**Exhibit10.33**

**MASTERSERVICE AGREEMENT**

 

This Master Service Agreement(this “Agreement”) is entered into this 30th day of June, 2003(“Effective Date”) by and between LEVEL 3 COMMUNICATIONS, LLC(“Level 3”) and UNIVERSAL ACCESS, INC. (“Customer”).

 

**ARTICLE 1.  DEFINITIONS**

 

1.1 “Affiliate” shall mean an entitythat now or in the future, directly or indirectly controls, is controlled by,or is under common control with, a party to this Agreement.  For purposes of the foregoing, “control”shall mean the ownership of (i) greater than fifty percent (50%) of the votingpower to elect the directors of the company, or (ii) greater than fiftypercent (50%) of the ownership interest in the company.

 

1.2  “Connection Notice” shall mean a written noticefrom Level 3 that the Service ordered has been installed by Level 3 pursuant tothe Customer Order, and has been tested and is functioning properly.

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1.3  “Customer Commit Date” shall mean the date thatService will be available to Customer, as set forth in the Customer WelcomeLetter or such other written notice from Level 3 to Customer. By written notice to Level 3 deliverednot less than five (5) business days prior to a Customer Commit Date which hasbeen provided by Level 3 to Customer for On-Net Services, Customer may delaythe Customer Commit Date by up to 60 days beyond the original Customer CommitDate supplied by Level 3.  No latedelivery credits or penalties shall apply in the event Customer chooses todelay a Customer Commit Date.

 

1.4  “Customer Order” shall mean a request forService submitted by Customer in the form designated by Level 3 or agreed to by the parties.

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1.5  “Customer Premises” shall mean the locationor locations occupied by Customer or its end users to which Service isdelivered.

 

1.6  “Customer Welcome Letter” shall mean a writtencommunication from Level 3 to Customer informing Customer of Level 3’sacceptance of the Customer Order.

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1.7  “Excused Outage” shall mean any outage,unavailability, delay or other degradation of Service related to, associatedwith or caused by scheduled maintenance events for which Customer has receivedtimely notice, Customer actions or inactions, Customer provided power orequipment, any third party, excluding any third party directly involved in theoperation and maintenance of the Level 3 network but including, withoutlimitation, Customer’s end users, third party network providers, trafficexchange points controlled by third parties, or any power, equipment orservices provided by third parties, or an event of force majeure as defined inSection 7.1.

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1.8  “Facilities” shall mean any property ownedor leased by Level 3 and used to deliver Service, including terminal andother equipment, wires, lines, ports, routers, switches, channel service units,data service units, cabinets, racks, private rooms and the like.

 

1.9  “Gateway” data center space owned or leasedby Level 3 for the purpose of, among other things, locating and colocatingcommunications equipment.

 

1.10  “Local Loop” shall mean the connectionbetween Customer Premises and a Level 3 Gateway or other Facility.

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1.11  “Off-Net” shall mean Service thatoriginates from or terminates to any location that is not on the Level 3network.

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1.12  “On-Net” shall mean Service thatoriginates from and terminates to a location that is on the Level 3 network.

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1.13  “Service” shall mean****any Level 3 service described in a Service Scheduleand identified on a particular line item of a Customer Order.

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1.14 “Service Commencement Date” shall mean****the first tooccur of  (i) the date set forth in anyConnection Notice, unless Customer notifies Level 3 that the Service is notfunctioning properly as provided in Section 3.1 (or, if two or more Servicesare designated as “bundled” or as having a “sibling relationship” in anyCustomer Order, the date set forth in the Connection Notice for all suchServices); (ii) the date upon which Customer acknowledges that the Service hasbeen installed and is functioning properly (in the event Customer firstnotifies Level 3 that the Service is not functioning properly as provided inSection 3.1); or (iii) the date Customer begins using the Service.

 

1.15  “Service Schedule” shall mean a scheduleattached hereto, or signed between the parties from time to time and expresslyincorporated into this Agreement, setting forth terms and conditions specificto a particular Service.

 

1.16  “Service Term” shall mean the duration of time (measured startingon the Service Commencement Date) for which Service is ordered, as specified inthe Customer Order.  The Service Termshall continue on a month-to-month basis after expiration of the stated ServiceTerm, until terminated by either Level 3 or Customer upon thirty (30) days’prior written notice to the other.

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##### **ARTICLE 2. DELIVERY OF SERVICE**

 

2.1** Submission of Customer Order(s)**. To order any Service,Customer may submit a Customer Order requesting Service. Unless otherwiseagreed, Customer is not obligated to submit Customer Orders.  The Customer Order and its backup detailmust include a description of the Service, the non-recurring charges andmonthly recurring charges for Service and applicable Service Term.

 

2.2** Acceptance by Level 3**.  Upon receipt of a Customer Order, if Level 3 determines (actingin a commercially reasonable manner) to accept the Customer Order, Level 3 willdeliver a Customer Welcome Letter for the requested Service. If Level 3 is onlyable to deliver a portion of the Service, it will so notify Customer todetermine if Customer would like Level 3 to accept that portion of the CustomerOrder that Level 3 can deliver. Level 3 will become obligated to deliver anordered Service only if Level 3 has delivered a Customer Welcome Letterfor the Service.

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2.3** Credit Approval and Deposits**.  If Customer’s financial information is not publicly available,Customer will provide Level 3 with credit information as reasonablyrequested, and 

 

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delivery of new Service is subject to creditapproval.  Level 3 may requireCustomer to make a deposit or deliver another form of security as a conditionto Level 3’s acceptance of any Customer Order.  The deposit will be held by Level 3 as security for paymentof Customer’s charges. When Service to Customer is terminated, the amount ofthe deposit will be credited to Customer’s account and any remaining creditbalance will be refunded.

 

2.4**Customer Premises**.  Customer shall allow Level 3 access tothe Customer Premises to the extent reasonably required by Level 3 for theinstallation, inspection and scheduled or emergency maintenance of Facilitiesrelating to the Service.  Level 3shall notify Customer at least *** business days in advance of any regularlyscheduled maintenance that will require access to the Customer Premises or thatmay result in the interruption of Service. Customer will be responsible forproviding and maintaining, at its own expense, the level of power, heating andair conditioning necessary to maintain the proper environment for theFacilities on the Customer Premises. In the event Customer fails to do so,Customer shall reimburse Level 3 for the actual and reasonable cost ofrepairing or replacing any Facilities damaged or destroyed as a result ofCustomer’s failure.  Customer willprovide a safe place to work and comply with all laws and regulations regardingthe working conditions on the Customer Premises.

 

2.5**  Level 3Facilities**.  Except asotherwise agreed, title to all Facilities shall remain with Level 3. Level 3will provide and maintain the Facilities in good working order. Customer shallnot, and shall not permit others to, rearrange, disconnect, remove, attempt torepair, or otherwise tamper with any Facilities, without the prior writtenconsent of Level 3. The Facilities shall not be used for any purpose other thanthat for which Level 3 provides them. Customer shall not take any action thatcauses the imposition of any lien or encumbrance on the Facilities. In no eventwill Level 3 be liable to Customer or any other person for interruption ofService or for any other loss, cost or damage caused by or related to improperuse or maintenance of the Facilities by Customer or any third party gainingaccess to the Facilities by Customer in violation of this Agreement, andCustomer shall reimburse Level 3 for any damages incurred as a result thereof,including to the Facilities (reasonable wear and tear excepted). Customer agrees (whichagreement shall survive the expiration, termination or cancellation of anyCustomer Order) to allow Level 3 to remove the Facilities from the Customer Premises:

 

(A)          after termination,expiration (if the Service Term is not continuing) or cancellation of theService Term of any Service in connection with which the Facilities were used;or

 

(B)           for repair,replacement or otherwise as Level 3 may determine is necessary or desirable,but Level 3 will use reasonable efforts to minimize disruptions to the Servicecaused thereby.

 

2.6**  Customer-ProvidedEquipment**. Level 3 may install certain Customer-provided communicationsequipment upon installation of Service, but Level 3 shall not beresponsible for the operation or maintenance of any Customer-providedcommunication equipment. Level 3 undertakes no obligations and accepts noliability for the configuration, management, performance or any other issuerelating to Customer’s routers or other Customer-provided equipment used foraccess to or the exchange of traffic in connection with the Service.

 

##### **ARTICLE 3. BILLING AND PAYMENT**

 

3.1** Commencement of Billing**.  Upon installation and testing of the Service ordered in anyCustomer Order, Level 3 will deliver to Customer a Connection Notice.  Upon receipt of the Connection Notice,Customer shall have a period *** to confirm that the Service has been installedand is properly functioning.  UnlessCustomer delivers written notice to Level 3 within such *** period that theService is not installed in accordance with the Customer Order and functioningproperly, billing shall commence on the applicable Service Commencement Date,regardless of whether Customer has procured services from other carriers neededto operate the Service, and regardless of whether Customer is otherwiseprepared to accept delivery of ordered Service, so long as unlessCustomer agrees, Customer shall not be obligated to  pay for Services delivered prior to the Customer Commit Date.

 

3.2** Charges**. The Customer Order will set forth the applicable non-recurring chargesand recurring charges for the Service. Unless otherwise expressly specified in the Customer Order, anynon-recurring charges shall be invoiced by Level 3 to Customer upon the ServiceCommencement Date.  However, in theevent such Service requires Level 3 to install additional infrastructure,cabling, electronics or other materials in the provision of the Service, suchCustomer Order may include (as specified therein) non-recurring charges thatare payable by Customer in advance of the Service Commencement Date, asmutually agreed between the parties.  Inthe event Customer fails to pay such non-recurring charges within the timeperiod specified in the Customer Order, (i) such failure to pay shall constitute an Excused Outage for purposesof installation of the Service; (ii) Level 3 may issue a revised CustomerCommit Date; and (iii) Level 3 may suspend installation of the Service untilreceipt of such non-recurring charges. If Customer requests and Level 3 approves (in its reasonable discretion)any changes to the Customer Order or Service after acceptance by Level 3,including, without limitation, the Service installation date or Service CommencementDate, additional non-recurring charges and/or monthly recurring charges nototherwise set forth in the Customer Order may apply.

 

3.3** Payment of Invoices**.  Invoices are delivered monthly. Level 3 bills in advance forService to be provided during the upcoming month, except for charges that aredependent upon usage of Service, which are billed in arrears. Billing forpartial months is prorated based on a calendar month.  All invoices are due thirty (30) days after the date of date ofthe invoice.   Unless otherwisespecified on the particular invoice, all payments shall be due and payable inU.S. Dollars.  *** days of the date ofinvoice shall bear interest at the rate ofone and one-half percent (1.5%) per month (or the highest rate allowed by law,whichever is less) beginning from the date first due until paid in full.  ***. Level 3 shall direct invoices to:

 

Universal Access, Inc.

233 S. Wacker Drive

Chicago, Illinois 60606

Attn: Carrier Audit

 

Customer may change tothe invoice recipient mentioned above on thirty (30) days’ notice to billing@Level3.com.

 

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3.4** Taxes and Fees**. All charges for Service are net of Applicable Taxes (as definedbelow).  Except for taxes based on Level3’s net income, Customer will be responsible for all applicable taxes thatarise in any jurisdiction, including, without limitation, value added,consumption, sales, use, gross receipts, excise, access, bypass, franchise orother  taxes, fees, duties, charges orsurcharges, however designated, imposed on, incident to, or based upon theprovision, sale or use of the Service (collectively “Applicable Taxes”).  If Customer is entitled to anexemption from any Applicable Taxes, Customer is responsible for presentingLevel 3 with a valid exemption certificate (in a form reasonably acceptable toLevel 3).  Level 3 will give effect toany valid exemption certificate provided in accordance with the foregoingsentence to the extent it applies to any Service billed by Level 3 to Customerfollowing Level 3’s receipt of such exemption certificate.

 

3.5** Regulatory and Legal Changes**. In the event of anychange in applicable law, regulation, decision, rule or order that materiallyincreases the costs or other terms of delivery of Service, Level 3 andCustomer will negotiate regarding the rates to be charged to Customer toreflect such increase in cost and, in the event that the parties are unable toreach agreement respecting new rates within thirty (30) days afterLevel 3’s delivery of written notice requesting renegotiation, then (a)Level 3 may pass such increased costs through to Customer, and (b) ifLevel 3 elects to pass such increased costs through to Customer, Customer mayterminate the affected Service without termination liability by deliveringwritten notice of termination no later than *** days after the effective dateof the rate increase.

 

3.6** Disputed Invoices**.  If Customer reasonably disputes any portion of a Level 3invoice, Customer must pay the undisputed portion of the invoice and submitwritten notice of the claim (in a form that sets forth the basis of the disputein reasonable detail) for the disputed amount. All claims must be submitted to Level 3 in writing within *** fromthe date of the invoice for those Services. Customer waives the right to dispute any charges not disputed within such*** period.  In the event that thedispute is resolved against Customer, Customer shall pay such amounts plusinterest at the rate referenced in Section 3.3.  If the dispute is resolved in favor of Customer, Level 3 willpromptly apply a credit to Customer’s account in such amount, together with acredit in the amount of any interest charges and Applicable Taxes that havebeen imposed and which relate to the disputed amount.  Level 3 will continue to provide the affected Service(s) duringany dispute provided the total unpaid balance, less any portion that isdisputed in good faith, does not exceed Customer’s credit limit. Customer shall not be obligated to payany invoice first delivered by Level 3 more than *** after the end of the month in which theServices stated therein were delivered.

 

3.7** Termination Charges**.

 

(A)          Customer may cancel aService without liability following Level 3’s acceptance of the applicableCustomer Order but prior to the Customer’s receipt of the Connection Notice byproviding written notice to Level 3 no more than *** prior to the CustomerCommit Date.  In the event that Customerprovides notice less than *** prior to the Customer Commit Date, or in theevent that the delivery of such Service is terminated by Level 3 prior to deliveryof a Connection Notice due to a failure of Customer to comply with the terms ofthis Agreement or any Customer Order, Customer shall pay Level 3 a cancellationcharge equal to the sum of (1) in the case of Colocation Space, the costsincurred by Level 3 in returning the Colocation Space to a condition suitablefor use by third parties, plus (2):

 

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Customer’s right to cancel any particular Service under this Section3.7(A) shall automatically expire and shall no longer apply on and after Customer’sreceipt of a Connection Notice.

 

(B)           In addition toCustomer’s right of cancellation under Section 3.7(A) above, Customer mayterminate Service prior to the end of the Service Term upon thirty (30) days’prior written notice to Level 3.  In theevent that, after the Service Commencement Date and prior to the end of theService Term, Customer terminates Service or in the event that the delivery ofService is terminated due to a failure of Customer to comply with the terms ofthis Agreement or any Customer Order, Customer shall pay Level 3 a terminationcharge equal to the sum of (1) in the case of Colocation Space, the costsincurred by Level 3 in returning the Colocation Space to a condition suitablefor use by third parties, plus (2):

 

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                Notwithstanding theforegoing, in no event will the early termination charges under this Agreementexceed 100% of the remaining monthly recurring charges for the Service.

 

(C)           Customermay, upon at least thirty (30) days prior written notice to Level 3, terminateits use of Service after the delivery of a Connection Notice but prior to theend of the Service Term without the payment of any applicable terminationliability if: ***

 

3.8** Fraudulent Use of Services**. Customer is responsiblefor all charges attributable to Customer incurred respecting Service, even ifincurred as the result of fraudulent or unauthorized use of Service; exceptCustomer shall not be responsible for fraudulent or unauthorized use by Level 3or its employees. In addition, Customer will not be responsible for chargesincurred after Customer requests that Level 3 block the fraudulent orunauthorized use of a Service.

 

3.9** Offset**. In the event any amount owed by Customer to Level3 becomes thirty (30) days or more past due, Level 3 shall have the right onnotice to Customer to offset any amounts owed by Level 3 to Customer againstsuch delinquent amounts.

 

##### **ARTICLE 4. TERM AND TERMINATION**

 

4.1 **Term**.

 

(A)          ThisAgreement shall become effective on the Effective Date and shall continue untilOctober 31, 2006 (“Agreement Term”), unless earlier terminated as providedherein.  At the end of the initialAgreement Term, the Agreement Term shall automatically renew on amonth-to-month basis until terminated by either party upon thirty (30) days’prior written notice to the other party.

 

(B)           Except as otherwise set forth herein,Level 3 shall deliver the Service for the entire duration of the Service Term,and Customer shall pay all charges for delivery thereof through 

 

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theend of the Service Term.  To the extentthat the Service Term for any Service extends beyond the Agreement Term, thenthis Agreement shall remain in full force and effect for such Service until theexpiration or termination of such Service Term.

 

4.2  **Default By Customer**.  If (i) Customer makes a general assignment forthe benefit of its creditors, files a voluntary petition in bankruptcy or anypetition or answer seeking, consenting to, or acquiescing in reorganization,arrangement, adjustment, composition, liquidation, dissolution or similarrelief; (ii) an involuntary petition in bankruptcy, other insolvency protectionagainst Customer is filed and not dismissed within sixty (60) days; (iii)Customer fails to make any payment required hereunder when due, and suchfailure continues for a period of five ***days after written notice from Level3, (iv) Customer fails to observe and perform any material term of thisAgreement (other than payment terms) and such failure continues for a period ofthirty (30) days after written notice from Level 3; or (v) Customer’s use of Servicematerially exceeds Customer’s credit limit, unless within *** days’ writtennotice thereof by Level 3, Customer provides adequate security for payment forService; then Level 3 may:  (A)terminate this Agreement and any Customer Order, in whole or in part, in whichevent Level 3 shall have no further duties or obligations thereunder, and/or(B) subject to Section 5.1, pursue any remedies Level 3 may have under thisAgreement, at law or in equity.

 

4.3  **Default****By Level 3**.  If (i) Level 3 makes a general assignmentfor the benefit of its creditors, files a voluntary petition in bankruptcy orany petition or answer seeking, consenting to, or acquiescing in reorgani­zation,arrangement, adjustment, composition, liquidation, dissolution or similarrelief; (ii) an invol­untary petition in bankruptcy, other insolvencyprotection against Level 3 is filed and not dismissed within sixty (60) days;or (iii) Level 3 fails to observe and perform any material term of thisAgreement (other than as provided in Section 4.4 and Article 6) and suchfailure continues for a period of thirty (30) days after written notice fromCustomer; then Customer may:  (A)terminate this Agreement and/or any Customer Order, in whole or in part, inwhich event Customer shall have no further duties or obligations thereunder,and/or (B) subject to Section 5.1, pursue any remedies Customer may have underthis Agreement, at law or in equity.

 

4.4**  OtherRights of Termination**.

 

(A)          If Level 3’s installation of Serviceis delayed for more than *** days beyond the Customer Commit Date for reasonsother than an Excused Outage, Customer may terminate and discontinue theaffected Service upon written notice to Level 3 and without payment of anyapplicable termination charge; provided such written notice is delivered priorto Level 3 delivering to Customer the Connection Notice for the affectedService.  This Section 4.4(A) shall notapply to any Off-Net Local Loop Service, including, without limitation, (3)LinkSMMetropolitanPrivate Line (Off-Net) Service, provisioned byLevel 3 through a third party carrier for the benefit of Customer.

 

(B)           Customer may terminate anddiscontinue affected Service prior to the end of the Service Term withoutpayment of any applicable termination charge if: (i) such Service isUnavailable (as defined below) on *** or more separate occasions of more than*** hours each in any *** day period (“First Unavailability Event”); and (ii)following written notice thereof from Customer to Level 3 within the ***day period following the First Unavailability Event, the same Service isUnavailable for more than *** hours at any time within the *** day periodfollowing the First Unavailability Event. For purposes of the foregoing, “Unavailable” shall mean a totalinterruption in Service, except for any interruption that is an ExcusedOutage.  The duration of anyinterruption will commence when Customer reports an outage to the Level 3Customer Service and Support Organization (1-877-4LEVEL3) and will end when theService is operative.  Customer may onlyterminate Service that is Unavailable, and must exercise its right to terminateany affected Service under this Section, in writing, within thirty (30) daysafter the event giving rise to a right of termination hereunder.  This Section 4.4(B) shall not apply to anyUnprotected Service, including, without limitation, any Unprotected (3)LinkSMPrivate Line Service or (3)LinkSM Global Wavelength Service.

 

(C)           In the event Customer elects tocancel the affected Service pursuant to this Section 4.4, Customer shall haveno right to, and Level 3 shall have no obligation to issue, any Service Levelcredit(s) for the discontinued Service.

 

# **ARTICLE 5. LIABILITIES AND INDEMNIFICATION**

 

5.1** No Special Damages**.  Notwithstanding any other provision hereof (other than Section5.3), neither party shall be liable for any indirect, incidental, special,consequential, exemplary or punitive damages (including, without limitation,damages for lost profits, lost revenues or the cost of purchasing replacement services)arising out of the performance or failure to perform under any CustomerOrder.  Nothing in this Agreement shallbe construed as limiting the liability of either party for personal injury ordeath resulting from the negligence of a party or its employees.

 

5.2** Disclaimer of Warranties.**  LEVEL 3 MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS ORIMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE,INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPTTHOSE EXPRESSLY SET FORTH IN ANY APPLICABLE SERVICE LEVELS (as defined below).

 

5.3**  Indemnification**. Each partyshall indemnify the other from any claims by third parties and expenses(including legal fees and court costs) respecting damage to tangible property,personal injury or death caused by such party’s negligence or willfulmisconduct.

 

**ARTICLE 6.  SERVICE LEVELS**

 

6.1**Service Interruptions andDelivery**.  Level 3provides specific remedies regarding installation and performance of Service asset forth in the particular Service Schedule (“Service Levels”). In the eventof a failure to deliver Service in accordance with the Service Levels,Customer’s sole remedies are contained in (a) the Service Levels applicable (ifany) to the affected Service, and  (b) Section4.4.

 

6.2  **Service Level Credits**.  In the event Level 3 does not achieve aparticular Service Level in a particular month, Level 3 will issue a credit toCustomer as set forth in the applicable Service Schedule upon Customer’srequest. To request a credit, Customer must contact Level 3 Customer Service ordeliver a written request (in a form reasonably acceptable to 

 

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Level 3) pursuant to Section 7.4 withinsixty (60) days of the end of the month for which a credit is requested.  Level 3 Customer Service may be contacted bycalling toll free in the U.S. 1-877-4LEVEL3 (1-877-453-8353) or such othernumbers for Level 3 Customer Service in other countries as published onwww.level3.com.  In no event shall thetotal amount of credits issued to Customer per month exceed the non-recurringcharges and monthly recurring charges invoiced to Customer for the affectedService for that month.  Scheduledmaintenance of the Level 3 network whether by Level 3 or third party under thecontrol or direction of Level 3 will not normally result in Serviceinterruption or outage.  However, in theevent scheduled maintenance should require a Service interruption or outage,Level 3 will (i) provide Customer with *** prior notice of such scheduledmaintenance, (ii) work with Customer in good faith to attempt to minimize anydisruption in Customer’s services that may be caused by such scheduledmaintenance, and (iii) to perform such schedule maintenance during the non-peakhours of 12:00 a.m. (midnight) until 6:00 a.m. local time.  Any scheduled maintenance of the Level 3network that impacts any Service shall be considered an Excused Outage andshall not be subject to credits under the Service Levels set forth in thisAgreement; provided any scheduled maintenance event shall not exceed more than***  of Service interruption or outage,unless otherwise agreed between the parties. In the event any scheduled maintenance event exceeds more than *** ofService interruption or outage and is not otherwise agreed between the parties,such Service interruption or outage in excess of *** shall be included in thecalculation for determining Service Level credits (if any) under the applicableService Levels set forth in this Agreement.

 

##### **ARTICLE 7. GENERAL TERMS**

 

7.1** Force Majeure**.  Neither party shall be liable, nor shall any credit allowance orother remedy be extended, for any failure of performance or equipment due tocauses beyond such party’s reasonable control (“force majeure event”).  In the event Level 3 is unable todeliver Service as a result of a force majeure event, Customer shall not beobligated to pay Level 3 for the affected Service for so long asLevel 3 is unable to deliver the affected Service. In the event an event of force majeurecontinues for more than *** consecutive days, Customer may terminate the affectedService without liability.

 

7.2** Assignment and Resale**. Customer may not assignits rights and obligations under this Agreement or any Customer Order withoutthe express prior written consent of Level 3, which consent will not beunreasonably withheld. Notwithstanding the foregoing, Customer may assign itsrights and obligations under this Agreement or any Customer Order without theexpress prior written consent of Level 3 with respect to a merger or the saleof substantially all of Customer’s assets, so long as such assignment can beaccomplished without interruption of the use or location of Service.  This Agreement shall apply to any permittedtransferees or assignees. Notwithstanding any assignment by Customer, Customershall remain liable for the payment of all charges due under each CustomerOrder.  Customer may resell the Serviceto third party “end users”; provided that Customer agrees to indemnify, defendand hold Level 3 harmless from claims made against Level 3 by such end users.

 

7.3  **Affiliates**.

 

(A)If a Customer Order requires the provision of Service to Customer in a countryother than the country within which this Agreement has been executed, suchService may be provided to Customer by an Affiliate of Level 3 authorized to providesuch Service in such country.  If aCustomer Order requires the delivery of Service in a jurisdiction where, inorder for such Customer Order to be enforceable against the parties, additionalterms must be added, then the parties shall incorporate such terms into theCustomer Order (preserving, to the fullest extent possible, the terms of thisAgreement).

 

(B) The parties acknowledge and agree thatCustomer’s Affiliates may purchase Service under this Agreement; provided,however, any such Customer Affiliate purchasing Service hereunder agrees thatsuch Service is provided pursuant to and governed by the terms and conditionsof this Agreement.  Customer shall bejointly and severally liable for all claims and liabilities arising under thisAgreement related to Service ordered by any Customer Affiliate, and any eventof default under this Agreement by any Customer Affiliate shall also be deemedan event of default by Customer.  Anyreference to Customer in this Agreement with respect to Service ordered by aCustomer Affiliate shall be deemed a reference to the applicable CustomerAffiliate.

 

(C)Notwithstanding anything in this Agreement to the contrary, either party mayprovide a copy of this Agreement to its Affiliate or such other party’sAffiliate for purposes of this Section 7.3, without notice to, or consent of,the other party.

 

7.4** Notices**. Notices hereunder shall be deemed properlygiven when delivered, if delivered in person, or when sent via overnightcourier, facsimile, electronic mail (if an e-mail address is provided below) orwhen deposited with the U.S. Postal Service (or other applicable postaldelivery service), addressed as follows:

 

If to Level 3:

 

For billinginquiries/disputes, requests for Service Level credits and/or requests for disconnectionof Service (for other than default):

 

Level 3 Communications, LLC

1025 Eldorado Blvd.

Broomfield, Colorado  80021

Attn: Director, Billing

Facsimile:  (877) 460-9867

E-mail: billing@level3.com

 

For all other notices:

 

Level 3 Communications, LLC

1025 Eldorado Blvd.

Broomfield, Colorado  80021

Attn: General Counsel

Facsimile: (720) 888-5128

 

If to Customer:

 

Universal Access, Inc.

233 S. Wacker Drive

Chicago, Illinois 60606

Attn: General Counsel

Facsimile: (312) 660-1290

 

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With a copy to:

 

Universal Access, Inc.

233 S. Wacker Drive

Chicago, Illinois 60606

Attn: Chief FinancialOfficer

 

or at such other address as the party towhom notice is to be given may have furnished to the other party in writing inaccordance herewith.  Notwithstandingthe foregoing, any notices delivered by Level 3 to Customer in the normalcourse of provisioning of Service hereunder shall be deemed properly given ifdelivered via any of the methods described above or via electronic mail to theaddress listed on any Customer Order.

 

7.5** Application of Tariffs**.  Level 3 may elect or be required to file with theappropriate regulatory agency tariffs respecting the delivery of certainService.  In the event that such tariffsare filed respecting Service ordered by Customer, then (to the extent such provisionsare not inconsistent with the terms of a Customer Order and this Agreement) theterms set forth in the applicable tariff shall govern Level 3’s deliveryof, and Customer’s consumption or use of, such Service.

 

7.6  **Acceptable Use Policy**.  Customer’s use of Service shall at all timescomply with Level 3’s then-current Acceptable Use Policy and PrivacyPolicy, as amended by Level 3 and communicated in writing to Customer fromtime to time and which are also available through Level 3’s web site atwww.level3.com.  Level 3 willnotify Customer of complaints received by Level 3 regarding each incidentof alleged violation of Level 3’s Acceptable Use Policy by Customer orthird parties that have gained access to the Service through Customer.  Customer agrees that it will promptlyinvestigate all such complaints and take all necessary actions to remedy anyactual violations of Level 3’s Acceptable Use Policy.  Level 3 may identify to the complainantthat Customer, or a third party that gained access to the Service throughCustomer, is investigating the complaint and may provide the complainant withthe necessary information to contact Customer directly to resolve thecomplaint.  Customer shall identify arepresentative for the purposes of receiving such communications.  Level 3 reserves the right to installand use, or to have Customer install and use, any appropriate devices toprevent violations of its Acceptable Use Policy, including devices designed tofilter or terminate access to Service.

 

7.7  **Data Protection**. During the performance of this Agreement, it may be necessary for Level3 to transfer, process and store data in and to the United States.  Customer hereby consents that Level 3 may(i) transfer, store and process such data in the United States; and (ii) usesuch data for its own internal purposes and as allowed by law.  This data will not be disclosed to thirdparties.

 

7.8** Contents of Communications**.  Level 3 shall have no liability or responsibility for thecontent of any communications transmitted via the Service, and Customer shalldefend, indemnify and hold Level 3 harmless from any and all claims(including claims by governmental entities seeking to impose penal sanctions)related to such content or for claims by third parties relating to Customer’suse of Service.  Level 3 providesonly access to the Internet; Level 3 does not operate or control theinformation, services, opinions or other content of the Internet.  Customer agrees that it shall make no claimwhatsoever against Level 3 relating to the content of the Internet orrespecting any information, product, service or software ordered through orprovided by virtue of the Internet.

 

7.9 ** Publicity**.  Neither party shall have the right to usethe other party’s or its affiliates’ trademarks, service marks or trade namesor to otherwise refer to the other party in any marketing, promotional oradvertising materials or activities. Neither party shall issue any publication or press release relating to anycontractual relationship between Level 3 and Customer, except as may berequired by law or agreed between the parties in writing.

 

7.10  **Non-Disclosure**.  Any information ordocumentation disclosed between the parties during the performance of thisAgreement shall be subject to the terms and conditions of the applicablenon-disclosure agreement then in effect between the parties.

 

7.11**  Disclosure ofCustomer Information**. Level 3 may disclose to any customeror potential customer bound by a nondisclosure agreement access to a list ofLevel 3’s customers and a description of Service purchased by suchcustomers.  Customer consents to thedisclosure that it is a customer of Level 3. Any other disclosure, including the listing of the Services purchased bysuch Customer requires Customer’s written consent.

 

7.12  **Governing Law**.  This Agreement shall begoverned and construed in accordance with the laws of the State of New York,U.S.A., without regard to its choice of law rules.

 

7.13** Entire Agreement**.  This Agreement, including any ServiceSchedule(s) and Customer Order(s) executed hereunder, constitutes the entireand final agreement and understanding between the parties with respect to theService and supersedes all prior agreements relating to the Service, which areof no further force or effect.  TheService Schedules attached hereto are listed below:

 

Service Schedule— (3)LinkSM Private Line Service

Service Schedule— (3)LinkSM Global Wavelength Service

Service Schedule— (3)PacketSM Service

Service Schedule— (3)CrossRoadsSM Service

Service Schedule— (3)ConnectSM Modem Service

Service Schedule— (3)LinkSM Cross Connect Service and MondoCondo Fiber Link Service

 

and are integral parts hereof and are hereby made a part of thisAgreement.

 

7.14  **Amendment**.  This Agreement, and any Service Schedule or Customer Order, mayonly be modified or supplemented by an instrument in writing executed by a dulyauthorized representative of each party. Without limiting the generality of the foregoing, any handwrittenchanges to a Customer Order shall be void unless acknowledged and approved inwriting by a duly authorized representative of each party.

 

7.15  **Order of Precedence**.  In the event of any conflict between thisAgreement and the terms and conditions of any Service Schedule and/or CustomerOrder, the order of precedence is as follows: (1) the Service Schedule, (2)this Agreement, and (3) the Customer Order.

 

7.16  **Survival**.    The provisions of this Article 7 and Articles 3, 5and 6 and any other provisions of this Agreement that by their nature are meantto survive the expiration or termination of this Agreement shall survive theexpiration or termination of this Agreement.

 

6

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7.17  **Relationship of the Parties**.  The relationship between Customer and Level3 shall not be that of partners, agents, or joint venturers for one another,and nothing contained in this Agreement shall be deemed to constitute apartnership or agency agreement between them for any purposes, including ,without limitation, for federal income tax purposes.

 

7.18** No Waiver**.  Nofailure by either party to enforce any right(s) hereunder shall constitute awaiver of such right(s).

 

7.19 **Severability**.  If any provision of this Agreement shall bedeclared invalid or unenforceable under applicable law, said provision shall beineffective only to the extent of such declaration and shall not affect theremaining provisions of this Agreement. In the event that a material and fundamental provision of this Agreementis declared invalid or unenforceable under applicable law, the parties shallnegotiate in good faith respecting an amendment hereto that would preserve, tothe fullest extent possible, the respective benefits and burdens imposed oneach party under this Agreement as originally executed.

 

7.20  **JointProduct**.  The partiesacknowledge that this Agreement is the joint work product of the parties.  Accordingly, in the event of ambiguities inthis Agreement, no inferences shall be drawn against either party on the basisof authorship of this Agreement.

 

7.21 **Third Party Beneficiaries**.  This Agreement shall be binding upon, inuresolely to the benefit of and be enforceable by each party hereto and theirrespective successors and assigns hereto, and nothing in this Agreement,express or implied, is intended to or shall confer upon any thirty party anyright, benefit or remedy of any nature whatsoever under or by reason of thisAgreement.

 

7.22  **Counterparts**.  This Agreement may be executed in one or more counterparts, allof which taken together shall constitute one and the same instrument.

 

# **Article 8. Commitments. **

 

8.1  **Revenue Commitment**.

 

During the Agreement Term, Customer commits to purchase totalcumulative Services hereunder following amounts (each, an “Annual Commitment”):

 

| **Year**                        |   | **Annual Commitment** |      |
|---------------------------------|--------|-----------------------|-----------|
| 2003                            |   | $                     | 2,100,000 | * |
| 2004                            |   | $                     | 2,100,000 |   |
| 2005                            |   | $                     | 2,100,000 |   |
| 2006 (January  through October) |   | $                     | 1,750,000 |   |

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*Calculation of compliance with the Annual Commitment in 2003 willinclude Customer’s purchases of (1) Level 3 Services commencing on January 1,2003, and (2) services purchased from Genuity under the Capacity Agreement (asdefined in Article 9) commencing on February 1, 2003.

 

8.2  **Take or Pay**.

 

(A)          The Annual Commitmentis a take or pay commitment. In addition to all other charges due under theAgreement for Service provided by Level 3 to Customer, for any year (thepartial year and 2006 shall each be deemed a “year” for purposes of thisArticle 8) in which Customer fails to satisfy the Annual Commitment, Customerhereby agrees to pay Level 3, in addition to all other charges then due andowing, a shortfall fee (“Shortfall Fee”) equal to the difference between theamount actually paid for Services and the relevant Annual Commitment.  Any Shortfall Fee shall be due and owingwithin thirty (30) days following the end of the particular year in which theAnnual Commitment has not been satisfied. For purposes of this Article 8, “Services” shall not include (i) taxes,fees and other surcharges, or (ii) any amounts for or associated with TransferredCircuits as defined in that certain Transfer Agreement of even date herewithbetween Level 3 and Customer, but will include the pro rated portion of anycharges associated with Customer’s purchase of IRU capacity from Level 3.  Such pro rated portion of any IRU chargeswill be calculated on a monthly basis by taking the total cost of the IRU anddividing it by the total number of months for which Customer purchases such IRUcapacity from Level 3.

 

(B)           To the extent thatCustomer fails to meet an Annual Commitment and such failure is due to Level3’s inability to deliver On-Net Services, the parties will discuss ingood-faith what changes, if any, should be made to the affected AnnualCommitment(s).

 

8.3 **Credit for Certain ShortfallFees Paid**.  Any ShortfallFee paid by Customer for a year may be used as a credit against charge for newServices ordered and paid for in a subsequent year, but shall not count towardthe Annual Commitment for the subsequent year. For purposes of the preceding sentence “new Services” refers only toservices which are ordered in a year following the payment of a Shortfall Feeand only to the extent they are provided during a following year, and excludesany renewals of Services previously provided. Additionally, in each year other than 2003, for each full $175,000 thatcharges paid for Services exceed the applicable Revenue Commitment, Customershall entitled to a reduction of the Revenue Commitment for the year 2006 (andthen the Revenue Commitment preceding year, 2005, if the Revenue Commitment for2006 is reduced to zero in the manner specified in this paragraph, and so on inthis manner).  However, each year shallbe considered individually and only to the extent of a full $175,000, so thatif the Annual Commitment for 2004 is exceeded by $300,000 and the AnnualCommitment for 2005 is exceeded by $250,000, the Annual Commitment for 2006would only be reduced by $350,000.

 

8.4  **RequirementsCommitment**.

 

(A) For any private line, including both long haul and local circuits,  or waves services Customer desires to orderduring the Agreement Term which would be an on-net service for Level 3 butwhich Customer proposes to obtain from a party other than Level 3, Customerwill present to Level 3 a bona fide offer from such other party stating theprice and term for such service. Customer, on ***of such occasions (measured ***), will order suchservice from Level 3 if Level 3’s price (provided within a reasonable period)*** than the other party, provided Customer elects to purchase such service atall (the “Requirements Commitment”).

 

(B)           Withinthirty (30) days following the end of each annual period in which theRequirements Commitment is effective, Customer agrees to deliver to Level 3written certification by an officer of Customer in a form substantially 

 

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similar to the form set forth in Appendix Iattached hereto, certifying Customer’s compliance with the RequirementsCommitment for the period just ending.

 

(C)           Customeragrees to keep and maintain all usual and proper books, records and otherdocumentation relating to Customer’s purchase and utilization of private linecircuits, including both long haul and local circuits.  At any time while the RequirementsCommitment is effective and for a period of one (1) year thereafter, Level 3shall have the right, through an independent third party auditor that executesa non-disclosure agreement with Customer, on at least ten (10) days’ priorwritten notice to audit Customer’s books, records and other documentationrelating to Customer’s compliance with the Requirements Commitment andCustomer’s purchase and utilization of private line circuits, including bothlong haul and local circuits.  The scopeof the audit will not include Customer’s purchase and utilization of privateline circuits, including both long haul and local circuits for any period thathas previously been the subject of an audit. Any such audit shall be conducted during normal business hours and in amanner designed to limit to the fullest extent possible interference with theordinary course of Customer’s business. The direct cost of the audit shall be borne by Level 3, unless adeficiency is discovered with respect to the amount of purchase of private linecircuits, including both long haul and local circuits, that Customer wasobligated to purchase as compared to the amount of purchase of private linecircuits, including both long haul and local circuits, actually purchased fromLevel 3 during the audit period, in which case all costs of the audit shall beborne by the Customer.  In the event theaudit reveals that Customer failed to meet the requirements of this Agreement,then for each annual period the Requirements Commitment was not satisfied, theterm of the Annual Commitment (and all the other provisions of this Agreement)shall be extended for an annual period.

 

# **ARTICLE 9. TERMINATIONOF AGREEMENTS**.

 

The Capacity Agreement (CA No. Universal-99001), dated August 20, 1999,as amended August 7, 2000 between Level 3 as successor in interest to GenuityTelecom, Inc. (the “Capacity Agreement”) and the Terms and Conditions forDelivery of Services, the Addendum to which was signed by Level 3 on November17, 1999 (the “Level 3 Agreement”), including all service orders under each areterminated as of the Effective Date. Commencing on the Effective Date, all circuits previously provided underthe Capacity Agreement and Level 3 Agreement will be provided under thisAgreement.  Termination of suchagreements shall not release or impair any obligations of the parties accruingthereunder prior to the Effective Date, except as set forth in the Settlementand Release Agreement between the parties of even date herewith.

 

 

**LEVEL 3 COMMUNICATIONS, LLC** (“Level 3”)

 

 
| By     |   |
|--------|--------|
|   |   |
| Name   |   |
|   |   |
| Title  |   |

 

 

**UNIVERSALACCESS, INC.** (“Customer”)

 

 
| By     |   |
|--------|--------|
|   |   |
| Name   |   |
|   |   |
| Title  |   |

 

8

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SERVICE SCHEDULE

**(3)LINKSM PRIVATE LINESERVICE**

 

1.** Applicability**.  This Service Schedule is applicable only where Customer orders(3)LinkSM Private Line Service.

 

2.  **Definitions**.  Any capitalized terms usedherein and not otherwise defined shall have the meaning set forth in theAgreement.

 

(A)          “Protected”shall mean any Service that includes a protection scheme that allows traffic tobe re-routed in the event of a fiber cut or equipment failure.

** **

(B)           “Submarine”shall mean any Service that transits any portion of Level 3’s trans-oceanicnetwork.

** **

(C)           “Terrestrial”shall mean any Service that generally transits Level 3’s land-based network(with limited water crossings, including, without limitation, bay and channelcrossings) and does not in any way transit Level 3’s trans-oceanic network.

** **

(D)          “Unprotected”shall mean any Service that does not include a protection scheme that wouldallow traffic to be re-routed in the event of a fiber cut or equipment failure.

** **

3.  **Service Description**.  (3)LinkSMPrivate Line Service is a dedicated, non-switched, point to point circuitbetween two (2) specified locations.

 

4.  **Services from Others**.  Where necessary for the interconnection of (3)LinkSMPrivate Line Service with services provided by others, Customer will provideLevel 3 with circuit facility assignment information, firm ordercommitment information and the design layout records necessary to enableLevel 3 to make the necessary cross-connection between the (3)LinkSMPrivate Line Service and Customer’s designated carrier.  Any delay by Customer in providing suchinformation to Level 3 may delay Level 3’s provision of the necessarycross-connection.  Notwithstanding anysuch delay in the provision of the cross-connection, billing for the (3)LinkSMPrivate Line Service shall commence on the Service Commencement Date as morefully described in Section 3.1 of the Agreement.  Level 3 may charge Customer non-recurring and monthlyrecurring cross-connect fees to make such connection.

 

5.  **Connection to Customer Premises**.

 

(A)          Where(3)LinkSM Private Line Service is being terminated Off-Net at theCustomer Premises through an Off-Net Local Loop to be provisioned by Level 3 onbehalf of Customer, the charges set forth in the Customer Order for such(3)LinkSM Private Line (Off-Net) Service assumes that such (3)LinkSM Private Line(Off-Net) Service will be terminated at a pre-established demarcation point orminimum point of entry (MPOE) in the building within which the CustomerPremises is located, as determined by the local access provider.  Level 3 may charge Customer additionalnon-recurring charges and/or monthly recurring charges not otherwise set forthin the Customer Order for such (3)LinkSM Private Line (Off-Net) Servicewhere the local access provider determines that it is necessary to extend thedemarcation point or MPOE through the provision of additional infrastructure,cabling, electronics or other materials necessary to reach the CustomerPremises.  Level 3 will notify Customerof any additional non-recurring charges and/or monthly recurring charges assoon as practicable after Level 3 is notified by the local access provider ofthe amount of such charges.

 

(B)           Inaddition, where (3)LinkSM Private Line Service is being terminatedOff-Net at the Customer Premises through an Off-Net Local Loop to beprovisioned by Level 3 on behalf of the Customer, the charges and the ServiceTerm set forth in the Customer Order for such (3)LinkSM Private Line(Off-Net) Service assumes that such (3)LinkSM Private Line (Off-Net)Service can be provisioned by Level 3 through the local access providerselected by Level 3 (and/or Customer) for the stated Service Term.  In the event Level 3 is unable to provisionsuch (3)LinkSM Private Line (Off-Net) Service through the selectedlocal access provider or the selected local access provider requires a longerService Term than that set forth in the Customer Order, Level 3 reserves theright, regardless of whether Level 3 has accepted the Customer Order, tosuspend provisioning of such (3)LinkSM Private Line (Off-Net)Service and notify Customer in writing of any additional non-recurring charges,monthly recurring charges and/or Service Term that may apply.  Upon receipt of such notice, Customer willhave five (5) business days to accept or reject such changes.  If Customer does not respond to Level 3within the five (5) business day period, such changes will be deemed rejectedby Customer.  In the event Customerrejects the changes (whether affirmatively or through the expiration of thefive (5) business day period), the affected (3)LinkSM Private Line(Off-Net) Service will be cancelled without cancellation or terminationliability of either party.

 

6.  **ServiceLevels**.

 

(A)            InstallationService Level. (1) Level 3 will exercise commercially reasonable efforts toinstall any (3)LinkSM Private Line Service on or before the CustomerCommit Date specified for the particular (3)LinkSM Private LineService.  This Installation ServiceLevel shall not apply to Customer Orders that contain incorrect informationsupplied by Customer or Customer Orders that are altered at Customer’s requestafter submission and acceptance by Level 3. However, this Installation Service Level will apply to such CustomerOrders if such orders are resubmitted and contain correct information, with thecalculation of the installation interval commencing on the date the correct oraltered order is accepted by Level 3. In the event Level 3 does not meet this Installation Service Level for aparticular (3)LinkSM Private Line Service for reasons other than anExcused Outage, Customer will be entitled to a service credit off of thenon-recurring charges (“NRC”) and/or monthly recurring charges (“MRC”) for theaffected (3)LinkSM Private Line Service as set forth in thefollowing table:

 

| **Installation  Delay Beyond Customer Commit Date** |   | **Service  Level Credit** |   |
|-----------------------------------------------------|--------|---------------------------|--------|
| 1 - 5 business  days                                |   | ***                       |   |
| 6 - 20 business  days                               |   | ***                       |   |
| 21 business days  or greater                        |   | ***                       |   |

 

(2) The Installation Service Level and associatedcredits set 

 

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forth in sub-Section (1) above shall not apply toOff-Net Local Loop Service, including, without limitation, (3)LinkSM PrivateLine (Off-Net) Service, provisioned by Level 3 through a third party carrierfor the benefit of Customer.  Level 3will pass-though to Customer any installation service level and associatedcredit (if applicable) provided to Level 3 by the third party carrier for suchOff-Net Local Loop Service.

 

(B)           AvailabilityService Level for Protected (3)LinkSMPrivate LineService.  (1) The AvailabilityService Level for Protected (3)LinkSM Private Line Service deliveredover Level 3’s network is 99.99% for Protected Terrestrial (3)LinkSM PrivateLine Service and 99.9% for Protected Submarine (3)LinkSM PrivateLine Service. In the event that any Protected (3)LinkSM Private LineService becomes Unavailable (as defined below) for reasons other than anExcused Outage, Customer will be entitled to a service credit off of the MRCfor the affected Protected (3)LinkSM Private Line Service based onthe cumulative unavailability of the affected Protected (3)LinkSMPrivate Line Service in a given calendar month as set forth in the followingtable.

 

| **Cumulative   Unavailability** |   | **Service  Level Credit** |   |
|--------------------------------------|--------|---------------------------|--------|
| **(in hrs:mins:secs)**               |   |                      |   |
| 00:00:01 -  00:05:00                 |   | ***                       |   |
| 00:05:01-  00:45:00                  |   | ***                       |   |
| 00:45:01-  04:00:00                  |   | ***                       |   |
| 04:00:01 -  08:00:00                 |   | ***                       |   |
| 08:00:01  -12:00:00                  |   | ***                       |   |
| 12:00:01  -16:00:00                  |   | ***                       |   |
| 16:00:01 -  24:00:00                 |   | ***                       |   |
| 24:00:01 or  greater                 |   | ***                       |   |

 

For purposes of this Section 6(B), “Unavailable” or“Unavailability” means the duration of a break in transmission measured fromthe first of ten (10) consecutive severely erred seconds (“SESs”) on theaffected (3)LinkSM Private Line Service until the first of ten (10)consecutive non-SESs.  An SES is asecond with a bit error ratio of greater than or equal to 1 in 1000.

 

(2) The Availability Service Levels and associatedcredits set forth in this Section 6(B) shall not apply to Off-Net Local Loop Service, including, withoutlimitation, (3)LinkSM Private Line (Off-Net) Service, provisioned byLevel 3 through a third party carrier for the benefit of Customer.  Level 3 will pass-though to Customer anyavailability service level and associated credit (if applicable) provided toLevel 3 by the third party carrier for such Off-Net Local Loop Service.

 

(3) Without prejudice to Customer’s right toservice credits pursuant to subsection (1) above, if the (3)LinkSM PrivateLine Service is provided in Germany, then the Availability Service Level forsuch (3)LinkSM Private Line (Off-Net) Service is 97.5% (based on anannual average) and (3)LinkSM Private Line (On-Net) Service is 99.9%(based on a calendar month).

 

(C)           AvailabilityService Level for Unprotected (3)LinkSM Private Line Service.  (1) In the event that any Unprotected (3)LinkSMPrivate Line Service becomes unavailable (as defined in Section 6(B)above) for reasons other than an Excused Outage, Customer will be entitled to aservice credit off of the MRC for the affected Unprotected (3)LinkSMPrivate Line Service based on the cumulative unavailability for the affectedUnprotected (3)LinkSM Private Line Service in a given calendar monthas set forth in the following table:

 

| **Cumulative Unavailability** |   | **Service  Level Credit** |   |
|-------------------------------|--------|---------------------------|--------|
| **(in hrs:mins:secs)**        |   |                      |   |
| 0:00:01 -  24:00:00           |   | ***                       |   |
| 24:00:01 -  30:00:00          |   | ***                       |   |
| 30:00:01 -  36:00:00          |   | ***                       |   |
| 36:00:01 -  42:00:00          |   | ***                       |   |
| 42:00:01 or  greater          |   | ***                       |   |

 

(2) The Availability Service Levels and associatedcredits set forth in this Section 6(C) shall not apply to Off-Net Local LoopService, including, without limitation, (3)LinkSM Private Line(Off-Net) Service, provisioned by Level 3 through a third party carrier for thebenefit of Customer.  Level 3 willpass-though to Customer any availability service level and associated credit(if applicable) provided to Level 3 by the third party carrier for such Off-NetLocal Loop Service.

 

7.  **Chronic Outage**.

 

(A)          Subject to Section 7(B), Customer mayelect to terminate an affected (3)LinkSM Private Line Service priorto the end of the Service Term without termination liability if, for reasonsother than an Excused Outage:     (1)  ror Protected (3)LinkSM Private Line Service, suchProtected (3)LinkSM Private LineService is Unavailable (as defined in Section 6(B) above) for *** or moreseparate occasions of more than *** each OR for more than *** in the aggregatein any calendar month; or (2) for Unprotected (3)LinkSM Private Line Service, suchUnprotected (3)LinkSM Private LineService is Unavailable (as defined in Section 6(B) above) for *** or moreseparate occasions of more than *** each OR for more than *** hours in theaggregate in any calendar month.

 

Level3’s maintenance log will be used for purposes of calculating the duration ofsuch Unavailability event as set forth above, a copy of which will be made availableupon Customer’s request.  In the absenceof such a log, Customer may produce to Level 3 sufficient documentation tosubstantiate a claim of an Unavailability event.  Customer may notify Level 3 of events of Unavailability bycontacting Level 3 Customer Service at 1-877-4LEVEL3 (1-877-453-8353), or suchother notice mechanism as Level 3 may communicate to Customer from time totime.  Customer may only terminate such(3)LinkSM Private Line Service that is Unavailable as describedabove, and must exercise its right to terminate the affected (3)LinkSMPrivate Line Service under this Section, in writing, within thirty (30) daysafter the event giving rise to a right of termination hereunder, whichtermination will be effective as set forth by Customer in such notice oftermination. Except for any credits that have accrued pursuant to Section 6,this Section 7(A) sets forth the sole remedy of Customer for chronic outages orinterruptions of any (3)LinkSM Private Line Service.  For the avoidance of doubt, the partiesacknowledge and agree that fiber cuts by third parties shall be deemed anExcused Outage.

 

(B)           In the event Customer elects toterminate any (3)LinkSM Private Line Service pursuant to thisSection 7, Customer agrees to reimburse Level 3 for any third party earlytermination/cancellation charges for any Off-Net Local Loop Service, including,without limitation, (3)LinkSM MetropolitanPrivate Line(Off-Net) Service, provisioned by Level 3 through a third party carrier for thebenefit of Customer.

 

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SERVICE SCHEDULE

**(3)LINKSM GLOBAL WAVELENGTHSERVICE**

 

1.  ** Applicability**.  This Service Schedule is applicable onlywhere Customer orders  (3)LinkSM GlobalWavelength Service.

 

2.** Definitions**.  Any capitalized terms usedherein and not otherwise defined shall have the meaning set forth in theAgreement.

 

(A)          “Terrestrial” shallmean any Service that generally transits Level 3’s land-based network (withlimited water crossings, including, without limitation, bay and channelcrossings) and does not in any way transit Level 3’s trans-oceanic network.

 

(B)           “Unprotected” shallmean any Service that does not include a protection scheme that would allowtraffic to be re-routed in the event of a fiber cut or equipment failure.  All (3)LinkSM Global WavelengthService is Unprotected.

 

3.  **ServiceDescription**.  (3)LinkSMGlobal Wavelength Service is a 2.5GB or 10GB (or greater, as agreed by theparties) transparent, Unprotected virtual channel(s) (or wavelength(s)) on theLevel 3 network between two (2) termination nodes.

 

4.**  Interconnection**.

 

(A)          To use the (3)LinkSMGlobal Wavelength Service, Customer must provide to Level 3, at eachtermination node, a SONET or SDH-framed 2.5Gb or 10Gb (or greater, asapplicable) signal as more particularly described in Level 3’s standardInterconnection Specifications and Hand-off Requirements (attached as Exhibit“A”) (“Traffic”), which Traffic will thereafter be delivered by Level 3, inlike format, to the opposite and corresponding termination node.  The demarcation point for the (3)LinkSMGlobal Wavelength Service shall be the Level 3 OSX or fiber termination panelat the termination node.  Customer shallbe solely responsible for providing all interconnection equipment used both todeliver to, or to accept Traffic from, Level 3 in the formats described aboveand for any and all protection schemes Customer chooses to implement respectingthe Traffic.  For a termination node ata location other than a Level 3 Gateway, Customer shall provide Level 3 withspace and power (at no charge to Level 3), as reasonably requested by Level 3,for placement and operation of an OSX, fiber termination panel or otherequipment within the Customer Premises.

 

(B)           With respect toconstruction of Facilities to the Customer Premises and installation,maintenance and repair of facilities within the Customer Premises, Customershall provide Level 3 with access to and the use of Customer’s entranceFacilities and inside wiring, and/or shall procure rights for Level 3 allowingthe placement of Facilities necessary for installation of Facilities to deliverthe (3)LinkSM Global Wavelength Service to the CustomerPremises.  All costs associated withprocuring and maintaining rights needed to obtain entry to the building (andthe real property on which the building is located) within which the CustomerPremises are located, and costs to procure and maintain rights within suchbuilding to the Customer Premises, shall be borne by Customer.

** **

5.  **Lease to IRU Conversion.** At any time during the Service Term, Customer shall have the right to convertany Terrestrial (3)LinkSM Global Wavelength Service provided on amonthly-recurring lease basis into an indefeasible right of use (“IRU”) with anew Service Term of five (5) years (commencing on the date of conversion).  Such conversion shall be effective on thefirst day after Customer’s delivery to Level 3 of an appropriate Customer Orderpursuant to Level 3’s then current Service Schedule for (3)LinkSM GlobalWavelength Service - IRU reflecting such conversion, which Customer Order must(in order to be effective to convert a lease into an IRU) be accompanied bypayment in full of the then applicable five (5) year IRU charges for such(3)LinkSM Global Wavelength Service.  The five (5) year Service Term for the IRU shall begin at thetime of conversion.  Upon conversion,Customer shall be released from all future monthly recurring charges under theoriginal lease that would have otherwise accrued after the date of conversion,and the terms of Level 3’s then current Service Schedule for (3)LinkSMGlobal Wavelength Service - IRU shall thereafter govern respecting delivery anduse of the IRU.  No portion of thecharges already paid by Customer to Level 3 for such original lease shall berefunded, rebated or credited.

 

6.  **ServiceLevels**.

 

(A)          InstallationService Level.  Level 3 willexercise commercially reasonable efforts to install any (3)LinkSM GlobalWavelength Service on or before the Customer Commit Date specified for theparticular (3)LinkSM Global Wavelength Service.  This Installation Service Level shall notapply to Customer Orders that contain incorrect information supplied byCustomer, Customer Orders that are altered at Customer’s request aftersubmission and acceptance by Level 3. However, this Installation Service Level will apply to such CustomerOrders if such orders are resubmitted and contain correct information, with thecalculation of the installation interval commencing on the date the correct oraltered order is accepted by Level 3. In the event Level 3 does not meet this Installation Service Level for aparticular (3)LinkSM Global Wavelength Service for reasons otherthan an Excused Outage, Customer will be entitled to a service credit off ofthe monthly recurring charges (“MRC”) for the affected (3)LinkSMGlobal Wavelength Service as set forth in the following table:

 

| **Installation  Delay Beyond Customer Commit Date** |   | **Service  Level Credit** |   |
|-----------------------------------------------------|--------|---------------------------|--------|
| 1 - 5 business  days                                |   | ***                       |   |
| 6 -20 business  days                                |   | ***                       |   |
| 21 business days  or greater                        |   | ***                       |   |

 

(B)           AvailabilityService Level.  In the event thatany (3)LinkSM Global Wavelength Service becomes unavailable forreasons other than an Excused Outage, Customer will be entitled to a servicecredit off of the MRC for the affected (3)LinkSM Global WavelengthService based on the cumulative Unavailability (as defined below) for theaffected (3)LinkSM Global Wavelength Service in a given calendarmonth as set forth in the following table:

 

| **Cumulative Unavailability** |   | **Service  Level Credit** |   |
|-------------------------------|--------|---------------------------|--------|
| **(in hrs:mins:secs)**        |   |                      |   |
| 0:00:01 -  24:00:00           |   | ***                       |   |
| 24:00:01 -  30:00:00          |   | ***                       |   |
| 30:00:01 -  36:00:00          |   | ***                       |   |
| 36:00:01 -  42:00:00          |   | ***                       |   |
| 42:00:01 or  greater          |   | ***                       |   |

 

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For purposes of this Section 6(B), “Unavailable” or“Unavailability” means the duration of a break in transmission measured fromthe first of ten (10) consecutive severely erred seconds (“SESs”) on theaffected (3)LinkSM Global Wavelength Service until the first of ten(10) consecutive non-SESs.  An SES is asecond with a bit error ratio of greater than or equal to 1 in 1000.

 

7.  **ChronicOutage**.  Customer mayelect to terminate an affected (3)LinkSM Global Wavelength Serviceprior to the end of the Service Term without termination liability if, forreasons other than an Excused Outage, such (3)LinkSM GlobalWavelength Service is Unavailable (as defined in Section 6(B) above) for *** ormore separate occasions of more than ***  each OR for more than *** hoursin the aggregate in any calendar month. Level 3’s maintenance log will be usedfor purposes of calculating the duration of such Unavailability event as setforth above, a copy of which will be made available upon Customer’srequest.  In the absence of such a log,Customer may produce to Level 3 sufficient documentation to substantiate aclaim of an Unavailability event. Customer may notify Level 3 of events of Unavailability by contacting Level3 Customer Service at 1-877-4LEVEL3 (1-877-453-8353), or such other noticemechanism as Level 3 may communicate to Customer from time to time.  Customer may only terminate such (3)LinkSMGlobal Wavelength Service that is Unavailable as described above, and mustexercise its right to terminate the affected (3)LinkSM GlobalWavelength Service under this Section, in writing, within thirty (30) daysafter the event giving rise to a right of termination hereunder, whichtermination will be effective as set forth by Customer in such notice oftermination. Except for any credits that have accrued pursuant to Section 6, thisSection 7 sets forth the sole remedy of Customer for chronic outages orinterruptions of any (3)LinkSM Global Wavelength Service.  For the avoidance of doubt, the parties acknowledgeand agree that fiber cuts by third parties shall be deemed an Excused Outage.

 

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***         Certaininformation on this page has been omitted and filed separately with theCommission. Confidential treatment has been requested with respect to theomitted portions.

 

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**Exhibit “A”**

**InterconnectionSpecifications and Handoff Requirements**

 

A.                                   InterconnectionSpecifications.

 

1.                                       The Customerinterconnection point of 2.5Gb or 10Gb wavelength signals at the Level 3location will be at OSX cross-connect panels (“Level 3 NetworkInterface”).  SC physical connectionswill be standard.

 

2.                                       The Level 3Network will be compatible with the Bell System hierarchical clocksynchronization methods and stratum levels as described in Bellcore TechnicalAdvisory (GR436-Core).

 

3.                                       Level 3equipment must also meet the interconnect specifications listed above and shallmeet or exceed with jitter requirements of Bellcore Technical Advisory GR253.

 

B.                                     HandoffRequirements.

 

1.             Customer Signal Handoff:****Customer will hand off astandard 2.5Gb or 10Gb (as applicable) SONET or SDH-framed signal from an ADM,router (via OC-48 or OC-192 optical line card) or other optical network devise.

 

2.             2.5 Gb Service Transmitter and ReceiverSpecifications2:  Type ATerminations and Type B Terminations < 20 fiber kilometers.

 
| **Level 3 2.5Gb Receiver Specifications** |
|-------------------------------------------|
| **Wavelength  (nm)**                      |   | **Distance** |   | **Detector  Type** |   | **Coding** |   | **Minimum   Sensitivity (dBm)** |   | **Max Rec.  Level (dBm)** |   |
| 1265-1360                                 |   | Short |   | PIN |   | NRZ |   | -17.0 |   | -3.0 |   |

*The above signal requirements from Customer are measured atthe Level 3 transponder located within the Termination Node.  See Comment 1 below.*

 
| **Level 3 2.5Gb Transmitter Specifications** |
|----------------------------------------------|
| **Wavelength  (nm)**                         |   | **Distance** |   | **Laser Type** |   | **Coding** |   | **Launch  Power   (dBm)** |   | **Max  Tolerated   Reflection** |   |
| 1310 ±50                                |   | Short |   | Fabry-Perot |   | NRZ |   | -4.75 |   | -27 |   |

*The above signal delivery specifications to Customer aremeasured at the Level 3 transponder located within the Termination Node.  See Comment 1 below.*

** **

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3.2.5 Gb Service Transmitter and Receiver Specifications2:  Type B Terminations > 20 fiber kilometers

 
| **Level 3 2.5Gb Receiver Specifications** |
|-------------------------------------------|
| **Wavelength  (nm)**                      |   | **Distance** |   | **Detector  Type** |   | **Coding** |   | **Minimum   Sensitivity (dBm)** |   | **Max Rec.   Level (dBm)** |   |
| 1275-1575                                 |   | Long/Short |   | APD |   | NRZ |   | -24.5 |   | -15.0 |   |

*The above signal requirements from Customer are measured atthe Level 3 transponder located within the Termination Node.  See Comment 1 below.*

 
| **Level 3 2.5Gb Transmitter Specifications** |
|----------------------------------------------|
| **Wavelength  (nm)**                         |   | **Distance** |   | **Laser Type** |   | **Coding** |   | **Launch  Power   (dBm)** |   | **Max  Tolerated   Reflection** |   |
| 1310 ±10                                |   | Long/Short |   | DFB |   | NRZ |   | -1.5 |   | -24 |   |

*The above signal delivery specifications to Customer aremeasured at the Level 3 transponder located within the Termination Node.  See Comment 1 below.*

 

4.2.5 Gb Service Transmitter and Receiver Specifications2:  Type C Terminations

 
| **Level 3 2.5Gb Receiver Specifications** |
|-------------------------------------------|
| **Wavelength  (nm)**                      |   | **Distance** |   | **Detector  Type** |   | **Coding** |   | **Minimum   Sensitivity (dBm)** |   | **Max Rec.   Level (dBm)** |   |
| 1290-1570                                 |   | Long/Short |   | APD |   | NRZ |   | -28.0 |   | -15.0 |   |

*The above signal requirements from Customer are measured atthe Level 3 transponder located within the Termination Node.  See Comment 1 below.*

 
| **Level 3 2.5Gb Transmitter Specifications** |
|----------------------------------------------|
| **Wavelength  (nm)**                         |   | **Distance** |   | **Laser Type** |   | **Coding** |   | **Launch  Power   (dBm)** |   | **Max  Tolerated   Reflection** |   |
| 1528-1561 ITU                                |   | Long/Short |   | DFB |   | NRZ |   | -1.5 |   | -14 |   |

*The above signal delivery specifications to Customer aremeasured at the Level 3 transponder located within the Termination Node.  See Comment 1 below.*

 

5.             10Gb Service Transmitter and Receiver Specifications2:All terminations

 
| **Level 3 10Gb(Wide Band)Receiver Specifications** |
|----------------------------------------------------|
| **Wavelength  (nm)**                               |   | **Distance** |   | **Detector  Type** |   | **Coding** |   | **Minimum   Sensitivity (dBm)** |   | **Max Rec.   Level (dBm)** |   |
| 1290-1575                                          |   | Long/Short |   | PIN |   | NRZ |   | -10.0 |   | 0.0 |   |

* The above signalrequirements from Customer are measured at the Level 3 transponder locatedwithin the Termination Node.  SeeComment 1 below.*

 
| **Level 3 10Gb Transmitter Specifications** |
|---------------------------------------------|
| **Wavelength  (nm)**                        |   | **Distance** |   | **Laser Type** |   | **Coding** |   | **Launch  Power   (dBm)** |   | **Max  Tolerated   Reflection** |   |
| 1550+/-                                     |   | Long/Short |   | DFB |   | NRZ |   | 1.5 ± 0.25 |   | -14 |   |

* The above signaldelivery specifications to Customer are measured at the Level 3 transponderlocated within the Termination Node. See Comment 1 below.*

 

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*1**These receiver requirements and transmitter specifications aremeasured at the Level 3 transponder located within a Type A or Type CTermination Node and do not account for fiber loss.  In the event of a Type B termination over fiber without the useof optronics, measurement will occur at the Level3 transponder located in theLevel3 Gateway Facility.  Thus, toensure proper service delivery, fiber readings to and from Customer’s equipmentmust be verified.*

** **

*2**All of the equipment listed above requires SC type single modeconnectors**.***

 

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SERVICE SCHEDULE

**(3)PACKETSM SERVICE**

 

 

1.  **Applicability**.  This Service Schedule is applicable only where Customer orders(3)PacketSM Service.

 

2.  **Definitions**.  Any capitalized terms usedherein and not otherwise defined shall have the meaning set forth in theAgreement.

 

(A)          “Committed Data Rate” shall mean the minimumdata rate committed by Customer and set forth in the Customer Order (expressedin Megabits per second (Mbps)).

 

(B)            “Dual Connected” shall mean aCustomer interconnection to (3)PacketSM Service via two (2)access ports in a particular physical location, each provisioning the same,single virtual circuit.

 

(C)           “Single Connected” shall mean aCustomer interconnection to (3)PacketSM Service via a singleaccess port in a particular physical location.

 

(D)          “Virtual Circuit Committed Rate” shallmean the minimum datarate available to Customer on a particular (3)PacketSMService — Premium or (3)PacketSM Service — Optimized virtual circuitand set forth in theCustomer Order (expressed in megabits per second (Mbps)).

 

3.  **Service Description**.  (3)PacketSMService is a Multi-Protocol Label Switching (MPLS) based data transport servicecomprised of two (2) or more physical access ports with one (1) or more virtualcircuits interconnecting the ports, which are configured as requested byCustomer.  The (3)PacketSMService is available with either an ATM, Frame Relay or Ethernetinterface.  Each virtual circuitcomprising the (3)PacketSM Service is available in the followingclasses of service: (3)PacketSM Service — Premium (for ATM interfaceonly), (3)PacketSM Service — Optimized, and (3)PacketSMService - Enhanced.  The class ofservice applicable to the particular virtual circuit will be set forth in theCustomer Order.

 

4.  **Burstability**.  The (3)PacketSMService — Premium and (3)PacketSM Service — Optimized each haveseparate limitations for the amount of usage allowed in excess of theapplicable Virtual Circuit Committed Rate. Customer’s usage of the (3)PacketSM Service for each class ofservice is limited as follows: (i) for (3)PacketSM Service —Premium, Customer’s usage cannot burst above the Virtual Circuit CommittedRate; (ii) for (3)PacketSM Service — Optimized, Customer’s usagecannot burst above two (2) times the Virtual Circuit Committed Rate; and (iii)for (3)PacketSM Service — Enhanced, there are no restrictions onCustomer’s usage bursting, subject to the overall capacity available on theLevel 3 network.

 

5.  **Charges**.    Charges for (3)PacketSM Service are invoicedseparately for (3)PacketSM Service provided on the Level 3inter-city network and for (3)PacketSM Service provided on a Level 3intra-city network

 

(A)          Inter-CityNetwork Charges.  (1)        For (3)PacketSM Service onthe Level 3 inter-city network, Level 3 will invoice Customer, and Customeragrees to pay Level 3, the following charges for all inter-city (3)PacketSMService provided by Level 3 to Customer: (a) a non-recurring installationcharge per port; (b) a monthly recurring port charge; (c) a monthly recurringvirtual circuit charge; (d) a monthly recurring charge based on the aggregateCommitted Data Rate associated with the inter-city (3)PacketSMService; and (e) monthly usage charges to the extent Customer’s aggregate usagefor inter-city (3)PacketSM Service in a particular month exceeds theCommitted Data Rate.

 

(2)           Customer’susage of inter-city (3)PacketSM Service (both Send Traffic andReceive Traffic) will be sampled every five (5) minutes for the previous five(5) minute period.  At the end of themonth, the top five percent (5%) of Send Traffic and Receive Traffic samplesshall be discarded.  The higher of theresulting ninety-fifth (95th) percentile for Send Traffic andReceive Traffic for each (3)PacketSM virtual circuit will be addedtogether to determine Customer’s aggregate usage of inter-city (3)PacketSMService (“Aggregate Inter-City (3)PacketSM Usage”) for comparison tothe Committed Data Rate.  If theAggregate Inter-City (3)PacketSM Usage is higher than the CommittedData Rate, Customer will, in addition to being billed for the Committed DataRate, be billed for any such Aggregate Inter-City (3)PacketSM Usagein excess of the Committed Data Rate at the contracted-for price per megabitper second (Mbps).

 

(B)           Intra-CityNetwork Charges.  (1)        For (3)PacketSM Service on aLevel 3 intra-city network, Level 3 will invoice Customer, and Customer agreesto pay Level 3, the following charges for all intra-city (3)PacketSMService provided by Level 3 to Customer: (a) a non-recurring installationcharge per port; (b) a monthly recurring port charge; (c) a monthly recurringvirtual circuit charge; (d) a monthly recurring charge based on the aggregateCommitted Data Rate associated with the intra-city (3)PacketSMService; and (e) monthly usage charges to the extent Customer’s aggregate usagefor the intra-city (3)PacketSM Service in a particular month exceedsthe Committed Data Rate.

 

(2)           Customer’sSend Traffic attributable to usage of the intra-city (3)PacketSMService will be sampled every five (5) minutes for the previous five (5) minuteperiod.  At the end of the month, thetop five percent (5%) of Send Traffic samples shall be discarded.  The resulting ninety-fifth (95th)percentile for Send Traffic for each (3)PacketSM  port will be added together to determineCustomer’s aggregate usage of intra-city (3)PacketSM Service(“Aggregate Intra-City (3)PacketSM Usage”) for comparison to theCommitted Data Rate.  If the AggregateIntra-City (3)PacketSM Usage is higher than the Committed Data Rate,Customer will, in addition to being billed for the Committed Data Rate, bebilled for any such Aggregate Intra-City (3)PacketSM Usage in excessof the Committed Data Rate at the contracted-for price per megabit per second(Mbps).

 

6.  **Service Levels**.

 

(A)          InstallationService Level.  Level 3 willexercise commercially reasonable efforts to install any (3)PacketSMService on or before the Customer Commit Date specified for the particularService.  This Installation ServiceLevel shall not apply to Customer Orders that contain incorrect informationsupplied by Customer or Customer Orders that are altered at Customer’s requestafter submission and acceptance by Level 3. However, this Installation Service Level will apply to such CustomerOrders if such orders are resubmitted and contain correct information, with thecalculation of the installation 

 

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interval commencing on the date the correct oraltered order is accepted by Level 3. In the event Level 3 does not meet this Installation Service Level for aparticular (3)PacketSM Service for reasons other than an ExcusedOutage, Customer will be entitled to a service credit equal to the charges forone (1) day of the monthly recurring port charges and monthly recurring virtualcircuit charge for the affected port and/or virtual circuit for each day ofdelay, up to a monthly maximum credit of ten (10) days.

 

(B)           AvailabilityService Level.  (1) The AvailabilityService Level for (3)PacketSM Service is 99.99% for Single Connected(3)PacketSM Service and 99.999% for Dual Connected (3)PacketSMService. The (3)PacketSM Service is considered unavailable if anyport(s) and/or virtual circuit(s) is unable to send or receive traffic.  In the event that any component of the(3)PacketSM Service becomes unavailable for reasons other than anExcused Outage, Customer will be entitled to a service credit off of themonthly recurring port charge and monthly recurring virtual circuit charge forthe affected port and virtual circuit and any monthly usage charges solelyattributable to the affected virtual circuit based on the cumulativeunavailability of the affected component of the (3)PacketSM Servicein a given calendar mo nth as set forth in the following tables (but Customerwill not be entitled to a service credit associated with the Delay ServiceLevel, Packet Delivery Service Level or Jitter Service Level for the affectedport and virtual circuit to the extent any such failure arises out of or isrelated to the unavailability event):

 

For Single Connected (3)PacketSMService:

| **Cumulative Unavailability** |   | **Service  Level Credit** |   |
|-------------------------------|--------|---------------------------|--------|
| **(in hrs:mins:secs)**        |   |                      |   |
| 0:00:01 -  00:10:00           |   | ***                       |   |
| 00:10:01-  00:45:00           |   | ***                       |   |
| 00:45:01-  04:00:00           |   | ***                       |   |
| 04:00:01 -  08:00:00          |   | ***                       |   |
| 08:00:01 -  12:00:00          |   | ***                       |   |
| 12:00:01 -  16:00:00          |   | ***                       |   |
| 16:00:01 -  24:00:00          |   | ***                       |   |
| 24:00:01 or  greater          |   | ***                       |   |

 

For Dual Connected (3)PacketSM Service*:

| **Cumulative Unavailability** |   | **Service  Level Credit** |   |
|-------------------------------|--------|---------------------------|--------|
| **(in hrs:mins:secs)**        |   |                      |   |
| 00:00:01 -  00:45:00          |   | ***                       |   |
| 00:45:01-  04:00:00           |   | ***                       |   |
| 04:00:01 -  08:00:00          |   | ***                       |   |
| 08:00:01 -  12:00:00          |   | ***                       |   |
| 12:00:01 -  16:00:00          |   | ***                       |   |
| 16:00:01 -  24:00:00          |   | ***                       |   |
| 24:00:01 or  greater          |   | ***                       |   |

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* For Dual Connected (3)PacketSMService, if only one (1) of the two (2) Dual Connected ports becomesunavailable and the associated virtual circuit remains available, Customer willonly be entitled to receive a service credit under this Availability ServiceLevel off of the monthly recurring port charge for the one (1) affected portand not off of the monthly recurring virtual circuit charge for the virtualcircuit or any monthly usage charges.

 

(2) Without prejudice to Customer’s right toservice credits pursuant to subsection (1) above, if the (3)PacketSMService is provided in Germany, then the Availability Service Level is 97.5%(based on an annual average) if such (3)PacketSM Service is providedusing an Off-Net Local Loop and 99.9% (based on a calendar month) if such(3)PacketSM Service is provided using an On-Net Local Loop.

 

(C)           DelayService Level.  The following DelayService Level is measured as an average one-way delay over a calendar month fortraffic on the Level 3 network between Gateways based on the vertical andhorizontal (“V&H”) route miles between such Gateways as set forth in thefollowing table:

 

| **V&H  Route Miles** |   | **Delay  Service Level** |   |
|--------------------------|--------|--------------------------|--------|
| 0 - 250                  |   | 10 ms                    |   |
| 250.1 - 500              |   | 15 ms                    |   |
| 500.1 - 1,000            |   | 20 ms                    |   |
| 1,000.1 - 1,500          |   | 25 ms                    |   |
| 1,500.1 - 2,000          |   | 30 ms                    |   |
| 2,000.1 - 2,500          |   | 35 ms                    |   |
| 2,500.1 or  greater      |   | 45 ms                    |   |
| Trans-Atlantic           |   | 45 ms                    |   |

 

Delay measurements may be obtained from the Level 3web site at www.Level3.com.  In the event of a delay in excess of the Service Levels set forth belowfor reasons other than an Excused Outage, Customer will be entitled to receivea service credit off the monthly recurring virtual circuit charge forthe affected virtual circuit and any monthly usage charges solely attributableto the affected virtual circuit as set forth in the following table:

 

| **Amount of  Delay in Excess of Service Level** |   | **Service  Level Credit** |       |
|-------------------------------------------------|--------|---------------------------|------------|
| 0.1 - 5 ms                                      |   | *******                   | ** ** |
| 5.1 - 10 ms                                     |   | ***                       |       |
| 10.1 - 15 ms                                    |   | ***                       |       |
| 15.1 - 20 ms                                    |   | ***                       |       |
| 20.1 - 25 ms                                    |   | ***                       |       |
| 25.1 ms or  greater                             |   | ***                       |       |

 

(D)          PacketDelivery Service Level.  The PacketDelivery Service Level for (3)PacketSM Service is 100% for (3)PacketSMService - Premium, 100% for (3)PacketSM Service - Optimized forusage up to the applicable Virtual Circuit Committed Rate and 99.95% for all usagein excess of the applicable Virtual Circuit Committed Rate,  and 99.95% for (3)PacketSMService - Enhanced. Packet Delivery is the percentage of data packets thattransit the Level 3 network and are delivered by Level 3 to the intendeddestination in a calendar month.  ThePacket Delivery Service Level is measured independently between two (2) Level 3Gateways and reported separately for each virtual circuit.  Packet Delivery measurements may be obtainedfrom the Level 3 web site at www.Level3.com. In the event Level 3 does not meet the Packet Delivery Service Level forreasons other than an Excused Outage or as a result of any third party localaccess circuit (whether provisioned by Customer or Level 3), Customer will beentitled to receive a service credit off of the monthly recurring virtualcircuit charge for the affected virtual circuit and any monthly usage chargessolely attributable to the affected virtual circuit as set forth in thefollowing tables:

 

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***         Certaininformation on this page has been omitted and filed separately with theCommission. Confidential treatment has been requested with respect to theomitted portions.

 

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For (3)PacketSM Service - Premiumand (3)PacketSM Service - Optimized (up to the Virtual CircuitCommitted Rate):

 

| **Packet  Delivery** |   | **Service  Level Credit** |   |
|----------------------|--------|---------------------------|--------|
| 99.95 - 99.99%       |   | ***                       |   |
| 99.5 - 99.94%        |   | ***                       |   |
| 99 - 99.49%          |   | ***                       |   |
| 98 - 98.99%          |   | ***                       |   |
| 97 - 97.99%          |   | ***                       |   |
| 96.99% or less       |   | ***                       |   |

 

For (3)PacketSM Service -Optimized (for usage in excess of the Virtual Circuit Committed Rate) and(3)PacketSM Service - Enhanced:

 

 

| **Packet  Delivery** |   | **Service  Level Credit** |   |
|----------------------|--------|---------------------------|--------|
| 99.5 - 99.94%        |   | ***                       |   |
| 99 - 99.49%          |   | ***                       |   |
| 98 - 98.99%          |   | ***                       |   |
| 97 - 97.99%          |   | ***                       |   |
| 96 - 96.99%          |   | ***                       |   |
| 95.99% or less       |   | ***                       |   |

## **(E)     Jitter Service Level. The Jitter Service Level for (3)PacketSM Service is 2milliseconds (ms) for (3)PacketSM Service -** Premium and 10 milliseconds (ms) for (3)PacketSMService -Optimized.  The Jitter Service Level does not apply to(3)PacketSM Service -Enhanced.  The Jitter Service Level is measuredindependently between two (2) Level 3 Gateways and reported separately for eachvirtual circuit.  Jitter measurementsmay be obtained from the Level 3 web site at www.Level3.com.  Jitteris defined as the relative variation in delay between consecutive packets.Samples are taken every 500 milliseconds, and consecutive samples are comparedfor variation in delay.  Each variationvalue is compared with this Service Level. In the event of Jitter in excess of the this Service Level for reasonsother than an Excused Outage, Customer will be entitled to receive a servicecredit offof the monthly usagecharges solely attributable to the affected virtual circuit as set forth in thefollowing table:

 

| **Percentage  of Measurements within SLA** |   | **Service  Level Credit** |   |
|--------------------------------------------|--------|---------------------------|--------|
| 99.9951% - 99.999%                         |   | ***                       |   |
| 99.991% - 99.995%                          |   | ***                       |   |
| 99.951% - 99.99%                           |   | ***                       |   |
| 99.91% - 99.95%                            |   | ***                       |   |
| 99.1% - 99.9%                              |   | ***                       |   |
| 99% or less                                |   | ***                       |   |

 

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***         Certaininformation on this page has been omitted and filed separately with theCommission. Confidential treatment has been requested with respect to theomitted portions.

 

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SERVICE SCHEDULE

**(3)CROSSROADSSM SERVICE**

** **

1.** Applicability**.  This Service Schedule is applicable only where Customer orders(3)CrossRoadsSM Service.

 

2.** Definitions**.  Any capitalized terms usedherein and not otherwise defined shall have the meaning set forth in theAgreement.

 

(A)          “Committed Data Rate” shall mean the minimumdata rate committed by Customer and set forth in the Customer Order (expressedin Megabits per second (Mbps)).

 

(B)           “Off-Net Send Traffic” shall mean Send Trafficthat terminates to any location that is not on the Level 3 network.

** **

(C)           “On-Net Intracity Send Traffic” shallmean On-Net Send Traffic that does not transit Level 3’s long haultransmission facilities.

 

(D)          “On-Net Send Traffic” shall mean Send Trafficthat terminates to a location that is on the Level 3 network.

 

(E)           “Receive Traffic” shall mean traffic fromany origination point that is received by Customer from the Level 3 network.

 

(F)           “Send Traffic” shall mean traffic fromany origination point that is sent by Customer onto the Level 3 network

** **

3.  **Service Description**.   (3)CrossRoadsSM Service is an IP transit service (including  dedicated IP access port(s)) providingaccess to the Level 3 IP network and the global Internet.  (3)CrossRoadsSMService is available with either a Serial/POS or Ethernet interface.

** **

4.** Charges**. Customer mayelect to be billed based on a fixed rate, Destination Sensitive Billing, or aCommitted Data Rate.  The manner ofbilling selected will be set forth in each Customer Order.

 

(A)          Fixedrate charges for (3)CrossRoadsSM Services consist of two (2)components: (a) a non-recurring installation charge per port; and (b) a monthlyrecurring port charge.

 

(B)           DestinationSensitive Billing charges for (3)CrossRoadsSM Service consist ofthree (3) components: (a) a non-recurring installation charge per port; (b) amonthly recurring port charge; and (c) monthly usage charges.  Customer’s usage of (3)CrossRoadsSMService (both Send Traffic and Receive Traffic) will be measured and recordedby Level 3 every five minutes.  Atthe end of the month, the top five percent (5%) of the Send Traffic and ReceiveTraffic samples will be discarded. If the ninety-fifth  (95th) percentile Receive Trafficsample shows (3)CrossRoadsSM Service usage greater than the usageshown in the ninety-fifth (95th) percentile Send Traffic sample,then Customer will be billed for the amount of (3)CrossRoadsSMService usage shown in the ninety-fifth (95th) percentile sample forthe Receive Traffic.  If theninety-fifth (95th) percentile sample for the Send Traffic shows(3)CrossRoadsSM Service usage greater than the usage shown in theninety-fifth (95th) percentile Receive Traffic sample, then the total Send Traffic will be categorizedas Off-Net Send Traffic, On-Net Send Traffic and On-Net Intracity Send Traffic,and Customer will be billed for the usage shown in the ninety-fifth (95th)percentile sample for each category.

 

(C)           CommittedData Rate charges for (3)CrossRoadsSM Service consist of four (4)components: (a) a non-recurring installation charge per port; (b) a monthlyrecurring port charge (if applicable); (c) a monthly recurring charge based onthe Committed Data Rate associated with the (3)CrossRoadsSM Service;and (d) monthly usage charges to the extent usage in a particular month exceedsthe Committed Data Rate.  Customer’susage of (3)CrossRoadsSM Service (both Send Traffic and ReceiveTraffic) will be sampled every five (5) minutes for the previous five (5)minute period.  At the end of the month,the top five percent (5%) of Send Traffic and Receive Traffic samples shall bediscarded.  The highest of the resultingninety-fifth (95th) percentile for Send Traffic and Receive Trafficwill be compared to the Committed Data Rate. If the ninety-fifth (95th) percentile of either Send Trafficor Receive Traffic is higher than the Committed Data Rate, Customer will, inaddition to being billed for the Committed Data Rate, be billed at thisninety-fifth (95th) percentile level for any usage in excess of theCommitted Data Rate at the contracted-for price per Megabit.

 

5.   **IPAddresses and Domain Names**. In the event that Level 3 assigns to Customer an IP address as part ofthe provision of Service, such IP address shall (upon Level 3’s request and tothe extent permitted by law) revert to Level 3 after termination of theapplicable Customer Order for any reason whatsoever, and Customer shall ceaseusing such address.  At any time aftersuch termination, Level 3 may re-assign such address to another user. In theevent that Level 3 obtains for Customer a domain name (which may be required insome European jurisdictions), Customer shall be the sole owner of such domainname.  Customer shall be solelyresponsible for:

 

(A)         paying any fees (includingrenewal fees) relating thereto;

 

(B)           complyingwith any legal, technical, administrative, billing or other requirementsimposed by the relevant domain name registration authority;

 

(C)           modifyingsuch domain name in the event Customer changes service providers; and

 

(D)          all third party claims (includingclaims for intellectual property infringement) relating thereto, and Customershall indemnify and hold Level 3 harmless from all such claims and expenses(including legal fees and court costs) related thereto.

 

6.  **ServiceLevels**.

 

(A)          InstallationService Level.   Level 3 willexercise commercially reasonable efforts to install any (3)CrossRoadsSMService on or before the Customer Commit Date specified for the particular(3)CrossRoadsSM Service. This Installation Service Level shall not apply to Customer Orders thatcontain incorrect information supplied by Customer or Customer Orders that arealtered at Customer’s request after submission and acceptance by Level 3.  However, this Installation Service Levelwill apply to such Customer Orders if such orders are resubmitted and containcorrect information, with the calculation of the installation intervalcommencing on the date the correct or altered order is accepted by Level3.  In the event Level 3 does not meetthis Installation Service Level for a particular (3)CrossRoadsSMService for reasons other than 

 

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an Excused Outage, Customer will be entitled to aservice credit equal to the charges for one (1) day of the monthly recurringcharges (“MRC”) for the affected (3)CrossRoadsSM Service for eachday of delay, up to a monthly maximum credit of ten (10) days.

 

(B)           AvailabilityService Level. (1) The Availability Service Level for (3)CrossRoadsSMService is 100%. The (3)CrossRoadsSM Service is consideredunavailable if a port is unable to send or receive traffic.  In the event that the (3)CrossRoadsSMService becomes unavailable for reasons other than an Excused Outage, Customerwill be entitled to a service credit off of the MRC for the affected(3)CrossRoadsSM Service based on the cumulative unavailability ofthe affected (3)CrossRoadsSM Service in a given calendar month asset forth in the following table:

 

| **Cumulative   Unavailability** |   | **Service  Level Credit** |   |
|--------------------------------------|--------|---------------------------|--------|
| **(in hrs:mins:secs)**               |   |                      |   |
| 00:00:01 -  00:05:00                 |   | ***                       |   |
| 00:05:01-  00:45:00                  |   | ***                       |   |
| 00:45:01-  04:00:00                  |   | ***                       |   |
| 04:00:01 - 08:00:00                  |   | ***                       |   |
| 08:00:01  -12:00:00                  |   | ***                       |   |
| 12:00:01  -16:00:00                  |   | ***                       |   |
| 16:00:01 -  24:00:00                 |   | ***                       |   |
| 24:00:01 or  greater                 |   | ***                       |   |

 

(2) Without prejudice to Customer’s right toservice credits pursuant to subsection (1) above, if the (3)CrossRoadsSMServices are provided in Germany, then the Availability Service Level is 97.5%(based on an annual average) if such (3)CrossRoadsSM Services isprovided using an Off-Net Local Loop and 99.9% (based on a calendar month) ifsuch (3)CrossRoadsSM Service is provided using an On-Net Local Loop.

 

(C)           DelayService Level. The Delay Service Level for (3)CrossRoadsSMService is as set forth in the following table:

 

| **Route**               |   | **Delay  Service Level** |   |
|-------------------------|--------|--------------------------|--------|
| Intra- U.S.             |   | 40 ms                    |   |
| Intra-Europe            |   | 30 ms                    |   |
| London to New  York, NY |   | 40 ms                    |   |

 

The Delay Service Level is measured as an averageone-way delay over a calendar month for traffic on the Level 3 network betweenGateways.  Delay measurements may beobtained from the Level 3 web site at www.Level3.com.  In the event of a delay in excess of the Service Levels set forthabove for reasons other than an Excused Outage, Customer will be entitled toreceive a service credit off of the MRC for the affected (3)CrossRoadsSMService as set forth in the following table:.

 

| **Amount of  Delay in Excess of Service Level** |   | **Service  Level Credit** |   |
|-------------------------------------------------|--------|---------------------------|--------|
| 0.1 - 5 ms                                      |   | ***                       |   |
| 5.1 - 10 ms                                     |   | ***                       |   |
| 10.1 - 15 ms                                    |   | ***                       |   |
| 15.1 - 20 ms                                    |   | ***                       |   |
| 20.1 - 25 ms                                    |   | ***                       |   |
| 25.1 ms or  greater                             |   | ***                       |   |

 

(D)          PacketDelivery Service Level.  The PacketDelivery Service Level for (3)CrossRoadsSM Service is 99% for On-Nettraffic between Gateways.  PacketDelivery is the average number of Internet Protocol (IP) packets of informationthat transit the Level 3 network and are delivered by Level 3 to the intendedOn-Net destination in a calendar month. Packet Delivery measurements may be obtained from the Level 3 web siteat www.Level3.com.  In the event Level 3does not meet the Packet Delivery Service Level for reasons other than anExcused Outage or as a result of any third party local access circuit (whetherprovisioned by Customer or Level 3), Customer will be entitled to receive aservice credit off of the MRC for the affected (3)CrossRoadsSMService as set forth in the following table:

 

| **Packet  Delivery** |   | **Service  Level Credit** |   |
|----------------------|--------|---------------------------|--------|
| 98.5 - 98.99%        |   | ***                       |   |
| 98 - 98.49%          |   | ***                       |   |
| 97 - 97.99%          |   | ***                       |   |
| 96 - 96.99%          |   | ***                       |   |
| 95 - 95.99%          |   | ***                       |   |
| 94.99% or less       |   | ***                       |   |

 

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***         Certaininformation on this page has been omitted and filed separately with theCommission. Confidential treatment has been requested with respect to theomitted portions.

 

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SERVICE SCHEDULE

**(3)CONNECTSM MODEM SERVICE**

** **

1.**  Applicability**.  ThisService Schedule is applicable only where Customer orders (3)ConnectSM  Modem Service.

 

2.** Definitions**.  Any capitalized terms usedherein and not otherwise defined shall have the meaning set forth in theAgreement.

** **

(A)           “International” means anywhereoutside of the continental United States, including Alaska and Hawaii.

 

(B)           “Market” means any geographic area(as defined by Level 3) in which Level 3 provides (3)ConnectSM Modem Service to Customer. The current list of available Markets, Market tiers and Rate Centers maybe obtained from the Level 3 web site at www.level3.com, which list may be supplemented by Level 3 (in its solediscretion) from time to time.

 

(C)           “Rate Center” means the specificgeographic point (associated with one or more specific NPA/NXX codes andvarious Wire Centers) being used for billing and measuring (3)ConnectSM  Modem Service.  For example, a Rate Center will normallyinclude several Wire Centers within its geographic area, with each Wire Centerbeing defined as having one or more NPA/NXX(s). The current list of availableMarkets, Market tiers and Rate Centers may be obtained from the Level 3web site at www.level3.com, which listmay be supplemented by Level 3 (in its sole discretion) from time to time.

 

(D)          “Tier 1 Authentication” means thefirst stage authentication whereby Level 3 determines whether managed modemport capacity is available in the particular Rate Center.

 

(E)           “Transit Service” means end user traffic that is routed to Level 3’sfacility and then routed to its final destination by Level 3 via the Level3 IP network.

** **

(F)           “U.S. Domestic” means the continentalUnited States.

** **

3.** Service Description**.  (3)ConnectSM Modem Service is a dial-access, TransitService available on a fixed-port basis, usage basis and nationwide usagebasis.

 

4.  **(3)ConnectSMModem Service — Fixed Port**. The (3)ConnectSM Modem Service — Fixed Port is billed byLevel 3 to Customer on a per port basis. The (3)ConnectSM Modem Service — Fixed Port charges consistof two (2) components: (a) a non-recurring installation charge per port; and(b) a monthly recurring port charge applicable to the particular Market tier;which charges shall be as set forth in the Customer Order or as otherwiseagreed between the parties in writing.

 

5.  **(3)ConnectSMModem Service — Usage**.  

 

(A)          The (3)ConnectSMModem Service - Usage is billed by Level 3 to Customer on a usage basis.  The (3)ConnectSM Modem Service — Usagecharges consist of two (2) components: (a) a non-recurring installation chargeper Market; and (b) a per hour usage charge applicable to the particular Markettier; which charges shall be as set forth in the Customer Order or as otherwiseagreed between the parties in writing.

 

(B)           Usage of the (3)ConnectSMModem Service — Usage will be measured based on the total duration of all modemsessions in a particular month.  Modem sessions will be measured in minutesstarting immediately following Tier 1 Authentication and ending when the userdisconnects from the Level 3 network. Level 3 radius accounting records will be used to determine the lengthin time of each call.  At the end ofeach monthly billing period, the accounting records for such month will besummed to produce the total hours of usage of the (3)ConnectSMModem Service - Usage in the particular month for each Market tier (as applicable).

(C)           Customer will not have, nor shall itbe entitled to, any stated number of dedicated ports with any (3)ConnectSMModem Service - Usage.  Customer shallmake reasonable efforts to provide Level 3, on an ongoing quarterly basis, witha non-binding demand forecast setting forth Customer’s estimated forecasted usage(on a total hours of use by Rate Center basis) of (3)ConnectSM ModemService - Usage to facilitate Level 3’s planning efforts in support ofCustomer.  

 

6.  **(3)ConnectSM Modem Service — Nationwide**.

 

(A)          The (3)ConnectSMModem Service - Nationwide is billed by Level 3 to Customer on a usagebasis.  The (3)ConnectSM Modem Service —Nationwide charges consist of two (2) components: (a) a non-recurringinstallation charge per Market; and (b) a per minute usage charge; whichcharges shall be as set forth in the Customer Order or as otherwise agreedbetween the parties in writing.

 

(B)          Level 3 SS7 signaling records will be used to determine the length of time foreach subscriber call.  (3)ConnectSMModem Service — Nationwide sessions will be measured starting when the callanswer indication is passed to the Local Exchange Carrier and ending when theuser disconnects from the Level 3 network. At the end of each monthly billing period, the SS7 signaling records forsuch month will be summed to produce the total minutes of usage of the(3)ConnectSM Modem Service - Nationwide in the particular month foreach U.S. Domestic or International calling area (as applicable).

 

(C)           (3)ConnectSMModem Service - Nationwide charges shall be invoiced based on the following billingincrements.

 
| **Service  Type/ Rate Element**                                    |   | **Initial  Billing   Increment   (seconds)** |   | **Additional    Billing   Increments   (seconds)** |   |
|--------------------------------------------------------------------|--------|----------------------------------------------|--------|----------------------------------------------------|--------|
| U.S. Domestic  (3)ConnectSM Modem Service - Nationwide             |   | 18                                           |   | 6                                                  |   |
| International  Originating (3)ConnectSM Modem Service - Nationwide |   | 30                                           |   | 6                                                  |   |

 

Any partial billing increment shall berounded-up to the next interval.

 

(D)          Ifmore than thirty five percent (35%) of the U.S. Domestic toll-free minutes thatCustomer transmits to Level 3 hereunder in any month originate in access areas otherthan those operated by the following Local Exchange Carriers: Bell South, NYNEX(Verizon North), Bell Atlantic (Verizon South), Southwestern Bell Telephone,Ameritech, Qwest Communications, Cincinnati Bell Telephone, Southern NewEngland Telephone (SNET) and Pacific Bell (collectively the “RBOCs”), Level 3 will add a $0.03 per minute charge(or such other charge as the parties mutually agree from time to time) to 

 

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the applicable per minute rate for allnon-RBOC minutes in excess of the thirty five percent (35%) threshold.

 

(E)           Level3 shall pass through to Customer and Customer shall pay all payphone surchargesthat are imposed on Level 3.  Suchpayphone surcharges are imposed pursuant to the rules and orders of the FederalCommunications Commission (FCC) or other regulatory entity of competentjurisdiction and are subject to change at any time.

 

(F)           Customerwill not have, nor shall it be entitled to, any stated number of dedicatedports with any Level 3 (3)ConnectSM Modem Service - Nationwide.  Customer shall make reasonable efforts toprovide Level 3, on an ongoing quarterly basis, with a non-binding demandforecast setting forth Customer’s estimated forecasted usage (on a totalminutes of use basis) of Level 3 (3)ConnectSM Modem Service -Nationwide to facilitate Level 3’s planning efforts in support of Customer.

 

7.  **ServiceLevels**.

 

(A)          InstallationService Level.   Level 3 willexercise commercially reasonable efforts to install any (3)ConnectSMModem Service on or before the Customer Commit Date specified for theparticular Service.  This InstallationService Level shall not apply to Customer Orders that contain incorrectinformation supplied by Customer or Customer Orders that are altered at Customer’srequest after submission and acceptance by Level 3.  However, this Installation Service Level will apply to suchCustomer Orders if such orders are resubmitted and contain correct information,with the calculation of the installation interval commencing on the date thecorrect or altered order is accepted by Level 3.  In the event Level 3 does not meet this Installation ServiceLevel for a particular Service for reasons other than an Excused Outage,Customer will be entitled to a service credit equal to fifty percent (50%) ofthe non-recurring charges for the affected Service.

 

(B)           CallSuccess Rate (CSR) Service Level. The CSR Service Level for (3)ConnectSM Modem Service is90%*.  The CSR is measured by Level 3 asa monthly average across the Level 3 modem network calculated based on thenumber of IP sessions established against the total sessions attempted. An IPsession is established when the modem port is available to send, receive andauthenticate traffic.  In the eventLevel 3 does not meet the CSR Service Level for reasons other than an ExcusedOutage, Customer will be entitled to a service credit off of the monthlyrecurring port charge for the affected (3)ConnectSM Modem Service asset forth in the following table:

 

| **CSR**        |   | **Service  Level Credit** |   |
|----------------|--------|---------------------------|--------|
| 88 - 89.99%    |   | ***                       |   |
| 85 - 87.99%    |   | ***                       |   |
| 80 - 84.99%    |   | ***                       |   |
| 79.99% or less |   | ***                       |   |

 

* The CSR Service Level does not apply toISDN Service

 

(C)           TheService Levels set forth in this Section 7 shall only apply to (i) (3)ConnectSMModem Service - Fixed Port, and shall not apply to the (3)ConnectSMModem Service - Usage or (3)ConnectSM Modem Service - Nationwide;and (ii) Rate Centers that have been made commercially available by Level 3 forsixty (60) days or more.

 

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SERVICE SCHEDULE

**(3)LINKSM****CROSS CONNECT SERVICE and MONDO CONDO FIBER LINKSERVICE**

** **

1. ** Applicability**.  This Service Schedule is applicable only where Customer orders(3)LinkSM  Cross ConnectService and/or Mondo Condo Fiber Link Service.

 

2.** Definitions**.  Any capitalized terms usedherein and not otherwise defined shall have the meaning set forth in theAgreement.

** **

3.  **Service Description**.  (3)LinkSM Cross Connect Service is copper or fiberoptic cabling cross-connected between Level 3 provided (3)CenterSMColocation (cabinets and/or suites), other Level 3 provided Service orFacilities and/or third party provided services or facilities that terminatewithin the Level 3 Gateway.  Mondo CondoFiber Link Service is fiber optic cabling that provides connectivity betweenthe Level 3 Mondo Condo facility and the Level 3 Gateway in the samemetropolitan area.  Mondo Condo FiberLink Service can provide connectivity between Level 3 provided (3)CenterSMColocation (cabinets and/or suites) within a Level 3 Mondo Condo facility andthe Level 3 Gateway, Level 3 provided dark fiber and/or third party providedservices or facilities that terminate within a Level 3 Gateway.

 

4.  **ServiceLevel**.  Level 3 will exercisecommercially reasonable efforts to install any (3)LinkSM CrossConnect Service and any Mondo Condo Fiber Link Service on or before theCustomer Commit Date specified for the particular (3)LinkSM Cross Connect Service or Mondo Condo Fiber Link Service (as thecase may be).  This Installation ServiceLevel shall not apply to Customer Orders that contain incorrect informationsupplied by Customer, Customer Orders that are altered at Customer’s requestafter submission and acceptance by Level 3. However, this Installation Service Level will apply to such CustomerOrders if such orders are resubmitted and contain correct information, with thecalculation of the installation interval commencing on the date the correct oraltered order is accepted by Level 3. In the event Level 3 does not meet this Installation Service Level for aparticular (3)LinkSMCross Connect Service or Mondo Condo Fiber Link Service (as the case may be) forreasons other than an Excused Outage, Customer will be entitled to a servicecredit off of the non-recurring charges (“NRC”) and/or monthly recurringcharges (“MRC”) for the affected (3)LinkSM Cross Connect Service or Mondo Condo Fiber Link Service (as thecase may be) as set forth in the following tables:

 

For (3)LinkSM Cross Connect Service:

 

| **Installation  Delay Beyond Customer Commit Date** |   | **Service  Level Credit** |   |
|-----------------------------------------------------|--------|---------------------------|--------|
| 1 - 5 business  days                                |   | ***                       |   |
| 6 - 20 business  days                               |   | ***                       |   |
| 21 + business  days                                 |   | ***                       |   |

 

For Mondo CondoFiber Link Service:

 

| **Installation  Delay Beyond Customer Commit Date** |   | **Service  Level Credit** |   |
|-----------------------------------------------------|--------|---------------------------|--------|
| 15 - 30 business  days                              |   | ***                       |   |
| 31 + business  days                                 |   | ***                       |   |

 

 

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***         Certaininformation on this page has been omitted and filed separately with theCommission. Confidential treatment has been requested with respect to theomitted portions.

 

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**APPENDIX I**

 

# **FORMOF OFFICER CERTIFICATION**

 

 

 

*[Date]*

 

Level 3 Communications, LLC

1025 Eldorado Blvd.

Broomfield, CO 80403

Attn: Director, Billing

 

 

RE:                              Master ServiceAgreement between Level 3 Communications, LLC (“Level 3”) and Universal Access,Inc. (“Customer”) dated                   , 2003 (“MSA”)

 

Attn: Chief Financial Officer:

 

Pursuant to Section 8.4 ofthe MSA, for the period beginning on the Effective Date of the MSA through the12 month  period ending                   , 200  (“Certification Period”), this lettercertifies that Customer has been and continues to be in compliance with theRequirements Commitment.  During theCertification Period, Customer ordered        services qualifying (i.e., Level 3’s offer*** than the bona fide third party offer as described under such section), ofwhich           were ordered from Level 3.

 

 

Sincerely,

 

[Officer of Customer]

 

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***         Certaininformation on this page has been omitted and filed separately with theCommission. Confidential treatment has been requested with respect to theomitted portions.

 

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