36 inches insteel conduit, 18 to 24 inches in HDPE or PVC or steel conduit and concreteencased. PVC or HDPE conduit will be backfilled with six inches (6”) inches ofselect materials (padding) in rock areas. Polyurethane channel (Fiber-Rockgardor equivalent) may be used as protective cover in lieu of select materialpadding.

In the case of theuse/conversion of existing steel pipelines or existing conduit systems as acasing pipe, the existing depth shall be considered adequate.

5.                                       CONDUITCONSTRUCTION

Conduits may be placed bymeans of trenching, plowing, jack and bore, micro-trenching, or directionalbore. Network facilities will generally be placed on a level grade parallel tothe surface, with only gradual changes in grade elevation.

Crossings of roadsmaintained by government bodies and railroad crossings will be encased in HDPEconduit, or as required by the permitting authority.

All galvanized steelconduits placed on bridges shall have expansion joints placed at eachstructural (bridge) expansion joint or at least every three hundred feet (300’),whichever is the shorter distance. For bridges under one hundred feet (100’),with no bridge expansion joint, no conduit expansion joint is required. Forbridges greater than one hundred feet (100’), at least one conduit expansionjoint will be placed, even if there is no bridge expansion joint.

6.                                       INNERDUCT INSTALLATION

No cable will be placeddirectly in any split/solid steel or PVC conduit without innerduct.Innerduct(s) shall extend beyond the end of all conduits a minimum of twelveinches (12”). The innerducts shall be sealed with foam sealant and/or ductplugs after installation. Innerducts containing microducts shall be sealed withfoam sealant and/or plugs after installation. The microducts will also thesealed with foam sealant and/or plugs after installation.

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7.                                       CABLEINSTALLATION

7.1                                 Thefiber optic cable shall be installed using a powered pulling winch andhydraulic-powered assist pulling wheels or by cable blowing methods. Themaximum pulling force to be applied to the fiber optic cable shall not exceedmanufacturer’s recommendations (typically 600 lbs.). The cable shall belubricated during placement and a breakaway swivel utilized at all times.

7.2                                 Thirtymeters (30m) of slack will be left in all intermediate manholes. Thirty meters(30m) of slack (off each cable end) will be left in all splice point manholes.Sufficient slack will be left at facilities to reach the FDP and provide forten meters (10m) of slack at the site.

7.3                                 Fordirect buried cable applications, cables may be placed by means of trenching,plowing, jack and bore, micro-trenching, or directional bore.

8.                                       MANHOLES/HANDHOLES

Manholes in urban areaswill typically be installed at 500 ft to 1,000 ft intervals. Handholes willtypically be used in the construction of laterals or as pull points.

9.                                       CABLEMARKERS (WARNING SIGNS)

Cable markers shall beinstalled at sufficient frequency to mark the location of the cable. Markersshall be positioned so that they can be seen from the location of the cable andgenerally set facing perpendicular to the cable running line. In rural areas,markers shall be placed a minimum of every one thousand feet (1,000’). In urbanareas, markers shall be placed a minimum of every five hundred feet (500’).Changes in running line, handholes, both sides of government-maintained roads,railroads, and major waterway crossings will be marked with warning signs orpavement marker.

10.                                 DEVIATIONSFROM SPECIFICATIONS

AGL Networks may deviatefrom these specifications, when field conditions dictate.

11.                                 AS-BUILTDRAWINGS

As-built drawings will bedelivered within ninety (90) days after the Segment Acceptance Date. Forconduit purchases or leases as-built drawings will contain a minimum of thefollowing:

a)                                      Informationshowing the location of running line, relative to permanent landmarks,including but not limited to, railroad mileposts, boundary crossings andutility crossings.

b)                                     Manhole/handholelocations.

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c)                                      Conduitinformation (type, length, expansion joints, etc.).

d)                                     Notationof all deviations from specifications (depth, etc.).

e)                                      Rightof way detail (type, centerline distances, boundaries, waterways, roadcrossings, known utilities and obstacles, etc.).

f)                                        Cablemarker locations and stationing.

g)                                     Constructionof facilities will be documented on the sitework/facility as-builds andmaintained on file at the facility.

h)                                     As-buildswill be provided in both hard copy and electronic format (Auto-CAD Release 13.0or later).

For fiber purchases orleases test records shall include one CD RAM with all traces and power meterreadings. An industry excepted naming convention shall be utilized. Anelectronic route map will be provided in an agreeable format.

12.                                 ACCEPTANCETESTING

All splicing and testingshall be performed with industry accepted equipment. Company shall perform twostages of testing during construction of a new fiber cable route. Industryaccepted Optical Time Domain Reflectometer (OTDR) and power meter tests shallbe performed.

12.1         Splicing Standards are as follows forstandard single mode fiber:

Splices shall bequalified during the initial construction with an OTDR from only one direction.Connector (pigtail) splices shall be qualified with a 1-km launch reel minimum.Unidirectional acceptance parameters are .2 dB loss.

After end-to-end(site-to-site) connectivity on the fibers, bi-directional span testing shall bedone. These measurements must be made after the splice manholes or handholes areclosed in order to check for macro-bending problems. Connectors shall becleaned as necessary to ensure accurate measurements are taken.

Installed lossmeasurement at 1310nm and 1550nm shall be recorded using an industry-acceptedlaser source and power meter. Continuity testing shall be done on all fibersconcurrently. Bi-directional acceptance parameters are as follows: .15 dB witha total of three attempts being made and documented if the loss is above .15dB.Two additional attempts shall be made if the loss is above .3 dB. If afterthree attempts the loss is above .4 dB the splice shall be marked asOut-of-Spec (OOS) on the data sheet. Each splicing attempt shall be documentedon the data sheet.

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The objective loss valueof the connector and its associated splice shall be 0.50dB or less. This valuedoes not include the insertion loss from its connection to the FDP. Connectorsshall be Ultra SC-PC with conventional single mode glass.

The dB/km acceptancestandard for each fiber shall be an average bi-directional installed loss of0.30dB/km at 1550nm or .40dB/km at 1310nm or less across each span.

12.2         All splices shall be protected withheat shrinks. An industry-accepted non-encapsulated splice enclosure shall beused on all splices (like Alcatel WTC2, PLP Coyote, Lucent 2600 or 3M 2178.

12.4         The entire fiber optic system shall beproperly protected from foreign voltage and grounded with an industry-acceptedsystem.

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EXHIBIT D

Monitoring andMaintenance Specifications and Procedures
| **1.** | **GENERAL** |
|--------|-------------|

 

This Exhibit describes the policies and proceduresthat will be utilized to monitor and maintain the AGLN System. AGLN shallensure that the System is maintained according to the Monitoring andMaintenance Specifications and Procedures specified herein, through applicationof commercially reasonable and accepted industry standards, and in accordancewith manufacturers’ specifications. The purpose and result of monitoring andmaintenance shall be to assure (in the case of routine maintenance), or restore(in the case of non-routine maintenance) the functionality of the AGLN System.AGLN reserves the right to modify procedures as appropriate to ensure that performancespecifications are achieved.

2.             ADMINISTRATION

AGLN shall maintain a comprehensive database (ConduitSystem Database) of all relevant information associated with the AGLN System toensure prompt identification and appropriate response to routine and correctivemaintenance situations. The Database shall identify and document the AGLNSystem and all facilities installed in AGLN System, including but not limitedto: Users’ fiber optic cable type, number and color coding of fiber strands,origin and destination of each fiber strand, identification of in-use cables,technical requirements and specifications.
| **3.** | **AGLN RESOURCES** |
|--------|--------------------|

 

AGLN will perform cable and conduit maintenance andrepair around the clock, on a twenty-four (24) hour per day, seven (7) days perweek basis (24x7). AGLN shall be available during normal business hours (7:00a.m. to 5:00 p.m.) and during off-hours (before 7:00 a.m., after 5:00 p.m.,weekends and holidays).

AGLN shall establish an AGLN System Maintenance Centerand assign a dedicated maintenance manager to oversee and coordinate day-to-daymaintenance activities. The Maintenance Center shall be equipped to receiveAGLN System alarms twenty-four (24) hours per day, seven (7) days per week,three-hundred-sixty-five (365) days per year. The maintenance manager shall beresponsible for ensuring that preventative, corrective, and emergencymaintenance activities are carried out in a timely fashion and that maintenanceactivities are coordinated with Users.

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AGLN shall provide qualified personnel, officeservices, vehicles, and all tools and materials required for the safe andproper performance of maintenance procedures. Specifically, AGLN shall retainand maintain all appropriate equipment necessary for routine and preventativemaintenance as well as corrective maintenance and emergency restoration. AGLNshall have an Optical Time Domain Reflectomoter (OTDR) and fusion splicingequipment with valid and current certification, and all other equipment shallbe in proper working order with current calibration at all times.
| **4.** | **ROUTINE MAINTENANCE** |
|--------|-------------------------|

 

AGLN shall perform routine and preventativemaintenance of the system, including the following:

·                             AGLNshall patrol the AGLN System Route on a regularly scheduled basis. During thesepatrols, AGLN will ensure that “Call-Before-You-Dig” (CBYD) right-of-way markersigns are in place and undamaged. Damaged and/or missing signs will bereplaced.

·                             AGLNshall establish membership in the local CBYD program, and perform all cable andconduit locate activities required to protect the AGLN System.
| **5.** | **NON-ROUTINE MAINTENANCE** |
|--------|-----------------------------|

 

AGLN shall provide telephone number(s) to the User forthe purpose of reporting problems to the AGLN. When reporting a problem, theUser shall provide the following information to the AGLN:

·                             Type/natureof problem

·                             Classificationof the problem (as defined below)

·                             Locationof the problem

·                             Anyother pertinent information that may help in identifying and resolving theproblem in an expedient manner.

When AGLN identifies or is notified of a problem viaSystem alarm, User, or third party notification, AGLN will initiaterepair/response activities as appropriate and necessary for the type of problembeing reported. Problems shall be classified according to the followingdefinitions:

**Major:**A majorfailure is defined as a failure of the AGLN System resulting in an outagecondition for multiple

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Users (e.g., cable cut). AGLN shall have its firstmaintenance technician on site within two (2) hours after the time AGLN becomesaware of a major failure (whether same occurs within normal business hours orafter-hours, weekend or holiday), unless delayed by circumstances beyond itsreasonable control.

**Minor/Service Affecting:**Aminor/service affecting failure is defined as a failure of the AGLN Systemaffecting some, but not all, of the services provided.

**Minor/Non-Service Affecting:**Aminor/non-service affecting failure is any failure that is not currentlyaffecting the ability of the AGLN System to provide service. AGLN shallcommence repair of minor/non-service affecting failures within three (3)business days (i.e., within seventy-two (72) hours, excluding Saturdays,Sundays and holidays), unless delayed by circumstances beyond its reasonablecontrol.

When reporting a problemto the AGLN, User shall identify the classification of the failure (i.e. major,minor/service affecting or minor/non-service affecting) and provide any otherpertinent information to ensure the appropriate response is initiated. AGLNwill provide effective follow-up information to User on the maintenance actionuntil the issue has been resolved.

6.             FIBER OPTIC CABLE REPAIR AND RESTORATION

When undertaking repairsof major fiber optic cable failures, AGLN shall work to restore all traffic asquickly as possible. Immediately upon arriving on the site of the cut, AGLNwill determine the course of action to be taken to restore the cable and/orconduit and begin restoration efforts. AGLN shall use reasonable efforts toeffect repairs of major failures within eight (8) hours after maintenance staffarrives at the site of the problem. Such repairs may be temporary.

Within one (1) businessday after completing any temporary repair or restoration, AGLN shall commenceplanning permanent repair. AGLN shall notify User of its permanent repair plansand implement such repairs within an appropriate time thereafter. AGLN shallstrive to repair “in-use” fibers first and repair those fibers not currentlyin-use during permanent restoration activities. AGLN shall perform permanentrepair and restoration of the AGLN System in accordance with the proceduresdetailed in Exhibit C.

Should a cable failureaffect multiple Users, it is understood that the restoration sequence will occurin a logical order and will not disfavor any party, and that in-use fibers willbe restored prior to inactive fibers. User is responsible for notifying AGLNwhich fibers are in-

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use and which are notin-use. This information should be contained in the Conduit System Database,with updates provided by User as necessary.
| **7.** | **COOPERATION** |
|--------|-----------------|

 

Both AGLN and User shallcooperate fully to resolve failures of and/or impairments to the AGLN System inan expedient and efficient manner. Such cooperation shall include, but not belimited to, notification of the other party after becoming aware of the needfor either scheduled or unscheduled maintenance activities that may affect User’sability to provide service over the AGLN System and sharing of informationrelevant to the operation, maintenance and repair of the AGLN System. AGLNshall notify User ten (10) days prior to any scheduled Maintenance activitythat may affect User’s ability to provide service over the AGLN System. Usershall notify AGLN as soon as reasonably possible of any request for scheduledMaintenance it may have. In the event that a scheduled Maintenance activity iscanceled or delayed, the scheduling party shall inform the other party so thatthe Maintenance activity may be rescheduled. AGLN shall notify User as soon asreasonably possible after becoming aware of the need to perform unscheduledMaintenance that may affect User’s ability to provide service over the AGLNSystem.

8.             OTHER

Unless expressly providedelsewhere in this document, AGLN shall not be responsible for maintenanceand/or repair of Users’ electronic, optronic, and other equipment utilized inconjunction with operation of its individual system.

9.             USER MAINTENANCE FEES AND COSTS

The fees payable for anyand all Routine Maintenance hereunder shall be determined in accordance withthe following provisions and detailed in the Service Order. During any timeafter the Acceptance Date, AGLN shall provide Routine Maintenance at a perconduit route mile per year, subject to the CPI adjustment described below (the“User Maintenance Fee”).

A quarter of the firstsuch User Maintenance Fee will be due and payable thirty (30) days after theAcceptance Date. Thereafter, one quarter of such fee shall be due quarterly.User shall pay all fees within thirty (30) days of receipt of invoice therefor.

The User Maintenance Feeshall be increased annually, beginning with the first anniversary of therelevant Acceptance Date, by the greater of four percent (4%) or the increase,if any, in the Consumer Price Index, All Urban Consumers (CPI-U), U.S. CityAverage, published by United States Department of Labor, Bureau of LaborStatistics (1982-84=100) for the twelve (12) month period ending three monthsprior to such anniversary of the effective date (the “CPI Adjustment”).In the event the Bureau of Labor Statistics (or any successor organization) nolonger publishes the CPI-U, AGLN may, in its discretion, designate thestatistical index it deems most appropriate for collection of adjustments to afee and, from the

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date the CPI-U ceased tobe published, such index shall be used to make adjustments in a fee under thisprovision.

11.           TERM

The Term of theMaintenance Agreement shall coincide with the Term of User’s IRU Agreement withAGLN.

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