Exhibit 10.37


INDEFEASIBLE
RIGHT OF USE AGREEMENT AND MASTER SERVICE

AGREEMENT

DARK FIBERS


By and Between


AGL NETWORKS, LLC


and


Mountain Telecommunications, Inc.


DATED:
January 24, 2005
















INDEFEASIBLE
RIGHT OF USE AGREEMENT

DARK FIBERS


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


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


WHEREAS, User desires to receive from AGLN, and AGLN desires to grant
to User, certain indefeasible rights
of use in the User Dark Fibers and Optional Dark Fibers, all upon and subject
to the terms and conditions contained in this Agreement.


NOW, THEREFORE, in consideration of the premises and mutual promises
and covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties
hereby agree as follows:


1.             Definitions.


1.1          In addition to the terms defined elsewhere in
this Agreement, the following capitalized terms and derivatives thereof
shall 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, who
directly or indirectly controls, is
controlled 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 a
Person, whether by way of equity ownership, contract or otherwise.


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


“Agreement” shall mean this Indefeasible Right of Use Agreement, as
amended, supplemented or modified
from time to time.


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


“Associated Property” shall mean, with respect to each Segment, the
following described tangible and
intangible property necessary for the use of the User Dark Fibers for the
purposes













described
in this Agreement; (a) AGLN’s rights in all Underlying Rights, subject to the
terms, conditions and limitations thereof, and (b) User Handholes, if
any. As used in this Agreement, the term “Associated
Property” does not include (i) any Cable or other telecommunications equipment
of AGLN or any other Person, (ii) Handholes other than the User
Handholes, (iii) Manholes, (iv) the Innerduct
in which the User Dark Fibers are housed or (v) any Lateral Spurs.


“Cable” shall mean fiber optic cable, the fiber optic strands contained
therein (including the User Dark Fibers), and any other communications
transmission media which may be included in the AGLN System and in any Lateral
Spurs, and associated splicing connections and splice boxes located in the AGLN System and in any Lateral
Spurs.


“Committed Delivery Dates” shall mean subject to Events of Force Majeure
and any other extensions of time
provided 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), any
data or information, other than
Trade Secrets, that is of value to a Party and is not generally known to
competitors of such Party. To the
extent consistent with the foregoing, Confidential Information includes
information that (i) concerns the
operations, facilities, plans, affairs and businesses of a Party, the financial
affairs of a Party, and the relations of a Party with its customers,
employees and service providers, or (ii) is marked
confidential, restricted, proprietary or with a similar designation.
Confidential Information also includes any information which a Party
obtains from a third Person which such Person treats as proprietary or designates as confidential information, whether or not
owned or developed by such Person.


“Costs” shall mean actual, direct reasonable costs paid or payable in
accordance with the established
accounting procedures generally used by AGLN and which AGLN utilizes in billing
third parties for reimbursable
projects, including the following: (i) internal labor costs (including wages, salaries and benefits) and overhead allocable to
such 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, contract
services, etc.).


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


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


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


“Handhole” shall
mean a structure similar in function to a Manhole, but which is too small for personnel to enter. As used in this
Agreement, the term “Handhole” refers only to handhole structures owned
by AGLN and located on the System Route and does not include Cable or other telecommunications equipment or facilities of
AGLN 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 of
any nature (including ad valorem, real property, gross receipts, franchise,
license and permit fees), together with any penalties, fines or interest
thereon arising out of the transactions contemplated by this Agreement and/or
imposed upon the AGLN System, or any part thereof, or upon the User Dark
Fibers, the User Equipment or any other property or facilities of User, or any
part thereof, by any federal, state or local government or other public taxing
authority.


“Innerduct” shall
mean a single, enclosed HDPE tube and space within that tube used to enclose
and carry Cable.


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


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


“Manhole” shall
mean a below ground level enclosure entered through a hole on the surface
covered with a cast iron, cast aluminum, steel or concrete manhole cover, which
personnel may enter and use for the purpose of installing, operating and
maintaining facilities associated with a fiber optic communications system. As
used in this Agreement, the term “Manhole” refers only to manhole structures
owned by AGLN and located on the System Route and does not include Cable or
other telecommunications equipment and facilities of AGLN or any other Person
located within such manhole structures.


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


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


“Ring” shall mean
a contiguous assembly of the AGLN System that starts and ends at the same
location as generally identified in Exhibit B.


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


“Segment” shall
mean one of the discrete segments, spans or portions of a Ring as generally
identified in Exhibit B.


“Service Order” is
defined in Section 3.5.


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


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



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technique, a drawing, a
process, 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 or
suppliers, which is not commonly known by or available to the public and which
information (i) derives economic value, actual or potential, from not being
generally known to and not being readily ascertainable by proper means by other
Persons who can obtain economic value from its disclosure or use and (ii) is
the subject of efforts that are reasonable under the circumstances to maintain
its secrecy. Trade Secrets also include any information described in this
paragraph which a Party obtains from a third Person which such Person treats as
proprietary or designates as trade secrets, whether or not owned or developed
by 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 are
necessary for the construction, installation, maintenance, operation, use or
repair of the AGLN System, Innerducts, Lateral Spurs, User Equipment, Cable or
User Dark Fibers, as applicable.


“User Equipment”
shall mean any optronic, electronic, optical, or power equipment, and any other
facilities, material or equipment owned, possessed or utilized by User, or any
other Person in connection with the operation of the User Dark Fibers,
including all Innerducts (and other conduit tubing) and Cable in any Lateral
Spur 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 User
Dark Fibers and that is constructed by AGLN for User pursuant to the provisions
of Section 9.3.


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


1.2          The following terms have the
respective meanings ascribed to them in the Section indicated in the table
below:


	
   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 System
generally will follow the route and will connect the Segments as generally
identified 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 Dark
Fibers for each Service Order on or before the respective Committed Delivery
Date set forth in Exhibit C or the applicable Service Order.


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


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


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


3.             Grant of Rights in the AGLN
System


3.1          As of the Acceptance
Date for the initial User Dark Fibers and for the User Dark Fibers in each Service
Order, AGLN grants to User and User receives from AGLN (a) an exclusive
indefeasible right of use in the fiber optic strands of the Cable which will be
specifically 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 this
Agreement (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 or
revise the User Dark Fibers or the Associated Property, the right of physical
access 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 agrees
that during the Term technological advances in optical fiber are likely to
occur. Notwithstanding anything to the contrary contained in this Agreement, AGLN shall have the right to, upon not less than
one hundred twenty (120) days written notice to User, substitute an equal number of dark fibers for the User Dark Fibers
within any Segment or portion thereof
(which alternative dark fibers shall thereupon constitute User Dark Fibers),
provided that in such event, such
substitution (a) shall be effected at the sole cost of AGLN, (b) shall be performed in accordance with the specifications
and procedures set forth in Exhibit C, (c) shall incorporate fiber optic
strands meeting or exceeding the specifications set forth in Exhibit C and shall be tested in accordance with the Fiber
Acceptance Testing, (d) shall not change the Connecting Points, and 
AGLN shall use commercially reasonable efforts to minimize any
interruption or interface with the
operation of the User Dark Fibers. Neither this Agreement nor the IRU granted hereby conveys any form or type of title in any
real or personal property, including the AGLN System, any Segment, the User Dark Fibers or any portion of any of the
foregoing. The Parties intend that
this Agreement constitutes a true lease of the User Dark Fibers and not a sale
of the User Dark Fibers.


3.4            Each of
AGLN and User represents and covenants with the other that it will report, for
both federal and all state income taxation purposes, income and deductions in
accordance with Section 467 of the
Internal Revenue Code of 1986, as amended, and with the applicable, final regulations that were issued by the Treasury
Department on May 17, 1999, as amended or modified from time to time. If either AGLN or User, or
both, fails to report income and deductions in accordance with the Internal Revenue Code, such failure shall
constitute a breach or failure to fully and punctually observe the covenants of this Agreement and will entitle
the non-performing Party to exercise
its rights under Sections 13 and 19 herein.


3.5          From
time 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, estimated
installation charges, if any, and all fees and any other relevant terms agreed
upon by the Parties. Upon execution
by AGL and User, each new Service Order is automatically incorporated into and
subject to the terms of this Agreement.


4.             Payment


4.1          In consideration of the grant of the IRU hereunder
by AGLN to User, User agrees to pay
to AGLN for the Dark Fiber in each Service Order any non recurring charges and
monthly recurring fees as specified in the applicable Service Order (the “IRU
Fee”).


4.2          All payments made by User hereunder in excess of $50,000 shall be made
by wire transfer of immediately
available funds in accordance with wire instructions to be provided by AGLN. Payments of all other amounts by User
hereunder 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 any
other rights and remedies that AGLN may have, User shall pay interest on such unpaid amount at the Interest Rate, which
shall accrue during the time such payment remains



 6
 









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


4.4          In addition to the amounts
payable under Section 4.1, User shall be responsible to pay directly or
reimburse AGLN, as requested by AGLN, for all other sums, costs, fees and
expenses that are required to be paid under
this Agreement, including the User Maintenance Fee for Routine Maintenance. Except for the IRU Fee and the User
Maintenance Fee (which are payable on the due dates set forth in Section
4.1 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 within
thirty (30) days of the invoice date. The User Maintenance Fee shall be paid at
the time or times and in the manner set
forth in Exhibit D. AGLN reserves the right to direct payment of the IRU Fee,
the User Maintenance Fee and any
other fees or charges to AGLN or to any other party.


4.5          All payments made by User under
this Article 4 shall be made without any deduction or withholding for or on
account 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 any
such deduction or withholding for such Impositions or any additional deduction
or withholding on account of any Imposition
caused by such additional gross-up payment, the net amount received by AGLN will not be less than what AGLN would have received
had no deduction or withholding been required.
User may prepay, without penalty, any portion of the IRU Fee set forth in the
applicable Service Order prior to
such payment’s due date.


5.             Inspection of the AGLN System


5.1                 User
shall have the right, upon written request, to inspect the installation,
splicing and testing of the User Dark
Fibers; provided that User shall not enter a Manhole or access a Handhole. On User’s written request, AGLN shall make
available for inspection by User, at AGLN’s offices during AGLN’s normal business hours, copies of all
information, documents, agreements, reports, permits, drawings and
specifications that are material to the grant of the IRU to User, to the extent
that their terms or other legal
restrictions permit disclosure. AGLN may redact confidential or proprietary business terms.


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


5.3                 User acknowledges and
agrees that AGLN is not supplying nor is AGLN obligated to supply to User any optronics or electronics or
optical or electrical equipment, or other equipment, or



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any
electrical power or power equipment, all of which are solely the responsibility
of User, nor is AGLN responsible for performing any work other than as
expressly specified in this Agreement.


6.                    Testing and Acceptance of User Dark Fibers


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


6.2          Within ten (10) days of receipt of a Completion Notice, User shall
provide AGLN with a written notice
accepting or rejecting the User Dark Fibers with respect to such Service Order,
specifying in reasonable detail, if
rejected, the defect or failure in the Fiber Acceptance Testing. If User fails to notify AGLN of its acceptance or
rejection of the Completion Notice within ten (10) days following User’s
receipt of the same, User shall be deemed to have accepted the User Dark Fibers with respect to such Service Order. The date
of such notice of acceptance or deemed acceptance
of the User Dark Fibers with respect to an entire Service Order shall be the “Acceptance
Date.” In the event of any good
faith rejection by User, AGLN shall take such action as reasonably necessary, and as expeditiously as practicable, to
correct or cure such defect or failure, and the process of Fiber Acceptance Testing, notice to User and acceptance shall
be repeated with respect to such rejected User Dark Fibers. The
foregoing notwithstanding, if User uses any portion of any Dark Fiber to carry traffic prior to acceptance, such
use shall constitute acceptance of such portion of such Dark Fiber.


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


7.                    Installation
of User Equipment.


7.1                 The
installation, use, repair, maintenance and replacement of User Equipment shall
be the sole responsibility of User, and AGLN
shall have no obligation or liability under this Agreement or otherwise to install, maintain, repair or
replace 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 and
replace the User Equipment in compliance with and subject to the Underlying Rights Requirements and
all applicable codes, ordinances, laws, rules and regulations. Notwithstanding anything to the
contrary contained herein, User shall secure, prior to the IRU Effective Date with respect to each
Service 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 governmental
and other authorities or Persons
which are necessary or required to be obtained for the (i) installation, use,
operation, maintenance, repair and
replacement of the User Equipment on the Premise Side of the Demarcation



 8
 









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


7.3          User shall not use its facilities,
including without limitation the User Dark Fibers and the User Equipment, in a
way that interferes in any way with or adversely affects the use of the AGLN
System or any Cable therein or other equipment and facilities of any Person
(including AGLN) using the AGLN System. User’s facilities, including without
limitation the User Dark Fibers and the User Equipment, shall not endanger or
damage the AGLN System and shall not create an unreasonable risk of damage to
property or injury or death to any individual or to the public. User
acknowledges 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 the
duty, to make periodic or spot inspections at any time of User’s facilities
placed within the AGLN System, including the User Equipment, all at reasonable
times during regular business hours, and the right, but not the duty, to be
present 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 of
determining whether facilities placed in the AGLN System and work relating to
the AGLN System are in compliance with the terms of this Agreement. AGLN may
charge User for the Costs of inspection and monitoring only if the inspection
or monitoring reflects that User is in substantial noncompliance with the terms
of this Agreement. If AGLN reasonably determines that any User Equipment is not
in compliance with the terms of this Agreement, User shall, upon written notice
from AGLN, bring its facilities into material compliance within forty-eight
(48) hours of such written notice or, at a minimum, commence curative measures
within twenty-four (24) hours and exercise reasonable diligence to complete
such measures as soon as possible thereafter. If User fails to take curative
action within forty-eight (48) hours or if the non-compliance is of a character
which poses an immediate and substantial threat of damage to property, injury
or death to any Person, or interference/impairment of the AGLN System or any
use of the AGLN System by AGLN or any other Person using the AGLN System, then
AGLN may take such action as it deems appropriate to correct the violation,
including the interruption of electrical power to any User Equipment, directing
User or any contractor of User to immediately suspend work relating to the AGLN
System, and limiting, terminating or refusing access to any part of the AGLN
System. In addition, should AGLN, in its sole discretion, determine that
conditions 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 Occupational
Safety & Health Administration regulations, then AGLN may direct that all
work or use by User or others relating to the AGLN System be immediately and
temporarily suspended until such time as the Parties may resolve the violation
or condition. Such temporary suspension shall not entitle either Party to any
damages from the other Party for delay in performance. AGLN will endeavor, but
is not required, to provide notice to User prior to taking such action and
shall 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, User
shall provide to the AGLN record documents, to include As-Built Drawings,
indicating all work performed. If AGLN performs the curative measure, AGLN shall
provide to the User record documents, to include As-Built Drawings, regarding
the curative measures taken to bring User’s facilities into compliance. All
work 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 Costs
incurred by AGLN in taking such action plus a management fee equal to fifteen
percent (15%) of such Costs, within thirty (30) days of User’s receipt of AGLN’s
invoice therefor.



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8              Term and Renewal


8.1          The IRU with respect
to the User Dark Fibers shall become effective on the relevant Acceptance Date
for 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 extend
for the period thereafter that is set forth in the applicable Service Order
(the “Term”).


8.2          User may extend the
Term with respect to the User Dark Fibers in each Segment that is part of a
Ring (as delineated in Exhibit B) so that the Term of the IRUs granted with
respect to the User Dark Fibers in all Segments within such Ring expire
contemporaneously with the Term of the IRU with respect to the User Dark Fibers
in the last Segment comprising such Ring. In the event that User desires so to
extend the Term of the IRU with respect to the User Dark Fibers in any Service
Order, User shall deliver to AGLN, at least six (6) months but no more than
twelve (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 with
an additional IRU Fee (pro rated for the duration of the extension allowed) to
compensate for the extension of the Term. For example, if the Term of an IRU
for the User Dark Fibers in a Service Order is twenty (20) years, and is
extended by one year, then the additional annual IRU Fee would be l/20th of the
amount of the IRU Fee for the User Dark Fibers in that Service Order.


8.3          If at any time User
in its absolute discretion determines that, with respect to any Segment, the
User Dark Fibers located in such Segment have reached the end of their useful
life, or User otherwise desires not to retain the IRU with respect to the User
Dark Fibers in such Segment, User shall have the right to abandon such IRU by
written notice to AGLN. In the case of abandonment, this Agreement shall
terminate as to the User Dark Fibers in such Segment, and User shall not be
entitled 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 in
such Segment shall be immediately due and payable to AGLN by User.


8.4          Subject to the
Parties reaching agreement on the amount of the additional payment to be made
by User to AGLN upon any such extension, User shall have the option to extend
the 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 least
twelve (12) months but not more than eighteen (18) months prior to the expiration
date of the initial or previously extended Term, specifying in reasonable
detail 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 of
such extension period, and shall be ratably allocated to each year of such
extension period commencing on such commencement date. Unless the Parties reach
agreement on the amount of the additional payment to be made by User, User
shall not have the right to extend the Term past the expiration date of the
Initial Term or the expiration date of the then-current extension period (if
any), and in no event shall User have the right to extend the Term past the
expiration date of the second ten-year extension period (if any).


9.             Manholes and Connection Services


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



 10
 









Handholes requested by User in accordance with Section
9.2 and, subject to Section 9.3 at other technically feasible connecting points
along the User Route (collectively, the “Connecting Points”), at a fiber
distribution panel, fiber splice kit or other appropriate terminal apparatus as
determined by AGLN.


9.2          Notwithstanding anything contained in
this Agreement to the contrary, any and all work with respect to the User Dark
Fibers, any Connecting Point and the AGLN System shall be performed by AGLN. If
User 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, any
Connecting Point or the AGLN System, User shall notify AGLN in writing of such
request. AGLN, in its absolute discretion, shall determine if such requested
work (i) is feasible from a technical standpoint and with respect to the
Underlying Rights Requirements and (ii) will not delay the construction of, or
otherwise interfere with, the AGLN System. If AGLN determines that such work
can proceed, AGLN shall submit to User in writing an estimate of the Costs to
be incurred in connection with such work and an estimate of the time required
to perform such work. If User elects to proceed with such work, then User and
AGLN shall amend the Agreement to reflect the Costs associated with the
completion of the additional work.


10.          Maintenance and Repair of the AGLN
System


10.1        From and after the IRU
Effective Date with respect to each Segment, the maintenance of the AGLN System
and Cable shall be provided in accordance with the maintenance requirements and
procedures set forth in Exhibit D, and in accordance with the fiber
specifications set forth in Exhibit C. User agrees to pay the User Maintenance
Fee for Routine Maintenance and to reimburse AGLN for non-Routine Maintenance
in accordance with the provisions of this Section
10 and Exhibit D.


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


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



 11
 









affected portion of the
AGLN 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’s
elective maintenance or repair requests, User shall pay and reimburse AGLN for
one hundred percent (100%) of all Costs incurred by AGLN in connection with
such non-Routine Maintenance plus a management fee for such work equal to
fifteen percent (15%) of such Costs, within thirty (30) days of User’s receipt
of AGLN’s invoice therefor.


10.2        From and after the IRU
Effective Date with respect to each Segment, in the event that all or any part
of the AGLN System within such Segment is damaged or destroyed such that a
Service Affecting Condition exists regarding a Dark Fiber, AGLN shall use
commercially reasonable efforts to resolve such Service Affecting Condition
utilizing the procedures described in Exhibit D. Notwithstanding anything
contained herein to the contrary, AGLN shall not incur any liability to User by
reason of a Service Affecting Condition, except its obligation to resolve such
Service Affecting Condition as set forth in this Section 10.2, and User shall
not be entitled to any credits for IRU Fees or for any other payment paid or to
be paid by User pursuant to this Agreement by reason of such Service Affecting
Condition. 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 a
deficiency in the User Equipment, in which event it shall not be a Service
Affecting Condition.


10.3        User shall have no
right 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 no
event whatsoever shall User physically access the AGLN System to maintain,
adjust, align, cut, repair or replace the AGLN System or attempt to do any of
the foregoing.


11.           Permits; Underlying Rights;
Relocation


11.1        Subject to the terms
and provisions of this Agreement, AGLN agrees to obtain and maintain during the
Term all Underlying Rights necessary for its construction, installation,
maintenance and repair of the AGLN System. The IRU is subject to the terms of
the Underlying Rights, and subject to the terms under which the Underlying
Rights are owned or held by the grantor of the Underlying Rights, including
covenants, conditions, restrictions, easements, reversionary and other
interests, bonds, mortgages and indentures, and other matters, whether or not
of record, and to the rights of tenants and licensees in possession. The IRU
granted hereunder is further subject and subordinate to the prior right of the
grantor of the Underlying Rights to use the right of way for other activities,
including railroad operations, telecommunications uses, pipeline operations or
any other purposes, and to the prior right of AGLN to use its rights granted
under the Underlying Rights. The rights granted to User herein, if any, are
made expressly subject to each and every limitation, restriction, condition or
reservation in or affecting the Underlying Rights. Nothing herein shall be
construed to be a representation, warranty or covenant of AGLN’s right, title
or interest with respect to any of the Underlying Rights or with respect to
User’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 necessary
in order to grant, continue or maintain an IRU granted hereunder in accordance
with the terms and conditions hereof, AGLN shall use commercially reasonable
efforts to obtain an alternate right of way for the affected portion of the
AGLN System. The Parties shall share the Costs of obtaining an alternate right
of way in the manner described in Section 11.4.



 12
 









11.3        If, after the
Acceptance Date with respect to any Segment, AGLN is required by a third Person
with legal authority to so require (including the grantor of an Underlying
Right) or by the occurrence of an Event of Force Majeure, or if User agrees to
relocate any portion of the AGLN System, with respect to such Segment,
including any of the facilities used or required in providing the IRU, AGLN
shall have the right either to proceed with such relocation, including the
right, in good faith, to reasonably determine the extent of, the timing of, and
methods to be used for such relocation, or (if applicable) to pay such amounts
to the Person requiring such relocation as are necessary to avoid the need for
such relocation; provided that any such relocation shall be constructed and
tested in accordance with the specifications and drawings set forth in Exhibit
C, and incorporate materials meeting or exceeding the specifications set forth
in Exhibit C. In the event of any such relocation, AGLN shall use commercially
reasonable efforts to minimize any service interruptions. The Parties shall
share the Costs of relocating the affected portion of the AGLN System, or the
amounts paid to the Person requiring such relocation to avoid relocation, in
the manner described in Section 11.4.


11.4        The Costs of obtaining
alternate right of way as described in Section 11.2 and the Costs of relocating
the affected portion of the AGLN System (or the amounts paid to the Person
requiring relocation to avoid relocation) as described in Section 11.3 shall be
allocated between the Parties as follows: (a) if the affected portion of the
AGLN System includes any Innerduct other than the Innerduct housing the User
Dark Fibers, the total Costs first shall be allocated equally among all of the
affected Innerducts and the Innerducts housing other dark fiber; and then the
Costs allocated to the Innerduct housing the User Dark Fibers shall be
allocated based on the ratio to which the number of User Dark Fibers bears to
the total number of-fibers in such Innerduct; or (b) if the affected portion of
the AGLN System does not consist of any Innerduct other than the Innerduct
housing the User Dark Fibers, the Costs shall be allocated based on the ratio
to which the number of User Dark Fibers bears to the total number of fibers
within the affected portion of the AGLN System.


11.5        AGLN shall deliver to
User updated As-Built Drawings with respect to the relocated portions of the
AGLN System as soon as reasonably practicable following the completion of such
relocation.


12.           Operation and Use of the AGLN
System


12.1        User represents and
warrants that it will use the User Dark Fibers and Optional Dark Fibers, the
User Equipment, the Lateral Spurs (if any) and the Associated Property in
compliance with and subject to the Underlying Rights Requirements and any other
applicable government codes, ordinances, laws, rules and regulations.
Notwithstanding anything to the contrary contained herein, it shall be User’s
sole responsibility to secure, or cause to be secured, prior to the IRU
Effective Date, and maintain in full force and effect during the Term, any and
all Underlying Rights and approvals, consents, rights of way, permits,
franchises, licenses or similar approvals from all governmental and other
authorities and any other Person which are necessary or required to be obtained
by User for AGLN to grant the IRU to User and for the use and operation of the
User Dark Fibers and Optional Dark Fibers, the User Equipment and the
Associated Property by User. Upon request of AGLN, User will deliver to AGLN copies
of such approvals, consents, rights-of-way, permits, franchises, licenses or
similar approvals.



 13
 









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


12.3          Subject to the
limitations set forth in this Agreement and to the restrictions set forth in
the Underlying Rights, User shall use the User Dark Fibers and Optional Dark
Fibers and the Associated Property solely for the purpose of lawfully providing
Telecommunications Service, as defined by the Communications Act of 1934, as
amended by the Telecommunications Act of 1996. User agrees and acknowledges
that 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 any
and all of the AGLN System free from any liens, rights or claims of any third
Person attributable to User, except that User may encumber the IRU in the User
Dark Fibers and Optional Dark Fibers granted to User, on the condition that
User shall provide to AGLN an agreement from any such lien holder that the
interest of any lien holder is subordinate to the interest of AGLN and other
interests and rights in and to the User Dark Fibers and Optional Dark Fibers
and the Associated Property.


12.4        User and AGLN shall
promptly notify each other of any matters pertaining to, or the occurrence (or
impending occurrence) of, any event which would be reasonably likely to give
rise to any damage or impending damage to or loss of the AGLN System that are
known to such Party.


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


13.          Indemnity


13.1        Subject to the
provisions of Article 14, AGLN hereby agrees to indemnify, defend, protect and
hold harmless User and its Affiliates, and their employees, officers, directors
and agents (the “User Indemnified Persons”), from and against, and assumes
liability 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 by
the 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 property
which in whole or in part arise on account of the negligent acts or omissions
of AGLN in the construction of the AGLN System and/or in the performance or
non-performance of its repair and maintenance obligations or exercise of its
rights under this Agreement, including any material violation by AGLN of any
regulation, rule, statute or court order of any governmental authority
applicable thereto; or (b) under the workers compensation laws asserted by any
employee of AGLN or its agents, contractors, customers or any other Person
providing goods or services for or on behalf of any of the foregoing in
connection with this



 14
 









Agreement
suffered or incurred by the User Indemnified Persons or any of them. AGLN’s
indemnification obligations hereunder shall not be applicable to any Claims to
the extent caused by, arising out of or in connection with the negligence,
intentional acts or omissions or misconduct of the User Indemnified Persons or
any 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 and
against, and assumes liability for all Claims (as defined in Section 13.1)  (a) suffered or incurred by the AGLN 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 property (including without limitation, the AGLN
System) which in whole or in part arise on account of the negligent acts or
omissions, negligent or otherwise, of User in the performance or
non-performance of its obligations or exercise of its rights under this
Agreement, including any material violation by User of any Underlying Right
Requirements or any regulation, rule, statute or court order of any
governmental authority applicable thereto (b) under the workers compensation
laws asserted by any employee of User or its agents, contractors, customers or
any other Person providing goods or services to any of the foregoing in
connection with this Agreement, and suffered or incurred by the AGLN
Indemnified Persons or any of them; (c) suffered or incurred by the AGLN
Indemnified 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 the
use, operation, installation, repair, maintenance or replacement of the User
Equipment, (ii) the conduct of User’s business, including without limit, the
provision of any services or the content of any video, voice or data carried
through the User Dark Fibers or (iii) the violation of any Underlying Rights Requirements
applicable to User; or (d) suffered or incurred by AGLN Indemnified Persons or
any of them and arising out of, caused by, related to or based upon a
contractual or other relationship between such claiming party and User as it
relates to the User Dark Fibers, the User Equipment, the Underlying Rights
Requirements or this Agreement, including any claim for interruption of service
or in respect of service quality. User’s indemnification obligations hereunder
shall not be applicable to any Claims to the extent caused by the negligence,
intentional acts or omissions or misconduct of AGLN Indemnified Persons or any
of them.


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


13.4        Subject to Sections 13.5 and 14, nothing
contained herein shall operate as a limitation on the right of either Party
hereto to bring an action for damages against any third Person, including
indirect, special or consequential damages, based on any acts or omissions of
such 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 be
limited by Underlying Rights Requirements; provided, however, that each Party
hereto shall assign such rights or claims, execute such documents and do
whatever else may be reasonably necessary to enable the other Party to pursue
any such action against such third Person.



 15
 









13.5        Notwithstanding the foregoing provisions of
this Article 13, to the extent AGLN is required under the terms and provisions
of any Underlying Rights to indemnify the grantor or provider thereof from and
against any and all claims, demands, suits, judgments, liabilities, losses or
expenses arising out of or related to such Underlying Rights, regardless of the
cause 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 covered
by such Underlying Right, User hereby releases such grantor or provider from
the same, regardless of whether such claims, suits, judgments, liabilities,
losses or expenses arise from the sole or partial negligence, willful
misconduct or other action or inaction, of such grantor or provider or its
employees, servants, agents, contractors, subcontractors or other Persons using
the property covered by such Underlying Right.


14.           Limitation
of Liability


14.1        NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, EXCEPT TO THE EXTENT CAUSED BY ITS GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, NEITHER AGLN OR ITS AFFILIATES OR USER OR ITS AFFILIATES
SHALL 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 LOST
BUSINESS OR PROFITS, DAMAGES ARISING FROM THE USE OR PERFORMANCE OF THE AGLN
SYSTEM, THE USER DARK FIBERS, EQUIPMENT OR SOFTWARE OR DAMAGE TO OR LOSS OF USE
THEREOF, ANY INTERRUPTION OF SERVICE, OR ANY DELAY, ERROR OR LOSS OF DATA OR
INFORMATION ARISING IN ANY MANNER OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT
AND SUCH PARTY’S PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS
AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT
(INCLUDING STRICT LIABILITY), ALL CLAIMS FOR WHICH ARE HEREBY SPECIFICALLY
WAIVED.


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


14.3.       The Parties expressly agree that no claim for
losses or damages whatsoever in connection with this Agreement shall be made
more than two (2) years after the date that the event giving rise to such claim
is 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 made
more than two (2) years after the first notice of any claim received by the
Party claiming under such indemnity provision.



 16















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


15.          Insurance


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


(a)           Commercial
general liability insurance for bodily injury (including death) and property
damage which provides limits of not less than ten million dollars ($10,000,000)
per occurrence and ten million dollars ($10,000,000) annual aggregate as
respects products/completed operations, independent contractor’s and
contractual liability and contractually assumed risks, if applicable; Coverage
shall be endorsed to include the insurer’s waiver of subrogation in favor of
the other Party;


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


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


The above minimum requirements as to insurance coverage shall not limit
the liability of either Party under this Agreement. The above limits may be
satisfied 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-insurance
program 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 the
insurance policies required above with insurance companies authorized to do
business in the State of Arizona, and having an A.M. Best Rating of A or
better. The other Party, its Affiliates, and their officers, directors and
employees, and any other Person entitled to indemnification hereunder, shall be
named as additional insureds to the extent of such indemnification. Each Party
shall provide the other Party with a certificate or certificates of insurance
together with declaration pages in a form satisfactory to such other Party
showing that the Party has complied with the insurance requirements of this
Section. Upon request, User shall furnish AGLN with a certified copy of each
policy, including the provisions establishing premiums. Certain deductible
clauses of either Party’s insurance which are not considered excessive, overly
broad, or harmful to the interest of the other Party will be allowed. Each
insurance policy



 17
 









shall contain a provision
providing the other Party with thirty (30) days advanced notice of any
cancellation or material change in coverage.


15.3        All
proof of insurance submitted by User to AGLN shall clearly set forth all
exclusions and deductible clauses. Standard exclusions in User’s policies will
be allowed provided they are not inconsistent with the requirements of this Article
15. Allowance of any additional exclusions will be in the sole discretion of
AGLN. Regardless of the allowance of exclusions or deductions by AGLN, User
shall be responsible for the deductible limit of the policy and all exclusions
consistent with the risks User assumes under this Agreement and as imposed by
law.


16.          Taxes,
Fees and Other Governmental Impositions


16.1        The
Parties 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 the
AGLN System or as otherwise allocated in this Article. They agree to cooperate
with each other and coordinate their efforts to achieve such objectives in
accordance with the provisions of this Article.


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


16.3        Except
as to Impositions described in Section 16.2, User shall be responsible for and
shall pay or promptly reimburse AGLN for all Impositions (a) imposed on, based
on, or otherwise measured by the gross revenues, gross receipts, gross income,
net revenues, net receipts or net income received by or accrued to User with
respect 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 User
route; (ii) paid by AGLN to the grantor or provider of any of the Underlying
Rights to the extent imposed on, based on, or otherwise measured by the gross
revenues, gross receipts, gross income, net revenues, net receipts or net
income received by or accrued to AGLN with respect to the IRU Fee, the User
Maintenance 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 the
User Dark Fibers, the User Equipment or other facilities of User. If the User
Dark Fibers are the only fibers from the point where the User Dark Fibers leave
the AGLN System to a User facility, User shall be solely responsible for any
and all Impositions imposed on or with respect to such fibers and all User
Equipment associated with such fibers. To the extent such Impositions are not
separately assessed, allocated to or imposed on the User Dark Fibers, the User
Equipment or other facilities of User, AGLN will pay all such Impositions. AGLN
shall notify User of such Imposition, and User shall promptly reimburse AGLN
for User’s appropriate share of such Impositions. To the extent such
Impositions arise pursuant to Section 16.5(b), AGLN will pay such Impositions
and shall notify User of such Imposition, and User shall promptly reimburse
AGLN in the amount of such Imposition.



 18
 









16.4        AGLN
shall have the right to contest any Imposition (including by nonpayment of such
Imposition). The out-of-pocket costs and expenses (including reasonable
attorneys’ fees) incurred by AGLN in any such contest shall be shared by AGLN
and User in the same proportion as to which the parties would have shared in
such Impositions as they were assessed. Any refunds or credits resulting from a
contest brought pursuant to this Section 16.4 shall be divided between AGLN and
User 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        User
shall have the right to protest by appropriate proceedings any Imposition. In
such event, User shall indemnify and hold AGLN harmless from any expense, legal
action or cost, including reasonable attorneys’ fees, resulting from User’s
exercise of its rights hereunder.


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


(b)           If User has
exhausted all its rights of appeal in protesting any Imposition and has failed
to obtain the relief sought in such proceedings or appeals (“Finally Determined
Taxes and Fees”), User and AGLN may agree to relocate a portion of the AGLN
System to avoid the jurisdiction that imposes or assesses such Finally Determined
Taxes and Fees (subject to the consent and participation of the other interest
holders in the affected portion of the AGLN System). If User and AGLN do not
determine to relocate the affected portion of the AGLN System, User shall have
the right to terminate its use of the User Dark Fibers in the affected portion
of the AGLN System. Such termination shall be effective on the date specified
by User in a notice of termination, but not earlier than ninety (90) days after
the notice. Upon such termination, the IRU in the affected portion of the AGLN
System shall immediately terminate, and the User Dark Fibers in the affected
portion of the AGLN System shall thereupon revert to AGLN without reimbursement
of any of the IRU Fee or other payments previously made or due with respect
thereto.


16.6        AGLN
and User agree to cooperate fully in the preparation of any returns or reports
relating to the Impositions. AGLN and User further acknowledge and agree that
the provisions of this Article are intended to allocate the Impositions on
procedures and methods of computation that are in effect on the date of this
Agreement. Material changes in such procedures and methods could significantly
alter the fundamental economic assumptions of the Parties underlying this
Agreement. Accordingly, the Parties agree that, if such procedures or methods
of computation change materially, the Parties will negotiate in good faith an
amendment 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 the
Acceptance Date for the first User Dark Fibers to be accepted by User, User
shall 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) year
period, provide AGLN additional reseller certificates or similar documentation
for 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 service
AGLN provides under this Agreement.



 19
 









17.          Notices


17.1        Notices. All notices, statements,
demands, requests, consents, approvals, authorizations, offers, agreements,
appointments, designations, or other direction or communication hereunder by any
party to another shall be (a) in writing, (b) effective on the first business
day following the date of receipt, and (c) delivered by one of the following
means: (i) by personal delivery; (ii) by prepaid, overnight package delivery or
courier service; (iii) by the United States Postal Service, first class,
certified mail, return receipt requested, postage prepaid; (iv) by computer
email or (v) by prepaid telecopier, telex, or other similar means of electronic
communication (followed by confirmation on the same or following day by
overnight delivery or by mail as aforesaid). All notices given under this
Agreement 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 postal
addresses, email addresses, or telecopier numbers of which the parties have
been advised in writing by any of the above-described means. Personal delivery
to a party or to any officer, partner, agent, or employee of such party at its
address herein shall constitute receipt. A Party’s rejection or other refusal
to accept notice shall also constitute receipt. Each party agrees to promptly
give the other party notice of any change in its above listed, respective
postal addresses, email addresses, telecopier numbers or contact persons.



 20
 









18.          Confidentiality


18.1        (a)           Unless
by mutual agreement of the Parties, or except to the extent directed by a court
of competent jurisdiction or required by applicable law, AGLN and User shall
not disclose this Agreement or the terms hereof to any Person other than such
Party’s Affiliates or such Party’s officers, employees, and consultants, who
are similarly bound hereby.


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


(c)           During the Term and for a period of
two (2) years after the expiration or termination of this Agreement, whether
such termination is at the instance of either Party, the Receiving Party will
not use, copy, or disclose, or permit any unauthorized Person access to, any
Confidential Information belonging to the Disclosing Party or any third Person;
except that the Receiving Party may disclose Confidential Information of the
Disclosing Party to its Consultants provided such Consultants have a need to
know and have executed nondisclosure agreements obligating such Consultants to
keep the Confidential Information of the Disclosing Party confidential, or are
otherwise bound by similar confidentiality obligations.


(d)           For purposes of this Agreement, the
terms “Trade Secrets” and “Confidential Information” shall not include any
materials or information to the extent that such materials or information: (i)
are or become publicly known or generally utilized by others engaged in the
same business or activities in which the Disclosing Party utilized, developed
or otherwise acquired such information; or (ii) are known to the Receiving
Party prior to the receipt of such materials or information from the Disclosing
Party; or (iii) are furnished to others by the Disclosing Party with no
restriction on disclosure. Failure to mark any of the Trade Secrets or
Confidential Information as confidential shall not affect its status as Trade
Secrets or Confidential Information under this Agreement.


(e)           Because of the unique nature of the
Trade Secrets and Confidential Information, each Party understands and agrees
that the Disclosing Party will suffer irreparable harm in the event that a
Party fails to comply with any of its obligations under this Section and that
monetary damages will be inadequate to compensate the Disclosing Party for such
breach. Accordingly, the Parties agree that the Disclosing Party will, in
addition to any other remedies available to it at law or in equity, be
entitled, without requirement to post bond, to injunctive relief to enforce the
terms of this Article 18.


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



 21
 









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


18.2        Nothing herein shall
be 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 for
any reason or upon request of AGLN, User shall return all Confidential
Information, together with any copies of same, to AGLN. The requirements of
confidentiality set forth herein shall survive the return of such Confidential
Information.


18.4        User shall not,
without first obtaining the written consent of AGLN, use any trademark or trade
name of AGLN or refer to the subject matter of this Agreement or AGLN in any
promotional activity or otherwise, nor disclose to others any specific
information about the subject matter of this Agreement. Neither Party shall
issue any publication or press release relating directly or indirectly to this
Agreement without the prior written consent of both Parties.


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


19.          Default


19.1        A default shall be
deemed to have occurred under this Agreement if:


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


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


(c)           in the case of repetitious or
persistent non-material breaches of this Agreement occurring within any
consecutive twelve-month period, the breaching Party fails to prevent a further
similar breach of this Agreement from occurring during the six-month period immediately
following the date of occurrence of the latest such breach, provided that
written notice had been given by the non-breaching Party to the breaching Party
of its belief that such breaches have occurred or are occurring and specifying
the dates that such breaches are believe to have occurred, and provided that
the breaching Party had a reasonable period of time to adopt suitable controls
or to take other appropriate action to prevent such further breach; or



 22
 









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


(e)           in the case a Party: (i) applies for
or 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 of
its property, (ii) makes a general assignment for the benefit of its creditors,
(iii) commences a voluntary proceeding under the Federal Bankruptcy Code or
under any other law relating to relief from creditors generally, or (iv) fails
to contest in a timely or appropriate manner, or acquiesces in writing to, any
petition filed against it in an involuntary proceeding under the Bankruptcy
Code or under any other law relating to relief from creditors generally, or any
application for the appointment of a receiver, custodian, trustee, or liquidator
of 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 a
default:


(a)           if the default consists of a failure
of User to pay to AGLN any part of the IRU Fee or a failure of User to pay to
AGLN 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 have
under this Agreement or at law or in equity, in its sole discretion, (i) immediately
terminate this Agreement with respect to the Segment(s) for which such part of
the IRU Fee or other amount(s) relate and (ii) apply any and all amounts held
by AGLN for User toward the payment of amounts then or thereafter payable by
User hereunder.


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


19.3        Notwithstanding
anything to the contained in this Agreement to the contrary, User’s sole and
exclusive remedy for any failure by AGLN to deliver the User Dark Fibers by the
Committed Delivery Date shall be limited to those contained in this Section
19.3.


(a)           In the event AGLN shall have failed
to 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 Service
Order (as such date may be extended by Events of Force Majeure or otherwise
under the terms of this Agreement), then User shall have the right, at its
option, either (i) to cancel this Agreement solely with respect to such Service
Order and receive a refund of the portion of the Initial Payment allocable to
the User Dark Fibers in such Service Order, or (ii) to keep the User Dark
Fibers in such Service Order. If User elects to so cancel, neither Party shall
have any further duties, liabilities or obligations to the other Party (except
for 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 failed
to deliver the User Dark Fibers in any Service Order within twelve (12) months
after the Committed Delivery Date for the User Dark Fibers in such Service
Order (as such date may be extended by Events of Force Majeure or otherwise
under the terms of this Agreement), and User has not exercised its rights under
Section 19.3(a), then this
Agreement shall automatically terminate solely with respect to such Service
Order and AGLN shall



 23
 









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


19.4        This Agreement may be
terminated by either Party, upon ten (10) days written notice to the other
Party, if such Party receives final notification from any governmental agency
that its performance under this Agreement is a violation of the terms of the
Communications 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 the
Agreement, if possible, so that such Party’s performance under the Agreement is
no longer in violation of the Act; and


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


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


20.          Termination


20.1        This Agreement shall
automatically terminate on the expiration or termination of the Term with
respect to User Dark Fibers in each Service Order, or earlier as provided in
this Agreement. Upon the expiration of the Term or other termination of this
Agreement, the IRU with respect to User Dark Fibers in each such Service Order
shall immediately terminate, all rights of User to use the AGLN System, the
User Dark Fibers in and any User Handholes within such Service Order shall
cease, all rights to the use of the User Route and the User Dark Fibers shall
revert to AGLN, and AGLN shall owe User no further duties, obligations or
consideration.


20.2        Except as otherwise provided in Section
8.3, User shall, within thirty (30) days of such termination, remove all User
Equipment and User Media used in connection with the User Dark Fibers. User
shall accomplish such removal at User’s sole expense, under AGLN’s supervision
and in a manner that does not damage the AGLN System. User shall be responsible
for and shall indemnify AGLN from and against any damage, loss, cost or expense
caused by such removal. If User fails to remove its property within such
period, the property shall be deemed abandoned and AGLN may dispose of the same
in any manner it deems reasonably appropriate, at User’s expense.


20.3        Termination of this
Agreement shall not affect the rights or obligations of either Party that have
arisen before the date of termination or expiration.


21.          Force Majeure


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



 24
 









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


22.          Dispute Resolution


22.1        Except as otherwise
provided 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 in
connection with this Agreement (or any subsequent agreements or amendments
thereto), 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 of
this Agreement (any such dispute, controversy or claim being herein referred to
as a “Dispute”) shall be settled without litigation and only by use of the
following alternative dispute resolution procedure:


(a)           At the written request of a Party,
each Party shall appoint a knowledgeable, responsible representative to meet
and negotiate in good faith to resolve any Dispute. The discussions shall be
left to the discretion of the representatives. Upon failure to reach agreement,
the representatives may utilize other alternative dispute resolution procedures
such as mediation to assist in the negotiations. Discussions and correspondence
among the Parties’ representatives for purposes of these negotiations shall be
treated as confidential information developed for the purposes of settlement,
exempt from discovery and production, and without the concurrence of both
parties shall not be admissible in the arbitration described below, or in any
lawsuit. Documents identified in or provided with such communications, which
are 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 the
representatives of the Parties do not resolve the Dispute within 60 days of the
initial written request, the Dispute shall be submitted to binding arbitration
by a single arbitrator pursuant to the Commercial Arbitration Rules, as then
amended and in effect, of the American Arbitration Association (the “Rules”).
Either Party may demand such arbitration in accordance with the procedures set
out in the Rules. The arbitration shall take place in Phoenix, Arizona. The
arbitration hearing shall be commenced within 60 days of such Party’s demand
for arbitration. The arbitrator shall have the power to and will instruct each
Party to produce evidence through discovery (i) that is reasonably requested by
the other Party to the arbitration in order to prepare and substantiate its
case and (ii) the production of which will not materially delay the expeditious
resolution of the dispute being arbitrated; each Party hereto agrees to be
bound by any such discovery order. The arbitrator shall control the scheduling
(so as to process the matter expeditiously) and any discovery. The Parties may
submit written briefs. At the arbitration hearing, each Party may make written
and oral presentations to the arbitrator, present testimony and written evidence
and examine witnesses. No Party shall be eligible to receive, and the
arbitrator shall not have the authority to award, exemplary or punitive
damages. The arbitrator shall rule on the Dispute by issuing a written opinion
within 30 days after the close of hearings. The arbitrator’s decision shall be
binding and final. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.



 25
 









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


(d)           Notwithstanding any other provision
of this Agreement, (i) either Party may commence an action to compel compliance
with this Section 22.1 and (ii) if any Party, as part of a Dispute, seeks
injunctive relief or any other equitable remedy, including specific
enforcement, then such Party shall be permitted, without requirement to post
bond, to seek such injunctive or equitable relief in any federal or state court
or competent jurisdiction before, during or after the pendency of a mediation
or arbitration proceeding under this Article 22.


22.2        If any Party files a
judicial or administrative action asserting claims subject to arbitration as
prescribed herein, and the other Party successfully stays such action or
compels arbitration of said claims, the Party filing said action shall pay the
other Party’s costs and expenses incurred in seeking such stay or compelling
arbitration, including reasonable attorneys’ fees.


23.          Assignment and Transfer
Restrictions


23.1        Except as provided
below in this Section 23.1 and as provided in Section 23.2, User may not
transfer or assign all or any part of this Agreement or of its interest under
this Agreement, or delegate any duties, burdens, or obligations arising
hereunder, without AGLN’s prior express written consent, which consent may not
be unreasonably withheld. In no event whatsoever shall User transfer, sell,
assign, condo, swap, exchange, lease, sublease, license, sublicense or grant
indefeasible or other rights of use in or to any one or more of the User Dark
Fibers or User’s interest therein, or enter into any other arrangement with any
Person for such Person’s use of any one or more of the User Dark Fibers. A
transfer, assignment or other action in violation of this Article 23 shall
constitute a material breach of this Agreement and shall be null and void. If
any such consent is given, User nevertheless shall remain fully and primarily liable
for all obligations of User under this Agreement. Nothing in this section shall
be construed to restrict the sale of Telecommunications Services by User.


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



 26
 









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


23.3        Nothing shall be deemed or construed to
prohibit AGLN from assigning or otherwise transferring this Agreement, or any
of its rights or interests herein, in whole or in part, or from selling,
transferring, leasing, licensing, granting indefeasible rights of use in or
entering into similar agreements or arrangements with other Persons respecting any
Innerducts or other conduit tubing, Cable, fibers (other than the User Dark
Fibers), or Associated Property constituting a part of the AGLN System. If in
connection with any assignment of this Agreement by AGLN, AGLN causes such
assignee to contemporaneously therewith agree in writing to perform all of AGLN’s
obligations under this Agreement, then AGLN shall be released from liability
hereunder. AGLN may encumber the AGLN System provided any such encumbrance
created after the date of this Agreement shall be subject to the rights of User
hereunder. AGLN may pledge or assign its rights under this Agreement to its
Lender(s) for the purpose of securing financing for its construction,
maintenance, or extension of the AGLN System.


24.          Representations, Warranties and
Acknowledgments


24.1        By execution of this
Agreement, each Party represents and warrants to the other:


(a)           That the representing Party has full
right and authority to enter into and perform this Agreement in accordance with
the terms hereof and thereof, and that by entering into or performing this
Agreement, 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 is
subject;


(b)           That the execution, delivery and
performance of this Agreement by such Party has been duly authorized by all
requisite corporate action, that the signatories for such Party hereto are
authorized to sign this Agreement, and that the joinder or consent of any other
Party, including a court or trustee or referee, is not necessary to make valid
and effective the execution, delivery and performance of this Agreement by such
Party.


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


25.          General


25.1        Binding Effect. This
Agreement and each of the Parties’ respective rights and obligations under this
Agreement, shall be binding on and shall inure to the benefit of the Parties
hereto and each of their respective permitted successors and assigns.



 27
 









25.2        Waiver. The
failure of either Party hereto to enforce any of the provisions of this
Agreement, or the waiver thereof in any instance, shall not be construed as a
general waiver or relinquishment on its part of any such provision, but the
same shall nevertheless be and remain in full force and effect.


25.3        Governing Law. This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of Arizona, without giving effect to its principles of
conflicts of laws. Any litigation based hereon, or arising out of or in
connection with a default by either Party in the performance of its obligations
hereunder, shall be brought and maintained exclusively in the courts of the
State of Arizona or in the United States District Court in Phoenix, Arizona
within Maricopa County, and each Party hereby irrevocably submits to the
jurisdiction of such courts for the purpose of any such litigation and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with such litigation and waives any right to claim that such court or courts
are inconvenient.


25.4        Rules of Construction.


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


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


(c)           The Parties hereby agree that the
rights and remedies set forth in this Agreement shall be each Party’s sole and
exclusive rights and remedies against the other Party for any claims arising
under this Agreement and relating to any breaches of the representations,
warranties or covenants contained in this Agreement. Notwithstanding the
foregoing, the Parties agree that if any breach or threatened breach of the
representations, warranties or covenants of this Agreement would cause irreparable
injury to a Party and money damages would not provide an adequate remedy to
such Party, then, in addition to the rights and remedies available to such
Party pursuant to this Agreement, such Party shall have the right to obtain
equitable relief in the form of a temporary or permanent injunction or order
for a specific performance, without the requirement of posting of bond.



 28
 









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


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


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


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


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


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


25.8        Severability. If
any section, subsection, sentence, clause, phrase, or other portion of this
Agreement is, for any reason, declared invalid, in whole or in part, by any
court, agency, commission, legislative body, or other authority of competent
jurisdiction, such portion shall be deemed a separate, distinct, and
independent portion. Such declaration shall not affect the validity of the
remaining portions hereof, which other portions shall continue in full force
and effect.


25.9        Remedies. Unless
otherwise expressly limited or excluded herein, all remedies provided in this
Agreement are cumulative and non-exclusive, and are in addition to all other
remedies available at law or in equity, including without limitation any
actions for damages.



 29
 









25.10      Counterparts. This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one and the same instrument.


Remainder of Page
Intentionally Blank



 30
 









In confirmation of
their consent and agreement to the terms and conditions contained in this
Agreement and intending to be legally bound hereby, the parties have executed
this 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

  	
   

  
									



 



 31














EXHIBIT
A

Service
Order Form

To

INDEFEASIBLE RIGHT OF USE AGREEMENT AND MASTER SERVICE

AGREEMENT

By and Between

AGL NETWORKS, LLC

And

MOUNTAIN COMMUNICATIONS, INC.

DATED: January 24, 2005


Service Order Number: One (1) 

Date: January 24, 2005


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


Grant of Rights:


Pursuant to the Agreement
and as of the date of this Service Order 1, AGLN grants to User and User
receives from AGLN (i) an exclusive indefeasible right of use in six (6) fiber
optic strands of the Cable in Ring A, as indicted in Attachment 1 to this
Service Order 1, and six (6) fiber
optic strands in Ring B, as indicted in Attachment 2 to this Service Order 1
which will be specifically identified by AGLN, in the AGLN System (the “User
Dark Fibers”) and the associated and nonexclusive right to use the
Associated Property, all such rights upon and subject to the terms and
conditions 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, as
further described in Attachment 1 to this Service Order 1 at the following
locations:


PHNXAZEA - 2946 E Van Buren St

PHNXAZMA - 211 W Monroe St

PHNXAZNE - 3640 E Indian School

PHNXAZNO - 215 E Indian School


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


MTI CO - 7850 S. Hardy Drive, Tempe

TEMPAZMA - 25 W. 5th Street, Tempe


IRU Fee
and Payment Terms:


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











 




	
  

  	
  (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 understand
and agree that User may pay off the remaining IRU fee balance at any time
during the Term. The amount due shall be the Early Pay Off Amount as calculated
using the IRU Payoff Schedule attached and incorporated herein as Attachment 3
to 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: 20
Years


Special
Requirements: User shall be responsible for securing the
necessary access agreements and coordination at any Bell (QWEST) central office
location to ensure that the completion Date can be met. In the event that all
other Lateral Spur locations are completed and User has not secured the
necessary access to Bell (QWEST) central office locations in time to allow AGLN
to complete work at this location, AGLN may continue with the test acceptance
and turnover procedures to the degree that they can be completed based on User
provided access to the Lateral Spur locations and invoice for the services
under this Service Order Number One as if all locations were completed by the
Completion 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 1

To
  Service Order 1


Ring
A


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














Ring
A Lateral Drawings


211 W. Monroe St, Phoenix, AZ: Six (6) Fibers with
dual entry into Qwest CLEC Express manholes. AGLN will provide diverse paths to
the Qwest CLEC Express manholes as shown below. The Demarcation Point will be
in AGLN’s negative-one manhole for the diverse entry laterals. Qwest will
provide the required cable length information from the User termination point
inside the building to the Qwest CLEC Express manholes, install the termination
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 cables per User’s
instructions. AGLN will install the cables as identified by Qwest and provide
enough slack for either AGLN/ILEC or User to pull from the CLEC Express
manholes and on into the Central Office.














215 W. Indian School Rd, Phoenix, AZ:
Six (6) Fibers with dual entry into Qwest CLEC Express
manholes. AGLN will provide diverse paths to the Qwest CLEC Express manholes as
shown below. The Demarcation Point will be in AGLN’s negative-one manhole for
the diverse entry laterals. Qwest will provide the required cable length
information from the User termination point inside the building to the Qwest
CLEC Express manholes, install the termination 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 cables per User’s instructions. AGLN will install
the cables as identified by Qwest and provide enough slack for either AGLN/ILEC
or User to pull from the CLEC Express manholes and on into the Central Office.














3640 E. Indian School Rd, Phoenix,
AZ: Six (6) Fibers with dual entry into Qwest CLEC Express
manholes. AGLN will provide diverse paths to the Qwest CLEC Express manholes as
shown below. The Demarcation Point will be in AGLN’s negative-one manhole for
the diverse entry laterals. Qwest will provide the required cable length
information from the User termination point inside the building to the Qwest CLEC
Express manholes, install the termination 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 cables per User’s instructions. AGLN will install
the cables as identified by Qwest and provide enough slack for either AGLN/ILEC
or 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 diverse
paths to the Qwest CLEC Express manholes as shown below. The Demarcation Point
will be in AGLN’s negative-one manhole for the diverse entry laterals. Qwest
will provide the required cable length information from the User termination
point inside the building to the Qwest CLEC Express manholes, install the
termination 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 cables
per User’s instructions. AGLN will install the cables as identified by Qwest
and provide enough slack for either AGLN/ILEC or User to pull from the CLEC
Express manholes and on into the Central Office.














Attachment 2

To 

Service Order 1


Ring
B


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














Ring
B Lateral Drawings


25 W. 5th, Tempe, AZ: Six
(6) Fibers with dual entry into Qwest CLEC Express manholes. AGLN will provide
diverse paths to the Qwest CLEC Express manholes as shown below. The
Demarcation Point will be in AGLN’s negative-one manhole for the diverse entry
laterals. Qwest will provide the required cable length information from the
User termination point inside the building to the Qwest CLEC Express manholes,
install the termination 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 cables per User’s instructions. AGLN will install the cables as identified
by Qwest and provide enough slack for either AGLN/ILEC or User to pull from the
CLEC 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 Junction
Boxes. AGLN will provide diverse paths to the User building as shown below. The
Demarcation Point will be at AGLN’s FDP for the diverse entry laterals. User
will provide the required cable length information from the User termination
point (FDP) inside the building to the existing junction boxes, install any
required fiber termination panels, and provide hand-off instructions as
required. AGLN will hand-off the cables per User’s instructions. AGLN will
install the cables and provide enough storage slack for as mutually agreed upon
between parties














Attachment 3

To

Service 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

  	
   

  






 















EXHIBIT B

AGLN ROUTE MAP


















EXHIBIT C

Construction


1.                                       GENERAL


The intent of this
document is to outline the specifications for construction of a conduit network
system. Deviations from the specifications may occur in those circumstances
where either (i) strict compliance is impractical due to physical (including
environmental) field conditions, Underlying Right issues or code restrictions,
or (ii) AGLN has acquired a portion of the Segment from a third party. In all
cases, the standards contained in this document or the standards of the
federal, state, local or private agency having jurisdiction, whichever is
stricter, shall be followed. Aerial systems are not acceptable alternatives and
are not addressed in these specifications and standards.


2.                                       COMPLIANCE


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


3.                                       MATERIAL


The conduit shall be HDPE
with a minimum of SDR-11. Steel or PVC conduit shall be minimum Schedule 40
wall 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 steel
conduit, brackets, or hardware shall be hot-dipped galvanized after
fabrication.


Manholes shall have a
minimum H-20 loading rating. All manholes will have locking lids (pentahead or
similar). Dimensions will typically be 4 by 8 by 6 feet or 4 by 4 by 4 feet (W
by L by H).


Handholes shall have a
minimum 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. EMS
markers will be fabricated in the lids of handholes. All handholes will have
locking lids (pentahead or similar).


4.                                       
MINIMUM DEPTHS


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











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


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


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


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


5.                                       CONDUIT
CONSTRUCTION


Conduits may be placed by
means of trenching, plowing, jack and bore, micro-trenching, or directional
bore. Network facilities will generally be placed on a level grade parallel to
the surface, with only gradual changes in grade elevation.


Crossings of roads
maintained by government bodies and railroad crossings will be encased in HDPE
conduit, or as required by the permitting authority.


All galvanized steel
conduits placed on bridges shall have expansion joints placed at each
structural (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. For
bridges greater than one hundred feet (100’), at least one conduit expansion
joint will be placed, even if there is no bridge expansion joint.


6.                                       
INNERDUCT INSTALLATION


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











7.                                       CABLE
INSTALLATION


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


7.2                                 Thirty
meters (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 for
ten meters (10m) of slack at the site.


7.3                                 For
direct 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 areas
will typically be installed at 500 ft to 1,000 ft intervals. Handholes will
typically be used in the construction of laterals or as pull points.


9.                                       CABLE
MARKERS (WARNING SIGNS)


Cable markers shall be
installed at sufficient frequency to mark the location of the cable. Markers
shall be positioned so that they can be seen from the location of the cable and
generally 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 urban
areas, 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 or
pavement marker.


10.                                 DEVIATIONS
FROM SPECIFICATIONS


AGL Networks may deviate
from these specifications, when field conditions dictate.


11.                                 AS-BUILT
DRAWINGS


As-built drawings will be
delivered within ninety (90) days after the Segment Acceptance Date. For
conduit purchases or leases as-built drawings will contain a minimum of the
following:


a)                                      Information
showing the location of running line, relative to permanent landmarks,
including but not limited to, railroad mileposts, boundary crossings and
utility crossings.


b)                                     Manhole/handhole
locations.











c)                                      Conduit
information (type, length, expansion joints, etc.).


d)                                     Notation
of all deviations from specifications (depth, etc.).


e)                                      Right
of way detail (type, centerline distances, boundaries, waterways, road
crossings, known utilities and obstacles, etc.).


f)                                        Cable
marker locations and stationing.


g)                                     Construction
of facilities will be documented on the sitework/facility as-builds and
maintained on file at the facility.


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


For fiber purchases or
leases test records shall include one CD RAM with all traces and power meter
readings. An industry excepted naming convention shall be utilized. An
electronic route map will be provided in an agreeable format.


12.                                 ACCEPTANCE
TESTING


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


12.1         Splicing Standards are as follows for
standard single mode fiber:


Splices shall be
qualified 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 be
done. These measurements must be made after the splice manholes or handholes are
closed in order to check for macro-bending problems. Connectors shall be
cleaned as necessary to ensure accurate measurements are taken.


Installed loss
measurement at 1310nm and 1550nm shall be recorded using an industry-accepted
laser source and power meter. Continuity testing shall be done on all fibers
concurrently. Bi-directional acceptance parameters are as follows: .15 dB with
a 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 after
three attempts the loss is above .4 dB the splice shall be marked as
Out-of-Spec (OOS) on the data sheet. Each splicing attempt shall be documented
on the data sheet.











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


The dB/km acceptance
standard for each fiber shall be an average bi-directional installed loss of
0.30dB/km at 1550nm or .40dB/km at 1310nm or less across each span.


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


12.4         The entire fiber optic system shall be
properly protected from foreign voltage and grounded with an industry-accepted
system.















EXHIBIT D


Monitoring and
Maintenance Specifications and Procedures


	
  1.

  	
  GENERAL

  



 


This Exhibit describes the policies and procedures
that will be utilized to monitor and maintain the AGLN System. AGLN shall
ensure that the System is maintained according to the Monitoring and
Maintenance Specifications and Procedures specified herein, through application
of commercially reasonable and accepted industry standards, and in accordance
with manufacturers’ specifications. The purpose and result of monitoring and
maintenance 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 performance
specifications are achieved.


2.             ADMINISTRATION


AGLN shall maintain a comprehensive database (Conduit
System Database) of all relevant information associated with the AGLN System to
ensure prompt identification and appropriate response to routine and corrective
maintenance situations. The Database shall identify and document the AGLN
System and all facilities installed in AGLN System, including but not limited
to: 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 and
repair around the clock, on a twenty-four (24) hour per day, seven (7) days per
week basis (24x7). AGLN shall be available during normal business hours (7:00
a.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 Center
and assign a dedicated maintenance manager to oversee and coordinate day-to-day
maintenance activities. The Maintenance Center shall be equipped to receive
AGLN 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 be
responsible for ensuring that preventative, corrective, and emergency
maintenance activities are carried out in a timely fashion and that maintenance
activities are coordinated with Users.











AGLN shall provide qualified personnel, office
services, vehicles, and all tools and materials required for the safe and
proper performance of maintenance procedures. Specifically, AGLN shall retain
and maintain all appropriate equipment necessary for routine and preventative
maintenance as well as corrective maintenance and emergency restoration. AGLN
shall have an Optical Time Domain Reflectomoter (OTDR) and fusion splicing
equipment with valid and current certification, and all other equipment shall
be in proper working order with current calibration at all times.


	
  4.

  	
  ROUTINE MAINTENANCE

  



 


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


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


·                             AGLN
shall establish membership in the local CBYD program, and perform all cable and
conduit locate activities required to protect the AGLN System.


	
  5.

  	
  NON-ROUTINE MAINTENANCE

  



 


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


·                             Type/nature
of problem


·                             Classification
of the problem (as defined below)


·                             Location
of the problem


·                             Any
other pertinent information that may help in identifying and resolving the
problem in an expedient manner.


When AGLN identifies or is notified of a problem via
System alarm, User, or third party notification, AGLN will initiate
repair/response activities as appropriate and necessary for the type of problem
being reported. Problems shall be classified according to the following
definitions:


Major: A major
failure is defined as a failure of the AGLN System resulting in an outage
condition for multiple











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


Minor/Service Affecting: A
minor/service affecting failure is defined as a failure of the AGLN System
affecting some, but not all, of the services provided.


Minor/Non-Service Affecting: A
minor/non-service affecting failure is any failure that is not currently
affecting the ability of the AGLN System to provide service. AGLN shall
commence 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 reasonable
control.


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


6.             FIBER OPTIC CABLE REPAIR AND RESTORATION


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


Within one (1) business
day after completing any temporary repair or restoration, AGLN shall commence
planning permanent repair. AGLN shall notify User of its permanent repair plans
and implement such repairs within an appropriate time thereafter. AGLN shall
strive to repair “in-use” fibers first and repair those fibers not currently
in-use during permanent restoration activities. AGLN shall perform permanent
repair and restoration of the AGLN System in accordance with the procedures
detailed in Exhibit C.


Should a cable failure
affect multiple Users, it is understood that the restoration sequence will occur
in a logical order and will not disfavor any party, and that in-use fibers will
be restored prior to inactive fibers. User is responsible for notifying AGLN
which fibers are in-











use and which are not
in-use. This information should be contained in the Conduit System Database,
with updates provided by User as necessary.


	
  7.

  	
  COOPERATION

  



 


Both AGLN and User shall
cooperate fully to resolve failures of and/or impairments to the AGLN System in
an expedient and efficient manner. Such cooperation shall include, but not be
limited to, notification of the other party after becoming aware of the need
for either scheduled or unscheduled maintenance activities that may affect User’s
ability to provide service over the AGLN System and sharing of information
relevant to the operation, maintenance and repair of the AGLN System. AGLN
shall notify User ten (10) days prior to any scheduled Maintenance activity
that may affect User’s ability to provide service over the AGLN System. User
shall notify AGLN as soon as reasonably possible of any request for scheduled
Maintenance it may have. In the event that a scheduled Maintenance activity is
canceled or delayed, the scheduling party shall inform the other party so that
the Maintenance activity may be rescheduled. AGLN shall notify User as soon as
reasonably possible after becoming aware of the need to perform unscheduled
Maintenance that may affect User’s ability to provide service over the AGLN
System.


8.             OTHER


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


9.             USER MAINTENANCE FEES AND COSTS


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


A quarter of the first
such User Maintenance Fee will be due and payable thirty (30) days after the
Acceptance 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 Fee
shall be increased annually, beginning with the first anniversary of the
relevant 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. City
Average, published by United States Department of Labor, Bureau of Labor
Statistics (1982-84=100) for the twelve (12) month period ending three months
prior to such anniversary of the effective date (the “CPI Adjustment”).
In the event the Bureau of Labor Statistics (or any successor organization) no
longer publishes the CPI-U, AGLN may, in its discretion, designate the
statistical index it deems most appropriate for collection of adjustments to a
fee and, from the











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


11.           TERM


The Term of the
Maintenance Agreement shall coincide with the Term of User’s IRU Agreement with
AGLN.