**Exhibit10.7.10**

 

Amendment #10

 

***161 Chestnut Street1 City Centre******Rochester, NY 14604***

August 15, 2005

Mr. G. Boyd, Chief Financial OfficerEschelon Telecom, Inc.730 2nd Avenue South, Suite 900Minneapolis, Minnesota 55402

Re: Amendment to Carrier Service Agreement

Dear Mr. Boyd:

Enclosed please find a fully executed copy of theabove document.

If you have any questions, please contact your salesmanager, Steven Graham.

 
|           | Very truly yours,               |
|-----------|---------------------------------|
|      |                            |
|      | /s/ Jacqueline A. LoPresti      |   |
|      | Jacqueline A. LoPresti          |
|      | Sr. Contract Administrator      |
|      | North American Carrier Services |
| Enclosure |                            |

 

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**EXECUTIONCOPY**

 

**AMENDMENT #10 TO CARRIER SERVICE AGREEMENT**

**ESCHELONTELECOM, INC.**

**August3, 2005**

This is Amendment #10 to the Carrier Service Agreementbetween Global Crossing Bandwidth, Inc., on behalf of itself and its affiliatesthat may provide a portion of the services hereunder **(“Global Crossing”)**and Eschelon Telecom, Inc. **(“Eschelon”**or **“Purchaser”)**,****dated August 25, 2000, as amended(the **“Agreement”**).

1.                          Exceptas otherwise stated, capitalized terms used herein shall have the same meaningas set forth in the Agreement.

2.                          Eschelon’sIP Transit Service Rate Schedule, Amended Exhibit P(a) is revised as follows:

Eschelon agrees to a Monthly IP Commitment over all ofits OC-n IP circuits of 420 Mbps for a term of two (2) years, commencing withits first full Billing Cycle following the installation of Eschelon’s OC-3circuit in Denver, Colorado. Until such installation, the Monthly IP Commitmentshall be 355 Mbps, commencing with Eschelon’s first full Billing Cyclefollowing execution of this Amendment by Global Crossing.
|          | ** ** | **Minimum**   | ** ** | **MRC (Mbps)** | ** ** |
|----------|------------|---------------|------------|---------------------|------------|
| **Port** | ** ** | **Bandwidth** | ** ** | **Full Pipe**  | ** ** | **Less than Full Pipe** | ** ** | **Bursted** | ** ** |
| DS-3     |       | 10 Mbps       |       | $                   | 55         |   | $ | 60 |   | $ | 60 |   |
| OC-3     |       | 65 Mbps       |       | $                   | 40         |   | $ | 45 |   | $ | 50 |   |
| OC-12    |       | 200 Mbps      |       | $                   | 35         |   | $ | 40 |   | $ | 50 |   |

 

If Eschelon’s Monthly IP Commitment does not meet 420mbps, Eschelon shall be billed a shortfall for that month at $45/mbps. (eg ifEschelon’s monthly usage is 400 mbps, Eschelon shall be billed a shortfall of20 mbps x $45 = $900). Usage in excess of minimum commit levels will beconsidered burst and will be billed at the applicable bursted rate. Eschelonreserves the right to increase its minimum commit level to a level higher than420 Mbps through issuance of a documented order to allow Eschelon to maintainbest possible rate for usage requirements. Requests to change the committedbandwidth amount must be sent in writing and received by Global Crossing atleast fifteen (15) days prior to the beginning of the Billing Cycle in whichthose changes are to occur.

The Parties agree that Eschelon’s Minneapolis, MN OC-3port shall be cancelled, without termination penalty, and replaced with an OC-3port located in Denver, CO, which OC-3 port shall have a two (2) year term,commencing with installation thereof. Any applicable change fees shall bepayable.

The balance of Eschelon’s Amended Exhibit P(a) shallremain unchanged.

3.                          Eschelonrequests subscription to Global Crossing’s Mid Span Meet Service, attached tothis Amendment as Exhibits V and V(a).

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4.                          Therevised IP Transit monthly recurring charges, as mentioned in Item #2 above,will be effective on a go forward basis for all existing and renewed IPcircuits and new IP orders placed following the execution of this Amendment #10by Global Crossing. The rates for any newly subscribed Service shall beeffective upon execution of this Amendment by Global Crossing.

5.                          Thebalance of the Agreement and any executed amendments or addenda thereto notmodified by this Amendment #10 shall remain in full force and effect.

6.                          ThisAmendment #10 is effective as of the date signed by Global Crossing below.

 
| Global Crossing Bandwidth, Inc. |                                  | Eschelon Telecom, Inc. |
|---------------------------------|---------------------------------------|------------------------|
|                            |                                  |                   |   |   |   |
|                            |                                  |                   |   |   |   |
| By:                             | /s/ Cody Jenkins                      |                   | By: | /s/ Geoffrey M.  Boyd |   |
|                            |  Print Name:                     |  Cody Jenkins     |   |   |  Print Name: |   Geoffrey M. Boyd |   |
|                            |  Print Title:                    |  Vice President   |   |   | Print Title: |   CFO |   |
|                            |  North American Carrier Services |                   |   |   |   |
|                            |                                  |                   |   |   |   |
| Date:                           | 8/15/05                               |                   |   | Date: | 8/9/05 |   |
|                                 |                                       |                        |  |  |  |  |  |  |  |  |  |  |  |  |

 

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Exhibit V

**MIDSPAN MEET ACCESS SERVICE**

All Mid Span Meetfacilities are pending Global Crossing’s Engineering approval based upon theinformation provided to Global Crossing by Customer in the Service InquiryForm. Any approved facilities shall be presented to Customer as an amendmentpursuant to Section A, Subsection 2 below.

**TERMSAND CONDITIONS**

**A.**                                    ServiceOverview

1.                                     GlobalCrossing shall provide Mid Span Meet Access Service (“MSM Access” or “Service”)to Customer, consisting of connectivity between the Global Crossing networkPoint of Presence (“Global Crossing POP”) and a Network Fiber DistributionPanel (“NFDP”) owned and maintained by Global Crossing on Global CrossingPremises. The connectivity is accomplished by a fiber jumper cable supplied byGlobal Crossing. The connection at the Global Crossing POP is to circuit(s)previously purchased, or subscribed for, by Customer. MSM Access is availablefor connections to the Global Crossing network at the optical level (speeds ofOC-3 or higher) only.

2.                                       ThisExhibit contains the general terms and conditions applicable to MSM Access.Separate MSM Access Schedules (“Schedules”) may be attached hereto from time totime covering each separate site where MSM Access will be established. AllSchedules, upon their execution by both Parties, shall be incorporated hereinand shall become a part hereof.

3.                                       Connectivityprovided by Global Crossing terminates on the Customer side of the NFDP (the “CustomerInterface”) in Global Crossing Premises. The demarcation point is the NFDP inGlobal Crossing’s POP. Customer is responsible for handing off an acceptableinterconnecting signal and installing the fiber in accordance with therequirements of this Exhibit.

4.                                       Customer,or Customer’s subcontractor, is responsible for (a) bringing interconnectingfiber to Global Crossing Premises, which shall be identified to Customer bystreet address, floor and room number (if applicable), and (b) installing theinterconnecting fiber at the Customer Interface using appropriate Local AccessInterface Equipment.

5.                                       Customerunderstands and acknowledges that MSM Access is offered by Global Crossing onan “as available” basis.

6.                                       Ratesand charges for MSM Access are as set forth in Section C of these Terms andConditions, unless otherwise modified for a specific site in the Schedule forsuch site.

7.                                       InitialCapitalized Terms used herein shall have the meaning set forth in Section Hhereof.

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**B.****                                    Term**

The term of a Servicewith respect to each specific site shall be as set forth in the applicableSchedule and shall commence on the Service Commencement Date (the **“Commencement Date”)**,****but shall be immediatelyterminable by Global Crossing upon the termination, expiration or cancellationfor any reason of any (i) underlying agreement between Global Crossing and anyother party involving Global Crossing’s continued use of the Facility, (ii) theagreement to which this Exhibit is attached, *or*(iii) this Exhibit. Following the expiration of the term for aService as set forth in the Schedule for a Service, the term for such Serviceshall automatically renew on a month-to-month basis in accordance with the sameterms and conditions specified herein, unless terminated by either Party uponsixty (60) days prior notice to the other Party.

Global Crossing shall notbe liable to Customer in any way as a result of Global Crossing’s failure (forany reason) to tender possession of the Service on or before the scheduledcommencement date listed in the MSM Access Schedule.

**C.****                                    Chargesand Payment**

1.                                       Thecharges for each Service are as follows:

A.                      A MonthlyRecurring Charge of US $200 per fiber pair or two (2) positions on a FiberDistribution panel will be assessed to Customer’s account upon the CommencementDate.

B.                        A one-timeNon-Recurring Charge of US $2,000 per six (6) pairs of fiber or twelve (12)fiber distribution panel assignments will be assessed to Customer’s accountupon the Commencement Date. If additional assignments are needed, the NRC is$1,000 for each additional six (6) pairs or twelve (12) fiber distributionpanel assignments.

C.                        Ifapplicable, Customer shall pay Global Crossing the amount set forth in each MSMSchedule for the cost of engineering or improvements to the Space required tobe made by Global Crossing in order to accommodate Customer’s Mid Span Meetinto the Space (the **“Make-Ready Fee”**).****TheMake-Ready Fee shall be payable to Global Crossing upon the Commencement Date.

D.                       Fee forReturn to Pre-existing Condition: Upon termination or expiration of a Service,Customer shall pay to Global Crossing all reasonable costs and expenses ofGlobal Crossing to return the Premises to its pre-existing condition prior tothe grant to Customer of the rights hereunder, reasonable wear and tearexcepted.

E.                         DispatchFees: $70 per hour (one-hour minimum) for unmanned sites during business hours(Monday-Friday, 8:00 am to 6:00 pm) and $95 per hour (two-hour minimum), forunmanned sites during non-business hours and nationally recognized holidays.

F.                         Allcharges are exclusive of any and all applicable taxes and regulatory surcharges(if any) which Global Crossing is permitted or obliged to pass on to Customer.

2.                                       CancellationCharges:  Customer acknowledges thatGlobal Crossing shall commence provisioning of Customer’s order for MSM Accessin reliance upon Customer’s commitment for the Service. In the event ofcancellation of Customer’s Service order for any reason after the scheduledCommencement Date, but before the payment of the non-recurring charge set forthin Section C(l) hereof, Customer shall be liable to pay to Global Crossing, asliquidated damages, the sum of $500.

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**E.****                                      Maintenance**

Global Crossing providesa coordinated, single point of contact maintenance function for Customer on a 7day x 24 hour x 365 day basis, which will be identified to Customer.Maintenance support is: (a) between the Global Crossing network POP and theGlobal Crossing side of the NFDP, and (b) on the NFDP itself. Global Crossingmay, in its sole discretion, suspend the provision of a Service (or any partthereof) for reasons of network or equipment modification, or preventive, oremergency maintenance, but will use its best efforts to give Customer advancenotice, when practicable, of any such action. Customer shall not make anyalterations, changes, additions or improvements to the Facility without GlobalCrossing’s prior written consent.

**F.****                                      Insurance,Indemnity and Damage to Facility**

1.                                       Whilethis Exhibit or any Service is in effect, Customer shall maintain in force andeffect policies of insurance as follows:

(i)                        ComprehensiveGeneral Liability Insurance, including contractual liability and broad propertydamage, covering personal injury or death and property damage, with a combinedsingle limit of at least $1 million; and

(ii)                     Worker’sCompensation Insurance with limits required by the laws of the state in whichthe Facility is located.

The liability insuranceshall name Global Crossing as an additional insured and shall be primaryinsurance, and Global Crossing’s insurance shall not be called upon forcontribution towards any such loss. Customer’s insurer shall provide GlobalCrossing with at least ten (10) days prior written notice of cancellation orchange in coverage. All insurance required of Customer shall be evidenced bycertificates of insurance provided to Global Crossing.

2.                                       Customershall be liable for and shall indemnify, defend and hold Global Crossingharmless from and against any and all claims, demands, actions, damages,liability, judgments, expenses and costs (including reasonable attorneys fees)arising from (i) Customer’s use of the Service or (ii) any damage ordestruction to the Premises, Global Crossing’s network or to the Facility orany property or equipment therein caused by or due to the acts or omissions,negligent or otherwise of Customer, its employees, agents or representatives,invitees, or subcontractors. Global Crossing shall be liable for and shall indemnifyCustomer as set out in the Agreement.

3.                                       THESERVICE IS PROVIDED *“AS IS”.*GLOBALCROSSING MAKES NO WARRANTY, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT, ANDGLOBAL CROSSING EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITYOR FITNESS FOR ANY PARTICULAR PURPOSE. Global Crossing’s entire liability andCustomer’s exclusive remedies against Global Crossing for any damages arisingfrom any act or omission related to this Exhibit or any Schedule, regardless ofthe form of action, shall not exceed in any case the NRCs paid by Customerhereunder.

4.                                       Ifthe Facility or the Premises is damaged by fire or other casualty, GlobalCrossing shall give immediate notice to Customer of such damage. If GlobalCrossing’s landlord or Global Crossing exercises an option to terminate thelease therefor due to such damage, or Global Crossing’s landlord or GlobalCrossing decides not to rebuild the Facility or the Premises, the Scheduleshall terminate as of the date of such exercise or decision as to the affectedPremises. If neither the landlord of the affected Facility nor Global Crossingexercises the right to terminate or not to rebuild, the landlord or GlobalCrossing, as applicable, shall repair the Facility and/or the Premises tosubstantially the same condition as prior to the damage, completing the samewith reasonable speed. In such event Customer shall also have the option toterminate the MSM Services.

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**G.****                                    GeneralTerms**

1.                                       Title.Nothing in this Exhibit or in any Schedule shall create or vest in Customer anyright, title or interest in the Service or its configuration, or in thePremises, or the Facility, other than the right to use the same during the termof the applicable Schedule under the terms and conditions of this Exhibit.

2.                                       Compliancewith Laws and Regulations. Each Party will comply with all applicable laws,regulations, rules, and ordinances. Without limiting the foregoing, Customershall not utilize the Facility for any unlawful purposes, nor shall Customerassign, mortgage, sublease, encumber or otherwise transfer any right grantedhereunder.

**H.****                                    Definitions**

As used in thisAgreement, the following Initial-Capitalized terms shall have the meaningsascribed to them:

***“Exhibit”*****means this MSM Access Exhibit betweenGlobal Crossing and Customer, attached to and incorporated into the CarrierService Agreement between Customer and Global Crossing.

***“Customer”*****means the Customer identified on thefirst page of this Exhibit.

***“CustomerInterface”*****meansthe Customer side of the NFDP.

***“Effective Date”***means the date onwhich this Exhibit and the applicable MSM Access Schedule is signed by GlobalCrossing.

***“Facility”*****means the building where the Premises arelocated.

***“Global Crossing******”*****meansGlobal Crossing Bandwidth, Inc. and any company under common control, directlyor indirectly, with Global Crossing which supports it in the provision of theService.

***“Global Crossing******POP”***meansa network Point of Presence maintained by Global Crossing. A Global CrossingPOP may also incorporate Telehouse functionality, where Global Crossingdetermines to establish a Global Crossing POP supporting MSM Access at aTelehouse.

***“Local Access Interface Equipment******”*****means a jack or “tie down” forpurposes of connecting a circuit at the Customer Interface. This equipment isthe responsibility of Customer or its subcontractor.

***“Mid Span Meet Access Service”*****means connectivity between the GlobalCrossing network Point of Presence and a Network Fiber Distribution Panel (“NFDP”) owned and maintained by Global Crossing on Global Crossing Premises.

***“Premises”*****means the Global Crossing Premises,specified by street address, floor and room (if applicable) at which MSM Accessis provided to Customer.

***“NFDP”*****means Network Fiber Distribution Panelsupplied by Global Crossing for purposes of interfacing with Customer-providedfiber. Selection of NFDP equipment shall be at the discretion of GlobalCrossing.

***“Party”*****means either Global Crossing or Customer,and “Parties” means both Global Crossing andCustomer.

***“Service”*****means Mid Span Meet Access Service.

***“Service Commencement Date”***meansthe date when Customer is notified that the Service ordered is being providedto the Customer Interface.

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**Exhibit V(a)**

**MSMACCESS SCHEDULE # 1**

1.                                       Ratesand Charges

The following Rates and Charges apply to the Service:
| Monthly Recurring Charge*      |   | $ | 200   |   |
|--------------------------------|--------|---|-------|--------|
| Non-Recurring  Charge*         |   | $ | 2,000 |   |
| If applicable, Make  Ready Fee |   | $ | TBD   |   |

 

Monthly Recurring Chargeand Non-Recurring Charged are waived for one OC-12 port at 511 11th Avenue South Minneapolis MN, so long asEschelon pulls fiber for said port.

2.                                       Locationof the Service:

The location of theService is Global Crossing’s premises at 511 11th Avenue South, Minneapolis, MN.

3.                                       InitialTerm:

The Initial Term of theService is two (2) years.

4.                                       ScheduledCommencement Date: Upon Installation

 

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