exv10w34





Exhibit 10.34





EXECUTION VERSION




 

 






MEMBERSHIP INTEREST PURCHASE AGREEMENT




by and among



AGL NETWORKS, LLC,



AGL INVESTMENTS, INC.



and



ZAYO GROUP, LLC



 





As of March 23, 2010



 





 

 














 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE I SALE OF INTERESTS	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.1.	 	Purchase and Sale of Interests	 	 	1	 
	 
	 	1.2.	 	Closing Date	 	 	1	 
	 
	 	1.3.	 	Deliveries at the Closing	 	 	1	 
	 
	 	1.4.	 	Purchase Price Adjustments	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.1.	 	Organization of the Company	 	 	4	 
	 
	 	2.2.	 	Capitalization of the Company	 	 	4	 
	 
	 	2.3.	 	Authority of the Company; Non-contravention	 	 	5	 
	 
	 	2.4.	 	Financial Statements	 	 	6	 
	 
	 	2.5.	 	Absence of Certain Changes or Events	 	 	7	 
	 
	 	2.6.	 	No Undisclosed Liabilities	 	 	8	 
	 
	 	2.7.	 	Litigation; Orders	 	 	8	 
	 
	 	2.8.	 	Compliance with Laws; Permits	 	 	8	 
	 
	 	2.9.	 	Contracts	 	 	9	 
	 
	 	2.10.	 	Real Property	 	 	11	 
	 
	 	2.11.	 	Environmental Matters	 	 	11	 
	 
	 	2.12.	 	Intellectual Property	 	 	12	 
	 
	 	2.13.	 	Labor Relations	 	 	13	 
	 
	 	2.14.	 	Taxes	 	 	13	 
	 
	 	2.15.	 	ERISA	 	 	15	 
	 
	 	2.16.	 	Finders	 	 	16	 
	 
	 	2.17.	 	Transactions with Affiliates	 	 	16	 
	 
	 	2.18.	 	Subsidiaries	 	 	16	 
	 
	 	2.19.	 	Major Customers and Suppliers	 	 	16	 
	 
	 	2.20.	 	Network Facilities and Operations	 	 	17	 
	 
	 	2.21.	 	Assets of the Company	 	 	18	 
	 
	 	2.22.	 	Insurance	 	 	18	 
	 
	 	2.23.	 	Bank Accounts	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.1.	 	Authority; Ownership of Interests	 	 	18	 
	 
	 	3.2.	 	Brokers, Finders, etc.	 	 	19	 
	 
	 	3.3.	 	Absence of Proceedings	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.1.	 	Organization of the Buyer	 	 	20	 






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	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.2.	 	Authority of the Buyer; Non-contravention	 	 	20	 
	 
	 	4.3.	 	Brokers, Finders, etc.	 	 	21	 
	 
	 	4.4.	 	Absence of Proceedings	 	 	21	 
	 
	 	4.5.	 	Investment Intent	 	 	21	 
	 
	 	4.6.	 	Financial Capability	 	 	21	 
	 
	 	4.7.	 	No Outside Reliance	 	 	21	 
	 
	 	4.8.	 	Solvency	 	 	21	 
	 
	 	4.9.	 	Due Diligence Investigation	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V ADDITIONAL COVENANTS	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.1.	 	Investigation of the Company by the Buyer; Confidential Information	 	 	22	 
	 
	 	5.2.	 	Commercially Reasonable Efforts; Obtaining Consents	 	 	23	 
	 
	 	5.3.	 	Antitrust	 	 	24	 
	 
	 	5.4.	 	Operations Prior to the Closing Date	 	 	25	 
	 
	 	5.5.	 	No Public Announcement	 	 	28	 
	 
	 	5.6.	 	Non-Solicitation of Employees	 	 	28	 
	 
	 	5.7.	 	Representatives’ and Officers’ Indemnification	 	 	28	 
	 
	 	5.8.	 	Employment Matters; Post-Closing Severance; Employee Benefits	 	 	29	 
	 
	 	5.9.	 	Notification	 	 	31	 
	 
	 	5.10.	 	Regulatory Licenses	 	 	31	 
	 
	 	5.11.	 	Resignations of Representatives	 	 	31	 
	 
	 	5.12.	 	Capital Expenditures and Projects	 	 	31	 
	 
	 	5.13.	 	Change of Name; No Use of Tradename and Marks	 	 	33	 
	 
	 	5.14.	 	Certain Tax Matters	 	 	33	 
	 
	 	5.15.	 	Transition Services Agreement	 	 	37	 
	 
	 	5.16.	 	Exclusivity	 	 	37	 
	 
	 	5.17.	 	Non-Competition and Non-Solicitation	 	 	37	 
	 
	 	5.18.	 	Parent Guaranty	 	 	39	 
	 
	 	5.19.	 	Audited Financial Statements	 	 	39	 
	 
	 	5.20.	 	No Indebtedness	 	 	39	 
	 
	 	5.21.	 	No Cash on Hand	 	 	40	 
	 
	 	5.22.	 	Assumed Liabilities	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF the BUYER	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	 
	 	6.1.	 	No Misrepresentation or Breach of Covenants and Warranties	 	 	40	 
	 
	 	6.2.	 	No Order	 	 	40	 
	 
	 	6.3.	 	Necessary Approvals and Consents; HSR	 	 	41	 
	 
	 	6.4.	 	No Material Adverse Effect	 	 	41	 
	 
	 	6.5.	 	Resignations	 	 	41	 
	 
	 	6.6.	 	Transaction Documents	 	 	41	 
	 
	 	6.7.	 	Employee Benefit Plans	 	 	41	 
	 
	 	6.8.	 	Other Closing Deliveries	 	 	41	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE COMPANY AND THE SELLER	 	 	42	 






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	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.1.	 	No Misrepresentation or Breach of Covenants and Warranties	 	 	42	 
	 
	 	7.2.	 	No Order	 	 	42	 
	 
	 	7.3.	 	Necessary Approvals and Consents; HSR	 	 	43	 
	 
	 	7.4.	 	Release of Guaranty	 	 	43	 
	 
	 	7.5.	 	Transaction Documents	 	 	43	 
	 
	 	7.6.	 	Other Closing Deliveries	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII TERMINATION	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.1.	 	Termination	 	 	43	 
	 
	 	8.2.	 	Procedure and Effect of Termination	 	 	44	 
	 
	 	8.3.	 	Termination Fee	 	 	44	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX INDEMNIFICATION	 	 	44	 
	 
	 	 	 	 	 	 	 	 
	 
	 	9.1.	 	Survival	 	 	44	 
	 
	 	9.2.	 	Indemnification by Seller	 	 	46	 
	 
	 	9.3.	 	Indemnification by Buyer	 	 	47	 
	 
	 	9.4.	 	Defense of Third-Party Claims	 	 	48	 
	 
	 	9.5.	 	Exclusive Remedy	 	 	49	 
	 
	 	9.6.	 	Treatment of Indemnity Payments for Tax Purposes	 	 	49	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X GENERAL PROVISIONS	 	 	50	 
	 
	 	 	 	 	 	 	 	 
	 
	 	10.1.	 	Notices	 	 	50	 
	 
	 	10.2.	 	Expenses	 	 	51	 
	 
	 	10.3.	 	Partial Invalidity	 	 	51	 
	 
	 	10.4.	 	Execution in Counterparts	 	 	51	 
	 
	 	10.5.	 	Governing Law	 	 	51	 
	 
	 	10.6.	 	Assignment; Successors and Assigns	 	 	51	 
	 
	 	10.7.	 	No Third Party Beneficiaries	 	 	51	 
	 
	 	10.8.	 	Descriptive Headings	 	 	52	 
	 
	 	10.9.	 	Schedules and Exhibits	 	 	52	 
	 
	 	10.10.	 	No Implied Representation	 	 	52	 
	 
	 	10.11.	 	Construction of Certain Provisions	 	 	52	 
	 
	 	10.12.	 	Interpretation	 	 	52	 
	 
	 	10.13.	 	Reasonable Consent Required	 	 	52	 
	 
	 	10.14.	 	Entire Agreement; Amendments	 	 	53	 
	 
	 	10.15.	 	Waivers	 	 	53	 
	 
	 	10.16.	 	Consent to Jurisdiction	 	 	53	 
	 
	 	10.17.	 	Enforcement	 	 	53	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI DEFINITIONS	 	 	53	 






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SCHEDULES AND EXHIBITS




Company Disclosure Schedule

Schedule 1.4 — Form of Working Capital Statement

Exhibit 5.15 — Transition Services Agreement

Exhibit 5.18 — Parent Guaranty

Exhibit 6.8(e) — Seller Release




-iv-









 





     THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”) is dated as of March
23, 2010, by and among AGL NETWORKS, LLC, a Delaware limited liability company (the
“Company”); AGL INVESTMENTS, INC., a Georgia corporation (the “Seller”); and ZAYO GROUP,
LLC, a Delaware limited liability company (the “Buyer”).



WITNESSETH




     WHEREAS, the Seller is the owner of all of the outstanding membership interests (the
“Interests”) of the Company;



     WHEREAS, the Seller desires to sell to the Buyer, and the Buyer desires to purchase
from the Seller, the Interests of the Company, all on the terms and subject to the
conditions set forth in this Agreement (the “Interests Purchase”);



     NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, intending to
be legally bound hereby, the Company, the Seller and the Buyer hereby agree as follows:



ARTICLE I




SALE OF INTERESTS



     1.1.
Purchase and Sale of Interests. On the basis of the representations,
warranties, covenants and agreements and subject to the satisfaction or waiver of
the conditions set forth herein, at the Closing, (a) the Seller shall sell to the Buyer,
and the Buyer shall purchase from the Seller, all of the Interests; and (b) as
consideration for the Interests, the Buyer shall pay to the Seller, an amount equal to
SEVENTY ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($71,500,000.00) (the “Purchase
Price”).



     1.2.
Closing Date. Subject to the terms and conditions hereof, the
consummation of the transactions provided for in Section 1.1 (the
“Closing”) shall take place on the Closing Date, which date shall be no later than the
second business day following the satisfaction or waiver of the conditions set forth in
Articles VI and VII (other than those that by their terms are to be
satisfied or waived at the Closing, but subject to satisfaction or waiver of those
conditions), at 10:00 a.m., Atlanta, Georgia time, at the offices of Kilpatrick Stockton
LLP, 1100 Peachtree Street NE, Suite 2800, Atlanta, Georgia 30309.



     1.3. Deliveries at the Closing. At the Closing, subject to the terms and
conditions hereof, each party hereto shall deliver to the appropriate parties
hereto each of the documents, certificates, instruments or evidences of satisfaction of
conditions required to be delivered by such party as a condition to Closing pursuant to
Articles VI and VII of this Agreement (including officers’ certificates
and receipts), each to be in the form attached hereto or as otherwise agreed by the
Parties. In addition, at the Closing, the Buyer shall pay to the Seller in accordance
herewith, the Purchase Price for all of the Interests. All payments shall be made on the
Closing Date by wire transfer of immediately available funds to the account(s) to be
designated by the Seller in writing and provided to the Buyer at least one (1) day prior
to the Closing Date. All transactions shall occur simultaneously at the Closing. If the
Closing does not occur, all



 









 







payments (if any) shall be repaid, all certificates shall be returned to the person
possessing such certificates on the Closing Date, and the transactions shall be deemed
not to have occurred.



     1.4. Purchase Price Adjustments. The Purchase Price shall be subject to
adjustment, and payments in respect thereof shall be made in accordance with this
Section 1.4.



          (a) At least five (5) business days prior to the Closing, the Company and the Seller
shall cause to be prepared and delivered to the Buyer a statement in the form attached
hereto as Schedule 1.4 (Working Capital) (the “Preliminary Working Capital
Statement”), setting forth the Working Capital as of the most recent month end prior to
Closing, as estimated by the Company in good faith (the “Estimated Working Capital”)
based upon the books and records of the Company determined in accordance with GAAP and
applying the terms of this Agreement. The Buyer shall have two (2) business days
following receipt thereof to review the Preliminary Working Capital Statement and notify
the Seller in writing on or prior to the expiration of such 2-day period of its
reasonable dispute with the Preliminary Working Capital Statement. If the Buyer does not
notify the Seller in writing on or prior to the expiration of the applicable 2-day period
of its disagreement with the Preliminary Working Capital Statement, the Preliminary
Working Capital Statement shall be final and binding on all parties for purposes of this
Section 1.4(a). If the Buyer disputes the Preliminary Working Capital Statement
by providing timely written notice of such dispute, then the Company, the Seller and the
Buyer shall use Commercially Reasonable Efforts to resolve and finally determine the
amount of the Estimated Working Capital. If the Company, the Seller and the Buyer are
unable to resolve their disagreement prior to the Closing, there shall be no adjustment
at Closing as contemplated by Section 1.4(b) and for all
purposes of Section 1.4(c) the phrase “Target Working Capital” shall be substituted for the
phrase “Estimated Working Capital,” and the calculations
contemplated by Section 1.4(c)shall be made accordingly.



          (b) At the Closing, in accordance with the Preliminary Working Capital Statement,
the Purchase Price shall be: (i) decreased on a dollar-for-dollar basis by the amount by
which the Estimated Working Capital is less than the Working Capital Target, if the
Estimated Working Capital is less than the Working Capital Target, or (ii) increased on a
dollar-for-dollar basis by the amount by which the Company’s accounts receivable (General
Ledger Account # 134285) exceeds One Million Two Hundred Fifty Thousand Dollars
($1,250,000.00) (the “Accounts Receivable Target”), if both (x) the Estimated Working
Capital is greater than the Working Capital Target and (y) the Company’s accounts
receivable is in excess of the Accounts Receivable Target; provided that in no
event shall any such increase in the Purchase Price be greater than the amount by which
the Estimated Working Capital exceeds the Working Capital Target. Any amounts due
pursuant to those Contracts set forth in Section 5.4(b)(xiii) of the Company Disclosure
Schedule shall be excluded for purposes of calculating Working Capital and the Company’s
accounts receivable (General Ledger Account # 134285). No adjustment will be made at the
Closing if the Estimated Working Capital and the Working Capital Target are equal.



          (c) As promptly as practicable, but in any event within thirty (30) days following
the Closing, the Buyer shall cause to be prepared and delivered to the Company and the
Seller a final statement in the form attached hereto as Schedule 1.4 (Working
Capital) (the “Final Working Capital Statement”) setting forth the Buyer’s
determination of Working



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Capital, determined in accordance with GAAP as of the Closing (the “Final Working
Capital”). The Company will assist the Buyer with the calculation of the Final Working
Capital. The Seller shall have thirty (30) days after receipt of the Final Working
Capital Statement to review such Final Working Capital Statement (the “Review Period”)
and notify the Buyer in writing of a dispute with the Final Working Capital Statement. If
the Seller does not notify the Buyer in writing on or prior to the expiration of the
Review Period of its disagreement with the Final Working Capital Statement, the Final
Working Capital Statement shall be final and binding on all parties. For purposes of the
Seller’s review of the Buyer’s calculations, the Buyer shall, and the Buyer shall cause
the Company to, cooperate with the Seller with respect to requests for information
related to the calculation of the Final Working Capital, including reasonable access to
employees, financial and other records of the Buyer, and all other information reasonably
related to or affecting such calculation. If (i) the Seller accepts the Final Working
Capital Statement by delivery of written notice of such acceptance to the Buyer or (ii)
the Seller fails to timely deliver any objection thereto (in which case it shall be
deemed to have accepted the Final Working Capital Statement as prepared by the Buyer),
then, to reflect a final adjustment to the Purchase Price, (i) the Buyer shall be paid an
amount equal to that amount, on a dollar-for-dollar basis, by which the Final Working
Capital is less than the Working Capital Target, if the Final Working Capital is less
than the Working Capital Target, or (ii) the Seller shall be paid an amount equal to that
amount, on a dollar-for-dollar basis, by which the Company’s accounts receivable (General
Ledger Account # 134285) is greater than the Accounts Receivable Target, if both (x) the
Final Working Capital is greater than the Working Capital Target and (y) the Company’s
accounts receivable is in excess of the Accounts Receivable Target; provided that
in no event shall any such payment to the Seller be greater than the amount by which the
Final Working Capital exceeds the Working Capital Target; provided,
further, that any amounts paid pursuant to Section 1.4(b) shall be
reimbursed, as the circumstances require, and shall be netted against or credited to, as
the case may be, all amounts to be paid pursuant to this Section 1.4(c). No
amount shall be payable by one party to the other if the Estimated Working Capital and
the Final Working Capital are equal. In each case, interest on any such amounts shall be
calculated using the prime rate of interest (as published in the “Money Rates” table of
the Eastern U.S. Edition of THE WALL STREET JOURNAL on the Closing Date) and calculated
beginning on the Closing Date and ending on the date of any such payment.



          (d) If the Seller disputes the Final Working Capital Statement by providing timely
written notice of such dispute (a “Notice of Disagreement”) prior to the expiration of
the Review Period, then the Company, the Seller and the Buyer shall use Commercially
Reasonable Efforts to resolve and finally determine the amount of the Final Working
Capital. The Notice of Disagreement delivered by the Seller shall set forth in reasonable
detail the basis for the dispute described in the Notice of Disagreement. The Parties
will be deemed to have agreed to all matters related to the calculation of the Final
Working Capital and all matters set forth in the Final Working Capital Statement not
specifically objected to in the Notice of Disagreement. If the Company, the Seller and
the Buyer are unable to resolve the disagreement within thirty (30) days following the
later of the delivery of the Notice of Disagreement or the expiration of the Review
Period, then the Company, the Seller and the Buyer shall retain Ernst & Young LLP (the
“Independent Accountant”), to resolve the disagreement and make a determination with
respect thereto. The Independent Accountant will be retained under a retention letter
executed by the Company, the Seller and the Buyer that specifies that the determination
of the Independent Accountant shall be made, and written notice thereof given to the
Company, the Seller and the



-3-









 







Buyer, within thirty (30) days following the date of the retention letter, and that the
determination by the Independent Accountant shall be final, binding and conclusive upon
the Company, the Seller and the Buyer. The scope of the Independent Accountant’s
engagement (which will not be an audit) shall be limited to the resolution of the
disputed items described in the Notice of Disagreement, and the recalculation, if any, of
the Final Working Capital Statement in light of such resolution. If an Independent
Accountant is engaged pursuant to this Section 1.4(d), the fees and
expenses of the Independent Accountant shall be borne fifty percent
(50%) by the
Buyer and fifty percent (50%) by the Seller. Within ten (10) days after delivery of a
notice of determination by the Independent Accountant as described above, any payment
required by Section 1.4(c) hereof shall be made, based on such determination.



ARTICLE II




REPRESENTATIONS AND WARRANTIES

REGARDING THE COMPANY



     The Seller represents and warrants to the Buyer as follows:



     2.1. Organization of the Company. The Company is a limited liability company
duly organized, validly existing and in good standing under the laws of the State
of Delaware. The Company has all requisite limited liability company power and authority
to own its properties and assets and to carry on its business as it is now being
conducted, and is in good standing (with respect to jurisdictions that recognize such
concept) and is duly qualified to transact business in each jurisdiction in which the
nature of property owned or leased by it or the conduct of its business requires it to be
so qualified, except where the failure to have such power or authority, to be in good
standing or to be duly qualified to transact business, would not reasonably be expected
to have a Material Adverse Effect. The Company has not conducted business under or
otherwise used any name other than as set forth in Section 2.1 of the Company Disclosure
Schedule (the “Company Disclosure Schedule”).



     2.2. Capitalization of the Company.



          (a) The authorized capitalization of the Company consists of all of the Interests,
and no other membership interests or securities of the Company are issued or outstanding.
All of the issued and outstanding Interests have been duly authorized and validly issued
and are fully paid and nonassessable. The Interests are not certificated. The Interests
are, and upon delivery to the Buyer pursuant to Article I hereof the Interests
will be, duly authorized and validly issued and fully paid and nonassessable and,
assuming the performance by the Buyer of its obligations hereunder in all respects
(without regard to materiality qualifiers for such obligations), free and clear of all
Encumbrances.



          (b) Except for the Operating Agreement, this Agreement and the transactions
contemplated hereby, and as set forth in Section 2.2(b) of the Company Disclosure
Schedule, there are no agreements, arrangements, calls, puts, rights, warrants, options
or employee benefit plans or other commitments or understandings of any character to
which the Company, to the knowledge of the Seller, or the Seller is a party relating to
the issuance, sale, purchase,



-4-









 







redemption, conversion, exchange, registration, voting or transfer of any Interests or
other securities of the Company.



          (c) The Company has provided to the Buyer a true and complete copy of the Operating
Agreement, the organizational documents and limited liability company member and
management committee records of the Company.



     2.3. Authority of the Company; Non-contravention.



          (a) The Company has all requisite power and authority to execute and deliver this
Agreement and the other Transaction Documents to which the Company will be a party, and
to consummate the transactions contemplated hereby and thereby, subject to the conditions
set forth herein. The execution, delivery and performance by the Company of this
Agreement and the other Transaction Documents to which the Company will be a party have
been or will be at Closing duly authorized by all requisite limited liability company
action on behalf of the Company and do not require any further authorization or consent
of the Company or its member. Each of this Agreement and the other Transaction Documents
to which the Company will be a party has been duly executed and delivered by the Company
and, assuming the due authorization, execution and delivery of this Agreement and the
other Transaction Documents by the Buyer and the Seller, as applicable, constitutes the
valid and binding obligation of the Company enforceable against the Company in accordance
with its terms subject to (i) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting creditors’ rights
and remedies generally and (ii) the effect of equitable principles.



          (b) Except as set forth in Section 2.3(b) of the Company Disclosure Schedule,
neither the execution and delivery of this Agreement or the other Transaction Documents
to which the Company will be a party, the consummation by the Company of any of the
transactions contemplated hereby or thereby, nor performance by the Company in accordance
with or fulfillment by the Company of the terms, conditions and provisions hereof or
thereof will:




          (i) violate any provision of the Company’s Certificate of Formation or
Operating Agreement;




          (ii) violate or conflict with, result in a breach of the terms,
conditions or provisions of or constitute a default, an event of default or
an event creating rights of acceleration, termination or cancellation or a
loss of rights under any mortgage, indenture, deed of trust, lease,
Contract, agreement, undertaking, license or other instrument or, any order,
award, writ, decree, judgment or ruling to which the Company is subject or,
to which any of the property of the Company is bound or, to the knowledge of
the Seller, result in the creation of any Encumbrance upon any of the assets
of the Company or the loss of any license or other contractual right with
respect thereto under any of the foregoing;




          (iii) contravene any material law, rule or regulation applicable to the
Company or any of its assets, or constitute an event permitting
modification, amendment or termination of a material Governmental Permit,



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order, arbitration award, judgment or decree to which the Company is a party
or by which it or any of its properties is bound; or




          (iv) require the approval, consent, authorization or act of, or the
making by the Company or any other person of any declaration, filing or
registration with, any person or any Governmental Authority (other than (x)
the notification and waiting period requirements of the HSR Act or (y) where
the failure to obtain such approval, consent, authorization or action, or to
make such declaration, filing or registration, would not prevent or
materially delay the consummation by the Seller or the Company of the
transactions contemplated hereby).



     2.4. Financial Statements.



          (a) Section 2.4(a) of the Company Disclosure Schedule contains true and correct
copies of the following financial statements of the Company (collectively, the “Financial
Statements”): (i) the unaudited balance sheet of the Company as of December 31, 2007 and
December 31, 2008 and the related statements of income of the Company for each of the
years then ended; and (ii) the unaudited balance sheet of the Company as of December 31,
2009 (the “Most Recent Balance Sheet”, and the date of the Most Recent Balance Sheet, the
“Most Recent Balance Sheet Date”) and the related statement of income for the year then
ended (the financial statements referred to in the foregoing clause (ii) are referred to
herein collectively as, the “Most Recent Financial Statements”). The Financial Statements
have been prepared from, and are in accordance with, the books and records of the
Company, which books and records have been maintained on a basis consistent with the past
practice of the Company. The Financial Statements (i) present fairly in all material
respects the financial condition and results of operation of the Company as of the dates
thereof or for the periods covered thereby and (ii) have been prepared in all material
respects in accordance with GAAP, consistently applied during the periods involved.



          (b) Since the Most Recent Balance Sheet Date, the Company has paid its accounts
payable in a consistent and timely manner and has not altered any of its practices,
policies or procedures in paying its accounts payable. No instance has occurred since the
Most Recent Balance Sheet Date requiring the Company to take any action with regard to
any account payable outside of the ordinary course of business. Section 2.4(b) of the
Company Disclosure Schedule sets forth a correct and complete aging of all accounts
payable of the Company as of the Most Recent Balance Sheet Date.



          (c) All accounts receivable of the Company reflected in the Most Recent Balance
Sheet and all accounts receivable of the Company that have arisen since the Most Recent
Balance Sheet Date (except such accounts receivable as have been collected since such
date) arose in the ordinary course of business, consistent with the Company’s past
practices and contractual requirements. To the knowledge of the Seller, after due inquiry
of appropriate persons within the Company and its Affiliates, and except as set forth in
Section 2.4(c) of the Company Disclosure Schedule, such accounts receivable are valid and
enforceable claims and are subject to no valid defense, offset or counterclaim. To the
knowledge of the Seller, after due inquiry, such accounts receivable are collectible,
except to the extent not material in amount and



-6-









 







to the extent of the allowance for doubtful accounts specifically set forth on the Most
Recent Balance Sheet and for the accounts set forth in Section 2.4(c) of the Company
Disclosure Schedule that have arisen since the Most Recent Balance Sheet, which allowance
and reserves are consistent in amount with the Company’s past accounts receivable
write-off policies in the ordinary course of business. Section 2.4(c) of the Company
Disclosure Schedule sets forth all accounts receivable of the Company that are greater
than or equal to ninety (90) days past due as of the Most Recent Balance Sheet Date.



     2.5. Absence of Certain Changes or Events. Since December 31, 2009, except
as set forth in Section 2.5 of the Company Disclosure Schedule, the Company has operated
its businesses only in the ordinary course, and there has not been any transaction or
occurrence which has resulted in or will reasonably be expected to result in a Material
Adverse Effect. Since December 31, 2009, except as set forth in Section 2.5 of the
Company Disclosure Schedule, and except as otherwise required or, with respect to the
period after the date hereof to the Closing, permitted by this Agreement:



          (a) no Person (including the Company) has accelerated, terminated or cancelled
(other than with respect to an agreement with a month-to-month term or as a result of the
expiration of the term of any agreement), or defaulted (other than as a result of a past
due account receivable in the ordinary course of business) on any of its material
obligations under any agreement, contract, lease or license (or series of related
agreements, contracts, leases and licenses) involving more than $250,000 annually to
which the Company is a party or by which it is bound;



          (b) the Company has not delayed, postponed or defaulted in the payment of material
accounts payable or other material liabilities, or paid, discharged or satisfied any
material liability, debt or obligation;



          (c) the Company has not cancelled, compromised, waived or released any right or
claim (or series of related rights and claims) involving more than $500,000 in any 12
month period outside of the ordinary course of business;



          (d) the Company has not granted any material increase in the compensation of any
officers or employees outside the ordinary course of business, or made any other material
change in employment terms for any such officers or employees outside the ordinary course
of business;



          (e) the Company has made all material expenditures in connection with the normal
maintenance, repair and replacement of the assets and properties used in the operations
of the Company’s business in accordance with the Company’s past custom and practice;



          (f) the Company has not materially changed any of the Company’s methods of
accounting or bookkeeping or any other accounting practices;



          (g) the Company has not entered into any material agreement, contract, lease, or
license or made any material capital expenditure outside the ordinary course of business;



-7-









 





          (h) the Company has not created, incurred, assumed, or guaranteed Indebtedness or
made any loans or advances of money to any Person;



          (i) the Company has not declared, set aside, or paid any dividend or made any
distribution with respect to its equity securities (whether in cash or in-kind) or
redeemed, purchased, or otherwise acquired any of its equity securities;



          (j) the Company has not entered into any Contract pursuant to which a customer
pre-pays for network services or capacity or any indefeasible rights of use or capacity
or infrastructure or any IRUs or lease-to-purchase Contracts (any such Contract, a
“LTOP”);



          (k) the Company has not discontinued offering any material services or selling any
material product;



          (l) the Company has not diminished or reduced the deferred franchise fees, security
deposits or other prepayments set forth under the “long-term assets and other deferred
debits” on the Most Recent Balance Sheet except, in the case of the deferred franchise
fees or other prepayments only, in the ordinary course of business or as is consistent
with past Company practice; and



          (m) the Company has not committed to do any of the foregoing.



     2.6. No Undisclosed Liabilities. Except as set forth in any of Sections
2.3(b), 2.6, 2.7, 2.14(a), 2.15(c) and 2.23 of the Company Disclosure Schedule,
the Company does not have any outstanding claims, liabilities or Indebtedness of any
nature, whether absolute, contingent, accrued or not accrued, regardless of whether or
not required to be disclosed in the Financial Statements (“Liabilities”), except (i)
Liabilities disclosed or reflected in the Financial Statements; (ii) immaterial
Liabilities incurred in the ordinary course of business after the Most Recent Balance
Sheet Date; (iii) Liabilities for Indebtedness that will be satisfied by Seller on or
prior to the Closing Date; (iv) Liabilities authorized or, with respect to the period
after the date hereof to the Closing, permitted pursuant to any of Sections 5.4,
5.8, 5.10 and 5.12; and (v) obligations under the Contracts set
forth in Sections 2.9(a), 2.10(a), 2.19(a) and 2.19(b) of the Company Disclosure Schedule
other than Liabilities arising out of a breach or default of any such Contract not
disclosed on Section 2.9(b) of the Company Disclosure Schedule.



     2.7. Litigation; Orders. As of the date hereof, except as set forth in
Section 2.7 of the Company Disclosure Schedule, there are no lawsuits, actions,
administrative or other proceedings or governmental investigations pending or, to the
knowledge of the Seller, threatened against the Company. As of the date hereof, except as
set forth in Section 2.7 of the Company Disclosure Schedule, there are no judgments or
outstanding orders, injunctions, decrees, stipulations or awards rendered by a
Governmental Authority against the Company or any of its properties or businesses.



     2.8. Compliance with Laws; Permits.



          (a) The Company is in compliance in all material respects with all applicable laws, regulations, orders, judgments and decrees. The Company holds, owns or possesses
all material governmental, regulatory and other filings, licenses, permits, approvals, registrations,



-8-









 







consents, franchises and concessions (collectively, “Governmental Permits”), as are
necessary for the ownership of the property and conduct of the business of the Company as
currently conducted. The Company is in compliance in all material respects with its
obligations under such Governmental Permits. To the knowledge of the Seller, during the
last two (2) years, none of such Governmental Permits has been challenged or revoked and
no statement of intention to challenge, revoke or fail to renew any such Governmental
Permit has been received by the Company.



          (b) The Company is the authorized legal holder or otherwise has rights to all
Governmental Permits required by the Federal Communications Commission (the “FCC”), any
State PUC or any other Governmental Authority that regulates telecommunications or
network elements in each jurisdiction in which the Company is operating (collectively,
“Communications Licenses”), and the Communications Licenses constitute all of the
licenses from the FCC, the State PUCs or any other Governmental Authority that regulates
telecommunications or network elements in each such jurisdiction that are necessary or
required for or used in the operation of the business as presently conducted by the
Company, other than such licenses from any municipal franchising authority or similar
Governmental Authority, the absence of which would not result in any fines, penalties, or
other losses in excess of $5,000 individually or $50,000 in the aggregate and which are
obtained in the ordinary course of business. All the Communications Licenses were duly
obtained and are valid and in full force and effect, and not subject to any material
condition, except those conditions that may be contained within the terms of such
Communications Licenses or related laws. No action by or before the FCC, any State PUC or
any other Governmental Authority that regulates telecommunications or network elements in
each applicable jurisdiction is pending or, to the knowledge of the Seller, threatened,
in which the requested remedy is (i) the revocation, suspension, cancellation, rescission
or modification or refusal to renew any Communications Licenses, or (ii) material fines
and/or forfeitures.



          (c) The Company does not currently provide and has not provided in the last three
(3) years any ethernet, optical carrier circuits, or wavelength services, or any other
type of “lit” services.



     2.9. Contracts.



          (a) Except as set forth in Sections 2.9(a), 2.19(a) or 2.19(b) of the Company
Disclosure Schedule, the Company is not a party to:




          (i) any contract, agreement, license or legally binding promise or
undertaking (a “Contract”) that involves the purchase or sale of goods or
services with a value, or involving recurring payments by or to the Company,
of more than $2.5 million per year;




          (ii) any employment or consulting Contract having a remaining term of
at least one (1) year and requiring payments of base salary in excess of
$200,000 per year or aggregate payments of base salary in excess of
$500,000, or any Contract relating to a change of control of the Company;



-9-









 






          (iii) any note, mortgage, indenture or other obligation or agreement or
other instrument for or relating to Indebtedness, or any guarantee by the
Company of third-party obligations, of $1 million or more effected by the
Company, or pursuant to which any Encumbrances (other than Permitted
Encumbrances) are created or imposed on any of the respective property or
assets of the Company;




          (iv) collective bargaining Contracts with any labor unions or
associations representing employees of the Company;




          (v) leases of personal property with an annual base rental obligation
of more than $1 million or a total remaining rental obligation of more than
$2 million;




          (vi) joint venture or partnership Contracts;




          (vii) any Contract with respect to network infrastructure or
indefeasible rights of use of capacity or infrastructure (any such Contract,
an “IRU”) or LTOP, each with a remaining term of more than twenty (20)
years;




          (viii) lease Contracts resulting in receivables owed to the Company in
excess of $1 million;




          (ix) non-competition Contracts or any other Contracts or obligations
which purport to limit in any material respect (A) the manner in which, or
the localities in which, the Company’s business may be conducted or
(B) the ability of the Company to provide any type of service;




          (x) Contracts containing any exclusivity clause, most-favored nations
clause, benchmarking clause or marked-to-market pricing provision;




          (xi) licenses, sublicenses or other Contracts of patents, trademarks or
other material Intellectual Property rights of the Company; and




          (xii) licenses, sublicenses, or other Contracts pursuant to which the
Company uses any material item of Intellectual Property owned by a third
party, not including Contracts pertaining to any Intellectual Property
deemed to be “off the shelf” or in the “public domain.”



          (b) Except as set forth in Section 2.9(b) of the Company Disclosure Schedule, none
of the Company or, to the knowledge of the Seller, any other party is in breach of or
default under, and no event has occurred which with notice or lapse of time, or both,
would become a breach of or default under, any Contract, agreement or instrument
identified in Section 2.9(a) and Section 2.9(c), except for immaterial
breaches or defaults that will not and could not reasonably be expected to result
in the termination, modification, amendment, or creation of any Liability under any such
Contract, agreement or instrument.



-10-









 





          (c) Section 2.9(c) of the Company Disclosure Schedule sets forth the top 50 (based
on annual revenue) customers of the Company and the associated Contracts which are not
terminable on twelve (12) months’ (or less) notice.



     2.10. Real Property.



          (a) The only real properties leased or subleased by the Company (as lessee or
sublessee) as of the date hereof are identified in Section 2.10(a) the Company Disclosure
Schedule, and are hereinafter collectively referred to as the “Leased Properties.” The
Company holds good and valid leasehold title to each of the Leased Properties, in each
case in accordance with the provisions of the applicable lease or sublease for such
Leased Property (each, a “Lease”) and free of all Encumbrances, except for Permitted
Encumbrances and except for Encumbrances that would not reasonably be expected to have a
Material Adverse Effect. Other than such exceptions as would not reasonably be expected
to have a Material Adverse Effect, and except as set forth in Section 2.10(a) of the
Company Disclosure Schedule, to the knowledge of the Seller, (i) all of the Leases are in
full force and effect and grant in all material respects the leasehold estates or rights
of occupancy or use they purport to grant; (ii) the occupancy by the Company under each
Lease is in compliance in all material respects with all applicable laws, rules,
regulations and ordinances relating to occupancy; (iii) there are no pending or
threatened condemnation proceedings with respect to any of the Leased Properties; and
(iv) the Company has not, within the last two (2) years, received any written notice from
any insurance company that has issued a policy with respect to any of the Leased
Properties requesting performance of any structural or other repairs or alterations
thereto. Except as identified in Section 2.10(a) of the Company Disclosure Schedule or
for such occurrences or defaults that would not reasonably be expected to have a Material
Adverse Effect, there are no existing defaults (on the part of the Company or, to the
knowledge of the Seller, any other party thereto) under any Lease, and no event has
occurred which, with notice, lapse of time or both, would constitute a default (on the
part of the Company or, to the knowledge of the Seller, any other party thereto) under
any Lease.



          (b) The Company does not own any real property that is used in the conduct
of its business.



     2.11. Environmental Matters. Except as set forth in Section 2.11 of the
Company Disclosure Schedule and for matters that would not reasonably be expected to have
a Material Adverse Effect, to the knowledge of the Seller, (a) the Company has not
generated, released, used, treated or stored, or transported any Hazardous Materials, in
connection with its business, except to the extent such action is not in violation of any
Environmental Laws, (b) the Company has not violated any Environmental Laws or the
requirements of any permits issued under such Environmental Laws with respect to any
Leased Properties, (c) there are no past, pending or threatened Environmental Claims
against the Company or any Leased Property, and (d) except as permitted by, or as would
not result in any liability under, any Environmental Laws, there are not now and there
have not been underground storage tanks located on any Leased Property.



     For purposes of this Agreement, the following terms shall have the following
meanings:
(A) “Hazardous Materials” means (i) any petroleum or petroleum products, radioactive
materials, asbestos in any form that is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid containing
levels of



-11-









 







polychlorinated biphenyls, and radon gas and (ii) any chemicals, materials or substances
defined as “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous
wastes,” “toxic substances,” “toxic pollutants,” or words of similar import, under any
applicable Environmental Law; (B) “Environmental Law” means any foreign, federal, state
or local statute, law, rule, regulation, ordinance, code, policy or rule of common law in
effect and, in each case, as amended as of the date hereof and the Closing, and any
judicial or administrative interpretation thereof as of the date hereof and the Closing,
including any judicial or administrative order, consent decree or judgment, relating to
the environment, health, safety or Hazardous Materials, including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §
9601 et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §
6901 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. §
1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.;
the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Safe Drinking Water Act, 42
U.S.C. § 3808 et seq.; and
(C) “Environmental Claims” means any and all Claims relating in any way to any
Environmental Law or any permit issued under any such Environmental Law.



     2.12. Intellectual Property.



          (a) Section 2.12(a) of the Company Disclosure Schedule contains a complete and
correct list of all United States and foreign patents, patent applications, statutory
invention registrations, designs, inventions and other industrial property rights;
trademarks, service marks, trade names, trade dress, logos, and other marks and names
including registrations and applications for the registration thereof; copyrights
(including computer software programs); Internet domain name registrations; Internet web
sites, web content, and registrations and applications for registrations thereof;
confidential and proprietary information, including know-how and trade secret rights,
technologies, techniques and processes; computer software, programs and databases in any
form, all versions, updates, corrections, enhancements, replacements, and modifications
thereof, and all documentation and licenses related thereto; and rights of privacy,
publicity and endorsement, in each case under the laws of any jurisdiction in the world,
and including rights under and with respect to all applications, reexamination
applications, registrations, continuations, continuations-in-part, divisions, renewals,
extensions and reissues of the foregoing which are material to the business of the
Company (the “Intellectual Property”), including, if applicable, the date of issuance or
registration, serial, patent or registration number, the date of application, the
expiration date and the country of registration of such items of Intellectual Property
and any material licenses thereunder.



          (b) Except as set forth in Section 2.12(b) of the Company Disclosure Schedule and
for matters that would not reasonably be expected to have a Material Adverse Effect, the
right, title or interest of the Company in each item of Intellectual Property is free and
clear of Encumbrances except for Permitted Encumbrances.



          (c) Except as set forth in Section 2.12(c) of the Company Disclosure Schedule and
for matters that would not reasonably be expected to have a Material Adverse Effect, the
Company has not received any written notice or assertion that is currently pending to the
effect that the Company has infringed, may have infringed or may be infringing any
patent, trademark, service mark, trade name, copyrights, brand name, logo, symbol or
other intellectual property right of any third party, nor is there any action, pending
or, to the knowledge of the Seller,



-12-









 







threatened, against the Company claiming that the Company has infringed any trade secret
or misappropriated any other intellectual property.



          (d) Except as set forth in Section 2.12(d) of the Company Disclosure Schedule and
for matters that would not reasonably be expected to have a Material Adverse Effect, the
Company has not sent or otherwise communicated to another person any notice, charge,
claim or other assertion of, nor does the Seller have any knowledge of, any present,
impending or threatened infringement of any Intellectual Property.



          (e) Except as set forth in Section 2.12(e) of the Company Disclosure Schedule and
for matters that would not reasonably be expected to have a Material Adverse Effect, the
Company has the right to use the Intellectual Property as currently used by the Company.



          (f) The Company has not purchased any material telecommunications equipment without
procuring the applicable software license for the embedded software in such equipment.



     2.13.
Labor Relations. There are no pending or, to the knowledge of the
Seller, threatened material labor grievances or unfair labor practice claims or
charges against the Company. As of the date hereof, (i) to the knowledge of the Seller,
there are no organizing efforts by any union or other group seeking to represent any
employees of the Company; and (ii) there are no strikes or other material labor disputes
against the Company pending or, to the knowledge of the Seller, threatened. The Company
has properly classified all service providers as employees or independent contractors, as
applicable.



     2.14. Taxes.



          (a) Except as set forth in Section 2.14(a) of the Company Disclosure Schedule, (i)
at all times since December 18, 2002, the Company has been properly treated as a domestic
corporation for United States Federal income tax purposes, (ii) AGL Resources, Seller or
the Company has duly filed with the appropriate Governmental Authorities all federal,
state and local Returns and all other material Returns required to be filed by, or with
respect to, the Company; (iii) to the knowledge of the Seller, such Returns are true,
correct and complete; (iv) the Company has paid in full, or has made adequate provision
in the Most Recent Financial Statements for, all Taxes of the Company shown to be due on
such Returns; and (v) the Company has not received any written notice of deficiency or
assessment from any Taxing Authority with respect to liabilities for Taxes of the Company
which has not been fully paid or finally settled.



          (b) Except as set forth on Section 2.14(b) of the Company Disclosure Schedule,
Company is not currently the beneficiary of any extension of time within which to file
any Return. There are no Liens for Taxes (other than Taxes not yet due and payable) upon
any of the Company’s assets. Company has withheld and paid all Taxes required to have
been withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder, or other third party, and all Forms W-2
and Forms 1099 required with respect thereto have been properly completed and timely
filed.



-13-









 





          (c) There is no material dispute or claim concerning any Tax liability of the
Company that has been raised by any Taxing Authority and as to which the Seller has
knowledge based on contact with such Tax Authority (in writing or otherwise).



          (d) Section 2.14(d) of the Company Disclosure Schedule lists all federal, state,
local, and any non-U.S. income tax Returns filed with respect to the Company for taxable
periods ended on or after December 31, 2006, indicates those Returns that have been
audited, and indicates those Returns that currently are the subject of an audit. Seller
or the Company has delivered to Buyer correct and complete copies of all federal income
tax returns, examination reports, and statements of deficiencies assessed against, or
agreed to by Company since December 31, 2006. The Company has not waived any statute of
limitations in respect of Taxes or agreed to any extension of time with respect to a Tax
assessment or deficiency.



          (e) Except as set forth in Section 2.14(e) of the Company Disclosure Schedule, (i)
at all times since the original formation of the Company, AGL Resources, along with
members of AGL Resources’ affiliated group, have owned all the outstanding interests of
the Company, (ii) the Company is not a party to or bound by any Tax allocation or Tax
sharing agreement, (iii) the Company has not been a member of an affiliated group filing
a consolidated federal income Tax return (other than a group the common parent of which
was AGL Resources), and (iv) the Company has no liability for the Taxes of any Person
(other than members of AGL Resources’ affiliated group) under Treasury Regulation Section
1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or
successor, by contract or otherwise.



          (f) The unpaid Taxes of the Company (i) did not, as of December 31, 2009, exceed the
reserve for Tax liability (rather than any reserve for deferred Taxes established to
reflect timing differences between book and Tax income) set forth on the face of the Most
Recent Balance Sheet (rather than in any notes thereto) and (ii) will not exceed that
reserve as adjusted for operations and transactions through the Closing Date in
accordance with past custom and practice of the Seller and the Company in filing their
Returns.



          (g) In the event that no Section 338(h)(10) Election, as defined in Section 5.14(l)
hereof, is made by Buyer and Seller with respect to the Interests Purchase, the Company
will not be required to include any item of income in, or exclude any item of deduction
from, taxable income for any taxable period (or portion thereof) ending after the Closing
Date as a result of any: (i) change in method of accounting for a taxable period ending
on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of
the Code (or any corresponding or similar provision of state, local, or non-U.S. income
Tax law); (iii) installment sale or open transaction disposition made on or prior to the
Closing Date; or (iv) pre-paid amount received on or prior to the Closing Date.



          (h) Since December 31, 2005, the Company has not distributed stock of another
Person, or had its stock distributed by another Person, in a transaction that was
purported or intended to be governed in whole or in part by Section 355 of the Code or
Section 361 of the Code.



-14-









 





          (i) The Company has not been a party to any “listed” or “reportable” transaction as
such terms are defined in Section 6707A(c) of the Code and Treasury Regulation Section
1.6011-4(b).



          (j) For purposes of this Agreement, “Tax” or “Taxes ” means any federal, state,
local, or non-U.S. income, gross receipts, payroll, employment, excise, occupation,
premium, windfall profits, environmental, franchise, profits, withholding, social
security (or similar), unemployment, real property, personal property, sales, use, value
added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever,
including any interest, penalty, or addition thereto, whether disputed or not.



          (k) For purposes of this Agreement, “Return” shall mean any return, report,
information return, form, written declaration, written statement or other document
(including any related or supporting information) with respect to Taxes.



     2.15. ERISA.



          (a) Section 2.15(a) of the Company Disclosure Schedule lists all “employee benefit
plans” (as defined in Section 3(3) of ERISA) and all bonus, stock option, stock purchase,
restricted stock, incentive, deferred compensation, retiree medical or life insurance,
supplemental retirement, stay-bonus, severance, tuition assistance, vacation, fringe
benefit or other similar benefit plans, programs or arrangements, and all employment,
termination, severance, consulting or other contracts or agreements to which the Company
is a party, with respect to which the Company has or could have any obligation or which
are maintained, contributed to or adopted by the Company for the benefit any current or
former employee, officer or director of the Company (collectively, the “Plans”).



          (b) The Company and its ERISA Affiliates have filed all material reports required to
be filed with the PBGC or the IRS under applicable provisions of ERISA and the Code.



          (c) Except as set forth in Section 2.15(c) of the Company Disclosure Schedule, the
Company and its ERISA Affiliates have not incurred any liability under Title IV of ERISA
with respect to the Plans other than premiums due to the PBGC in the ordinary course or
liabilities that would reasonably be expected to have a Material Adverse Effect, and to
the knowledge of the Seller, no fact or event exists that could reasonably be expected to
give rise to any such liability. Except as set forth in Section 2.15(c) of the Company
Disclosure Schedule and for matters that would not reasonably be expected to have a
Material Adverse Effect, no “reportable event,” as such term is used in Section 4043 of
ERISA, “accumulated funding deficiency,” as such term is used in Section 412 or 4971 of
the Code or Section 302 of ERISA, or application for or receipt of a waiver from the IRS
of any minimum funding requirement under the Code has occurred with respect to any Plan.



          (d) Each Plan that is intended to be qualified under Section 401(a) of the Code is
so qualified and has timely applied for or is the subject of a favorable determination
letter from the IRS covering all of the provisions for which an “on-cycle” determination
letter with respect to the Plan is available.



-15-









 





          (e) Except as set forth in Section 2.15(c) of the Company Disclosure Schedule, no
withdrawal liability has been incurred by or asserted against the Company or any ERISA
Affiliate with respect to any “multiemployer plan” (as defined in Section 3(37) of
ERISA), and to the knowledge of the Seller, there are no facts or conditions existing
that could reasonably be expected to give rise to such liability, in either case which
could reasonably be expected to result in a Material Adverse Effect.



          (f) None of the Plans promises or provides retiree medical or life insurance
benefits to any employee of the Company, except for continuation coverage required by
Section 4980B of the Code or Part 6 of Title I of ERISA.



          (g) None of the Plans provides for payment of a material benefit, the material
increase of a benefit amount, the material payment of a contingent benefit, or the
acceleration of the payment or vesting of a material benefit by reason of the execution
of this Agreement or the consummation of the transactions contemplated hereby, with
respect to any employee of the Company.



          (h) Each Plan has been operated in all material respects in accordance with its
terms and the requirements of applicable law.



          (i) All material contributions, premiums or payments required to be made with
respect to any Plan have been made on or before their respective due dates.



          (j) There are no material pending claims relating to the Plans, other than routine
claims for benefits payable in the normal operation of the Plans.



     2.16. Finders. Except with respect to the services of SunTrust Robinson
Humphrey, as financial advisor, neither the Company nor any party acting on its
behalf has paid or become obligated to pay any fee or commission to any broker, finder or
intermediary for or on account of the transactions contemplated by this Agreement.



     2.17. Transactions with Affiliates. As of
the date hereof, except as set forth in Section
2.17 of the Company Disclosure Schedule, and except with respect to transactions
involving SunTrust Robinson Humphrey in its capacity as financial advisor to the Company
and the Seller, no member, Representative or officer is currently directly or indirectly
a party to any transaction with the Company, including any agreement, arrangement or
understanding, written or oral, providing for the employment of, furnishing of services
by, rental of real or personal property from or otherwise requiring payment to any such
member, Representative or officer.



     2.18. Subsidiaries. The Company does not control, directly or indirectly, or
have any direct or indirect equity participation or similar interest in, any
corporation, partnership, limited liability company, joint venture, trust or other
business association or entity.



     2.19. Major Customers and Suppliers.



          (a) Section 2.9(c) of the Company Disclosure Schedule sets forth a list of the top
twenty (20) customers of the Company, by dollar amount of revenue received during the
calendar year 2009 (collectively, the “Major Customers”) and a list of any Contracts
between



-16-









 







the Company and any such Major Customer. Other than as set forth on Section 2.19(a) of
the Company Disclosure Schedule, since October 1, 2009, no Major Customer has expressed
in writing, and, to the Seller’s knowledge, after due inquiry of appropriate persons
within the Company and its Affiliates, no Major Customer has expressed orally, to the
Company its intention to cancel or otherwise terminate its relationship with the Company
or materially reduce its contracted monthly recurring revenue to the Company. The Company
has not violated or breached, or declared or committed any default under, any Contract
with a Major Customer and, to the knowledge of the Seller, after due inquiry of
appropriate persons within the Company and its Affiliates, no Person has violated or
breached, or declared or committed any default under, any Contract with a Major Customer
(including the violation, breach or default of any “most favored nation” or other similar
provision in such Contracts).



          (b) Section 2.19(b) of the Company Disclosure Schedule sets forth a list of the top
twenty (20) suppliers of the Company, by dollar amount of expenditures made during the
calendar year 2009 (collectively, the “Major Suppliers”) and a list of any Contracts
between the Company and any such Major Supplier. Since January 1, 2010, no Major Supplier
has expressed in writing, and, to the Seller’s knowledge, after due inquiry of
appropriate persons within the Company and its Affiliates, no Major Supplier has
expressed orally, to the Company its intention to cancel or otherwise terminate its
relationship with the Company or materially reduce its relationship with the Company. The
Company has not violated or breached, or declared or committed any default under, any
Contract with a Major Supplier and, to the knowledge of the Seller, after due inquiry of
appropriate persons within the Company and its Affiliates, no Person has violated or
breached, or declared or committed any default under, any Contract with a Major Supplier
(including the violation, breach or default of any “most favored nation” or other similar
provision in such Contracts).



     2.20. Network Facilities and Operations.



          (a) Section 2.20(a) of the Company Disclosure Schedule sets forth, for the Company’s
current operations, a complete list of material network outages and material network and
collocation service unavailability and customer service credits owed for the period of
one year prior to the date hereof.



          (b) Section 2.20(b) of the Company Disclosure Schedule sets forth the following
information relating to the Company’s network: (A) a description of fibers and fiber
miles owned or leased, including (1) the identity of the underlying provider and (2) to
the knowledge of the Seller, the percentage of the route that is aerial or buried, (B) a
list of the net fibers available for internal use by route (calculated as the number of
fibers owned or leased less the fibers sold or subject to IRUs with third parties less
fibers lit by the Company), (C) the number of conduits available and in use, and (D) any
pending sale of any of the foregoing. The information provided in Section 2.20(b) of the
Company Disclosure Schedule is accurate and complete in all material respects.



          (c) Each of the network and collocation facilities described in Section 2.20(c) of
the Company Disclosure Schedule, and the Company’s network and collocation facilities
taken as a whole, is, in all material respects, working, functional, fit for the purpose
intended, has



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been maintained, subject to ordinary wear and tear, in good working condition and is
without any material defects for purposes of operating the business as operated by the
Company.



     2.21. Assets of the Company. The Company owns, has a valid leasehold
interest in, or holds under a valid license or other right to use, the material
assets used in the Company’s business, including the Network Assets, free and clear of
any Encumbrances, other than Permitted Encumbrances. Each of Sections 2.20(b) and 2.20(c)
of the Company Disclosure Schedule identifies and lists the principal network-related
assets of the Company used in its business (the “Network Assets”). The Network Assets are
(i) adequate to conduct the principal network operations of the Company’s business in the
manner currently conducted by the Company, and (ii) in the case of tangible personal
property, in reasonably good condition and repair, ordinary wear and tear excepted. No
Person other than the Company owns any assets or properties which are used or held for
use by the Company in, and are material to the principal operation of, the Company’s dark
fiber network.



     2.22. Insurance. Section 2.22 of the Company Disclosure Schedules lists all
of the policies of insurance currently maintained by the Company, the Seller and
their respective Affiliates that cover the operations, property and Assets of the Company
(collectively, the “Insurance Policies”) and describes any written notice of any material
increase of premiums with respect to, or cancellation or nonrenewal of, any of the
Insurance Policies. There are no material claims by the Company, the Seller or their
respective Affiliates under any of the Insurance Policies relating to the business,
Network Assets, or properties of the Company as to which any insurance company is denying
liability or defending under a reservation of rights or similar clause. The Company has
complied in all material respects with each of the Insurance Policies and has not failed
to give any material notice or present any material claim thereunder in a due and timely
manner.



     2.23. Bank Accounts. Section 2.23 of the Company Disclosure Schedule lists
each bank, trust company, savings institution, brokerage firm, mutual fund or
other financial institution with which the Company has an account or safe deposit box
relating to the Company and the identification of all Persons authorized to draw thereon
or to have access thereto. The Company has no financial interest, signature authority, or
other authority over any financial accounts, including bank securities, or other types of
financial accounts, in a foreign country in which the aggregate value of all such
financial accounts exceeded $10,000 at any time during any calendar year.



ARTICLE III




REPRESENTATIONS AND WARRANTIES OF THE SELLER



     Seller represents and warrants to the Buyer as follows:



     3.1. Authority; Ownership of Interests.



          (a) The Seller has all requisite corporate power and authority to execute and
deliver this Agreement and the other Transaction Documents to which the Seller will be a
party, to perform its obligations hereby and thereby and to consummate the transactions
contemplated



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hereby and thereby, subject to the conditions set forth herein. The Seller is a
corporation duly organized, validly existing and in good standing under the laws of the
State of Georgia. The execution, delivery and performance by the Seller of this Agreement
and the other Transaction Documents to which the Seller will be a party have been duly
authorized by all requisite corporate action and do not require any further authorization
or consent of the Seller or its stockholders. Each of this Agreement and the other
Transaction Documents to which the Seller will be a party has been duly executed and
delivered by the Seller, and, assuming the due authorization, execution and delivery of
this Agreement and the other Transaction Documents by each of the Company and the Buyer,
as applicable, constitutes the valid and binding obligation of the Seller enforceable in
accordance with its terms, subject to (i) the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights and remedies generally and (ii) the effect of equitable principles.



          (b) The Seller is the sole record and beneficial owner of all of the Interests.
Except for this Agreement and the transactions contemplated hereby and except for the
Operating Agreement and as set forth in Section 3.1(b) of the Company Disclosure
Schedule, there are no agreements, arrangements, warrants, options, puts, calls, rights
or other commitments or understandings of any character to which the Seller is a party or
by which any of the Seller’s assets are bound and relating to the issuance, sale,
purchase, redemption, conversion, exchange, registration, voting or transfer of any
Interests or other securities of the Company. As of the Closing Date, and upon the
purchase by the Buyer of the Interests, all such agreements, arrangements, warrants,
options, puts, calls, rights or other commitments or understandings of the Seller set
forth in Section 3.1(b) of the Company Disclosure Schedule shall be terminated (to the
extent related to Seller’s Interests) without any liability to the Buyer or to the
Company. Upon consummation of the Interests Purchase pursuant to this Agreement at the
Closing, as contemplated by this Agreement, all rights, title and interests of the Seller
to the Interests to be sold by the Seller will be delivered to the Buyer, free and clear
of any Encumbrances.



     3.2. Brokers, Finders, etc. Except for the services of SunTrust Robinson
Humphrey, (whose fees and expenses will be paid for by the Seller), the Seller
has not employed, and is not subject to any valid claim of, any broker, finder,
consultant or other intermediary in connection with the transactions contemplated by this
Agreement who might be entitled to a fee or commission in connection with such
transactions.



     3.3. Absence of Proceedings. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Seller, threatened against the
Seller which might adversely affect or restrict his or its ability to consummate the
transactions contemplated by this Agreement.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF THE BUYER



     The Buyer hereby represents and warrants to the Company and the Seller as follows:




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     4.1. Organization of the Buyer. The Buyer is a limited liability
company duly organized, validly existing and in good standing under the laws of
the jurisdiction of its formation and has full limited liability company power and
authority to own or lease and to operate and use its properties and assets and to carry
on its business as now conducted.



     4.2. Authority of the Buyer; Non-contravention.



          (a) The Buyer has all requisite limited liability company power and authority to
execute and deliver this Agreement and the other Transaction Documents to which the Buyer
will be a party, and to consummate the transactions contemplated hereby and thereby,
subject to the conditions set forth herein. The execution, delivery and performance by
the Buyer of this Agreement and the other Transaction Documents to which the Buyer will
be a party have been or will be prior to Closing duly authorized by all requisite limited
liability company action on behalf of the Buyer and do not require any further
authorization or consent of the Buyer or its members. Each of this Agreement and the
other Transaction Documents to which the Buyer will be a party has been duly executed and
delivered by the Buyer and, assuming the due authorization, execution and delivery of
this Agreement and the other Transaction Documents by the Company and the Seller, as
applicable, constitute the legal, valid and binding obligation of the Buyer enforceable
in accordance with its terms subject to (i) the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights and remedies generally and (ii) the effect of equitable principles.




          (b) Neither the execution and delivery by the Buyer of this Agreement or the other
Transaction Documents to which the Buyer will be a party, the consummation by the Buyer
of any of the transactions contemplated hereby or thereby, nor performance by the Buyer
in accordance with or fulfillment by the Buyer of the terms, conditions and provisions
hereof or thereof will:





          (i) violate any provision of the Buyer’s certificate of formation or
operating agreement;




          (ii) violate or conflict with, result in a breach of the terms,
conditions or provisions of, or constitute a default, an event of default or
an event creating rights of acceleration, termination or cancellation or a
loss of rights under any material mortgage, indenture, deed of trust, lease,
contract, agreement, undertaking, license or other material instrument, or
any material judgment, order, award or decree, to which the Buyer is a party
or any of its properties is subject or by which the Buyer is bound;




          (iii) contravene any material law, rule or regulation applicable to the
Buyer or any of its assets, or constitute an event permitting modification,
amendment or termination of a material Governmental Permit, order,
arbitration award, judgment or decree to which the Buyer is a party or by
which it or any of its properties is bound; or




          (iv) require the approval, consent, authorization or act of, or the
making by the Buyer or any other person of any declaration, filing or
registration



-20-









 






with, any person or any Governmental Authority (other than (x) the
notification and waiting period requirements of the HSR Act or (y) where the
failure to obtain such approval, consent, authorization or action, or to
make such declaration, filing or registration, would not prevent or
materially delay the consummation by the Buyer of the transactions
contemplated hereby).



     4.3. Brokers, Finders, etc. Neither the Buyer nor any party acting on its
behalf has employed, paid or become obligated to pay any fee or commission to any
broker, finder, consultant or other intermediary in connection with the transactions
contemplated by this Agreement who might be entitled to a fee or commission from any
Seller or the Company in connection with such transactions.



     4.4. Absence of Proceedings. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Buyer, threatened against the
Buyer which might adversely affect or restrict the Buyer’s ability to consummate the
transactions contemplated in this Agreement.



     4.5. Investment Intent. The Buyer is an “accredited investor” (as defined in
Rule 501 of Regulation D promulgated by the Securities and Exchange Commission).
The Buyer is acquiring the Interests for investment and not with a view toward or for
sale in connection with any distribution thereof, or with any present intention of
distributing or selling the Interests. The Buyer agrees that the Interests may not be
sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of
without, to the extent applicable, compliance with the Securities Act and without
compliance with foreign securities laws, in each case.



     4.6. Financial Capability. The Buyer has, and will have at the Closing,
unrestricted and immediately available funds sufficient to consummate the
transactions contemplated hereby, including the transactions contemplated by Sections
1.1 and 8.1(v) hereof.



     4.7. No Outside Reliance. The Buyer has not relied and is not relying upon
any statement or representation not made in this Agreement or a Schedule hereto
or any certificate or document required to be provided by the Company or the Seller
pursuant to this Agreement. In making its decision to execute and deliver this Agreement
and to consummate the transactions contemplated hereby and thereby, the Buyer has relied
solely upon the representations, warranties and covenants of the Company and the Seller
set forth herein and has not relied upon any other information provided by, for or on
behalf of the Company, or its agents or representatives, to the Buyer in connection with
the transactions contemplated by this Agreement.



     4.8. Solvency. Immediately after giving effect to the transactions
contemplated by this Agreement, assuming the accuracy of the Company’s
representations and warranties set forth in Article II, the Company and the
Buyer, taken as a whole, shall be Solvent. No transfer of property is being made and no
obligation is being incurred in connection with the transactions contemplated by this
Agreement with the intent to hinder, delay or defraud either present or future creditors
of the Buyer or the Company. For purposes of this Section 4.8, the term “Solvent”
with respect to the Company and the Buyer, taken as a whole, means that, immediately
after giving effect to the transactions contemplated by this Agreement, (a) the amount of
the fair



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saleable value of the assets of the Company, the Buyer, and any subsidiaries,
collectively taken as a whole, exceeds, as of such date, the sum of the value of all
liabilities of the Company, the Buyer, and any subsidiaries, collectively taken as a
whole and (b) the Company, the Buyer, and any subsidiaries, collectively taken as a
whole, will be able to pay its liabilities, including contingent and other liabilities,
as they mature.




     4.9. Due Diligence Investigation. In making its decision to execute and
deliver this Agreement and to consummate the transactions contemplated hereby and
thereby, the Buyer has relied solely upon the representations, warranties and covenants
of the Company and the Seller set forth herein and in the other Transaction Documents and
has not relied upon any other information provided by, for or on behalf of the Company,
or its agents or representatives, to the Buyer in connection with the transactions
contemplated by this Agreement. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE COMPANY AND
THE SELLER MAKE NO EXPRESS WARRANTY, NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, NOR ANY IMPLIED OR STATUTORY WARRANTY WHATSOEVER WITH
RESPECT TO THE COMPANY, ITS BUSINESS AND ANY OF ITS ASSETS OR PROPERTIES, INCLUDING ANY
REAL OR PERSONAL PROPERTY OR ANY FIXTURES.



ARTICLE V




ADDITIONAL COVENANTS



     The respective Parties hereto covenant and agree to take, or to cause the Company to
take, as the case may be, the following actions between the date hereof and the Closing
Date:



     5.1. Investigation of the Company by the Buyer; Confidential Information.



          (a) Upon reasonable advance notice, the Company shall afford to the officers,
employees and authorized representatives of the Buyer reasonable access during normal
business hours to the offices, properties, employees and business and financial records
(including computer files, retrieval programs and similar documentation) of the Company
to the extent the Buyer shall reasonably deem necessary and shall furnish to the Buyer,
or its authorized representatives, such additional information concerning the Company and
its properties, assets, businesses and operations as shall be reasonably requested,
including such information as shall be necessary to enable the Buyer or its
representatives to verify the accuracy of the representations and warranties contained in
Article II, to verify that the covenants of the Company in Section 5.4
have been complied with and to determine whether the conditions set forth in Article
VI have been satisfied, and to conduct reasonable integration planning and associated
activity; provided that such access, investigation and information shall not impair or
limit in any way whatsoever Buyer’s rights and remedies pursuant to the terms of this
Agreement. The Buyer covenants that such access, integration planning and investigation
shall be conducted in such a manner as not to interfere unreasonably with the businesses
or operations of the Company or the Seller.




          (b) Any information provided to the Buyer or its representatives pursuant to this
Agreement shall be held by the Buyer and its representatives in accordance with, and
shall




          
-22-









 








be subject to the terms of, the Confidentiality Agreement, dated December 2, 2009,
by and between Seller’s parent entity AGL Resources, and the Buyer (the “Confidentiality
Agreement”), which terms are hereby incorporated in this Agreement by reference as though
fully set forth herein.




          (c) After the Closing Date, the Seller shall be entitled to retain a copy of such
Company Confidential Information as the Seller reasonably determines is necessary for
internal compliance purposes or is required to be retained by the Seller pursuant to
applicable law. The Seller acknowledges and agrees that the protection of the Company
Confidential Information is necessary to protect and preserve the value of the assets of
the Company. Therefore, on and after the Closing Date and for a period of three (3) years
thereafter, except with respect to any Contracts with customers (and any pricing or other
customer information related thereto) for which the applicable period shall end upon the
later of the three (3) year anniversary of the Closing Date, the termination or
expiration of such Contract and the termination of any confidentiality covenant binding
the Company in such Contract, the Seller shall not (and shall take such action necessary
to cause the Seller’s Affiliates and their respective directors, managers, members,
employees, agents, officers and independent contractors not to): (i) disclose, to any
Person or use for the Seller’s own account, or for the benefit of any third party (other
than the Buyer and its Affiliates), any Company Confidential Information, whether or not
such information is embodied in writing or other physical form without the Buyer’s
express prior written consent; or (ii) use or reproduce any Company Confidential
Information in any manner. Nothing contained herein shall be deemed to prevent disclosure
of any of the Company Confidential Information if, in the reasonable opinion of the
Seller’s legal counsel (which may include in-house counsel), such disclosure is legally
required to be made; provided, however, the Seller shall give the Buyer
prompt written notice before so disclosing any such Company Confidential Information and,
in making such disclosure, the Seller shall disclose only that portion of the Company
Confidential Information required to be disclosed and shall take all reasonable efforts
to preserve the confidentiality of the Company Confidential Information, including
supporting the Buyer or the Company (at the Buyer’s expense) in any Proceeding by the
Buyer or the Company seeking to protect such Company Confidential Information. The Seller
acknowledges that the Buyer will have a proprietary interest in the Company Confidential
Information at and after the Closing Date. The Seller hereby acknowledges and agrees that
the Seller’s (or any of the Seller’s Affiliates and their respective directors, managers,
members, employees, agents, officers and independent contractors) disclosure of the
Company Confidential Information, other than as authorized by the prior written consent
of the Buyer, may result in irreparable injury and damages to the Buyer and its
Affiliates, and the Seller acknowledges and agrees that the Buyer is entitled to take
such actions as may be permissible under applicable law as the Buyer deems appropriate in
order to prevent the Seller (or any of the Seller’s Affiliates and their respective
directors, managers, members, employees, agents, officers and independent contractors)
from making disclosures of the Company Confidential Information.




     5.2. Commercially Reasonable Efforts; Obtaining Consents.



          (a) Prior to the Closing Date, subject to the terms and conditions herein provided,
each of the Seller and the Company, on the one hand, and the Buyer, on the other hand,
shall use Commercially Reasonable Efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper or advisable to consummate and
make





-23-









 







effective as promptly as practicable the transactions contemplated by this
Agreement, and shall cooperate with the other in connection with the foregoing, including
using Commercially Reasonable Efforts (i) to obtain all waivers, consents and approvals
from other parties to material loan agreements, leases and other Contracts and agreements
necessary for the consummation of the transactions contemplated hereby, (ii) to obtain
all consents, approvals and authorizations that are required to be obtained under any
federal, state or local law or regulation and to effect all necessary registrations and
filings and submissions of information requested or required by any Governmental
Authority in connection with the transactions contemplated hereby, (iii) to lift or
rescind any injunction or restraining order or other order adversely affecting the
ability of the parties hereto to consummate the transactions contemplated hereby, (iv) to
effect all necessary registrations and filings, including filings under the HSR Act, and
submissions of information required or requested by Governmental Authorities
(“Governmental Filings”), and (v) to fulfill all conditions to this Agreement;
provided that, no action (or inaction) by (A) the Seller or the Company shall be
deemed a waiver of any condition set forth in Article VII, and (B) the Buyer
shall be deemed a waiver of any condition set forth in Article VI.




          (b) To the extent reasonably requested by the Buyer, the Company shall cooperate
with the Buyer in connection with the filing of permits and licenses necessary for the
Company to continue to conduct its business following the Closing Date as now conducted.
The Company, the Seller and the Buyer further covenant and agree that each shall use
Commercially Reasonable Efforts to prevent the issuance, enactment, promulgation or entry
against such party or its affiliates of any threatened or pending preliminary or
permanent injunction or other restraining order, decree or ruling or statute, rule,
regulation or execution order or other similar order that would materially adversely
affect the ability of the parties hereto to consummate the transactions contemplated
hereby.




          (c) All filing fees required in connection with the application for or prosecution
of any consent, approval, authorization, registration, filing or submission in accordance
with Sections 5.2(a)(ii) or (iv) above (other than the initial filing fee
under the HSR Act) shall be borne one half by the Buyer and one half by the Seller. All
other fees, expenses and disbursements (including the costs of preparation of any such
filings) incurred in connection with the matters referred to in this Section 5.2
and in Section 5.3 shall be borne by the Buyer if incurred by or on its behalf
and by the Seller if incurred by or on behalf of the Company or the Seller;
provided, however, that the initial filing fee required under the HSR Act
shall be borne by the Buyer.




     5.3. Antitrust.



          (a) In furtherance and not in limitation of Section 5.2(a)(iv), each of the
Seller and the Buyer shall, as soon as practicable but in no event less than twenty (20)
days after the date of this Agreement, make any initial pre-merger filings required under
the HSR Act. Subject to the provisions of this Section 5.3, each of the Seller
and the Buyer shall use Commercially Reasonable Efforts to take such actions as may be
required to cause the expiration or termination of the notice periods under the HSR Act
with respect to the transaction contemplated by this Agreement.





-24-









 








          (b) The Company and the Seller, on the one hand, and the Buyer, on the other
hand, shall, to the extent permitted by applicable law, (i) promptly inform the other of
any material communication from the United States Federal Trade Commission, the
Department of Justice or any other Governmental Authority regarding any of the
transactions contemplated hereby, and (ii) consult and cooperate with one another, and
consider in good faith the views of one another, in connection with any analyses,
appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or
submitted by or on behalf of any Party in connection with Proceedings under or relating
to the HSR Act. If any such Party receives a request for additional information or
documentary material from any such Governmental Authority with respect to the
transactions contemplated hereby, then such Party will endeavor in good faith and use
Commercially Reasonable Efforts to make, or cause to be made, as soon as reasonably
practicable and after consultation with the other Parties, an appropriate response in
compliance with such request. The Company and the Seller, on the one hand, and the Buyer,
on the other hand will advise each other promptly in respect of any understandings,
undertakings or agreements (oral or written) which any such Party proposes to make or
enter into with the Federal Trade Commission, the Department of Justice or any other
Governmental Authority in connection with the transactions contemplated hereby.




          (c) Notwithstanding anything to the contrary set forth in Section 5.2 or
this Section 5.3 or elsewhere in this Agreement, it is expressly understood and
agreed that (i) the Buyer shall not have any obligation to litigate any
Proceeding that may be brought in connection with the transactions contemplated hereby,
and (ii) the Buyer shall not be required to agree to any divestiture by the Buyer or any
of its Affiliates, of any shares of capital stock, membership interests or any other
equity interests or of any business, assets, or property, or the imposition of any
limitation on the ability of any of them to conduct their businesses or to own or
exercise control of such assets, properties, stock, membership interests, or other equity
interests.




     5.4. Operations Prior to the Closing Date.



          (a) Except as otherwise permitted or required by the terms of this Agreement,
including Section 5.4 of the Company Disclosure Schedule, from the date hereof until the
Closing or termination of this Agreement, the Company shall (i) operate its business in
all material respects only in the ordinary course, (ii) use Commercially Reasonable
Efforts to preserve intact its present business organization, and preserve its
relationships with current customers and others having currently significant business
dealings with it, and (iii) use Commercially Reasonable Efforts to maintain the assets
used in the ordinary course of the businesses of the Company consistent with past
practice, reasonable wear and tear and damage by fire or other casualty excepted, and
(iv) provide written notice to the Buyer within five (5) business days following the
receipt by the Seller or the Company of any written or verbal communication (including
any formal notice) from a customer of the Company concerning any pre-payment rights,
terms or the exercise thereof under any Contract.




          (b) Notwithstanding Section 5.4(a), except as contemplated by Section 5.4 of
the Company Disclosure Schedule, the Company shall not, without the prior written consent
of the Buyer (which consent shall not be unreasonably withheld, conditioned or delayed):





          (i) amend its charter or operating agreement;



-25-









 






          (ii) issue or agree to issue (by the issuance or granting of options,
warrants or rights to purchase Interests or otherwise), transfer, sell or deliver
any Interests, any securities exchangeable for or convertible into Interests, or
any other equity securities of the Company;




          (iii) split, combine or reclassify any Interests or declare, set aside or
make any distribution (whether in cash, Interests or other property) in respect
of the Interests;




          (iv) redeem, purchase or otherwise acquire for any consideration any
outstanding Interests or sell, issue or dispose of any membership interests of
the Company;




          (v) incur any Indebtedness which exceeds $5 million in the aggregate or
amend, supplement or otherwise modify any instrument or agreement evidencing
Indebtedness in excess of $5 million of the Company, other than any Funded
Indebtedness (including intercompany Funded Indebtedness) that the Company shall
satisfy at or prior to the Closing and that shall not result in any obligation to
the Company or the Buyer after Closing;




          (vi) make any acquisition or disposition of assets not in the ordinary
course of business or in excess of $1 million, provided, however,
that the Company shall not transfer any fiber to the Seller or any of its
Affiliates;




          (vii) make any Capital Expenditure, or series of related Capital
Expenditures, other than as set forth in Section 5.12;




          (viii) merge or consolidate with any corporation or other entity;




          (ix) enter into any employment
or similar contract with, or
materially increase the compensation and/or benefits of, any officer or employee,
except for increases in compensation of non-officers that are in the ordinary
course of business consistent with past practice;




          (x) alter in any material respect its practices and policies relating to the
payment and collection, as the case may be, of accounts payable and accounts
receivable, alter its accounting practices or policies in any manner, or affect
or permit any pre-payments under any Contracts if such pre-payments are greater
than $200,000 individually or $500,000 in the aggregate;




          (xi) adopt, amend in any material respect adverse to the Company or
terminate any employee benefit plan, severance plan or collective bargaining
agreement or make awards or distributions under any employee benefit plan, except
awards or distributions to any participant or employee in the ordinary course of
business consistent with past practice or as required by the terms of any such
plan or agreement as in existence on the date hereof;



-26-









 






          (xii) enter into any Contract (A) to sell, lease, license or otherwise
transfer dark fiber to any Person or (B) that involves the purchase or sale of
any IRU or LTOP, except for (1) Contracts set forth in Section 5.4(b)(xii) of the
Company Disclosure Schedule or (2) Contracts with less than 300 fiber miles (in a
single transaction or a series of related transactions) per customer or any
Affiliate thereof;




          (xiii) (A) other than those Contracts set forth in Section 5.4(b)(xiii) of
the Company Disclosure Schedule, enter into or otherwise modify any Contract
pursuant to which a customer pre-pays for network services or capacity (including
IRUs, LTOPs or any other pre-paid acceleration of rights or terms under any
Company Contract), and (B) with respect to those Contracts set forth in Section
5.4(b)(xiii) of the Company Disclosure Schedule, modify any such Contract and/or
otherwise solicit, acknowledge or agree with any customer such that a customer
pre-pays for network services or capacity (including IRUs, LTOPs, swaps or any
other pre-paid acceleration of rights or terms thereunder), without first
consulting with and obtaining the written input of the Chief Financial Officer,
General Counsel or Senior Vice President-Corporate Development of Buyer (or its
Affiliates);




          (xiv) enter into any Contract with any officer, director, manager, member or
employee of the Seller or the Company;




          (xv) enter into any material Contract with any officer, director, manager,
member or employee of any Affiliate of the Seller or the Company except in the
ordinary course of business;




          (xvi) grant or suffer to exist for a period in excess of thirty (30) days
any Encumbrance on any of the Company’s material assets;




          (xvii) make any capital investment in, make any loan to or acquire the
securities or assets of any other Person;




          (xviii) make or change any Tax election, adopt or change any method of Tax
accounting or Tax accounting periods, file any amended Tax returns, enter into
any closing agreement, settle any material Tax claim or assessment relating to
the Company, surrender any material right to claim a refund of Taxes, consent to
any extension or waiver of the limitation period applicable to any Tax claim or
assessment relating to the Company, or fail to timely file all Tax returns
required to be filed and timely pay all Taxes when due;




          (xix) make any change in any method of accounting or accounting practice or
policy other than those required by United States generally accepted accounting
principles;




          (xx) diminish or reduce the deferred franchise fees, security deposits or
other prepayments set forth under the “long-term assets and other deferred
debits” on the Most Recent Balance Sheet except, in the case of the



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deferred franchise fees or other prepayments only, in the ordinary
course of business or as is consistent with past Company practice; or




          (xxi) agree, commit or resolve to do or authorize any of the foregoing.



     5.5. No Public Announcement. Prior to the Closing Date, none of the Parties
shall, without the approval of the Buyer and the Seller, make any press release
or other public announcement concerning the transactions contemplated by this Agreement,
except as and to the extent that any such party shall be so obligated by law, in which
case each Party shall be advised and each Party shall use Commercially Reasonable Efforts
to cause a mutually agreeable release or announcement to be issued. Notwithstanding the
foregoing, any Party may, without the prior consent of the other Parties, issue any press
release or make any public announcement that may be required by law, or the rules and
regulations of the SEC or stock exchange, if it has used Commercially Reasonable Efforts
to consult with the other Parties but has been unable to do so in a timely manner. On the
date hereof and on the Closing Date, the Parties shall issue a joint press release, which
shall be reasonably acceptable to the Buyer and the Seller.



     5.6. Non-Solicitation of Employees. If this Agreement is terminated, the
Buyer will not, for a period of one (1) year thereafter, without the prior
written approval of the Company, solicit (other than a solicitation by general
advertisement) any person who is an employee of the Company or AGL Resources, at the date
hereof or at any time hereafter that precedes such termination, to terminate his or her
employment with the Company. For the purposes of clarity, the Buyer shall be allowed to
hire any such employee of the Company or AGL Resources that has approached the Buyer for
employment without solicitation by the Buyer. The Buyer agrees that any remedy at law for
any breach by it of this Section 5.6 would be inadequate, and the Company would
be entitled to injunctive relief in such a case. If it is ever held that the restriction
placed on the Buyer by this Section 5.6 is too onerous and is not necessary for
the protection of the Company, the Buyer agrees that any court of competent jurisdiction
may impose lesser restrictions which such court may consider to be necessary or
appropriate to properly protect the Company.



     5.7. Representatives’ and Officers’ Indemnification.



          (a) The provisions of the Certificate of Formation and Operating Agreement of the
Company concerning elimination of liability and indemnification of members,
Representatives and officers shall not be amended in any manner that would adversely
affect the rights thereunder of any person that is as of the date hereof an officer or a
member or Representative of the Company. In addition to the foregoing, from and after the
Effective Time, the Buyer and the Company, jointly and severally, shall indemnify, hold
harmless and defend each person who is a current or former member, Representative, or
officer of the Company against all Losses or expenses (including attorneys’ fees) arising
out of or pertaining to acts or omissions (or alleged acts or omissions) by them in their
capacities as such, which acts or omissions occurred at or prior to the Closing. To the
maximum extent permitted by applicable law, the indemnification and related rights
hereunder shall be mandatory rather than permissive, and the Buyer and/or the Company
shall promptly advance expenses in connection with such indemnification to the fullest
extent permitted under applicable law, provided that, to the extent









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required by law, the person to whom expenses are advanced provides an undertaking to
repay such advances if it is ultimately determined that such person is not entitled to
indemnification. At the Closing, the Buyer shall assume and become liable for, jointly
and severally with the Company, all liabilities and obligations of the Company (and each
of their respective successors and assigns) contemplated by this Section.




          (b) Each of the Buyer and the Company covenants for itself and its respective
successors, assigns, heirs, legatees and personal representatives that it shall not
institute any action or proceeding in any court or before any administrative agency or
before any other tribunal against any of the current officers or Representatives of the
Company, in their capacity as such, with respect to any liabilities, actions or causes of
action, judgments, Claims and demands of any nature or description (consequential,
compensatory, punitive or otherwise) arising from actions occurring prior to the Closing
and for which such person would not be entitled to indemnification by the Company or
under this Section 5.7.




          (c) The provisions of this Section 5.7 (i) are intended to be for the
benefit of, and shall be enforceable by, each person entitled to indemnification
hereunder, and each such person’s heirs, representatives, successors or assigns, it being
expressly agreed that such persons shall be third party beneficiaries of this Section,
and (ii) are in addition to, and not in substitution for, any other rights to
indemnification or contribution that any such person may have by contract or otherwise.




     5.8. Employment Matters; Post-Closing Severance; Employee Benefits.



          (a) Section 5.8(a) of the Company Disclosure Schedule lists employee of the Company
and such employee’s current position and date of hire, together with all amounts due to
each employee, including without limitation, wages, severance, vacation pay and all other
compensation due upon termination from employment without cause (such amounts being
referred to herein as the “Separation Benefit Costs”). The Buyer shall select from among
the employees of the Company those individuals whom it wishes to retain following the
Closing, and the Buyer shall, no later than forty-five (45) days following the date
hereof, offer to such employees a continuing position with the Company as an employee.
Each Company employee who is offered a continuing position with the Company post-Closing
and who (i) accepts the Buyer’s offer to be employed by the Company, (ii) if requested,
executes and delivers the Buyer’s standard form of employment offer letter, as
applicable, and other related documents (including, but not limited to, any
confidentiality, proprietary inventions, or non-solicitation agreement), and (iii) has
not been terminated prior to the Closing Date, shall remain an employee of the Company
following the Closing Date (such employees the “Retained Employees”). Except as provided
below, if not terminated earlier, the Company shall terminate the employment of any
individual who is not a Retained Employee effective as of the Closing Date, and the Buyer
shall pay such individual the Separation Benefit Costs due to such employee. Any
individual who is not a Retained Employee effective as of the Closing Date and whose
employment service is retained by AGL Resources or any Affiliate shall not be entitled to
receive any such separation benefits; provided, further, that any
individual who is not a Retained Employee effective as of the Closing Date, receives
separation benefits pursuant to this Section 5.8(a) and later returns to
the employ of AGL Resources or any Affiliate shall be required to reimburse the
Buyer for a portion of such separation benefits as shall be determined in good faith





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by the Seller. The Buyer and the Seller shall timely provide each other with all
information necessary for the Company, the Buyer, and the Seller to fulfill their
obligations pursuant to this Section 5.8.




          (b) Each Retained Employee terminated without cause within twelve (12) months after
the Closing Date shall be provided a separation pay benefit as set forth in Section
5.8(b) of the Company Disclosure Schedule, together with all amounts due under the
Buyer’s or the Company’s, as applicable, employee benefit plans and policies, including
without limitation, any bonuses, wages, commissions, stay bonuses, sick pay, and all
other compensation due upon termination from employment without cause. The Buyer shall be
responsible for the payment of all such amounts owing to any such Retained Employee. For
the purposes of this Section 5.8, “cause” means the material and willful failure
of the Retained Employee to perform his or her duties as an employee of the Company or of
the Buyer, as determined by the Buyer in good faith; fraud, embezzlement or any similar
dishonest conduct; or material violation of any applicable rules of conduct of the Buyer
or the Company.




          (c) Immediately prior to Closing the Company shall cease to be a participating
employer in any and all Plans sponsored by the Seller or its parent or other ERISA
Affiliates (the “Seller Benefit Plans”), and shall thereafter cease to have any liability
under or with respect to such Seller Benefit Plans. Retained Employees shall be eligible
for all employee benefits plans of the Buyer that are offered to similarly situated
employees of Buyer. For all purposes under the Buyer’s paid-time-off policy, and for
purposes of determining the severance due any such individual, if any, and for purposes
of eligibility and vesting under the other employee benefit plans of the Buyer and its
Affiliates providing benefits after the Closing, each Retained Employee shall be credited
with his or her years of service with the Company and its Affiliates (and any
predecessors) before the Closing, to the same extent as such Retained Employee was
entitled, before the Closing, to credit for such service under any similar Plans. In
addition, and without limiting the generality of the foregoing: (i) each Retained
Employee shall be immediately eligible to participate, without any waiting time, in any
and all employee benefit plans sponsored by the Buyer and its Affiliates for the benefit
of Retained Employees (such plans, collectively, the “New Plans”) to the extent coverage
under such New Plan replaces coverage under a comparable Plan in which such Retained
Employee participated immediately before the Closing (such plans, collectively, the “Old
Plans”); and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical
and/or vision benefits to any Retained Employee, the Buyer shall use Commercially
Reasonable Efforts to cause all pre-existing condition exclusions and actively-at-work
requirements of such New Plan to be waived for such Retained Employee and his or her
covered dependents, and the Buyer shall use Commercially Reasonable Efforts to cause any
eligible expenses incurred by such Retained Employee and his or her covered dependents
during the portion of the plan year of the Old Plan ending on the date such Retained
Employee’s participation in the corresponding New Plan begins to be taken into account
under such New Plan for purposes of satisfying all deductible, coinsurance and maximum
out-of-pocket requirements applicable to such employee and his or her covered dependents
for the applicable plan year as if such amounts had been paid in accordance with such New
Plan.




          (d) Any notice required under the WARN Act, or any similar state law, that is, has
been or will be required of the Seller to the employees of the Company by reason of the







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Seller’s or the Company’s acts prior to the Closing will be given by the Seller, and
the Seller shall be responsible for any liability arising under the WARN Act or similar
state law prior to the Closing; provided, however, the Buyer shall be
responsible for any liability arising under the WARN Act or similar state law prior to
the Closing that results solely from the Buyer’s decision not to hire employees of the
Company and such responsibility shall be in lieu of and supersede any liability that
Seller may have with respect to the Separation Benefits Cap. The Buyer shall be
responsible for any liability arising under the WARN Act or similar state law in
connection with the Buyer’s failure to give any notice required under the WARN Act, or
termination of a Retained Employee without cause; provided, however, that
Seller shall comply with any reasonable request by the Buyer to provide any WARN Act
notice on behalf of the Buyer.




          (e) The provisions of this Section 5.8 are for the benefit of the Parties
only, and no employee of such Parties or any other Person shall have any rights
hereunder. Nothing herein expressed or implied shall confer upon any employee of the
Company, Retained Employee or legal representatives or beneficiaries thereof, any rights
or remedies, including any right to employment or continued employment for any specified
period or to be covered under or by any employee benefit plan or arrangement, or shall
cause the employment status of any employee to be other than terminable-at-will. Nothing
herein shall be deemed to amend, or prohibit the Company or the Buyer from amending or
terminating any employee benefit plan, program, or arrangement maintained by the Company
or the Buyer.




     5.9. Notification. The Seller shall give prompt notice to the Buyer of (a)
the occurrence or failure to occur of any event or the discovery of any information,
which occurrence, failure or discovery would be likely to cause any representation or
warranty by the Seller contained in this Agreement to be untrue, inaccurate or incomplete
or, in case of any representation or warranty given as of a specific date, would be
likely to cause any such representation by the Seller contained in this Agreement to be
untrue, inaccurate or incomplete in any material respect as of such specific date and (b)
any material failure of the Seller or the Company to comply with or satisfy any covenant
or agreement to be complied with or satisfied by it hereunder. Such notice shall not, in
any manner, limit or impair the Buyer’s rights or remedies pursuant to this Agreement.



     5.10. Regulatory Licenses. Between the date of this Agreement and the
earlier of the consummation of the Interests Purchase or the termination of this
Agreement in accordance with Article VIII, the Company shall use Commercially
Reasonable Efforts to maintain in full force and effect each of its FCC License,
GAPSC License, NCUC License, ACC License, PUCN License and MPSC License.



     5.11. Resignations of Representatives. Prior to the Closing, the Buyer shall
notify the Company of those Representatives and officers of the Company from whom
it will require resignations. The Company shall furnish the Buyer, at or prior to the
Closing, with such signed resignations, effective as of the Closing Date.



     5.12. Capital Expenditures and Projects.



          (a) The capital expenditure projects set forth in Section 5.12(a) of the Company
Disclosure Schedule are referred to herein as the “Current Projects.” The Company shall,
during the period from the date hereof to the Closing Date, make and perform the Current





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Projects in a skilled and workmanlike manner consistent with the terms of the
underlying contracts and customary industry standards and at a quality level that is no
lower than the quality level in which the Company performed similar capital expenditure
projects in the past. The Seller shall be solely liable for the payment of all
construction, engineering, initial testing and commercial start-up costs and all other
costs of completion (the “Project Costs”) incurred in connection with any Current Project
until such Current Projects are delivered to and accepted by the applicable customers,
regardless of whether such Project Costs are incurred before or after the Closing Date.
In connection with the Current Projects, the Seller shall be entitled to receive
(i) all non-recurring receipts and revenues (the “Non-Recurring Project Revenues”) for
such Current Projects as set forth in Section 5.12(a) of the Company Disclosure Schedule,
regardless of whether such Non-Recurring Project Revenues are received by the Seller
before, on or after the Closing Date or by the Buyer after the Closing Date,
provided, however, that any change in scope to a Current Project that
results in an increase in Non-Recurring Project Revenues above the amounts set forth in
Section 5.12(a) of the Company Disclosure Schedule will be agreed to in writing by the
Buyer and the Seller, and such writing will be deemed an amendment to Section 5.12(a) of
the Company Disclosure Schedule for all relevant purposes; and (ii) all recurring
receipts and revenues (the “Recurring Project Revenues”, and together with the
Non-Recurring Project Revenues, the “Project Revenues”) deriving from or arising out of
such Current Projects that are billed and collected by the Seller prior to the Closing
Date. In connection with the Current Projects, the Buyer shall be entitled to receive (i)
all Non-Recurring Project Revenues deriving from or arising out of such Current Projects
above the amounts set forth in Section 5.12(a) of the Company Disclosure Schedule
received on or after the Closing Date by the Buyer or the Seller, provided,
however, that any change in scope to a Current Project that results in an
increase in Non-Recurring Project Revenues above the amounts set forth in Section 5.12(a)
of the Company Disclosure Schedule will be agreed to in writing by the Buyer and the
Seller, and such writing will be deemed an amendment to Section 5.12(a) of the Company
Disclosure Schedule for all relevant purposes; and (ii) all Recurring Project Revenues
that are billed and collected by the Buyer or the Company on and after the Closing Date.
If the Buyer or the Company, on the one hand, or the Seller, on the other hand, shall
receive after the Closing Date any Project Revenues due to the other Party pursuant to
this Section 5.12(a), the Buyer or the Company, on the one hand, and the Seller,
on the other hand, shall promptly pay over all such post-Closing Date Project Revenues to
the other Party. The Buyer hereby agrees that, after the Closing Date, the Buyer shall
seek to collect any and all outstanding Project Revenues due to the Seller pursuant to
this Section 5.12(a) using the same efforts as the Buyer would use with respect
to outstanding amounts owing and due to the Buyer. In the event the Buyer is unable to
collect any such outstanding Project Revenues due to the Seller pursuant to this
Section 5.12(a) within six (6) months following the Closing Date, the Buyer shall
notify the Seller so that the Seller and the Buyer may cooperate to collect such
outstanding Project Revenues.




          (b) The capital expenditure projects set forth in Section 5.12(b) of the Company
Disclosure Schedule, together with any future capital expenditure projects that the
Company has the opportunity to bid upon or provide a quote and that are approved by the
Buyer, the Seller and the Company for treatment under this Section 5.12(b), are
referred to herein as the “Future Projects.” At any time prior to the Closing Date, if
the Seller or the Company shall become aware of a new Future Project and shall determine
in good faith that the Company is interested, or that the Buyer may be interested, in
pursuing such Future Project, the Seller and the Company shall give the Buyer prompt
written notice thereof. As soon as practicable after the






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Buyer’s receipt of such written notice, the Seller, the Company and the Buyer shall
confer and determine in good faith whether to pursue such Future Project. If the Seller,
the Company and the Buyer agree, within a reasonable time thereafter, that the Company
should pursue such Future Project, the Seller, the Company and the Buyer shall mutually
agree upon the form of the contract to govern such Future Project and the Company shall
enter into such contract. The Company shall, during the period from the date hereof to
the Closing Date, make and perform the Future Projects in a skilled and workmanlike
manner consistent with the terms of the underlying contracts and customary industry
standards and at a quality level that is no lower than the quality level in which the
Company performed similar capital expenditure projects in the past. As soon as
practicable after the Company enters into a contract with respect to a Future Project,
the Seller, the Company and the Buyer shall meet, confer and agree upon a budget for such
Future Project (the “Future Project Budget”). For all Future Projects for which the
Company enters into such a contract, effective as of the Closing, (i) the Buyer shall be
liable for all Project Costs incurred in connection with such Future Projects, and (ii)
all Project Revenues deriving from or arising out of a Future Project shall be the sole
property of the Buyer. At the Closing and subject to the foregoing sentence, the Buyer
shall reimburse the Seller for any Project Costs attributable to a Future Project that
are actually incurred by the Seller or the Company, less any Project Revenues
attributable to a Future Project received by the Seller or the Company, if any. The
Company and the Seller shall provide the Buyer, at least five (5) Business Days prior to
Closing, a written statement setting forth, in reasonable detail, a calculation of such
Project Costs and Project Revenues, together with appropriate supporting documentation.




          (c) From the date hereof until the Closing, the Seller and the Company shall keep
the Buyer fully informed regarding the material aspects of the Current Projects and the
Future Projects by providing the Buyer with weekly reports with respect thereto and, if
requested by the Buyer or appropriate in order to keep the Buyer informed on a timely
basis, more frequent reports with respect thereto. Such reports shall cover, without
limitation (i) the equipment ordered, (ii) the services performed, (iii) the current
status of the Current Projects and the Future Projects, (iv) current and estimated
Project Costs and Project Revenues and (v) whether the Company anticipates incurring
Project Costs in excess of the Future Project Budget. The Seller and the Company shall
promptly respond to all inquiries with respect to the Current Projects and the Future
Projects that the Buyer may ask and shall consider, in good faith, all reasonable
suggestions with respect to such Current Projects and Future Projects that the Buyer may
offer.




          (d) Notwithstanding the foregoing, if the Closing is not consummated, (i) no
reimbursement of any Project Costs incurred in accordance with this Section 5.12
shall be payable by one party to the other, and (ii) no refund or share of any Project
Revenues received in
accordance with this Section 5.12 shall be payable by one party to the
other.




     5.13. Change of Name; No Use of Tradename and Marks. Promptly following
the Closing, the Buyer shall cause the Company to change its name so as not to
include the letters “AGL” in its entity name. From and after the Closing, none of the
Company, the Buyer nor Buyer’s Affiliates shall use of any tradenames or trademarks owned
by, registered to or otherwise claimed by the Seller or its parent entity, AGL Resources,
which marks are set forth in Section 5.13 of the Company Disclosure Schedule.



     5.14. Certain Tax Matters.



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          (a) The Seller shall prepare or cause to be prepared, and the Seller and the
Buyer shall cause the Company to timely file, all Returns for the Company for Tax periods
ending on or prior to the Closing Date which are to be filed prior to, on or after the
Closing Date (the “Pre-Closing Tax Period”). All such Returns shall be prepared in a
manner consistent with past practice and that neither accelerates deductions nor defers
income, except to the extent otherwise required by Law. The Seller shall pay all Taxes
required to be paid in connection with such Returns or otherwise required to be paid in
connection with any Pre-Closing Tax Period. The Buyer shall prepare or cause to be
prepared and timely file or cause to be timely filed all Returns for the Company for Tax
periods ending after the Closing Date (the “Post-Closing Tax Period”). With respect to
any Returns that relate to a tax period that begins before the Closing Date and that ends
after the Closing Date (a “Straddle Tax Period”): (i) such Returns shall be prepared in a
manner consistent with past practice, except to the extent required by Law; (ii) at least
thirty (30) days prior to the due date (including extensions) of such Returns, the Buyer
shall furnish a copy of such Returns to the Seller, (iii) the Buyer shall permit the
Seller to review and comment on each such Return prior to filing and shall make such
revisions to such Returns as reasonably requested by Seller. Unless otherwise mandated by
Law, neither the Buyer nor any of its Affiliates or any successor thereto will file any
amended Return with respect to any Pre-Closing Tax Period without the Seller’s prior
written consent, which may be withheld in the Seller’s sole discretion.




          (b) All Tax sharing agreements or similar agreements with respect to or involving
the Company shall be terminated as of the Closing Date and, from and after the Closing
Date, neither the Seller nor the Company shall be obligated to make any payment to any
Person pursuant to any such agreement or arrangement, and all other rights and
obligations resulting from any such agreement or arrangement shall cease.




          (c) If the Seller is permitted but not required under applicable state or local
income Tax Laws to treat the Closing Date as the last day of a taxable period, then the
Parties shall treat that day as the last day of a taxable period.




          (d) In the case of Taxes arising in a Straddle Tax Period (other than in respect of
Taxes included in he calculation of Working Capital) the allocation of such Taxes between
the Pre-Closing Tax Period and the Post-Closing Tax Period shall be made on the basis of
an interim closing of the books as of the end of the Closing Date; provided, however,
that in the case of a Tax not based on income, receipts, proceeds, profits or similar
items (including, without limitation, any ad valorem Taxes of any kind whatsoever or any
similar Taxes imposed based upon the value of any Company property), the allocation of
such Taxes shall be based upon the amount of Tax for the entire Straddle Tax Period
multiplied by a fraction, the numerator of which shall be the number of days from the
beginning of the Straddle Tax Period through the end of the Closing Date and the
denominator of which shall be the total number of days in the Straddle Tax Period. For
purposes of this Agreement, the portion of the Straddle Tax Period that begins on the day
following the Closing Date shall constitute a Post-Closing Tax Period.




          (e) The Buyer may not carry back a post-acquisition Tax attribute of the Company
into the Seller’s consolidated Return without the Seller’s prior written consent, which
the Seller may refuse to grant in its sole discretion. If such consent is given, the
Seller shall pay to the Buyer any amount realized by the Seller (as a result of the
carryback) in the form of a







-34-









 







refund of Taxes or a credit against the payment of any Tax. Such payment shall be
made within thirty (30) days following the date any such refund is received, or any such
credit is claimed on a Tax Return, by the Seller.




          (f) Any Tax refunds that are received by the Buyer or the Company, and any amounts
credited against Tax to which the Buyer or the Company becomes entitled, that relate to
taxable periods or portions thereof ending on or before the Closing Date and which are
the Seller’s responsibility under Section 5.14 hereof shall be for the account of
the Seller (except to the extent reflected on the Final Working Capital Statement), and
the Buyer shall pay over to the Seller any such refund or amount of any such credit
within fifteen (15) days after receipt or entitlement.




          (g) The Seller and the Buyer shall cooperate, and shall cause their respective
Affiliates and representatives to cooperate, fully with the Company and each other in
connection with the preparation and filing of any Return, amended Return or claim for
refund, determining liability for Taxes or a right to refund of Taxes, or in conducting
any audit, litigation or other proceeding with respect to Taxes. Such cooperation and
information shall include providing copies of all relevant portions of relevant Returns,
together with relevant accompanying schedules and relevant work papers, relevant
documents relating to rulings and other determinations by Governmental Authorities, and
relevant records concerning the ownership and Tax basis of property, which any such party
may possess. Each Party will retain all books and records and all Tax information
relating to the Company’s Tax periods ending on or before or including the Closing Date
until the later of the expiration of the statutes of limitations (as such statutes may be
extended) with respect to Taxes for such periods and the conclusion of all litigation
with respect to such Taxes, and shall provide each other, as reasonably requested, access
to personnel and such books and records and information to the employees, agents and
representatives of the requesting party. The Buyer and the Seller each further agree,
upon request, to use Commercially Reasonable Efforts to obtain any certificate or other
document from any Governmental Authority or any other Person as may be necessary to
mitigate, reduce or eliminate any Tax that could be imposed with respect thereto.




          (h) The Buyer shall promptly notify the Seller in writing within fifteen (15) days
from its receipt of written notice of any pending or threatened assessment or claim in
any audit, litigation or other proceeding in respect of the Company related to Taxes for
which the Seller may be liable under this Agreement. Such notice shall be accompanied by
copies of any notice or other documents it has received from any Governmental Authority.




          (i) The Seller shall, upon prompt notice to the Buyer and at the Seller’s own
expense, have the right to represent the interests of the Company in any audit,
litigation or other proceeding (collectively, “Tax Contest”) relating exclusively to
Taxes for which the Seller may be liable under this Agreement, to employ counsel and
other advisors of its choice at its expense and to control the conduct of such Tax
Contest, including settlement or other disposition thereof; provided, however, that the
Buyer shall have the right to participate in (but not control) any such Tax Contest that
may adversely affect the Company for any periods ending after the Closing Date at the
Buyer’s own expense. The Seller may in its sole discretion pursue or forego any and all
administrative appeals, proceedings, hearing and conferences with any Taxing Authority
with respect to such Tax Contest, and may initiate any claim for refund, file any amended
return, or








-35-









 







take any other action which is deemed appropriate by the Seller with respect to such
Tax Contest provided such actions do not materially adversely affect the Buyer and the
Company.




          (j) Any Tax Contest with respect to Taxes for a Straddle Tax Period shall be
controlled jointly by the Seller and the Buyer, and neither shall consent to the
settlement or other disposition of such a Tax Contest without the prior written consent
of the other, which shall not be unreasonably withheld or delayed. Notwithstanding any
provision of this Section 5.14 to the contrary, the Seller shall not have the
right to control any Tax Contest, to initiate any claim for refund, to file any amended
return or to take any other action if, as a result of such Tax Contest, claim for refund,
amended return or other action, the Taxes payable by the Buyer or the Company relate to a
taxable period for which the Seller is not liable hereunder.




          (k) Each of Seller and the Buyer shall use Commercially Reasonable Efforts to
minimize any Transfer Taxes incurred in connection with this Agreement. Notwithstanding
such efforts, to the extent that any Transfer Taxes are incurred in connection with this
Agreement, such Transfer Taxes shall be borne by the Buyer. The Buyer shall file, to the
extent required by applicable Law, all necessary Returns and other documentation with
respect to such Transfer Taxes. The Seller shall, to the extent required by Law, join in
the execution of any such Return, and shall have the opportunity to review such Returns
prior to filing. For purposes of this Agreement, “Transfer Taxes” shall mean transfer,
documentary, sales, use, registration and other such taxes (including all applicable real
estate transfer taxes).




          (l) At the Buyer’s option and to the extent the Buyer is qualified to do so, the
Seller and the Buyer shall join in making an election under Code Section 338(h)(10) (and
any corresponding elections under state, local, or foreign law) (collectively a “Section
338(h)(10) Election”) with respect to the purchase and sale of the Interests. In order to
make the Section 338(h)(10) Election, the Buyer shall giver Seller written notice thereof
no later than 5:00 pm, Eastern Time, on June 30, 2010. Once made, such written election
shall be irrevocable.




          (m) As a condition precedent to the Seller making a Section 338(h)(10) Election, the
Buyer shall pay to the Seller, in cash, an amount of additional consideration necessary
to cause the Seller’s after-Tax net proceeds from the sale of the Interests with the
Section 338(h)(10) Election to be equal to the after-Tax net proceeds that the Seller
would have received had the Section 338(h)(10) Election not been made, taking into
account all appropriate state, federal and local Tax implications (the “Tax Adjustment”). The amount of the Tax Adjustment shall be paid to Seller prior to or at the time the
Seller signs Form 8023 to make the Section 338(h)(10) Election. The Seller shall provide
the Buyer with a schedule computing the amount of the Tax Adjustment within 20 days after
receipt of the Buyer’s Notice under Section 5.14(l) of this Agreement. In making such
calculations, the highest corporate federal and state tax rates to which the Seller is
subject shall be used and any other items of income, deduction, gain, loss or credit of
the Seller shall be ignored.




          (n) In the event a Section 338(h)(10) Election is made, the Seller, the Company and
the Buyer agree that the Purchase Price and the liabilities of the Company (plus other
relevant items) will be allocated to the assets of the Company for all purposes
(including Tax and financial accounting purposes) as shown on a mutually agreed
allocation schedule. Such allocation shall comply with the requirements of Code Section
338 and Section 1060 and






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the Treasury Regulations thereunder. The Seller, the Company and the Buyer shall
file all Returns (including amended returns and claims for refund) and information
reports in a manner consistent with such allocation.




     5.15. Transition Services Agreement. At the Closing, the Seller, AGL
Services Company, a Georgia corporation, and the Buyer shall enter into a
Transition Services Agreement substantially in the form attached as Exhibit 5.15
(the “Transition Services Agreement”).



     5.16. Exclusivity. Between the date of this Agreement and the earlier of the
Closing and the termination of this Agreement, neither the Company nor the Seller
shall, and each shall take all action necessary to ensure that none of the Company’s or
the Seller’s respective officers, directors, managers, employees, affiliates, owners,
advisors or agents shall, directly or indirectly,
(i) solicit, encourage, consider, discuss, participate in, negotiate or accept any offer,
bid, or proposal that constitutes an Acquisition Proposal or (ii) participate in any
discussions, conversations, negotiations or other communications regarding, or furnish to
any other person any information with respect to, or otherwise cooperate in any way,
assist or participate in, facilitate or encourage the submission of, any proposal that
constitutes, or could reasonably be expected to lead to, an Acquisition Proposal.
“Acquisition Proposal” means: (i) the sale, license, disposition or acquisition of all or
a material portion of the business or assets of the Company;
(ii) the issuance, disposition, sale or other transfer of equity securities of, or a
similar transaction involving, the Company; or (iii) any merger, business combination,
joint venture, recapitalization, reorganization or similar transaction involving the
Company. Each of the Company and the Seller shall, and shall cause their respective
officers, directors, managers, employees, affiliates, owners, advisors and agents to,
immediately cease and cause to be terminated all discussions and negotiations, if any,
with respect to any Acquisition Proposal (except those discussions and negotiations with
the Buyer). The Company and the Seller shall promptly provide the Buyer with notice of
any Acquisition Proposal received by the Company, the Seller or any of their affiliates
or representatives from any person or entity.



     5.17. Non-Competition and Non-Solicitation.



          (a) For a period of three (3) years after the
Closing Date:





          (i) For the purposes of this Section 5.17 only, “Business”
means the business of the Company, including, for the avoidance of doubt,
the ownership, design, construction and management of fiber optic networks.
The Seller and its Affiliates shall not, directly or indirectly, engage or
invest in, own, manage, operate, finance, control or participate in the
ownership, management, operation, financing or control of, be employed by,
associated with or in any manner connected with, or render services or
advice or other aid to, or guarantee any obligation of, any Person engaged
in or planning to become engaged in a business that competes with the
Business in the markets in which the Business operates as of the Closing
Date (a “Competing Business”); provided, however,
(A) this Section 5.17(a)(i) shall not prohibit or restrict the
ownership for investment purposes of less than 5% of the outstanding
securities of any Person having its securities traded on any national
securities exchange or automated quotation system; and (B) the Seller shall
not be considered to have breached this




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covenant by virtue of the fact that the Seller or AGL Resources
acquires, is acquired by, merged with, or otherwise combined with, a
Competing Business, so long as such Competing Business is not solely or
principally engaged in the business of leasing or providing dark fiber
services. Notwithstanding the foregoing, the Seller may provide services to
independent third parties, which may in turn compete with a Competing
Business, where “services” shall mean those services provided by the Seller
and its Affiliates in the ordinary course of business not including any
services that require the use of a fiber optic network. The Buyer
acknowledges and agrees that the businesses currently directly operated by
the Seller (not through the Company) do not constitute businesses that
compete with the Business in violation of this Section 5.17(a)(i)
and nothing contained in this Section 5.17(a)(i) shall be construed
as preventing the Seller from continuing in such businesses;
provided, however, that the Seller and its Affiliates,
excluding AGL Resources, shall be prohibited from providing Wholesale
Capacity Services to telecommunications carrier-type customers. “Wholesale
Capacity Services” shall mean the provision of any DS3 (45 megabit service)
or larger service (or circuit) provided as long haul intra-LATA or
inter-LATA bandwidth service to any telecommunications customer. Seller
agrees that this covenant is reasonable with respect to its duration,
geographical area and scope. In connection with the provisions set forth in
this Section 5.17(a) , the Seller hereby represents and warrants to
the Buyer, as of the date of this Agreement and as of the Closing Date, that
AGL Resources and its Affiliates, other than the Company, do not own or
operate, directly or indirectly, any fiber optic network in Atlanta,
Georgia.




          (ii) The Seller shall not, directly or indirectly, (A) cause, induce or
attempt to cause or induce any employee, agent, or independent contractor of
the Company to terminate such relationship; (B) in any way interfere with
the relationship between the Company and any employee, agent, or independent
contractor of the Company; (C) hire, retain, employ or otherwise engage or
attempt to hire, retain, employ or otherwise engage as an employee,
independent contractor or otherwise any employee, agent, or independent
contractor of the Company; or (D) cause, induce or attempt to cause or
induce any creditor, licensee, customer, prospective customer or other
Person engaged in a business relationship with the Company to cease doing
business with the Company or to deal with any competitor of the Company or
in any way interfere with the relationship between any such creditor,
licensee, customer, prospective customer, or a Person engaged in a business
relationship with the Company.




          (iii) Seller shall not, directly or indirectly, solicit the business of
any customer of the Company, with respect to products or services that
compete in whole or in part with the Business.



          (b) For purposes of this Section 5.17, a “customer” is any Person to whom
the Company furnished, agreed to furnish, or contacted with respect to furnishing
exclusively its goods or services at any time during the two (2) year period prior to the
Closing Date.






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          (c) After the Closing Date, the Seller shall not, and shall use Commercially
Reasonable Efforts to assure that its representatives do not, make any disparaging
statements, either orally or in writing, about the Buyer or the Company or any of the
names, businesses, stockholders, members, directors, officers, managers, employees, or
agents of the Buyer or the Company.




          (d) If a final Judgment of a court or tribunal of competent jurisdiction determines
that any provision of this Section 5.17 is invalid or unenforceable, the Parties
agree that the court or tribunal will have the power to reduce the scope, duration, or
geographic area of the provision, to delete specific words or phrases, or to replace any
invalid or unenforceable provision with a provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable
provision. This Section 5.17 will be enforceable as so modified after the
expiration of the time within which the Judgment may be appealed. This Section 5.17
is reasonable and necessary to protect and preserve the Buyer’s and the
Company’s legitimate business interests and the value of the Interests.




          (e) The Seller acknowledges that any breach of this Section 5.17 may result
in serious and irreparable injury. Therefore, the Seller acknowledges and agrees that,
in the event of a breach by the Seller, the Buyer shall be entitled to seek, in addition
to any other remedy at law or in equity to which the Buyer may be entitled, equitable
relief against the Seller, including a temporary restraining order and preliminary and
permanent injunctions to restrain the Seller from such breach and to compel compliance
with the obligations of the Seller hereunder.




     5.18. Parent Guaranty. At the Closing, AGL Resources, the ultimate parent
company of the Seller, shall execute and deliver the Guaranty, in substantially
the form attached hereto as Exhibit 5.18 (the “Parent Guaranty”).



     5.19.  Audited Financial Statements. The Seller shall use its Commercially
Reasonable Efforts to deliver, or cause to be delivered, to the Buyer, no later
than one hundred twenty (120) days after the later of date hereof and the date on which
the Buyer shall engage Grant Thornton LLP to complete an audit, (a) an audited balance
sheet of the Company as of December 31, 2008 and December 31, 2009, and the related
audited statements of income, changes in members’ equity and cash flows for the Company
for the years then ended; and (b) an interim audited balance sheet of the Company, and
the related audited statements of income, changes in members’ equity and cash flows for
the Company for each month after December 31, 2009 as requested by the Buyer
(collectively, the “Audited Financial Statements”). The Seller shall consider in good
faith the Buyer’s reasonable request for any financial statements of the Company in
addition to the Audited Financial Statements. As soon as practicable after the date
hereof, the Company and the Buyer shall agree upon and jointly engage Grant Thornton LLP
to complete an audit of the Company and prepare the Audited Financial Statements. Any
fees associated with the engagement of the foregoing independent public accounting firm
shall be borne by the Buyer.



     5.20. No Indebtedness. As of the Closing, the Company shall not have
any Indebtedness and shall not be party to any Contracts imposing upon the Company an
obligation arising out of or related to any Indebtedness.




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     5.21. No Cash on Hand. At Closing, the Company shall not have any Cash
on Hand, except such Cash on Hand as may be needed for distributions to be made
by the Company in the ordinary course of business.



     5.22. Assumed Liabilities. The Parties acknowledge and agree that the Seller
shall assume and be solely responsible for each of the Assumed Liabilities and
shall pay, perform, discharge or satisfy such liabilities in cash prior to, on, or as
soon as practicable after, the Closing Date.



ARTICLE VI




CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER



     The obligations of the Buyer to consummate the transactions contemplated by this
Agreement shall, at the option of the Buyer, be subject to the satisfaction or waiver, on
or prior to the Closing Date, of the following conditions:



     6.1. No Misrepresentation or Breach of Covenants and Warranties.



          (a) There shall have been no material breach by the Company or the Seller in the
performance of any of their respective covenants, agreements and obligations herein.




          (b) Each of the representations and warranties contained or referred to in
Article II and Article III hereof shall be true and correct on the date
hereof and shall be true and correct in all material respects on the Closing Date
as though made on the Closing Date, except that (i) representations and warranties that
speak as of a specific date or time other than the Closing Date need only be true and
correct as of such date or time, (ii) the representations and warranties that are
qualified by Material Adverse Effect or otherwise by materiality qualifiers shall be true
and correct in all respects, and (iii) the representations and warranties set forth in
Sections 2.2(a), 2.2(b) and 3.1 shall be true and correct in all
respects.




          (c) There shall have been delivered to the Buyer a certificate, dated the Closing
Date and signed by the President or other senior executive officer of the Company and the
Seller, stating that conditions set forth in Section 6.1(a) and Section
6.1(b) have been satisfied.




     6.2. No Order. At the Closing Date, there shall be no statute, regulation,
injunction, restraining order or decree of any nature of any court or other Governmental
Authority of competent jurisdiction that is in effect that prohibits or materially
restrains the consummation of the transactions contemplated hereby or that has the effect
of (i) prohibiting the Buyer’s (or its Affiliates’) ownership or operation of any portion
of the Company, the assets of the Company or the Interests, or (ii) compelling the Buyer
(or its Affiliates) to dispose of or hold separate all or any portion of the assets of
the Company or the Interests, in either case in connection with the transactions
contemplated hereby, nor shall any Proceeding brought by a Governmental Authority seeking
any of the foregoing be pending or threatened; provided that, in the event of any such
statute, regulation, injunction, restraining order or decree, the Buyer shall use
Commercially Reasonable Efforts to cause such statute, regulation, injunction,
restraining order or decree to be complied with, lifted or vacated, as the case may be.








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     6.3. Necessary Approvals and Consents; HSR. The Seller and the Buyer shall
have obtained all consents, approvals and actions of any third person or
Governmental Authority specified in Section 6.3 of the Company Disclosure Schedule as
conditions to the parties’ obligation to complete the transactions contemplated hereby.
The applicable waiting period, if any, under the HSR Act shall have expired or been
terminated. With respect to each of the FCC License, GAPSC License, NCUC License and ACC
License, any waiting periods thereunder (and any extensions thereof) applicable to the
consummation of the Interests Purchase shall have expired or been earlier terminated, and
any approvals required thereunder shall have been obtained.



     6.4. No Material Adverse Effect. During the period from the date hereof to
the Closing Date, no Material Adverse Effect shall have occurred individually or
in the aggregate.



     6.5. Resignations. The Seller shall have delivered to the Buyer evidence of
the resignation of each member of the Company’s Representatives and officers,
with each such resignation to be effective on the Closing Date.



     6.6. Transaction Documents. The Seller and the Company shall have executed
and delivered, or caused to be executed and delivered, to the Buyer all
applicable Transaction Documents.



     6.7. Employee Benefit Plans. The Seller shall have delivered to the Buyer
a certificate, dated the Closing Date and signed by the President or other senior
executive officer of the Company and the Seller, stating that the Company has ceased to
be a participating employer in the Seller Benefit Plans effective immediately prior to
Closing.



     6.8. Other Closing Deliveries. The Seller shall have
delivered to the Buyer the following:



          (a) the organizational record book and minute book
of the Company;




          (b) certificates duly executed by the Secretary of
each of the Seller and the
Company, dated as of the Closing Date, certifying as to and, where appropriate, attaching
certified copies of, (i) the resolutions duly adopted by the managers and members, as
applicable, of each of the Seller and the Company authorizing the execution, delivery and
performance of the Transaction Documents to which the Seller or the Company is a party
and the consummation of the transactions contemplated by this Agreement, (ii) the
certificate of formation and operating agreement of each of the Seller and the Company,
each as in effect at the Closing Date, and (iii) the name, title, incumbency and
signatures of the officers authorized to execute the Transaction Documents to which the
Seller and the Company are a party, on behalf of the Seller and the Company;




          (c) a certificate of good standing of each of the Seller and the Company issued as
of a date not more than seven (7) days prior to the Closing Date by the Secretary of
State of Georgia (in the case of the Seller), the Secretary of State of Delaware (in the
case of the Company) and the Secretary of State of each state where the Company is
qualified to do business;
















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          (d) a membership interest power transferring the Interests to the Buyer, executed by
the Seller;




          (e) a general release in substantially the form attached hereto as Exhibit
6.8(e) (the “Seller Release”), executed by the Seller; and




          (f) a written agreement terminating the Company’s participation in and any liability
or obligation under and pursuant that certain AGL Services Agreement, dated January 1,
2001, by and between the Company and AGL Services Company, the same to be reasonably
satisfactory to Buyer; and




          (g) a written agreement terminating the Company’s participation in and any liability
or obligation under and pursuant to that certain Non-Utility Money Pool Agreement, dated
November 21, 2003, among the Company and its Affiliates signatory thereto, the same to be
reasonably satisfactory to Buyer.




ARTICLE VII




CONDITIONS PRECEDENT TO

OBLIGATIONS OF THE COMPANY AND THE SELLER



     The obligations of the Company and the Seller to consummate the transactions
contemplated by this Agreement shall, at their respective options, be subject to the
satisfaction or waiver, on or prior to the Closing Date, of the following conditions:



     7.1. No Misrepresentation or Breach of Covenants and Warranties.



          (a) There shall have been no material breach by the Buyer in the performance of any
of its covenants, agreements and obligations herein.




          (b) Each of the representations and warranties contained or referred to in
Article IV hereof shall be true and correct on the date hereof and shall be true
and correct in all material respects on the Closing Date as though made on the
Closing Date, except that (i) representations and warranties that speak as of a specific
date or time other than the Closing Date need only be true and correct as of such date or
time, and (ii) representations and warranties that are qualified by Material Adverse
Effect or otherwise by materiality qualifiers shall be true and correct in all respects.




          (c) There shall have been delivered to the Seller and the Company a certificate,
dated the Closing Date and signed by the President or other senior executive officer of
the Buyer, stating that conditions set forth in Section 7.1(a) and Section
7.1(b) have been satisfied.




     7.2. No Order. At the Closing Date, there shall be no statute, regulation,
injunction, restraining order or decree of any nature of any court or other Governmental
Authority of competent jurisdiction that is in effect that prohibits or materially
restrains the consummation of








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the transactions contemplated hereby; provided that, in the event of any such
statute, regulation, injunction, restraining order or decree, the Company or the Seller,
as the case may be, shall use Commercially Reasonable Efforts to cause such statute,
regulation, injunction, restraining order or decree to be complied with, lifted or
vacated, as the case may be.




     7.3. Necessary Approvals and Consents; HSR. The Seller and the Buyer shall
have obtained all consents, approvals and actions of any third person or
Governmental Authority specified in the Company Disclosure Schedule as conditions to the
parties’ obligation to complete the transactions contemplated hereby. The applicable
waiting period, if any, under the HSR Act shall have expired or been terminated.



     7.4. Release of Guaranty. Bank of America Corporation and its Affiliates
shall have released AGL Resources of its guaranty of the obligations of the
Company under and in connection with that certain Master Service Agreement, dated June
27, 2002, and related dark fiber agreements and task orders, pursuant to which the
Company provides certain dark fiber and related services, including operation and
maintenance, to Bank of America Technology and Operations, Inc. in and throughout
Atlanta, Georgia; Kansas City, Missouri; Phoenix, Arizona; Richmond, Virginia; and St.
Louis, Missouri.



     7.5. Transaction Documents. The Buyer shall have executed and delivered to
the Seller and the Company all applicable Transaction Documents.



     7.6. Other Closing Deliveries. The Buyer shall have delivered to the Seller
each of the following items:



          (a) a certificate duly executed by the Secretary of the Buyer, dated as of the
Closing Date, certifying as to and, where appropriate, attaching certified copies of, (i)
the resolutions duly adopted by the managers and members, as applicable, of the Buyer
authorizing the execution, delivery and performance of the Transaction Documents to which
the Buyer is a party and the consummation of the transactions contemplated by this
Agreement, (ii) the certificate of formation and operating agreement of the Buyer, as in
effect at the Closing Date, and (iii) the name, title, incumbency and signatures of the
officers authorized to execute the Transaction Documents to which the Buyer is a party,
on behalf of the Buyer; and




          (b) a certificate of good standing of the Buyer issued as of a date not more than
seven (7) days prior to the Closing Date by the Secretary of State of Delaware.




ARTICLE VIII




TERMINATION



     8.1. Termination. Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated at any time prior to the Closing Date:
(i) by the mutual consent of the Buyer and the Seller; (ii) by the Buyer in the event
that any condition set forth in Article VI shall not be satisfied and shall not
be reasonably capable of being satisfied on or prior to the Closing Date; (iii) by the
Company or the Seller in the event that any condition set forth in Article VII
shall not be satisfied and shall not be reasonably capable of being satisfied on or prior
to the Closing Date; (iv) by the Buyer, the Company or the Seller if the








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Closing shall not have occurred on or before September 30, 2010 (or, if the Buyer, the
Company and the Seller shall have agreed to a later date pursuant to the terms of this
Agreement, on or before any such later date); and (v) by the Buyer, in its sole and
absolute discretion, in consideration for the payment by the Buyer to the Seller of a
termination fee equal to Three Million Dollars ($3,000,000) (the “Termination Fee”);
provided, however, that no Party may terminate this Agreement pursuant to
clauses (ii), (iii) or (iv) above if the failure of any condition in Article VI
or Article VII to be satisfied or the failure of the Closing to occur on or
before September 30, 2010 (or, if the Parties shall have agreed to a later date pursuant
to the terms of this Agreement, on or before any such later date), results from (x) the
willful material breach by such Party of any covenant of this Agreement or (y) such
Party’s failure to use the required efforts to consummate the transactions contemplated
hereby.




     8.2. Procedure and Effect of Termination. In the event of termination of
this Agreement by any Party or Parties entitled to terminate this Agreement pursuant to
Section 8.1, written notice thereof shall forthwith be given by the terminating
party to the other parties hereto, and this Agreement shall thereupon terminate and
become void and have no effect, and the transactions contemplated hereby shall be
abandoned without further action by the parties hereto, except that the provisions of
Sections 5.1(b), 5.6 and 10.3 shall survive the termination of
this Agreement; provided, however, that such termination shall not
relieve any party hereto of any liability for any breach of this Agreement.



     8.3. Termination Fee. Each of the Seller, the Buyer and the Company
acknowledges and agrees that the Termination Fee provided for in Section 8.1(v)
constitutes liquidated damages, and not a penalty, and is reasonable in the event of a
termination by the Buyer as provided for in Section 8.1(v). Upon payment thereof
as contemplated by this Section 8.3 and other than as set forth in Sections
5.1(b) and 5.6, the Buyer shall have no further obligation or liability to the Seller
or the Company. The Termination Fee shall be payable immediately by the Buyer to the
Seller in cash by wire transfer of immediately available funds to the account set forth
in Section 8.3 of the Company Disclosure Schedule.



ARTICLE IX




INDEMNIFICATION



     9.1. Survival.



          (a) Survival. Subject to Section 9.1(c), all representations and
warranties of each party to this Agreement shall, without regard to the dissolution of
any Party, remain in full force and effect and survive until 6:00 p.m., Atlanta, Georgia
time on the date that is the twelve (12) month anniversary of the Closing Date, except
that, subject to Section 9.1(c):





          (i) the representations and warranties set forth in Section
2.11 (Environmental Matters), Section 2.14 (Taxes) and
Section 2.15 (ERISA), and shall remain in full force and effect and
survive until the expiration of the relevant statute of limitations
(including any extension thereof);




          (ii) the representations and warranties set forth in Section
2.1 (Organization of the Company), Section 2.2 (Capitalization
of the Company),








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Section 2.3 (Authority of the Company; Non-contravention);
Section 2.16 (Finders), Section 3.1 (Authority; Ownership of
Interests) and Section 3.2 (Brokers, Finders, etc.) (collectively,
the “Seller Fundamental Representations”) shall remain in full force and
effect and survive indefinitely from and after the Closing Date;




          (iii) the representations and warranties set forth in Section
4.1 (Organization of the Buyer), Section 4.2 (Authority of the
Buyer; Non-contravention) and Section 4.3 (Brokers, Finders, etc.)
(collectively, the “Buyer Fundamental Representations”) shall remain in full
force and effect and survive indefinitely from and after the Closing Date;
and




          (iv) any claim of fraud shall remain in full force and effect and
survive indefinitely;




provided,
however, for the avoidance of doubt, the covenants
and agreements of the Parties set forth herein shall survive in
accordance with their respective terms for the periods expressly set forth
in such provisions or, if a period is not expressly set forth in any
covenant or agreement set forth in this Agreement, indefinitely with respect
thereto after the Closing Date.



          (b) Reliance on Representations and Warranties. Each of the Seller and the
Company acknowledges that the Buyer is entitled to rely upon the representations and
warranties set forth in Articles II and III hereof, and the rights and
remedies set forth herein that may be exercised by the Buyer Indemnitees, are part of the
basis of the bargain contemplated by this Agreement, and such rights shall not be
limited, waived, or otherwise affected by virtue of any investigation by the Buyer or
knowledge acquired or capable of being acquired on the part of the Buyer of any
inaccuracy or breach of any such representation, warranty or covenant, regardless of
whether such knowledge was obtained through the Buyer’s own investigation or otherwise.




          (c) Expiration of Claims. Notwithstanding Section 9.1(a), if a Claim
Notice relating to any representation or warranty set forth in Article II,
Article III, or Article IV of this Agreement is delivered pursuant to
this Article IX on or prior to the expiration of the relevant survival period set
forth in Section 9.1(a), then, notwithstanding anything to the contrary contained
in this Section 9.1, such representation or warranty shall not expire to the
extent of the subject matter of such Claim Notice, but rather shall remain in full force
and effect and survive to the extent of the subject matter of such Claim Notice until
such time as such Claim Notice has been fully and finally resolved in accordance with
this Article IX, either (i) by means of a written settlement agreement executed
by Seller, the Company and Buyer, as applicable, or (ii) by means of a final,
non-appealable Judgment issued by a court of competent jurisdiction.




          (d) Claim Notice. For purposes of this Agreement, a “Claim Notice” means a
notice delivered in good faith by (x) any Buyer Indemnitee to the Seller (which shall be
deemed delivered on behalf of all Buyer Indemnitees), stating that such Buyer Indemnitee
believes that a Seller Indemnifiable Matter exists, or (y) by the Seller to the Buyer,
stating that the Seller believes that a Buyer Indemnifiable Matter exists. A Claim Notice
shall be delivered in accordance with the notice provisions in Section 10.1, and
shall contain (i) a sufficiently detailed









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description of the claim such that the Seller is reasonably advised of the relevant facts
and circumstances, to the extent reasonably available to the Buyer, related thereto, and
(ii) a non-binding, preliminary good-faith estimate of the aggregate dollar amount of the
actual and potential Damages that have arisen and may arise as a result of the Buyer
Indemnifiable Matter or the Seller Indemnifiable Matter (the “Claimed Amount”).




     9.2. Indemnification by Seller.



          (a) Seller Indemnification. From and after the Closing, and subject to any
applicable limitation set forth in this Article IX, the Seller shall hold
harmless, indemnify and defend the Buyer and each of its officers, directors, managers,
members, partners, employees, agents representatives and Affiliates (each, a “Buyer
Indemnitee”) from and against, and shall compensate and reimburse each of the Buyer
Indemnitees for, any and all Damages that are directly or indirectly suffered or incurred
by any of the Buyer Indemnitees or to which any of the Buyer Indemnitees may otherwise
become subject at any time (regardless of whether or not such Damages relate to any
Third-Party Claim) and that arise directly or indirectly from or in connection with any
of the following (each, a “Seller Indemnifiable Matter”):





          (i) any breach of any of the representations or warranties made by the
Seller or the Company in this Agreement or any other Transaction Document;




          (ii) any breach of any covenant or obligation of the Seller or the
Company contained in this Agreement or any other Transaction Document;




          (iii) any Indebtedness of the Company not paid and discharged in full
on or prior to the Closing;




          (iv) any and all liabilities of whatever nature or source arising
under, or in any way related to, any Seller Benefit Plans that are subject
to Title IV of ERISA or any “multiemployer plan” to which the Seller or any
ERISA Affiliate is required to contribute;




          (v) any and all liabilities of the Company for unpaid Taxes with
respect to any Tax year or portion thereof ending on or before the Closing
Date (or for any Straddle Tax Period to the extent allocable to the portion
of such period beginning before and ending on the Closing Date), but only to
the extent that any such unpaid Taxes exceed the amount, if any, reserved
for Taxes on the Final Working Capital Statement;




          (vi) any and all liabilities of the Company for any unpaid Taxes of any
Person under Treasury Regulation Section 1.1502-6 (or any similar provision
in state, local, or non-U.S. law), as transferee or successor, by contract,
or otherwise; provided, however, that this Section
9.2(a)(vi) shall not apply to any unpaid Taxes of the Buyer or any other
member of the Buyer’s affiliated group (other than the Company), or to any
unpaid Taxes of the Company attributable to any period or partial period
beginning after the Closing Date; or








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          (vii) any and all liabilities of the Company arising under, or in any
way related to, the failure of the Seller to pay, perform, discharge and
satisfy the Assumed Liabilities.



          (b) Application of Limitations. Except as otherwise provided in
Section 9.2(c), the Seller shall not be required to make any
indemnification payment pursuant to Section 9.2(a)(i) for any inaccuracy or
breach of the representations and warranties made by the Seller or the Company in
Articles II or III of this Agreement until such time as the total amount
of all Damages arising from the Seller Indemnifiable Matters, in the aggregate, exceeds
1% of the Purchase Price (the “Indemnification Threshold”). If the total amount of
Damages for all such Seller Indemnifiable Matters exceeds the Indemnification Threshold,
the Buyer Indemnitees shall be entitled to be indemnified against and compensated and
reimbursed for all Damages to the extent of the amount of such Damages in excess of 50%
of the Indemnification Threshold. Subject to Section 9.2(c), the aggregate
liability of Seller shall not exceed 12.5% of the Purchase Price (the “Indemnification
Cap”). The Buyer Indemnitees will not be entitled to indemnification pursuant to
Section 9.2(a)(i) for Damages to the extent that the Buyer Indemnitee has been
compensated therefor pursuant to Section 1.4.




          (c) Exceptions to Limitations. The limitations on the indemnification
obligations of Seller set forth in Section 9.2(b) shall not apply to:





          (i) any inaccuracy in or breach of any Seller Fundamental
Representation; or




          (ii) any indemnification claim made by any Buyer Indemnitee pursuant to
Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv),
Section 9.2(a)(v), Section 9.2(a)(vi) or Section 9.2(a)(vii); or




          (iii) any claim for or based on fraud.



     9.3. Indemnification by Buyer.



          (a) Buyer Indemnification. From and after
Closing and subject to any applicable limitation set forth in this Article IX, the Buyer shall indemnify,
hold harmless, and defend the Seller from and against, and shall compensate and reimburse
the Seller for, any and all Damages that are directly or indirectly suffered or incurred
by the Seller or to which the Seller may otherwise become subject at any time (regardless
of whether or not such Damages relate to any Third-Party Claim) and that arise directly
or indirectly from or as a direct or indirect result of, or are directly or indirectly
connected with any of the following (each, a “Buyer Indemnifiable Matter”):





          (i) any inaccuracy in or breach of any of the representations or
warranties made by the Buyer in this Agreement or any other Transaction
Document; and




          (ii) any breach of any covenant or obligation of the Buyer contained in
any of this Agreement or any other Transaction Document.



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          (b) Application of Limitations. Except as otherwise provided in
Section 9.3(c), the Buyer shall not be required to make any
indemnification payment pursuant to Section 9.3(a)(i) for any breach of the
Buyer’s representations and warranties in Article IV of this Agreement
until such time as the total amount of all Damages arising from Buyer Indemnifiable
Matters, in the aggregate, exceeds the Indemnification Threshold. If the total amount of
such Damages exceeds the Indemnification Threshold, the Seller shall be entitled to be
indemnified against and compensated and reimbursed for all Damages to the extent of the
amount of such Damages in excess of 50% of the Indemnification Threshold. The aggregate
liability of the Buyer under this Article IX shall not exceed the Indemnification
Cap.




          (c) Exceptions to Limitations. The limitations on the indemnification
obligations of the Buyer set forth in Section 9.3(b) shall not apply to





          (i) any inaccuracy in or breach of any Buyer Fundamental
Representation;




          (ii) any indemnification claim made by the Seller pursuant to
Section 9.3(a)(ii); or




          (iii) any claim for or based on fraud.



     9.4. Defense of Third-Party Claims.



          (a) Notice of Third Party Claim. If any
Person commences or asserts any Proceeding (whether against the Buyer or any other Buyer Indemnitee) with respect to
which the Seller may become obligated to hold harmless, indemnify, defend, compensate, or
reimburse any Buyer Indemnitee under this Article IX (each, a “Third-Party
Claim”), the Buyer shall provide the Seller with written notice (a “Third Party Claim
Notice”) as promptly as reasonably possible and, in any event, within thirty (30) days
following the commencement or assertion of such proceeding; provided,
however, that the failure to give such a Third Party Claim Notice shall not
affect the rights of any Buyer Indemnitee to receive indemnification for Damages to the
extent that the Seller’s right and ability to assume the defense of such Third-Party
Claim is not materially prejudiced.




          (b) The Seller’s Election to Assume Defense. The Seller shall have the
right, at its election, to assume the defense of such Third-Party Claim by written notice
to the Buyer within ten (10) days following the date of the Third Party Claim Notice.
Subject to Section 9.4(c), if the Seller elects to assume the defense of
any such Third-Party Claim:





          (i) The Seller shall proceed to defend such Third-Party Claim in a
diligent manner with counsel reasonably satisfactory to the Buyer at the
sole expense of the Seller;




          (ii) The Buyer shall make available to the Seller any non-privileged
documents and materials in the possession of the Buyer that may be
reasonably necessary to the defense of such Third-Party Claim;



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          (iii) The Seller shall keep Buyer informed of all material developments
and events relating to such Third-Party Claim, including contemporaneously
providing copies of any materials disclosed to any other Person in
connection with the defense of such Third-Party Claim;




          (iv) The Buyer shall have the right to participate at its sole cost and
expense in the defense of such Third-Party Claim; and




          (v) The Seller shall have the right to settle, adjust, or compromise
such Third-Party Claim only with the prior written consent of the Buyer,
which consent shall not be unreasonably delayed, conditioned or withheld.



          (c) Buyer’s Right of Defense. If the Seller does not elect to assume the
defense of such Third-Party Claim or the Seller elects to assume the defense of such
Third-Party Claim, but subsequently breaches any of its obligations under Section
9.4(b), then the Buyer may, at its election, proceed with the defense of such
Third-Party Claim on its own under Section 9.4(d).




          (d) Buyer’s Defense of Third-Party Claim. If the Buyer proceeds with the
defense of any Third-Party Claim under Section 9.4(c):





          (i) the Seller shall make available to the Buyer any documents and
materials in the possession or control of the Seller that may be necessary
to the defense of such Third-Party Claim;




          (ii) the Seller shall be entitled, at the Seller’s expense, to
participate in any defense of such claim, and, in such event, the Buyer
shall keep the Seller informed of all material developments and events
relating to such Third-Party Claim; and




          (iii) the Buyer shall have the right to settle, adjust, or compromise
such Third-Party Claim with the consent of the Seller, which consent shall
not be unreasonably delayed, conditioned or withheld.



     9.5. Exclusive Remedy. Other than the equitable remedies described in
Section 10.16 and claims for fraud, after the Closing Date, the exclusive remedy of
any Party or other Person entitled to indemnification under this Article IX (an
“Indemnified Person”) for Damages arising out of or relating to any Buyer Indemnifiable
Matter or Seller Indemnifiable Matter, as applicable, shall be indemnification under this
Article IX.



     9.6. Treatment of Indemnity Payments for Tax Purposes. All amounts payable
by the Seller to or for the benefit of a Buyer Indemnitee under this Article
IX shall, for Tax purposes, be treated as an adjustment to the Purchase Price payable
by the Buyer to the Seller.








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ARTICLE X




GENERAL PROVISIONS



     10.1. Notices. All notices and other communications given or made pursuant
to this Agreement shall be in writing and shall be deemed to have been duly given or made
(i) five (5) business days after being sent by registered or certified mail, return
receipt requested, (ii) upon delivery, if hand delivered, (iii) one (1) business day
after being sent by prepaid overnight courier with guaranteed delivery, with a record of
receipt, or (iv) upon transmission with confirmed delivery if sent by cable, telegram,
facsimile or telecopy, to the parties at the following addresses (or at such other
addresses as shall be specified by the parties by like notice):




	 	(a)	 	if to the Buyer:
	 
	 	 	 	Zayo Group LLC

901 Front Street, Suite 200

Louisville, Colorado 80027

Attention: Scott E. Beer, General Counsel

Fax No.: (303) 226-5923
	 
	 	with copies to:
	 
	 	 	 	Holme Roberts & Owen LLP

1700 Lincoln Street, Suite 4100

Denver, Colorado 80203

Attention: Hendrik Jordaan, Esq.

Fax No.: (303) 866-0546
	 
	 	(b) 	 	if to the Company or the Seller, prior to Closing, or to the Seller
after the Closing:
	 
	 	 	 	AGL Investments, Inc.

c/o AGL Resources Inc.

10 Peachtree Place

Atlanta, Georgia 30309

Attention: L. Stephen Cave, Vice President — Finance

William A. Palmer, III, Chief Corporate Counsel

Fax No.: (404) 584-3509
	 
	 	with copies to:
	 
	 	 	 	Kilpatrick Stockton LLP

1100 Peachtree Street, NE

Suite 2800

Atlanta, Georgia 30309

Attention: Gregory K. Cinnamon

 David A. Stockton

Fax No.: (404) 815-6555




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     10.2. Expenses. Subject to Section 8.2, and except as otherwise
provided herein, each Party hereto shall pay all of its own costs and expenses
incident to its negotiation and preparation of this Agreement and to its performance and
compliance with all agreements and conditions contained herein on his or its part to be
performed or complied with, including the fees, expenses and disbursements of his or its
counsel and accountants. The foregoing notwithstanding, the Seller shall pay the fees and
expenses of counsel to the Company, as well as the fees and expenses of its counsel, and
the Seller shall pay, for its account and on behalf of the Company, all amounts
(including, fees, commissions and/or expenses) due to SunTrust Robinson Humphrey by the
Company or the Seller in connection with the transactions contemplated by this Agreement.



     10.3. Partial Invalidity. Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under applicable law, but
in case any one or more of the provisions contained herein shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein unless the deletion of such provision or
provisions would result in such a material change as to cause completion of the
transactions contemplated hereby to be unreasonable.



     10.4. Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be considered an original instrument, but
all of which shall be considered one and the same agreement, and shall become binding
when one or more counterparts have been signed by each of the parties and delivered to
each of the Company and the Buyer.



     10.5. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia, without regard to any choice
or conflict of law provision or rule (whether of the State of Georgia or any other
jurisdiction) that would cause the application of laws of any jurisdictions other than
those of the State of Georgia.



     10.6. Assignment; Successors and Assigns. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties; provided,
however, that the Buyer may assign its right to purchase the Interests to one or
more of its Affiliates; provided, further, that no such assignment shall
relieve the Buyer of any of its liabilities or obligations hereunder. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors or assigns, heirs, legatees, distributees,
executors, administrators and guardians.



     10.7. No Third Party Beneficiaries. Except as provided in
Section 5.7, nothing in this Agreement, express or implied, is intended to or shall
confer upon any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.








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     10.8. Descriptive Headings. Titles and headings to Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.



     10.9. Schedules and Exhibits. The Schedules and Exhibits referred to in
this Agreement shall be construed with and as an integral part of this Agreement
to the same extent as if the same had been set forth verbatim herein. Any matter
disclosed in the Company Disclosure Schedule shall be deemed to qualify each
representation and warranty of the Company and the Seller, as the case may be,
notwithstanding the lack of a specific cross-reference, except to the extent that its
applicability to a particular representation, warranty, agreement or condition is not
reasonably apparent from the disclosure thereof.



     10.10. No Implied Representation. It is understood that any cost estimates,
projections or other predictions contained or referred to in the offering
materials that have been provided to the Buyer by the Company or the Seller are not and
shall not be deemed to be representations or warranties of the Company or the Seller.



     10.11. Construction of Certain Provisions. It is understood and agreed that
the specification of any dollar amount in the representations and warranties
contained in this Agreement or the inclusion of any specific item in the Schedules or
Exhibits is not intended to imply that such amounts or higher or lower amounts, or the
items so included or other items, are or are not material, and no party shall use the
fact of the setting of such amounts or the fact of the inclusion of any such item in the
Schedules in any dispute or controversy between the parties as to whether any obligation,
item or matter not described herein or included in a Schedule or Exhibit is or is not
material for purposes of this Agreement.



     10.12. Interpretation. As used in this Agreement, (i) the term “includes”
and the word “including” and words of similar import shall be deemed to be
followed by the words “without limitation”; (ii) “control” (including its correlative
meanings, “controlled by” and “under common control with”) shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of management or
policies of a person, whether through the ownership of securities or partnership or other
interests, by contract or otherwise; (iii) definitions contained in this Agreement apply
to singular as well as the plural forms of such terms and to the masculine as well as to
the feminine and neutral genders of such terms; (iv) words in the singular shall be held
to include the plural and vice versa, and words of one gender shall be held to include
the other gender as the context requires; (v) the terms “hereof,” “herein,” and
“herewith” and words of similar import shall, unless otherwise stated, be construed to
refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Article, Section,
paragraph, Schedule and Exhibit references are to the Articles, Sections, paragraphs,
Schedules and Exhibits to this Agreement unless otherwise specified; (vi) the word “or”
shall not be exclusive; and
(vii) provisions shall apply, when appropriate, to successive events and
transactions.



     10.13. Reasonable Consent Required. Where any provision of this Agreement
requires a Party to obtain the consent, approval or other acquiescence of any
other Party, such consent, approval or other acquiescence shall not be unreasonably
conditioned, withheld or delayed by such other Party.








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     10.14. Entire Agreement; Amendments. This Agreement, including the Schedules
and Exhibits, contains the entire understanding of the Parties hereto with regard
to the subject matter contained herein. The Parties hereto, by mutual agreement in
writing, may amend, modify and supplement this Agreement. Any such agreement shall be
validly and sufficiently authorized for purposes of this Agreement if it is signed by the
Buyer, the Company and the Seller.



     10.15. Waivers. Any term or provision of this Agreement may be waived, or
the time for its performance may be extended, by the Party or Parties entitled to
the benefit thereof if evidenced by a written instrument duly executed. The failure of
any Party hereto to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any Party thereafter to enforce each and
every such provision. No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach.



     10.16. Consent to Jurisdiction. Each of the parties hereto (i) consents to
submit itself to the personal jurisdiction of any federal court located in the
State of Georgia or any Georgia state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request for leave
from any such court, and (iii) agrees that it will not bring any action relating to this
Agreement in any court other than a federal court sitting in the State of Georgia or a
Georgia state court.



     10.17. Enforcement. Except as contemplated by Section 8.3, the
parties hereto agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that, except as contemplated
by Section 8.3, the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any federal court sitting in the State of Georgia or in any Georgia
state court, in addition to any other remedy to which any party is entitled at law or in
equity.



ARTICLE XI




DEFINITIONS



     In addition to the other words and terms defined elsewhere in this Agreement, as
used in this Agreement, the following words and terms shall have the meanings specified
or referred to below:



     “ACC License” means the Company’s authorization by the Arizona Corporation
Commission to provide competitive intra-LATA and inter-LATA non-switched, resold and
facilities-based telecommunications services, including non-switched, private line
services, resold and facilities-based point-to-point, point-to-multipoint and
multipoint-to-multipoint services, dark fiber and last-mile dedicated connectivity
between intrastate locations, both intra-exchange and interexchange, for the provision of
voice, data and information services to and between telecommunications service providers
and business customers, including through the installation, construction, lease,
management and sale of fiber optic networks.








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     “Accounts Receivable Target” has the meaning specified in Section 1.4(b).



     “Acquisition Proposal” has the meaning specified in Section 5.17.



     “Affiliate” means, with respect to any person, any other person who directly or
indirectly controls, is controlled by or is under common control with such person.



     “AGL Resources” means AGL Resources Inc., a Georgia corporation.



     “Agreement” has the meaning specified in the preamble of this Agreement.



     “Assets” has the meaning specified in Section 2.21.



     “Assumed Liabilities” means each of the current liabilities reflected by the
following general ledger account numbers of the Company (including, for the avoidance of
doubt, the general category of current liability reflected by such account numbers), or
otherwise defined on Schedule 1.4, in each case as of and accrued through
Closing: (a) 225120 (Accounts Payable — Accrued) to the extent associated with
any Project Costs; (b) 225500 (Payroll Deductions); (c) 225507 (One Pledge Club Atlanta);
(d) 225512 (Employee Stock Purchase Plan); (e) 225521 (P.A.C. Payable); (f) 225548 (AFLAC
Supplemental Insurance); (g) 251409 (Parking Deduction); and (h) 220084 (Miscellaneous
Liabilities — Bonuses; which includes accrued bonus expense and commissions).



     “Audited Financial Statements” has the meaning specified in Section 5.19.



     “Buyer” has the meaning specified in the preamble of this Agreement.



     “Buyer Fundamental Representations” has the meaning specified in Section
9.1(a)(iii).



     “Buyer Indemnifiable Matter” has the meaning specified in Section 9.3(a).



     “Buyer
Indemnitee” ” has the meaning specified in Section 9.2(a).



     “Capital Expenditures” means the acquisition by purchase, lease or otherwise of
assets that would be capitalized on a balance sheet.



     “Cash on Hand” means all money, cash and cash equivalents in the business safes or
other storage devices located on the business premises.



     “Certificate of Formation” means the certificate of the Company filed with the State
of Delaware on August 15, 2000 evidencing the formation of the Company.



     “Claim Notice” has the meaning specified in Section 9.1(d).



     “Claimed Amount” has the meaning specified in Section 9.1(d).



     “Claims” means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings.



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     “Closing” has the meaning specified in Section 1.2.



     “Closing Date” means the latest of (i) the second business day after expiration or
termination of all waiting periods prescribed under the HSR Act (as defined herein), and
(ii) the date on which the conditions set forth in Articles VI and VII
shall be satisfied or duly waived; or if Seller and the Buyer mutually agree on a
different date, the date upon which they have mutually agreed.



     “Code” means the Internal Revenue Code of 1986, as amended, and applicable Treasury
Regulations promulgated thereunder.



     “Commercially Reasonable Efforts” means the efforts that a prudent Person desirous
of achieving a result would use in similar circumstances to achieve that result as
expeditiously as possible; provided, however, that a Person required to
use commercially reasonable efforts under this Agreement will not be thereby required to
take actions that would result in a material adverse change in the benefits to such
Person of this Agreement and the Interests Purchase, or to expend any material sum, grant
or agree to any material concession or incur any other material burden.



     “Communications Licenses” has the meaning specified in Section 2.8(b).



     “Company” has the meaning specified in the preamble of this Agreement.



     “Company Confidential Information” means, as the same exists on or prior to the
Closing Date and only to the extent thereof, (a) any and all trade secrets of the Company
concerning the business and affairs of the Company, its product specifications, data,
know-how, formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, past, current and planned research and development, current and
planned manufacturing and distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies, business plans, marketing
plans, computer software and programs (including object code and source code), database
technologies, systems and structures, architecture processes, improvements, devices,
discoveries, concepts, methods, patents, patent applications, inventions, ideas,
improvements (whether patentable or not), information and other Intellectual Property of
the Company and any other information, however documented, of the Company that is a trade
secret under the common law or other applicable law; (b) any and all information
concerning the business and affairs of the Company, including historical financial
statements, financial projections and budgets, historical and projected sales,
contractual arrangements, capital spending budgets and plans, the names and backgrounds
of key personnel, customers, contractors, agents, vendors, suppliers and potential
suppliers, personnel training, techniques and materials and purchasing methods and
techniques, however documented; and (c) any and all notes, analyses, compilations,
studies, summaries and other material prepared by or for the Company containing or based,
in whole or in part, upon any information included in the foregoing; provided,
however, that Company Confidential Information shall not include (i) information
that is or becomes generally available to the public on a non-confidential basis
(including from a third party that is not disclosed in breach of any obligation of
confidentiality with respect to such information), unless such information has become
generally available as a








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result of any breach of this Agreement, and (ii) information that the Buyer expressly
authorizes in writing may be disclosed.




     “Company Disclosure Schedule” has the meaning specified in Section 2.1.



     “Confidentiality Agreement” has the meaning specified in Section 5.1(b).



     “Contract” has the meaning specified in Section 2.9(a).



     “Current Project” has the meaning specified in Section 5.12(c).



     “Damages” means, with respect to any Person at the time of determination, any
damage, injury, lost Tax deduction, liability, claim, deficiency, demand, settlement,
Judgment, fine, penalty, Tax, Encumbrance, fee (including any legal fee, expert fee,
accounting fee, or advisory fee), charge, disbursement, remediation, cost, expense
(including any cost of investigation, penalty, or expense of any nature) or other loss
suffered or incurred by such Person but excluding punitive or exemplary damages. For
purposes of determining the amount of any Damages, any qualifications in the
representations, warranties and covenants with respect to a “Material Adverse Effect”,
materiality, material, or similar terms shall be disregarded and will not have any effect
with respect to the calculation of the amount of any Damages.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



     “ERISA Affiliate” means any trade or business, whether or not incorporated, that,
together with the Company, is treated as a single employer pursuant to Section 414(b),
(c), (m) or (o) of the Code.



     “Encumbrance” means any Lien, claim, charge, security interest, mortgage, pledge,
easement, conditional sale or other title retention agreement, defect in title, covenant
or other encumbrance or restriction of any kind.



     “Environmental Claims” has the meaning specified in Section 2.11.



     “Environmental Law” has the meaning specified in Section 2.11.



     “Estimated Working Capital” has the meaning specified in Section 1.4(a).



     “FCC” has the meaning specified in Section 2.8(b).



     “FCC License” means the Company’s authorization by the FCC to provide domestic
interexchange services, and to provide facilities-based and resale services.



     “Final Working Capital” has the meaning specified in Section 1.4(c).



     “Final Working Capital Statement” has the meaning specified in Section
1.4(c).



     “Financial Statements” has the meaning specified in Section 2.4(a).








-56-









 











     “Funded Indebtedness” means, as applied to any Person, all Indebtedness of such
Person maturing after, or renewable or extendable at the option of such Person beyond,
twelve (12) months from the date of determination and shall not included any intracompany
Indebtedness or obligations.



     “Future Project” has the meaning specified in Section 5.12(b).



     “Future Project Budget” has the meaning specified in Section 5.12(b).



     “GAAP” means generally accepted accounting principles as applied in the United
States, as consistently applied by the Company in the Most Recent Financial Statements.



     “GAPSC License” means the Company’s authorization by the Georgia Public Service
Commission to provide competitive non-switched, facilities-based, local exchange
telecommunications services, including non-switched, private line services,
facilities-based point-to-point, point-to-multipoint and multipoint-to-multipoint
services, Ethernet services and last-mile dedicated connectivity between intrastate
locations, both intra-exchange and interexchange, for the provision of voice, data and
information services to and between telecommunications service providers and business
customers.



     “Governmental Authority” means any court, government (federal, state, local, foreign
or multinational), department, commission, board, bureau, agency, official or other
regulatory, administrative or governmental authority.



     “Governmental Filings” has the meaning specified in Section 5.2(a).



     “Governmental Permits” has the meaning specified in Section 2.8(a).



     “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder.



     “Hazardous Materials” has the meaning specified in Section 2.11.



     “IRS” means the Internal Revenue Service.



     “IRU” has the meaning specified in Section 2.9(a)(viii).



     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person created, issued, or incurred for borrowed money (whether by loan, the issuance and
sale of debt securities, or the sale of property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such property from
such other Person and including overdraft facilities); (b) all contingent obligations of
such Person, including the obligation of such Person to pay the deferred purchase price
or acquisition price of property or services, earnout, or similar payment, to the extent
constituting a Liability (other than accrued expenses and trade accounts payable incurred
in the ordinary course of business of such Person that are not more than 90 days past
due); (c) all obligations of such Person evidenced by a note, bond, debenture, or similar
Contract; (d) the then-drawable stated amount of and, without duplication, all
reimbursement obligations of such Person under letters of credit or similar








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instruments issued or accepted by banks and other financial institutions; (e) all
obligations of such Person under any derivative instrument; (f) all accumulated dividends
or distributions of such Person, whether or not declared; (g) the principal amount of all
obligations under or in respect of leases required to be capitalized under GAAP; (h)
Funded Indebtedness; and (i) all obligations of another Person of the types listed in
clauses (a) through (h) above, payment of which is guaranteed by, or secured by
Encumbrances on the property of (with respect to Encumbrances, to the extent of the value
of property pledged pursuant to such Encumbrances if less than the amount of such
obligations), such Person.




     “Indemnification Cap” has the meaning specified in Section
9.2(b).



     “Indemnification Threshold” has the meaning specified in
Section 9.2(b).



     “Indemnified Person” has the meaning
specified in Section 9.5.



     “Insurance Policies” has the
meaning specified in Section 2.22.



     “Intellectual Property”
has the meaning specified in Section 2.12(a).



     “Interests”
has the meaning specified in the preamble of this Agreement.



     “Interests Purchase” has the meaning specified in the preamble of this
Agreement. 


     “Independent Accountant” has the meaning specified in Section 1.4(d).



     “Judgment” means any: (a) order, judgment, injunction, edict, decree, ruling,
assessment, stipulation, pronouncement, determination, decision, opinion, verdict,
sentence, subpoena, writ, or award issued, made, entered, rendered, or otherwise put into
effect by or under the authority of any court, administrative agency, or other
Governmental Authority or any arbitrator or arbitration panel (in each case, whether
preliminary or final); or (b) contract, agreement, undertaking, understanding, or
arrangement of any kind or nature with any Governmental Authority entered into in
connection with any Proceeding.



     “knowledge of the Buyer” and other phrases of like substance means the actual
knowledge of Matt Erickson.



     “knowledge of the Seller” and other phrases of like substance means the actual
knowledge of James Gillis, Andrew Harrison and Andrew Evans.



     “LTOP” has the meaning specified in Section 2.5(j).



     “Lease” has the meaning specified in Section 2.10(a).



     “Leased Properties” has the meaning specified in Section 2.10(a).



     “Liabilities” has the meaning specified in Section 2.6.



     “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge
or deposit arrangement, lien (statutory or otherwise) or preference, priority or other
security interest



-58-









 




or preferential arrangement of any kind or nature whatsoever (including those created by,
arising under or evidenced by any conditional sale or other title retention agreement),
the interest of a lessor under a capital lease (meaning any leasing or similar
arrangement which is classified as a capital lease in the Most Recent Financial
Statements), any financing lease bearing substantially the same economic effect as any of
the foregoing, or the filing of any financing statement naming the owner of the asset to
which such Lien relates as debtor, under the Uniform Commercial Code (as in effect in any
jurisdiction) or any comparable law, and any contingent or other agreement to provide any
of the foregoing.




     “Losses” means any and all losses, costs, obligations, liabilities, settlement
payments, awards, judgments, fines, penalties, damages, demands, Claims, actions, causes
of action, assessments, deficiencies and other charges.



     “MPSC License” means the Company’s authorization by the Missouri Public Service
Commission to provide competitive switched interexchange and non-switched local exchange
telecommunications services limited to providing dedicated private line service to
business customers by deploying, leasing and selling metropolitan fiber optic networks
and systems to other telecommunications services providers.



     “Major Customers” has the meaning specified in Section 2.19(a).



     “Major Suppliers” has the meaning specified in Section 2.19(b).



     “Material Adverse Effect” means any change or effect that is or could reasonably be
expected to be materially adverse to (i) the condition (financial or otherwise),
businesses, assets, liabilities or results of operations of the Company, other than any
change or effect arising out of
(x) any change in the economy in general or the markets in which the Company operates
(except to the extent of that the Company is disproportionately impacted), or (y) this
Agreement or the transactions contemplated hereby, including the announcement or pendency
thereof, or (ii) the ability of the Company or the Seller to consummate the transactions
contemplated hereby.



     “Most Recent Balance Sheet” has the meaning specified in Section 2.4(a).



     “Most Recent Balance Sheet Date” has the meaning specified in Section
2.4(a).



     “Most Recent Financial Statements” has the meaning specified in Section
2.4(a).



     “NCUC License” means the Company’s authorization by the North Carolina Utilities
Commission to provide competitive intrastate interexchange and local exchange access
telephone service.



     “New Plans” has the meaning specified in Section 5.8(c).



     “Non-Recurring Project Revenues” has the meaning specified in Section
5.12(a).



     “Notice of Disagreement” has the meaning specified in Section 1.4(d).



     “Old Plans” has the meaning specified in Section 5.8(c).



-59-









 





     “Operating Agreement” means the Second Amended and Restated Operating Agreement of
the Company, dated as of December 20, 2002, as amended.



     “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA, or any other governmental agency, department or
instrumentality succeeding to the functions of said Corporation.



     “PUCN License” means the Company’s authorization by the Public Utilities Commission
of Nevada to provide intra-LATA and inter-LATA telecommunications services, private line
services, voice, data and information services to end-use business customers, and sell
unused capacity to other telecommunications providers.



     “Parent Guaranty” has the meaning specified in Section 5.18.



     “Parties” means, collectively, each of the Company, the Seller and the Buyer, and,
individually, any one or more of them, as the context requires.



     “Permitted Encumbrance” means, with respect to or upon any of the property or assets
of the Company, whether owned as of the date hereof or thereafter, any (i) Encumbrances
on property of the Company existing on the date of this Agreement; (ii) Liens incurred
and pledged and deposits made in the ordinary course of business in connection with
worker’s compensation, unemployment insurance, old-age pensions and other social security
benefits; (iii) Liens securing the performance of bids, tenders, leases, contracts (other
than for the repayment of debt), statutory obligations, surety, customs and appeal bonds
and other obligations of like nature, incurred as an incident to and in the ordinary
course of business; (iv) Liens imposed by law, such as carriers’, warehouseman’s,
mechanics’, materialmen’s, landlords’, laborers’, suppliers’ and vendors’ liens, incurred
in good faith in the ordinary course of business and securing obligations which are not
yet due or which are being contested in good faith by appropriate proceedings as to which
the Company shall, to the extent it deemed it necessary, have set aside on its books
adequate reserves; (v) Liens securing the payment of Taxes, either not delinquent or
being contested in good faith by appropriate legal or administrative proceedings and as
to which the Company shall, to the extent it deemed it necessary, have set aside on its
books adequate reserves; (vi) zoning restrictions, easements, licenses, rights of way,
declarations, reservations, provisions, covenants, conditions, waivers, restrictions on
the use of property or other title matters (and with respect to leasehold interests,
mortgages, obligations, Liens and other Encumbrances incurred, created, assumed or
permitted to exist and arising by, through or under a landlord or owner of the leased
property, with or without consent of the lessee), none of which materially impairs the
use of any parcel of property material to the operation of the business of the Company or
the value of such property for the purpose of the business of the Company; (vii) Liens on
property existing at the time such property was acquired by the Company; provided
that such Liens were not created in contemplation of the acquisition of such property
by the Company; and (viii) extensions, renewals and replacements of Liens
referred to in (i) through (vii) of this sentence; provided that any such
extension, renewal or replacement Lien shall be limited to the property or assets covered
by the Lien extended, renewed or replaced, and that the obligations secured by any such
extension, renewal or replacement Lien shall be in an amount not greater than the amount
of the obligations secured by the original Lien extended, renewed or



-60-









 




replaced, none of which, individually or in the aggregate, have a material adverse effect
upon the value of the property subject thereto or the use to which such property is
presently put.




     “Person” means and includes an individual, a partnership, a corporation, a limited
liability company, a trust, a joint venture, an unincorporated organization and any
governmental or regulatory body or other agency or authority.



     “Plans” has the meaning specified in Section 2.15(a).



     “Pre-Closing Tax Period” has the meaning specified in Section 5.14(a).



     “Post-Closing Tax Period” has the meaning specified in Section 5.14(a).



     “Preliminary Working Capital Statement” has the meaning specified in Section
1.4(a).



     “Proceeding” means any action, arbitration, audit, claim, charge, demand, subpoena,
complaint, contest, inquiry, inquest, examination, challenge, controversy, dispute,
appeal, counterclaim, prosecution, hearing, investigation, litigation, or suit (whether
civil, criminal, administrative, judicial, or investigative, whether formal or informal,
whether public or private) commenced, brought, conducted, or heard by or before, or
otherwise involving, any Governmental Authority or arbitrator.



     “Project Costs” has the meaning specified in Section 5.12(a).



     “Project Revenues” has the meaning specified in Section 5.12(a).



     “Projects” means the projects set forth in Section 2.23 of the Company Disclosure
Schedule.



     “Purchase Price” has the meaning specified in Section 1.1.



     “Recurring Project Revenues” has the meaning specified in Section 5.12(a).



     “Representative” or “Representatives” means the five members of the management
committee of the Company, known as the Executive Committee, as set forth in the Operating
Agreement, or any of such five members individually.



     “Retained Employee” has the meaning specified in Section 5.8(a).



     “Return” has the meaning specified in Section 2.14(k).



     “Review Period” has the meaning specified in Section 1.4(c).



     “SEC” shall mean the Securities and Exchange Commission.



     “Section 338(h)(10) Election” has the meaning specified in Section 5.14(l).



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.



-61-









 





     “Seller” has the meaning specified in the preamble of this
Agreement.



     “Seller Benefit Plans” has the meaning specified in
Section 5.8(c).



     “Seller Fundamental Representations” has the meaning specified in Section
9.1(a)(ii).



     “Seller Indemnifiable Matter” has the meaning specified in
Section 9.2(a).



     “Seller Release” has the meaning specified in Section
6.8(e).



     “Separation Benefits Cap” has the meaning specified in
Section 5.8(a).



     “Solvent” has the meaning specified in
Section 4.8.



     “State PUC” means the regulatory body in a particular state that governs public
utilities within said state.



     “SunTrust Robinson Humphrey” means SunTrust Robinson Humphrey, Inc.



     “Tax” or “Taxes” has the meaning specified in Section 2.14(j).



     “Tax Adjustment” has the meaning specified in Section 5.14(m).



     “Tax Authority” means any Governmental Entity serving as a Tax
authority.



     “Tax Contest” has the meaning specified in Section
5.14(i).



     “Termination Fee” has the meaning specified in
Section 8.1.



     “Third Party Claim” has the meaning
specified in Section 9.4(a).



     “Third Party Claim Notice” has the meaning specified in Section
9.4(a).



     “Transaction Document” means (a) this Agreement, (b) the Transition Services
Agreement, (c) the Parent Guaranty, (d) the Seller Release, (e) the deliveries of the
Seller and the Company set forth in Sections 6.1(c), 6.5, 6.7,
6.8(b), 6.8(c) and 6.8(d) and (f) the deliveries of the Buyer set
forth in Sections 7.1(c) and 7.6.



     “Transfer Taxes” has the meaning specified in Section 5.14(l).



     “Transition Services Agreement” has the meaning specified in Section 5.15.



     “WARN Act” means the Federal Workers Adjustment and Retraining Notification Act.



     “Working Capital” means an amount equal to the current assets of the Company less
the current liabilities of the Company, but excluding, (a) all inter-company money pool
assets and liability accounts; (b) inventory held for resale; (c) all Assumed
Liabilities; (d) the current portion of deferred revenue; (e) accrued tax liabilities
assumed by the Seller; and (f) accounts receivable associated with Project Revenues
(except for Recurring Project Revenues deriving



-62-









 




from or arising out of the Current Projects which are billed prior to Closing and
collected after Closing), in each case, as determined in accordance with GAAP, as
adjusted, and in a manner consistent with the policies and principles set forth on
Schedule 1.4.




     “Working Capital Target” means Nine Hundred Twenty Thousand Dollars ($920,000.00).



[Signatures on Following Page]




-63-









 






     IN
WITNESS WHEREOF,  the parties hereto have caused this Agreement to be executed as of
the day and year first above written.



	 	 	 	 	 
	 	BUYER:





ZAYO GROUP, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes  	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 
	 	 	 
	 	By:  	/s/ Scott Beer
 	 
	 	 	Name:  	Scott Beer 	 
	 	 	Title:  	Vice President and General Counsel 	 
	 
	 	COMPANY:



AGL NETWORKS, LLC

 	 
	 	By:  	/s/
Andrew W. Evans	 
	 	 	Name:  	Andrew W. Evans	 
	 	 	Title:  	EVP. CFO and Treasurer	 
	 
	 	SELLER:



AGL INVESTMENTS, INC.

 	 
	 	By:  	/s/
Andrew W. Evans	 
	 	 	Name:  	Andrew W. Evans	 
	 	 	Title:  	EVP. CFO and Treasurer	 
	 



Signature Page to Membership Interest Purchase Agreement





 









 





 




COMPANY DISCLOSURE SCHEDULE




to



MEMBERSHIP INTEREST PURCHASE AGREEMENT



by and among



AGL NETWORKS, LLC



a Delaware limited liability company



AGL INVESTMENTS, INC.



a Georgia corporation



and



ZAYO GROUP, LLC



a Delaware limited liability company



Dated March 23, 2010



 




 









 





     Pursuant to that certain Membership Interest Purchase Agreement (the “Agreement”) entered
into as of March 23, 2010, by and among AGL Networks, LLC, a Delaware limited liability company
(the “Company), AGL Investments, Inc., a Georgia corporation (“Seller”), and Zayo Group, LLC, a
Delaware limited liability company (“Buyer”), Company and Seller provide the following schedules
(the “Company Disclosure Schedule”) and any attachments hereto (each of which is incorporated
herein by this reference), to Buyer. References to any document do not purport to be complete and
are qualified in their entirety by the document itself. Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Agreement. Section references are to
sections in the Agreement pursuant to which the information is being disclosed.



     This Company Disclosure Schedule and the information and disclosures contained herein are
intended only to list those items required to be listed by the Agreement and shall not be deemed to
expand in any way the scope or effect of any of such representations, warranties or covenants.



     No disclosure in this Company Disclosure Schedule relating to any possible breach or violation
of any agreement, law or regulation shall be construed as an admission or indication that any such
breach or violation exists or has actually occurred, nor is such inclusion an admission of
liability to or of any party. Further, the inclusion of any item in the Company Disclosure Schedule
does not constitute a representation by Company or Seller that such items are material to Buyer.



     The information provided herein is being provided solely for the purpose of making disclosures
under the Agreement. In disclosing this information, neither Company nor Seller waives any
attorney-client privilege associated with such information or any protection afforded by the
work-product doctrine with respect to any of the matters disclosed or discussed herein.



     In accordance with the Agreement, Seller hereby provides the information hereinafter set
forth.



 









 





Section 2.1




NONE




 









 





Section 2.2(b)




NONE




 









 





Section 2.3(b)




FRANCHISE AGREEMENT ASSIGNMENT APPROVALS REQUIRED




Arizona





	 	•	 	Gilbert
	 
	 	•	 	Glendale
	 
	 	•	 	Mesa
	 
	 	•	 	Paradise Valley
	 
	 	•	 	Phoenix
	 
	 	•	 	Scottsdale





Georgia





	 	•	 	College Park
	 
	 	•	 	Decatur
	 
	 	•	 	Norcross





STATE LICENSE ASSIGNMENT APPROVALS REQUIRED





	 	•	 	Georgia PSC (Certificates of Authority to Provide Competitive Local Exchange Services
and to Provide IntraLATA and InterLATA Intrastate Telecommunications)





FEDERAL LICENSE ASSIGNMENT APPROVALS REQUIRED





	 	•	 	FCC (Section 214)





COLOCATION AGREEMENT ASSIGNMENT APPROVALS REQUIRED





	 	•	 	56 Marietta Street, Atlanta (Fiber and Facilities Installation Agreement between
Company and Colo Properties Atlanta LLC, dated 11/1/05)






	 	•	 	8521 East Princess Drive, Scottsdale, AZ (License and Master Service Agreement between
the Company and IO Capital Princess, LLC dated 6/08)






	 	•	 	615 N. 48th Street, Phoenix, AZ (License and Master Service Agreement between the
Company and IO Phoenix One, LLC dated 3/9/09)






	 	•	 	Two Concourse Lease Agreement between the Company and Teachers Concourse, LLC
dated           , 2002 (to the extent Buyer does not comply with the provisions of the lease
agreement)





POLE ATTACHMENT AGREEMENT





	 	•	 	Stand Alone Agreement for Access to Southwestern Bell Telephone Company’s
Structure dated 1/16/09





 









 





Section 2.4(a)




[See attached spreadsheet documents]




 









 





DISCLOSURE SCHEDULES TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

AGL NETWORKS, LLC; AGL INVESTMENTS, INC.; and ZAYO GROUP LLC



Section 2.4 (a)

FINANCIAL STATEMENTS




AGL NETWORKS, LLC — BALANCE SHEET (UNAUDITED)


AS OF DECEMBER 31,





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	2009	 	 	2008	 	 	2007	 
	Current assets
	 	 	 	 	 	 	 	 	 	 	 	 
	Cash and cash equivalents
	 	$	—	 	 	$	—	 	 	$	—	 
	Receivables
	 	 	 	 	 	 	 	 	 	 	 	 
	Accounts receivables
	 	 	5,649,066	 	 	 	2,085,967	 	 	 	2,348,266	 
	Less allowance for doubtful accounts
	 	 	88,832	 	 	 	72,421	 	 	 	57,893	 
	 
	 	 	 	 	 	 	 	 	 
	Total receivables
	 	 	5,560,234	 	 	 	2,013,546	 	 	 	2,290,373	 
	Inventory — Telecommunication projects held for resale
	 	 	 	 	 	 	 	 	 	 	 	 
	Telecommunication projects held for resale
	 	 	299,615	 	 	 	97,814	 	 	 	2,482,777	 
	Other — parts, materials and operating supplies
	 	 	—	 	 	 	—	 	 	 	143,001	 
	 
	 	 	 	 	 	 	 	 	 
	Total inventory
	 	 	299,615	 	 	 	97,814	 	 	 	2,625,778	 
	Deferred franchise fees — current portion
	 	 	652,789	 	 	 	326,190	 	 	 	—	 
	Prepaid taxes — net
	 	 	—	 	 	 	166,174	 	 	 	—	 
	Other current assets
	 	 	34,426	 	 	 	160,316	 	 	 	136,681	 
	 
	 	 	 	 	 	 	 	 	 
	Total current assets
	 	 	6,547,064	 	 	 	2,764,040	 	 	 	5,052,832	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Long-term assets and other deferred debits
	 	 	 	 	 	 	 	 	 	 	 	 
	Property, plant and equipment
	 	 	 	 	 	 	 	 	 	 	 	 
	Property, plant and equipment in service
	 	 	96,965,722	 	 	 	92,155,504	 	 	 	75,926,716	 
	Construction work-in progress
	 	 	14,408,271	 	 	 	3,563,334	 	 	 	8,462,765	 
	Less accumulated depreciation
	 	 	15,150,355	 	 	 	12,292,458	 	 	 	9,725,564	 
	 
	 	 	 	 	 	 	 	 	 
	Property, plant and equipment — net
	 	 	96,223,638	 	 	 	83,426,380	 	 	 	74,663,917	 
	Deferred franchise fees
	 	 	958,254	 	 	 	2,045,172	 	 	 	—	 
	Security deposits
	 	 	505,235	 	 	 	350,000	 	 	 	350,000	 
	Other
	 	 	266,105	 	 	 	509,697	 	 	 	459,517	 
	 
	 	 	 	 	 	 	 	 	 
	Total long-term assets and other deferred debits
	 	 	97,953,232	 	 	 	86,331,249	 	 	 	75,473,434	 
	 
	 	 	 	 	 	 	 	 	 
	Total assets
	 	$	104,500,296	 	 	$	89,095,289	 	 	$	80,526,266	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Current liabilities
	 	 	 	 	 	 	 	 	 	 	 	 
	Accounts payable
	 	$	1,183,005	 	 	$	546,387	 	 	$	1,010,677	 
	Intercompany payables
	 	 	51,042,170	 	 	 	43,047,137	 	 	 	31,775,610	 
	Accrued wages and salaries
	 	 	1,219,765	 	 	 	1,066,901	 	 	 	898,373	 
	Accrued taxes — net
	 	 	2,024,363	 	 	 	—	 	 	 	631,763	 
	Deferred revenue — current portion
	 	 	3,427,400	 	 	 	2,818,050	 	 	 	6,762,142	 
	Other
	 	 	1,626	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 
	Total current liabilities
	 	 	58,898,329	 	 	 	47,478,475	 	 	 	41,078,565	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Long-term liabilities and other deferred credits
	 	 	 	 	 	 	 	 	 	 	 	 
	Accumulated deferred income taxes
	 	 	17,200,967	 	 	 	15,816,883	 	 	 	12,171,904	 
	Deferred revenue
	 	 	29,418,640	 	 	 	30,094,684	 	 	 	31,704,062	 
	Other
	 	 	364,537	 	 	 	—	 	 	 	131,848	 
	 
	 	 	 	 	 	 	 	 	 
	Total long-term liabilities and other deferred credits
	 	 	46,984,144	 	 	 	45,911,567	 	 	 	44,007,814	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Shareholder’s equity
	 	 	(1,382,177	)	 	 	(4,294,753	)	 	 	(4,560,113	)
	 
	 	 	 	 	 	 	 	 	 
	Total equity
	 	 	(1,382,177	)	 	 	(4,294,753	)	 	 	(4,560,113	)
	 
	 	 	 	 	 	 	 	 	 
	Total liabilities and equity
	 	$	104,500,296	 	 	$	89,095,289	 	 	$	80,526,266	 
	 
	 	 	 	 	 	 	 	 	 







 









 





DISCLOSURE SCHEDULES TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

AGL NETWORKS, LLC; AGL INVESTMENTS, INC.; and ZAYO GROUP LLC



Section 2.4 (a)

FINANCIAL STATEMENTS




AGL NETWORKS, LLC — STATEMENTS OF INCOME (UNAUDITED)


YEARS ENDED DECEMBER 31,





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	2009	 	 	2008	 	 	2007	 
	Operating Revenues
	 	$	21,779,612	 	 	$	26,767,864	 	 	$	16,811,659	 
	Operating Expenses
	 	 	 	 	 	 	 	 	 	 	 	 
	Cost of sales
	 	 	941,149	 	 	 	4,566,180	 	 	 	1,419,231	 
	Operation and maintenance
	 	 	9,254,243	 	 	 	8,968,851	 	 	 	7,385,967	 
	Depreciation
	 	 	2,874,594	 	 	 	2,660,849	 	 	 	2,369,180	 
	Taxes other than income taxes
	 	 	764,874	 	 	 	642,105	 	 	 	526,429	 
	 
	 	 	 	 	 	 	 	 	 
	Total operating expenses
	 	 	13,834,860	 	 	 	16,837,985	 	 	 	11,700,807	 
	 
	 	 	 	 	 	 	 	 	 
	Operating income
	 	 	7,944,752	 	 	 	9,929,879	 	 	 	5,110,852	 
	Other income and (expense)
	 	 	—	 	 	 	(5,000	)	 	 	(49,936	)
	Interest expense, net
	 	 	287,190	 	 	 	1,268,328	 	 	 	1,747,119	 
	 
	 	 	 	 	 	 	 	 	 
	Earnings before income taxes
	 	 	7,657,562	 	 	 	8,656,551	 	 	 	3,313,797	 
	Income tax expense
	 	 	3,066,258	 	 	 	3,351,073	 	 	 	1,278,341	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Net income
	 	$	4,591,304	 	 	$	5,305,478	 	 	$	2,035,456	 
	 
	 	 	 	 	 	 	 	 	 







 









 





Section 2.4(b)




Accounts Payable Aging



[See attached spreadsheet documents]





 











 





DISCLOSURE SCHEDULES TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

AGL NETWORKS, LLC; AGL INVESTMENTS, INC.; and ZAYO GROUP LLC




Section 2.4 (b)

ACCOUNTS PAYABLE AGING



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Invoice Date/	 	 	 	 	 	 	 	 
	VENDOR NAME	 	Date Accrued	 	 	 	 	 	 	Amount	 
	GEORGIA POWER COMPANY
	 	30-Dec-09	 	 	[A]	 	 	$	111	 
	SOFTCHOICE
	 	16-Dec-09	 	 	[A]	 	 	 	2,608	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	CAPITAL ACCRUALS FOR CHARLOTTE EXPANSION PROJECT
	 	 	 	 	 	 	 	 	 	 	 	 
	COMMUNICATION SERVICES, INC. (Invoice # R12144)
	 	21-Dec-09	 	 	[B]	 	 	 	14,892	 
	COMMUNICATION SERVICES, INC. (Invoice # G12143)
	 	21-Dec-09	 	 	[B]	 	 	 	77,374	 
	COMMUNICATION SERVICES, INC. (Invoice # B12141)
	 	14-Dec-09	 	 	[B]	 	 	 	9,848	 
	FIBERTECH (Invoice # 3337)
	 	18-Dec-09	 	 	[B]	 	 	 	59,629	 
	FIBERTECH (Invoice # 3338)
	 	18-Dec-09	 	 	[B]	 	 	 	70,040	 
	COMMUNICATION SERVICES, INC. (Invoice # BK12146)
	 	22-Dec-09	 	 	[B]	 	 	 	36,559	 
	COMMUNICATION SERVICES, INC. (Invoice # G12147)
	 	28-Dec-09	 	 	[B]	 	 	 	25,334	 
	COMMUNICATION SERVICES, INC. (Invoice # BK12148)
	 	28-Dec-09	 	 	[B]	 	 	 	85,751	 
	COMMUNICATION SERVICES, INC. (Invoice # G12150)
	 	31-Dec-09	 	 	[B]	 	 	 	2,609	 
	COMMUNICATION SERVICES, INC. (Invoice # G12145)
	 	22-Dec-09	 	 	[B]	 	 	 	15,494	 
	COMMUNICATION SERVICES, INC. (ESTIMATE)
	 	31-Dec-09	 	 	[B]	 	 	 	22,726	 
	COMMUNICATION SERVICES, INC. – ESTIMATE FOR 3
BORES UNDERNEATH INTERSTATE 1000 FEET IN LENGTH
	 	31-Dec-09	 	 	[B]	 	 	 	390,000	 
	OUTSIDE SERVICES ACCRUALS (ESTIMATE)
	 	31-Dec-09	 	 	[B]	 	 	 	60,500	 
	LEGAL ACCRUALS (ESTIMATE)
	 	31-Dec-09	 	 	[B]	 	 	 	19,967	 
	ACCRUED COST OF GOODS FOR FOLLOWING PROJECTS (ESTIMATES)
	 	 	 	 	 	 	 	 	 	 	 	 
	PROJECT # 040550 (MCI LTOP PO 10)
	 	31-Aug-09	 	 	[B]	 	 	 	56,813	 
	PROJECT # 040576 — BOA IN KANSAS CITY
	 	30-Sep-09	 	 	[B]	 	 	 	14,151	 
	PROJECT # 041641 — DEKALB COUNTY SCHOOL SYSTEM TUCKER
HIGH SCHOOL
	 	30-Nov-09	 	 	[B]	 	 	 	21,000	 
	MARTA WORK ORDER 1
	 	31-Dec-09	 	 	[B]	 	 	 	10,000	 
	PROJECT # 041665 — MCI LTOP
	 	31-Dec-09	 	 	[B]	 	 	 	52,700	 
	EXPENSES RELATED TO LEASE OF 72 COUNT FIBER (TIME WARNER)
	 	31-May-09	 	 	[B]	 	 	 	10,260	 
	TEMPE FRANCHISE FEES
	 	30-Nov-09	 	 	[B]	 	 	 	61,488	 
	ALL OTHER ACCOUNTS PAYABLE LESS THAN $10,000
	 	 	 	 	 	 	 	 	 	 	63,151	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL ACCOUNTS PAYABLE PER MOST RECENT BALANCE SHEET
	 	 	 	 	 	 	 	 	 	$	1,183,005	 
	 
	 	 	 	 	 	 	 	 	 	 	 









 




			
	[A]	 	Invoices received prior to December 31, 2009 and processed in the
PeopleSoft accounts payable system but outstanding as of December 31, 2009 as
payment due date occurs after December 31, 2009.
	 
	[B]	 	Invoices not received prior to December 31, 2009 and thus not processed in the
PeopleSoft accounts payable system but goods and services were received prior to
December 31, 2009. Therefore, an estimated accrued liability was recorded at of the
Most Recent Balance Sheet Date.





 









 





Section 2.4(c)




Accounts Receivable


[See attached spreadsheet documents]




 









 





DISCLOSURE SCHEDULES TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

AGL NETWORKS, LLC; AGL INVESTMENTS, INC.; and ZAYO GROUP LLC




Section 2.4 (c)

ACCOUNTS RECEIVABLE AGING — 90 DAYS PAST DUE



	 	 	 	 	 	 	 	 	 
	 	 	 	 	Number of Days	 	 	 
	 	 	 	 	Past Due as of	 	 	 
	CUSTOMER NAME AND INVOICE NUMBER	 	Invoice Date	 	31-Dec-09	 	Amount	 
	Turner Broadcasting Systems Invoice # 200909-0156
	 	18-Sep-09	 	104	 	$	10,500	 
	Level 3 Communications, LLC Invoice # 200901-2129-A
	 	21-Jan-09	 	344	 	 	(2,457	)
	Level 3 Communications, LLC Invoice # 200902-2214-A
	 	18-Feb-09	 	316	 	 	12,682	 
	NextG Networks of NY, Inc. Invoice # 200906-6034
	 	30-Jun-09	 	184	 	 	6,310	 
	NextG Networks of NY, Inc. Invoice # 200906-6036
	 	30-Jun-09	 	184	 	 	18,694	 
	Dekalb County School System Invoice # 200908-8214
	 	20-Aug-09	 	133	 	 	11,571	 
	Dekalb County School System Invoice # 200909-0169
	 	18-Sep-09	 	104	 	 	14,522	 
	Netstream Communications LLC Invoice # 200907-6316
	 	14-Jul-09	 	170	 	 	6,443	 
	Eschelon Telecom Invoice # 200906-5287
	 	17-Jun-09	 	197	 	 	(500	)
	Eschelon Telecom Invoice # 200907-6871
	 	21-Jul-09	 	163	 	 	8,640	 
	Eschelon Telecom Invoice # 200908-8272
	 	20-Aug-09	 	133	 	 	18,000	 
	Millenium Medical Invoice # 200709-0722-A
	 	17-Sep-07	 	836	 	 	1,128	 
	Millenium Medical Invoice # 200710-0800-A
	 	22-Oct-07	 	801	 	 	3,000	 
	Millenium Medical Invoice # 200711-0874-A
	 	9-Nov-07	 	783	 	 	3,000	 
	Millenium Medical Invoice # 200805-1357-A
	 	14-May-08	 	596	 	 	3,000	 
	Millenium Medical Invoice # 200908-8239
	 	20-Aug-09	 	133	 	 	(912	)
	Millenium Medical Invoice # 200909-0136
	 	18-Sep-09	 	104	 	 	(912	)
	BT Global Services Invoice # 200812-2003-A
	 	16-Dec-08	 	380	 	 	4,550	 
	Sparkplug Southwest, LLC Invoice # 200907-6329
	 	14-Jul-09	 	170	 	 	(600	)
	Sparkplug Southwest, LLC Invoice # 200908-8254
	 	20-Aug-09	 	133	 	 	600	 
	Insight Networking Invoice # 200905-3442
	 	13-May-09	 	232	 	 	4,700	 
	Insight Networking Invoice # 200906-5151
	 	16-Jun-09	 	198	 	 	4,700	 
	Sago Networks, LLC Invoice # 200905-3491
	 	13-May-09	 	232	 	 	(8,050	)
	Sago Networks, LLC Invoice # 200906-5200
	 	16-Jun-09	 	198	 	 	500	 
	Sago Networks, LLC Invoice # 200907-6324
	 	14-Jul-09	 	170	 	 	500	 
	One Ring Networks, Inc. Invoice # 200906-5194
	 	16-Jun-09	 	198	 	 	(375	)
	Cox Search Inc. Invoice # 200908-8209
	 	20-Aug-09	 	133	 	 	1,900	 
	Time Warner Telecom Invoice # 200901-2153-A
	 	21-Jan-09	 	344	 	 	(3,563	)
	Teleport Communications Atlanta Invoice # 200806-1412-A
	 	18-Jun-08	 	561	 	 	5,464	 
	Teleport Communications Atlanta Invoice # 200906-4704
	 	4-Jun-09	 	210	 	 	15,696	 
	Teleport Communications Atlanta Invoice # 200906-5222
	 	16-Jun-09	 	198	 	 	4,895	 
	Teleport Communications Atlanta Invoice # 200908-8193
	 	20-Aug-09	 	133	 	 	364	 
	Teleport Communications Atlanta Invoice # 200909-0090
	 	18-Sep-09	 	104	 	 	5,464	 
	Cogent Communications Inc. Invoice # 200904-2087
	 	21-Apr-09	 	254	 	 	800	 
	Qwest Communications Corp Invoice # OA-6809 (Unapplied Payment)
	 	17-Sep-09	 	105	 	 	(8,063	)
	Fiberlight, LLC Invoice # 200903-0601
	 	17-Mar-09	 	289	 	 	(8,656	)
	Fiberlight, LLC Invoice # 200906-4941
	 	11-Jun-09	 	203	 	 	9,569	 
	Fiberlight, LLC Invoice # 200906-4942
	 	11-Jun-09	 	203	 	 	5,891	 
	Fiberlight, LLC Invoice # 200906-4943
	 	11-Jun-09	 	203	 	 	2,644	 
	Fiberlight, LLC Invoice # 200906-6016
	 	30-Jun-09	 	184	 	 	11,375	 
	Fiberlight, LLC Invoice # 200906-6018
	 	30-Jun-09	 	184	 	 	2,400	 
	Fiberlight, LLC Invoice # 200906-6024
	 	30-Jun-09	 	184	 	 	4,050	 
	Fiberlight, LLC Invoice # 200907-6869
	 	21-Jul-09	 	163	 	 	16,630	 
	Valley Metro Rail Invoice # 200903-0585
	 	17-Mar-09	 	289	 	 	8,642	 
	Insight Direct USA Inc. Invoice # 200904-2047
	 	21-Apr-09	 	254	 	 	8,700	 
	Insight Direct USA Inc. Invoice # 200908-8271
	 	20-Aug-09	 	133	 	 	3,300	 
	Nationalnet, Inc. Invoice # 200908-8240
	 	20-Aug-09	 	133	 	 	2,550	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Total Invoices Past Due More Than 90 Days as of December 31,
2009
	 	 	 	 	 	$	209,287	 
	 
	 	 	 	 	 	 	 






 









 





Section 2.5 




Absence of Certain Changes or Events




	(j)	 	Insight Direct 2/1/10, $76,960;
	 
	(k)	 	Effective 2/25/2010, the Company is not offering “LTOP”
transactions





 









 





Section 2.6




Undisclosed Liabilities


NONE




 









 





Section 2.7




Litigation; Orders


The Company contracted with Speedy Gonzalez Construction Company (“Speedy”) to lay fiber optic
cable within the city limits of Tempe, AZ. As part of the project, the City of Tempe contracted
with an engineering consultant to locate various utilities. On January 10, 2008, Speedy began
boring at the intersection of McClinton and University Streets based on locates performed by the
City’s contractor; during that time, they bored into a 36” water main causing a sudden release of
water. Subsequent to the incident, both the Company and Speedy received a number of claims for
damages alleged to have stemmed from the water flow, including claims from the City of Tempe,
Southwest Gas, and several smaller parties claiming losses for business interruption.



These claims have been tendered to Speedy and are being defended by their insurance carrier.
Additionally, any potential liability would be subject to Speedy’s contractual obligation to
indemnify AGLN for such payments.




 









 





Section 2.9(a) 




Contracts



(vii)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Customer	 	New CN	 	Description	 	Effective	 	Expires	 	Term
	Tower Cloud

	 	 	693	 	 	Service Order #3-ATL Laterals
	 	Tbd
	 	Tbd + 20yrs
	 	 	20	 
	Cogent

	 	 	875	 	 	Service Order # 4 8521 E Princess
	 	2/15/2010
	 	12/14/2030
	 	 	21	 
	XO Communications

	 	 	781	 	 	Service Order #1 maintenance
	 	12/31/2009
	 	12/31/2030
	 	 	21	 
	Synchronet

	 	 	436	 	 	Network Lease: Deferred
	 	7/16/2005
	 	7/14/2030
	 	 	25	 
	Cogent

	 	 	17	 	 	Blue Ring BB & laterals
	 	5/1/2003
	 	4/30/2030
	 	 	27	 
	Cogent

	 	 	18	 	 	Green Ring BB & laterals
	 	5/1/2003
	 	4/30/2030
	 	 	27	 
	DCSS

	 	 	96	 	 	Annual maintenance 0708-0609
	 	12/3/2004
	 	12/31/2032
	 	 	28	 
	XO Communications

	 	 	828	 	 	SO 1 Atlanta Colocation
	 	12/19/2009
	 	12/10/2039
	 	 	30	 
	XO Communications

	 	 	780	 	 	SO 4 Atl (4) rings
	 	12/7/2009
	 	12/6/2039
	 	 	30	 
	XO Communications

	 	 	792	 	 	SO 4.1 add 300 Satellite
	 	11/29/2009
	 	11/28/2039
	 	 	30	 
	XO Communications

	 	 	769	 	 	SO 5 Px CO Ring 1 and 2
	 	12/1/2009
	 	11/30/2039
	 	 	30	 
	XO Communications

	 	 	784	 	 	SO 5.2 add 1 to the North ring
	 	12/1/2009
	 	11/30/2039
	 	 	30	 
	XO Communications

	 	 	784	 	 	SO 5.2 add 1 to the North ring
	 	12/1/2009
	 	11/30/2039
	 	 	30	 
	NEW ADDS
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Details to follow-Tower Cloud Lats
Integra
	 	 	 	 	 	 	 	 	 	 	 	 	 	 







	(viii)	 	XO Communications Charlotte buildout.$3,408,884.97 and $872,781.03
	 
	(ix)	 	Tower Cloud Service Order 3,4,5. Limits on use of laterals for resale.
	 
	 	 	FiberTower, MSA and SO 1-6. Limits on use of laterals for resale




(xi), (xii) See attached spreadsheet for items (xi) and (xii)




 









 





	 	 	 	 	 	 	 
	Owner	 	System name	 	Functionality	 	Contract Found
	AGLR

	 	PS Fin
	 	Estimating, budgeting, etc.

Process Payments sent by customers 

Perform Accounting functions 

Inventory 

Fixed Assets

Other Accounting Functions
	 	N/A
	 
	AGLR

	 	PS Fin
	 	Create bills & monthly statements
	 	N/A
	 
	AGLR

	 	Comshare
	 	Budgeting
	 	N/A
	 
	AGLN

	 	Nexus Worx
	 	Fiber Inventory, Splicing, Mapping, route
	 	Yes
	 
	AGLN

	 	JDSU Atlas
	 	Fiber continuity and fault isolation
	 	N/A
	 
	AGLN

	 	WhatsUP Gold v.12
	 	SNMP Manager polling devices on internal
network
	 	N/A
	 
	AGLN

	 	Honeywell
	 	HVAC, access control, UPS, Halon
	 	Yes
	 
	AGLR

	 	Google Maps Pro
	 	Cust maps, franchise maps, route development
	 	N/A
	 
	AGLR

	 	Map Info
	 	Cust maps, franchise maps, route development
	 	N/A
	 
	AGLR

	 	ESRI. 9.3
	 	Spatial Mapping tool
	 	N/A
	 
	AGLR

	 	MS Streets & Trips 2007
	 	Cust maps, franchise maps, route development
	 	N/A
	 
	AGLR

	 	Microstation 2009 v.8
	 	Engineering drawings
	 	N/A
	 
	AGLR

	 	Autocad 2009
	 	Engineering drawings
	 	N/A
	 
	AGLR

	 	Visio 2003
	 	Engineering drawings
	 	N/A
	 
	AGLR

	 	MS Project 2003
	 	Project Planning
	 	N/A
	 
	AGLR

	 	MS Office 2003
	 	Word, Powerpoint, Excel, Access, Visio
	 	N/A
	 
	AGLR

	 	Adobe Acrobat
	 	Document Management
	 	N/A
	 
	AGLR

	 	Nuance PDF Converter v.5
	 	Document Management
	 	N/A
	 
	AGLN

	 	Contract Database
	 	Customer / Supplier / Regulatory agreements
	 	Yes
	 
	AGLN

	 	Salesforce.com
	 	CRM Only
	 	Yes
	 
	AGLN

	 	Network Engineer (Telcordia)
	 	Already Terminated
	 	Yes






 









 





Section 2.9(b)




Default Under Contracts


See Company Disclosure Schedule Section 2.4(c) for a list of the customers with accounts receivable
that are greater than 90 days past due as of the Most Recent Balance Sheet Date. The failure of
such customers to timely pay such accounts receivable would constitute a breach or default by such
customers pursuant to the underlying Contracts at such time as Company gives notice of the default
to such Customer.




 









 





Section 2.9(c)




Top 50 Contracts


[See attached document]





 











 





Agreements with AGL Networks’ Largest Customers:





	 	1.	 	Indefeasible Right of Use Agreement and Master Service Agreement,
dated May 26, 2006, by and between AGL Networks, LLC and XO Communications, LLC,
including all related agreements, amendments, schedules and product or service
orders.
	 
	 	 	 	Master Service Agreement for Dark Fiber IRU, dated July 20, 2009, by and between AGL
Networks, LLC and XO Communications Services, Inc., including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	Master Collocation License Agreement, dated October 16, 2009, by and between AGL
Networks, LLC and XO Communications Services, Inc., including all related agreements,
amendments, schedules and product or service orders.
	 
	 	2.	 	Master Service Agreement, dated June 27, 2002, by and between AGL
Networks, LLC and Bank of America Technology and Operations, Inc. (now Bank of
America, N.A.), including all related agreements, amendments, schedules and
product or service orders.
	 
	 	3.	 	Metropolitan Area Network Fiber Optic Lease and Maintenance
Agreement, dated July 25, 2002, by and between AGL Networks, LLC and Sprint/United
Management Co., including all related agreements, amendments, schedules and
product or service orders.
	 
	 	4.	 	Master Service Agreement for Dark Fiber Lease, dated July 15, 2009,
by and between AGL Networks, LLC and MCImetro Access Transmission Services LLC,
including all related agreements, amendments, schedules and product or service
orders.
	 
	 	 	 	Dark Fiber Lease Agreement, dated September 7, 2007, by and between AGL Networks, LLC
and MCImetro Access Transmission Services LLC, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	Dark Fiber IRU Agreement, dated April 6, 2007, by and between AGL Networks, LLC and
MCImetro Access Transmission Services LLC, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	Dark Fiber IRU Agreement, dated January 29, 2007, by and between AGL Networks, LLC
and MCImetro Access Transmission Services LLC, including all other related
agreements, amendments, schedules and product or service orders.
	 
	 	 	 	Dark Fiber IRU Agreement, dated December 15, 2006, by and between AGL Networks, LLC
and MCImetro Access Transmission Services LLC, including all related agreements,
amendments, schedules and product or service orders.





 









 






	 	 	 	Dark Fiber IRU Agreement, dated September 5, 2006, by and between AGL Networks, LLC and
MCImetro Access Transmission Services LLC, including all related agreements, amendments, schedules
and product or service orders.
	 
	 	 	 	Dark Fiber IRU Agreement, dated June 13, 2006, by and
between AGL Networks, LLC and MCImetro Access Transmission
Services LLC, including all related agreements, amendments,
schedules and product or service orders.
	 
	 	 	 	Dark Fiber IRU Agreement, dated April 25, 2006, by and
between AGL Networks, LLC and MCImetro Access Transmission
Services LLC, including all related agreements, amendments,
schedules and product or service orders.
	 
	 	 	 	Dark Fiber IRU Agreement, dated January 3, 2006, by and
between AGL Networks, LLC and MCImetro Access Transmission
Services LLC, including all related agreements, amendments,
schedules and product or service orders.
	 
	 	 	 	Dark Fiber IRU Agreement, dated July 30, 2004, by and
between AGL Networks, LLC and MCImetro Access Transmission
Services LLC, including all related agreements, amendments,
schedules and product or service orders.
	 
	 	 	 	Indefeasible Right of Use Swap Agreement, dated February
1, 2005, by and between AGL Networks, LLC and MCImetro
Access Transmission Services LLC, including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	5.	 	Indefeasible Right of Use Agreement and Master
Service Agreement, dated September 9, 2005, by and between
AGL Networks, LLC and Cogent Communications, Inc.
(Phoenix), including all related agreements, amendments,
schedules and product or service orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated June 6, 2002, by
and between AGL Networks, LLC and Cogent Communications,
Inc. (Atlanta), including all related agreements,
amendments, schedules and product or service orders.
	 
	 	6.	 	tw telecom aka Time Warner Telecom:
	 
	 	 	 	Indefeasible Right of Use Agreement and Master Service
Agreement, dated December 16, 2005, by and between AGL
Networks, LLC and Time Warner Telecom of Georgia, L.P. (now
tw telecom of georgia l.p.), including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated August 15, 2005, by and between
AGL Networks, LLC and Time Warner Telecom of Arizona LLC, including all
related agreements, amendments, schedules and product or service orders.





2









 






	 	 	 	Dark Fiber Lease Agreement, dated October 11, 2006, by and
between AGL Networks, LLC and Time Warner Telecom Holdings
Inc., including all related agreements, amendments,
schedules and product or service orders.
	 
	 	 	 	TWTC aka Xspedius Communications LLC:
	 
	 	 	 	Indefeasible Right of Use Agreement and Master Service
Agreement, dated August 30, 2006, by and between AGL
Networks, LLC and Xspedius Communications, LLC, including
all related agreements, amendments, schedules and product
or service orders.
	 
	 	7.	 	AT&T aka Teleport:
	 
	 	 	 	Indefeasible Right of Use Agreement and Master Service
Agreement, dated May 20, 2005, by and between AGL Networks,
LLC and Teleport Communications Atlanta, Inc., including
all related agreements, amendments, schedules and product
or service orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated April 6, 2009,
by and between AGL Networks, LLC and Teleport
Communications Atlanta, Inc., including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated June 30, 2007,
by and between AGL Networks, LLC and Teleport
Communications Atlanta, Inc., including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated December 28,
2004, by and between AGL Networks, LLC and Teleport
Communications Atlanta, Inc., including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated January 15,
2002, by and between AGL Networks, LLC and Teleport
Communications Atlanta, Inc., including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	 	 	AT&T aka SBC:
	 
	 	 	 	Product Order No. 1, dated September 14, 2004, by and
between AGL Networks, LLC and SBC Telecom, Inc.
	 
	 	 	 	Product Order No. 2, dated November 29, 2004, by and
between AGL Networks, LLC and SBC Telecom, Inc.
	 
	 	 	 	Product Order No. 3, dated December 16, 2004, by and between AGL Networks,
LLC and SBC Telecom, Inc.





3









 






	 	 	 	Product Order No. 4, dated December 28, 2004, by and between
AGL Networks, LLC and SBC Telecom, Inc.
	 
	 	 	 	Product Order No. 5, dated December 28, 2004, by and
between AGL Networks, LLC and SBC Telecom, Inc.
	 
	 	 	 	Product Order No. 6, dated August 29, 2005, by and between
AGL Networks, LLC and SBC Long Distance, LLC
	 
	 	8.	 	Integra Telecom Holdings aka Eschelon aka MTI:
	 
	 	 	 	Indefeasible Right of Use Agreement and Master Service
Agreement, dated January 24, 2005, by and between AGL
Networks, LLC and Mountain Telecommunications, Inc.,
including all related agreements, amendments, schedules
and product or service orders.
	 
	 	9.	 	Level 3 aka Broadwing:
	 
	 	 	 	Indefeasible Right of Use Agreement, dated January 22,
2007, by and between AGL Networks, LLC and Broadwing
Communications Real Estate Services, LLC, including all
related agreements, amendments, schedules and product or
service orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated July 11, 2003,
by and between AGL Networks, LLC and Broadwing
Communications Real Estate Services, LLC, including all
related agreements, amendments, schedules and product or
service orders.
	 
	 	 	 	Level 3 aka Looking Glass:
	 
	 	 	 	Indefeasible Right of Use Swap Agreement, dated August 12,
2004, by and between AGL Networks, LLC and Looking Glass
Networks, Inc., including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	Level 3 aka TelCove:
	 
	 	 	 	Indefeasible Right of Use Agreement and Master Service
Agreement, dated December 14, 2005, by and between AGL
Networks, LLC and TelCove Operations Inc., including all
related agreements, amendments, schedules and product or
service orders.
	 
	 	 	 	Level 3 Legacy:
	 
	 	 	 	Indefeasible Right of Use Agreement, dated February 3, 2006, by and between AGL Networks, LLC and
Level 3 Communications, LLC, including all related agreements, amendments, schedules and product or
service orders.








4









 









	 	10.	 	QCC fka Qwest:
	 
	 	 	 	Master Service Agreement for Dark Fiber Lease, dated October 10, 2007, by and between
AGL Networks, LLC and Qwest Communications Corporation, including all related
agreements, amendments, schedules and product or service orders.
	 
	 	 	 	Master Service Agreement for Dark Fiber IRU, dated March 20, 2008, by and between AGL
Networks, LLC and Qwest Communications Corporation, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated November 12, 2007, by and between AGL
Networks, LLC and Qwest Communications Corporation, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated December 20, 2005, by and between AGL
Networks, LLC and Qwest Communications Corporation, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated May 31, 2005, by and between AGL Networks,
LLC and Qwest Communications Corporation, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated March 3, 2005, by and between AGL
Networks, LLC and Qwest Communications Corporation, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	QCC fka Qwest fka OnFiber:
	 
	 	 	 	Indefeasible Right of Use Agreement, dated September 30, 2003, by and between AGL
Networks, LLC and OnFiber Communications, Inc., including all related agreements,
amendments, schedules and product or service orders.
	 
	 	11.	 	Master Services Agreement, dated December 18, 2006, by and between
AGL Networks, LLC and FiberTower Network Services Corp., including all related
agreements, amendments, schedules and product or service orders.
	 
	 	12.	 	Indefeasible Right of Use Agreement and Master Service Agreement,
dated September 28, 2004, by and between AGL Networks, LLC and Cox Communications,
Inc., including all related agreements, amendments, schedules and product or
service orders.





5









 






	 	 	 	Indefeasible Right of Use Agreement, dated December 12, 2004, by and between AGL Networks, LLC and
Cox Communications, Inc., including all related agreements, amendments, schedules and product or
service orders.
	 
	 	 	 	Cox Arizona:
	 
	 	 	 	Subcontractor Agreement No. COX-AZ-1, dated April 18, 2006,
by and between AGL Networks, LLC and Cox Arizona Telcom,
LLC, including all related agreements, amendments,
schedules and product or service orders.
	 
	 	13.	 	DeltaCom fka ITC Deltacom:
	 
	 	 	 	Indefeasible Right of Use Agreement and Master Service
Agreement, dated November 22, 2005, by and between AGL
Networks, LLC and ITC^DeltaCom Communications,
Inc., including all related agreements, amendments,
schedules and product or service orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated July 15, 2003,
by and between AGL Networks, LLC and Interstate Fibernet,
Inc., including all related agreements, amendments,
schedules and product or service orders.
	 
	 	14.	 	Indefeasible Right of Use Agreement, dated
June 30, 2006, by and between AGL Networks, LLC and The
DeKalb County Board of Education, The Governing Body of the
DeKalb County School District, a Political Subdivision of
the State of Georgia, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	15.	 	Indefeasible Right of Use License and Master
Service Agreement for Dark Fibers, dated March 28, 2008, by
and between AGL Networks, LLC and Clearwire US, LLC,
including all related agreements, amendments, schedules and
product or service orders.
	 
	 	16.	 	Indefeasible Right of Use Agreement and Master
Service Agreement, dated November 19, 2003, by and between
AGL Networks, LLC and SunGard Network Solutions Inc.,
including all related agreements, amendments, schedules and
product or service orders.
	 
	 	17.	 	DirecPath fka Biltmore:
	 
	 	 	 	Indefeasible Right of Use Agreement and Master Service
Agreement, dated October 7, 2004, by and between AGL
Networks, LLC and Biltmore Communications, Inc., including
all related agreements, amendments, schedules and product
or service orders.





6









 






	 	18.	 	Indefeasible Right of Use Agreement, dated July
19, 2007, by and between AGL Networks, LLC and Turner
Broadcasting System, Inc., including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated December 20,
2002, by and between AGL Networks, LLC and Turner
Broadcasting System, Inc., including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	19.	 	Master Service Agreement for Dark Fiber
Lease, dated June 6, 2008, by and between AGL
Networks, LLC and Apollo Group, Inc., including all
related agreements, amendments, schedules and product
or service orders.
	 
	 	20.	 	Fiserv fka CheckFree:
	 
	 	 	 	Indefeasible Right of Use Agreement and Master Service
Agreement for Dark Fibers, dated February 24, 2006, by and
between AGL Networks, LLC and CheckFree Services Corporation,
including all related agreements, amendments, schedules and
product or service orders.
	 
	 	21.	 	Master Service Agreement for Dark Fiber Lease,
dated September 24, 2008, by and between AGL Networks, LLC
and FiberLight, LLC, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	22.	 	Indefeasible Right of Use Agreement and Master
Service Agreement, dated March 22, 2007, by and between AGL
Networks, LLC and Google Inc., including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	23.	 	Indefeasible Right of Use Agreement and Master
Service Agreement, dated August 29, 2007, by and between AGL
Networks, LLC and Gila Local Exchange Carrier, Inc.,
including all related agreements, amendments, schedules and
product or service orders.
	 
	 	24.	 	Indefeasible Right of Use Agreement and Master
Service Agreement, dated February 28, 2005, by and between
AGL Networks, LLC and Emory University, including all
related agreements, amendments, schedules and product or
service orders.
	 
	 	 	 	Amended and Restated Indefeasible Right of Use Agreement,
dated March 27, 2003, by and between AGL Networks, LLC and
Emory University, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	25.	 	Master Service Agreement for Dark Fiber Lease, dated May 16, 2008, by and between AGL
Networks, LLC and AXA Technology Services America, Inc., including all related agreements,
amendments, schedules and product or service orders.





7









 






	 	26.	 	Indefeasible Right of Use Agreement and Master Service
Agreement, dated April 18, 2006, by and between AGL Networks,
LLC and Sago Networks, Inc., including all related agreements,
amendments, schedules and product or service orders.
	 
	 	27.	 	Indefeasible Right of Use Agreement,
dated October 20, 2003, by and between AGL Networks,
LLC and Limelight Metro Services, LLC, including all
related agreements, amendments, schedules and product
or service orders.
	 
	 	28.	 	Indefeasible Right of Use Agreement and Master
Service Agreement for Dark Fibers, dated February 29, 2008,
by and between AGL Networks, LLC and Chick-fil-A, Inc.,
including all related agreements, amendments, schedules and
product or service orders.
	 
	 	29.	 	Indefeasible Right of Use Agreement and Master
Service Agreement, dated February 9, 2005, by and between
AGL Networks, LLC and Manheim, Inc., including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	30.	 	Indefeasible Right of Use Agreement and Master
Service Agreement, dated August 15, 2007, by and between
AGL Networks, LLC and King & Spalding LLP, including all
related agreements, amendments, schedules and product or
service orders.
	 
	 	31.	 	Indefeasible Right of Use Agreement, dated May
16, 2005, by and between AGL Networks, LLC and INTERNAP
Network Services, Inc., including all related agreements,
amendments, schedules and product or service orders.
	 
	 	32.	 	Master Fiber Optic Lease and Maintenance
Agreement, dated December 1, 2003, by and between AGL
Networks, LLC and Georgia Public Web, Inc., including
all related agreements, amendments, schedules and
product or service orders.
	 
	 	33.	 	Silverton Bank aka Bankers Bank:
	 
	 	 	 	Indefeasible Right of Use Agreement, dated December 1, 2003,
by and between AGL Networks, LLC and The Bankers Bank,
including all related agreements, amendments, schedules and
product or service orders.
	 
	 	34.	 	Indefeasible Right of Use Agreement, dated
November 30, 2005, by and between AGL Networks, LLC and The
Coca-Cola Company, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated February 18, 2004, by and between AGL Networks, LLC and
The Coca-Cola Company, including all related agreements, amendments, schedules and product or
service orders.




8









 






	 	35.	 	Master Contract, dated February 11, 2009, by and between
AGL Networks, LLC and Maricopa County, including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	36.	 	Master Service Agreement for Dark Fiber Lease,
dated July 14, 2008, by and between AGL Networks, LLC and
Synacor, Inc., including all related agreements,
amendments, schedules and product or service orders.
	 
	 	37.	 	Netstream Communications fka Capital Internet:
	 
	 	 	 	Indefeasible Right of Use Agreement and Master Service
Agreement, dated September 13, 2004, by and between AGL
Networks, LLC and Capital Internet Data Center, including all
related agreements, amendments, schedules and product or
service orders.
	 
	 	38.	 	Indefeasible Right of Use Agreement, dated
August 21, 2006, by and between AGL Networks, LLC and
BroadRiver Communication Corp., including all related
agreements, amendments, schedules and product or service
orders.
	 
	 	 	 	Indefeasible Right of Use Agreement, dated February 20, 2006,
by and between AGL Networks, LLC and BroadRiver Communication
Corp., including all related agreements, amendments, schedules
and product or service orders.
	 
	 	39.	 	Indefeasible Right of Use Agreement and Master
Service Agreement, dated May 15, 2007, by and between AGL
Networks, LLC and SAVVIS Communications Corporation,
including all related agreements, amendments, schedules and
product or service orders.
	 
	 	40.	 	Master Service Agreement for Dark Fiber
Lease, dated March 9, 2009, by and between AGL
Networks, LLC and IO Phoenix One, LLC, including all
related agreements, amendments, schedules and product
or service orders.
	 
	 	41.	 	Indefeasible Right of Use Agreement and
Master Service Agreement, dated February 18, 2004, by
and between AGL Networks, LLC and USCarrier Telecom,
LLC, including all related agreements, amendments,
schedules and product or service orders.
	 
	 	42.	 	Encore Discovery aka Lex Solutio:
	 
	 	 	 	Indefeasible Right of Use Agreement, dated November 15, 2004,
by and between AGL Networks, LLC and Lex Solutio Corporation,
including all related agreements, amendments, schedules and
product or service orders.
	 
	 	43.	 	Indefeasible Right of Use Agreement and Master Service Agreement, dated May 23, 2007, by and
between AGL Networks, LLC and One Ring Networks, Inc.,




9









 






	 	 	 	including all related agreements, amendments, schedules and product or service
orders.
	 
	 	44.	 	Master Service Agreement for Dark Fiber, dated April 13,
2009, by and between AGL Networks, LLC and PetSmart, Inc., including all
related agreements, amendments, schedules and product or service orders.
	 
	 	45.	 	Master Service Agreement for Dark Fiber Lease, dated December
11, 2009, by and between AGL Networks, LLC and Hewlett Packard Company,
including all related agreements, amendments, schedules and product or service
orders.
	 
	 	46.	 	Master Service Agreement for Dark Fiber Lease, dated February
5, 2008, by and between AGL Networks, LLC and Tower Cloud, Inc., including all
related agreements, amendments, schedules and product or service orders.
	 
	 	47.	 	Indefeasible Right of Use Agreement, dated September 30,
2005, by and between AGL Networks, LLC and Regency Hospital Company, including
all related agreements, amendments, schedules and product or service orders.
	 
	 	48.	 	Master Agreement for the Provision of Telecommunications
and/or Related Services, dated July 7, 2005, by and between AGL Networks, LLC
and Infonet Broadband Services Corporation, including all related agreements,
amendments, schedules and product or service orders.
	 
	 	49.	 	Indefeasible Right of Use Agreement, dated August 9, 2005, by
and between AGL Networks, LLC and Digital Agent, LLC, including all related
agreements, amendments, schedules and product or service orders.
	 
	 	50.	 	Indefeasible Right of Use Agreement and Master Service
Agreement, dated May
1, 2005, by and between AGL Networks, LLC and EarthLink, Inc., including all
related agreements, amendments, schedules and product or service orders.




10









 











Section 2.10(a)




Leased Real Property



	 	 	 	 	 	 	 
	 	 	Common	 	 	 	 
	Address	 	Name	 	Landlord	 	Market
	2 Concourse, Atlanta, GA

	 	2C Colocation
	 	Teachers
Concourse
	 	ATL
	609 14th St NW, Atlanta, GA

	 	Hut
	 	Ivan Miles
	 	ATL
	4959 New Peachtree Rd, Chamblee, GA

	 	Material Yard
	 	AGL Resources
	 	ATL
	113 N Myers St, Charlotte, NC

	 	Colo
	 	Telx
	 	CHC
	120 East Van Buren, Phoenix, AZ

	 	Colo
	 	Digital Realty
Trust
	 	PX
	301 S. 4th St, Phoenix, AZ

	 	Colo
	 	Telecom
Center, LLC
	 	PX
	8521 East Princess Drive, Scottsdale, AZ

	 	Colo
	 	IO Capital, LLC
	 	PX
	615 N 48th St, Phoenix, AZ

	 	Colo, Px office
	 	IO Capital, LLC
	 	PX






 









 






Section 2.11




Environmental Matters


NONE





 











 





Section 2.12(a)




Intellectual Property


AGL Networks Logo



AGL Networks Website and domain name. www.aglnetworks.com



Various metadata held with in Excel spreadsheets.



Business contract metadata held within Contract Logix and SQL database.



Plant asset metadata held within NexusWorx.



Sales metadata held within Salesforce.com



Computer software and metadata listed in Company Disclosure Schedule 2.9(a) and other
software required to operate the software, metadata and hardware listed therein






 









 








Section 2.12(b)




Intellectual Property Encumbrances


NONE






 









 








Section 2.12(c) 




Intellectual Property Infringement Claim Against Company


NONE





 









 








Section 2.12(d)




Intellectual Property Infringement Claim by Company


NONE








 









 








Section 2.12(e)




Limitation(s) on Intellectual Property Usage Rights


NONE








 









 








Section 2.14(a)




Taxes


NONE






 









 








Section 2.14(b)




Tax Return Extension of Time


[See attached spreadsheet document]





 









 








DISCLOSURE SCHEDULES TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

AGL NETWORKS, LLC; AGL INVESTMENTS, INC.; and ZAYO GROUP LLC




Section 2.14 (b)

Tax Returns for Which an Extension of Time Has Been Requested



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Original Due	 	Extended
	Jurisdiction/Tax Type	 	Tax Year	 	Date	 	Due Date
	AGL Resources Inc. Federal Consolidated Income Tax Return
	 	 	2009	 	 	 	3/15/2010	 	 	 	9/15/2010	 
	Arizona Income Tax Return
	 	 	2009	 	 	 	4/15/2010	 	 	 	10/15/2010	 
	Georiga Combined Income Tax Return
	 	 	2009	 	 	 	3/15/2010	 	 	 	9/15/2010	 
	Missouri Income Tax Return
	 	 	2009	 	 	 	4/15/2010	 	 	 	10/15/2010	 
	Tennesee Franchise Tax Return
	 	 	2009	 	 	 	4/15/2010	 	 	 	10/15/2010	 
	Florida Income Tax Return
	 	 	2009	 	 	 	4/1/2010	 	 	 	10/1/2010	 
	California Income Tax Return
	 	 	2009	 	 	 	3/15/2010	 	 	 	9/15/2010	 
	North Carolina Income Tax Return
	 	 	2009	 	 	 	4/15/2010	 	 	 	10/15/2010	 
	Texas Margin Tax Return *
	 	 	2009	 	 	 	5/15/2010	 	 	 	11/15/2010	 
	Virginia Consolidated Income Tax Return *
	 	 	2009	 	 	 	4/15/2010	 	 	 	10/15/2010	 
	Michigan Business Tax Return *
	 	 	2009	 	 	 	4/30/2010	 	 	 	12/31/2010	 
	Georiga Property Tax Return
	 	 	2010	 	 	 	3/1/2010	 	 	 	4/1/2010	 
	Jackson County Missouri Property Tax Return
	 	 	2010	 	 	 	3/1/2010	 	 	 	5/1/2010	 








 




			
	*	 	Note: AGL Networks is included as part of the AGL Resources
Inc. consolidated group. It
does not have nexus or apportionment factors in these states.




 









 










Section 2.14(d)




Tax Returns


[See attached spreadsheet document]






 









 








DISCLOSURE SCHEDULES TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

AGL NETWORKS, LLC; AGL INVESTMENTS, INC.; and ZAYO GROUP LLC




Section 2.14 (d)

Federal, State, Local and Non-U.S. Income Tax Returns Filed

For the Years Ended December 31, 2006 — December 31, 2008



	 	 	 	 	 	 	 
	 	 	Tax Year/Audit Status
	Jurisdiction/Tax Type	 	2006	 	2007	 	2008
	AGL Resources Inc. Federal Consolidated Income Tax Return
	 	Audited**	 	Audited**	 	Open/Unaudited
	Arizona Income Tax Return
	 	Open/Unaudited	 	Open/Unaudited	 	Open/Unaudited
	Georiga Combined Income Tax Return
	 	Open/Unaudited	 	Open/Unaudited	 	Open/Unaudited
	Missouri Income Tax Return
	 	Open/Unaudited	 	Open/Unaudited	 	Open/Unaudited
	Tennesee Franchise Tax Return
	 	Open/Unaudited	 	Open/Unaudited	 	Open/Unaudited
	Florida Income Tax Return
	 	Open/Unaudited	 	Open/Unaudited	 	Open/Unaudited
	California Income Tax Return
	 	Open/Unaudited	 	Open/Unaudited	 	Open/Unaudited
	New York Unitary Income Tax Return *
	 	n/a	 	Audit in Process***	 	Open/Unaudited
	Texas Margin Tax Return *
	 	Open/Unaudited	 	Open/Unaudited	 	Open/Unaudited
	Virginia Consolidated Income Tax Return *
	 	Open/Unaudited	 	Open/Unaudited	 	Open/Unaudited
	Michigan Business Tax Return *
	 	n/a	 	n/a	 	Open/Unaudited








 




			
	*	 	Note: AGL Networks is included as part of the AGL Resources Inc. consolidated group. It
does not have nexus or apportionment factors in these states.
	 
	**	 	AGL Resources Inc. U.S. federal consolidated income tax return was audited by the Internal
Revenue Service during 2008 & 2009.  The audit was completed in July, 2009. There were no proposed or
actual adjustments related to AGL Networks.
	 
	***	 	AGL Resources Inc. filed a combined return in New York for the year ended December 31, 2007.
New York audited the return
during November & December, 2009. The auditor determined that AGL Resources should not use the
consolidated group to file
the New York combined return and limited the group to certain companies. Among other entities, AGL
Networks was excluded from the
combined group. There were no proposed adjustments with respect to AGL Networks. We expect the
final assessment in
March 2010. We may be required to amend the 2008 return to exclude AGL Networks (among other
companies) from the combined
return.




 









 










Section 2.14(e)




Tax Groups or Affiliations


The Company is party to that certain Tax Allocation Agreement among Members of the AGL Resources
Inc. Affiliated Group dated January 13, 2004




 









 








Section 2.15(a)




Employee Benefit Plans



AGL Resources Inc. Retirement Plan


AGL Resources Inc. Retirement Savings Plus Plan


AGL Resources Inc. Excess Benefit Plan


AGL Resources Inc. Nonqualified Savings Plan


AGL Resources Inc. Welfare Plan





	 	§	 	Medical
	 
	 	§	 	Dental
	 
	 	§	 	Disability
	 
	 	§	 	Employee Assistance program
	 
	 	§	 	Health Care Spending Accounts (FSA)
	 
	 	§	 	Dependent Care Spending Accounts (FSA)
	 
	 	§	 	Life Insurance
	 
	 	§	 	Vacation Pay Plan
	 
	 	§	 	Vision Plan





AGL Networks Inc. Sales Incentive Plan


AGL Networks Inc. Non-Sales Incentive


AGL Resources Inc. Omnibus Performance Incentive Plan


AGL Resources Inc. Tuition Assistance Plan




 









 





Section 2.15(c) 




Employee Benefit Plan Liabilities


NONE




 









 








Section 2.17




Transactions with Affiliates


Sale Bonus Agreement by and among James Gillis, AGL Networks LLC and AGL Resources Inc. dated
11/3/09




 









 








Section 2.19(a)




Major Customers


[See Company Disclosure Schedule 2.9(c)]



In January 2010, as part of a monthly review of traffic between the Company and AT&T, AT&T orally
expressed to Company employee Lance Ruhl an interest in terminating its agreement with the Company.
In February 2010, the Company advised AT&T that AT&T had no early termination right under its
agreement with the Company and that AT&T could not terminate early without paying all remaining
amounts due under the agreement and related service orders.





 









 








DISCLOSURE SCHEDULES TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

AGL NETWORKS, LLC; AGL INVESTMENTS, INC.; and ZAYO GROUP LLC




Section 2.19 (a)

MAJOR CUSTOMERS



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	YTD DECEMBER 2009	 
	CUSTOMER NAME	 	OPERATING REVENUES	 
	 	1	 	 	XO COMMUNICATIONS
	 	$	3,557,849	 
	 	2	 	 	BANK OF AMERICA
	 	 	2,433,687	 
	 	3	 	 	SPRINT/UNITED MANAGEMENT COMPANY
	 	 	1,586,729	 
	 	4	 	 	MCI, INC.
	 	 	1,014,651	 
	 	5	 	 	COGENT COMMUNICATIONS
	 	 	977,093	 
	 	6	 	 	TIME WARNER TELECOM
	 	 	951,591	 
	 	7	 	 	AT&T (SBC TELECOM AND TELEPORT COMMUNICATIONS ATLANTA)
	 	 	906,769	 
	 	8	 	 	ESCHELON TELECOM 
	[A]	 	692,013	 
	 	9	 	 	LEVEL 3 COMMUNICATIONS
	 	 	681,004	 
	 	10	 	 	QWEST COMMUNICATIONS CORP.
	 	 	643,486	 
	 	11	 	 	FIBERTOWER NETWORK SERVICES, CORP
	 	 	638,346	 
	 	12	 	 	COX
	 	 	574,554	 
	 	13	 	 	ITC DELTACOM
	 	 	527,112	 
	 	14	 	 	DEKALB COUNTY SCHOOL SYSTEMS
	 	 	406,422	 
	 	15	 	 	CLEARWIRE US, LLC
	 	 	393,216	 
	 	16	 	 	SUNGARD NETWORK SOLUTIONS
	 	 	319,224	 
	 	17	 	 	DIRECTPATH
	 	 	294,100	 
	 	18	 	 	TURNER BROADCASTING SYSTEMS
	 	 	272,663	 
	 	19	 	 	APOLLO GROUP, INC.
	 	 	258,000	 
	 	20	 	 	FISERV
	 	 	237,111	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Totals
	 	$	17,365,618	 
	 	 	 	 	 
	 	 	 







 




			
	[A]	 	ESCHELON TELECOM ALSO INCLUDES INSIGHT DIRECT
AND INSIGHT NETWORKING AS BOTH ARE RELATED TO ESCHELON
TELECOM.




 









 










Section 2.19(b)




Major Suppliers


[See attached spreadsheet document]





 











 





DISCLOSURE SCHEDULES TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

AGL NETWORKS, LLC; AGL INVESTMENTS, INC.; and ZAYO GROUP LLC




Section 2.19 (b)

MAJOR SUPPLIERS



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	YTD DECEMBER 2009 EXPENDITURES	 
	SUPPLIER NAME	 	CAPITAL	 	 	EXPENSE	 	 	TOTAL	 
	 	1	 	 	COMMUNICATIONS SERVICES HOLDING CO.,
LLC
	 	$	5,397,878	 	 	$	—	 	 	$	5,397,878	 
	 	2	 	 	DRAKA COMTEQ USA, INC
	 	 	2,540,328	 	 	 	—	 	 	 	2,540,328	 
	 	3	 	 	FIBERTECH, INC
	 	 	1,103,250	 	 	 	8,589	 	 	 	1,111,839	 
	 	4	 	 	THE FISHEL COMPANY
	 	 	1,027,825	 	 	 	52,056	 	 	 	1,079,881	 
	 	5	 	 	SHIFLETT ENTERPRISES, INC
	 	 	805,884	 	 	 	23,952	 	 	 	829,837	 
	 	6	 	 	ONE VISION UTILITY SERVICES
	 	 	—	 	 	 	758,531	 	 	 	758,531	 
	 	7	 	 	BPG DESIGNS
	 	 	695,171	 	 	 	2,031	 	 	 	697,202	 
	 	8	 	 	CITY OF PHOENIX
	 	 	76,463	 	 	 	543,730	 	 	 	620,192	 
	 	9	 	 	THE COM TRAN GROUP, INC
	 	 	439,616	 	 	 	7,869	 	 	 	447,485	 
	 	10	 	 	SPEEDY GONZALEZ CONSTRUCTION, INC
	 	 	377,956	 	 	 	896	 	 	 	378,852	 
	 	11	 	 	GEORGIA DEPARTMENT OF TRANSPORTATION
	 	 	—	 	 	 	341,054	 	 	 	341,054	 
	 	12	 	 	PAKS COMMUNICATIONS, LLC
	 	 	339,646	 	 	 	—	 	 	 	339,646	 
	 	13	 	 	ADB UTILITY CONTRACTORS
	 	 	289,168	 	 	 	—	 	 	 	289,168	 
	 	14	 	 	BYERS ENGINEERING COMPANY
	 	 	219,542	 	 	 	34,260	 	 	 	253,802	 
	 	15	 	 	BUSKER COMMUNICATIONS, INC
	 	 	231,802	 	 	 	—	 	 	 	231,802	 
	 	16	 	 	CITY OF CHARLOTTE
	 	 	179,907	 	 	 	6,742	 	 	 	186,649	 
	 	17	 	 	UTILICOM SUPPLY ASSOCIATES, LLC
	 	 	181,522	 	 	 	—	 	 	 	181,522	 
	 	18	 	 	FRIEND, HUDAK & HARRIS, LLP
	 	 	—	 	 	 	180,147	 	 	 	180,147	 
	 	19	 	 	BENTON-GEORGIA INC
	 	 	169,148	 	 	 	—	 	 	 	169,148	 
	 	20	 	 	DELTACOM, INC
	 	 	165,406	 	 	 	—	 	 	 	165,406	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Totals
	 	$	14,240,512	 	 	$	1,959,857	 	 	$	16,200,369	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 






 









 





Agreements with AGL Networks’ 20 Largest Suppliers:





	 	1.	 	Communications Services Holding Company, LLC:
	 
	 	 	 	Master Agreement for Telecommunications Infrastructure Construction, dated March 5, 2009, by
and between AGL Networks, LLC and Communications Services Holding Company, LLC, including
any related statement of work
	 
	 	2.	 	Draka Comteq USA, Inc.:
	 
	 	 	 	Supply Agreement, dated March 17, 2005, by and between AGL Networks, LLC and Draka Comteq
Americas, Inc., as modified by Addendum 1 to Supply Agreement, dated August 17, 2009
	 
	 	3.	 	Fibertech, Inc.:
	 
	 	 	 	Master Agreement for Telecommunications Infrastructure Construction, dated June 4, 2007, by
and between AGL Networks, LLC and Fibertech, Inc., as amended by the First Amendment to the
Master Agreement for Telecommunications Infrastructure Construction, dated June 26, 2009
	 
	 	 	 	Emergency Restoration and Operations and Maintenance Agreement, dated July 15, 2002, by and
between AGL Networks, LLC and Fibertech, Inc.
	 
	 	 	 	Construction Agreement, dated January 1, 2002, by and between AGL Services Company and
Fibertech, Inc., as modified by Addendum No. 1, dated April 3, 2003, and Addendum No. 1,
dated March 16, 2004
	 
	 	4.	 	The Fishel Company:
	 
	 	 	 	Master Agreement for Telecommunications Infrastructure Construction, dated September 15,
2008, by and between AGL Networks, LLC and The Fishel Company
	 
	 	 	 	Emergency Restoration and Operations and Maintenance Agreement, dated December 9, 2002,
by and between AGL Networks, LLC and The Fishel Company
	 
	 	 	 	Construction Agreement, dated March 9, 2005, by and between AGL Networks, LLC and Fishel
Technologies, Inc., including any related scope of work
	 
	 	 	 	Contract for Locating Services, dated December 4, 2002, by and between AGL Networks, LLC and
The Fishel Company
	 
	 	5.	 	Shiflett Enterprises, Inc.:




 









 






	 	 	 	Master Agreement for Telecommunications Infrastructure Construction, dated November 8, 2007, by
and between AGL Networks, LLC and Shiflett Enterprises, Inc.
	 
	 	6.	 	One Vision Utility Services, LLC:
	 
	 	 	 	ASP Software Agreement, dated October 1, 2008, by and between AGL Networks, LLC and
OneVision Utility Services, LLC
	 
	 	 	 	Damage Prevention Services Agreement, dated February 1, 2008, by and between AGL Networks, LLC
and One Vision Utility Services Inc.
	 
	 	 	 	Contract for Locating Services, dated January 14, 2003, by and between AGL Networks, LLC and The
John Cook Company, LLC, as amended by Amendment 1, dated March 24, 2005, and Amendment No. 2,
dated January 3, 2008, by and between AGL Networks, LLC and One Vision Utility Services, LLC
	 
	 	 	 	One Vision Utility Services, LLC as Kudzu Technologies, Inc.:
	 
	 	 	 	ASP Software Agreement for ClickB4Udig Screening, dated July 15, 2002, by and between AGL
Networks, LLC and Kudzu Technologies, Inc., as amended by Amendment No. 1, dated April 30, 2004
	 
	 	 	 	ASP Software Agreement for ClickB4Udig Locate Ticket Management, dated April 25, 2004, by and
between AGL Services Company and Kudzu Technologies, Inc.
	 
	 	7.	 	BPG Designs, LLC:
	 
	 	 	 	Master Agreement for Telecommunications Infrastructure Construction, dated November 5, 2008, by
and between AGL Networks, LLC and BPG Designs, LLC
	 
	 	 	 	Construction Agreement, dated November 29, 2005, by and between AGL Networks, LLC and BPG
Designs, LLC, including any related scope of work
	 
	 	8.	 	City of Phoenix:
	 
	 	 	 	No agreements currently in place.
	 
	 	9.	 	The ComTran Group, Inc.:
	 
	 	 	 	Master Agreement for Telecommunications Infrastructure Construction, dated September 8, 2008, by
and between AGL Networks, LLC and The ComTran Group, Inc., including any related statement of
work




 









 






	 	 	 	Construction Agreement, dated April 1, 2005, by and between AGL Networks, LLC and The ComTran
Group, Inc.
	 
	 	 	 	Emergency Restoration and Operations and Maintenance Agreement, dated November 1, 2005,
by and between AGL Networks, LLC and The Comtran Group, Inc.
	 
	 	 	 	Master Construction Services Agreement, dated June 1, 2006, by and between AGL Networks, LLC
and The Comtran Group
	 
	 	10.	 	Speedy Gonzalez Construction, Inc.:
	 
	 	 	 	Master Agreement for Telecommunications Infrastructure Construction, dated October 8, 2008, by
and between AGL Networks, LLC and Speedy Gonzalez Construction Inc., including any related scope
of work
	 
	 	 	 	Construction Agreement, dated July 3, 2003, by and between AGL Networks, LLC and Speedy Gonzalez
Construction, Inc., as amended by Amendment No. 1, dated June 30, 2005, including any related
scope of work
	 
	 	11.	 	Georgia Department of Transportation:
	 
	 	 	 	No agreements currently in place.
	 
	 	12.	 	Paks Communications, LLC:
	 
	 	 	 	Master Agreement for Telecommunications Infrastructure Construction, dated March 30, 2009, by
and between AGL Networks, LLC and Paks Communications, LLC
	 
	 	13.	 	ADB Utility Contractors:
	 
	 	 	 	Master Agreement for Telecommunications Infrastructure Construction, dated January 20, 2009, by
and between AGL Networks, LLC and ADB Utility Contractors
	 
	 	14.	 	Byers Engineering Company:
	 
	 	 	 	Master Services Agreement, dated September 29, 2008, by and between AGL Networks, LLC and
Byers Engineering Company
	 
	 	 	 	Contract for Services Agreement, dated October 1, 2002, by and between AGL Services Company and
Byers Engineering Company, as amended by Amendment One, dated May 4, 2006
	 
	 	15.	 	Busker Communications, Inc.:




 









 






	 	 	 	Master Agreement for Telecommunications Infrastructure Construction, dated September 17, 2008,
by and between AGL Networks, LLC and Busker Communications, Inc.
	 
	 	16.	 	City of Charlotte:
	 
	 	 	 	No agreements currently in place.
	 
	 	17.	 	Utilicom Supply Associates, LLC:
	 
	 	 	 	No agreements currently in place.
	 
	 	18.	 	Friend, Hudak & Harris, LLP:
	 
	 	 	 	Engagement Letter, dated May 5, 2005, from Friend, Hudak & Harris, LLP to AGL Networks, LLC
	 
	 	19.	 	Benton-Georgia Inc.:
	 
	 	 	 	The parties are in the process of executing this agreement.
	 
	 	20.	 	DeltaCom, Inc.:
	 
	 	 	 	Construction Agreement, dated December 23, 2008, by and between AGL Networks, LLC and DeltaCom,
Inc.




 









 











Section 2.20(a)




Material Network Outages


NONE






 









 








Section 2.20(b)




Network Fibers


[See attached documents]





 









 








NETWORK UTILIZATION – Updated           2/26/2010




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	=B+C	 	 	 	 	 	 	 	 	 	=E+F	 	 	 	 	 	 	 	 	 	 	 	 	 	=I+J	 	=G-K	 	 	 	 	 	 	 	 	 	=M+N	 	=H-O
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	TOTAL	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	FIBER	 	FIBER	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	FIBER	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	FIBER	 	MILEAGE	 	MILEAGE	 	FIBER
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	MILEAGE	 	 	 	 	 	FIBER	 	TOTAL	 	 	 	 	 	MILEAGE	 	LEASED	 	LEASED	 	MILEAGE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	FIBER	 	TOTAL	 	LEASED	 	FIBER	 	MILEAGE	 	FIBER	 	FIBER	 	LEASED	 	FROM	 	FROM	 	LEASED
	 	 	 	 	 	 	SHEATH	 	TOTAL	 	FIBER	 	MILEAGE	 	FIBER	 	FROM	 	MILEAGE	 	OWNED	 	MILEAGE	 	MILEAGE	 	FROM OTHER	 	OTHER	 	OTHER	 	FROM OTHER
	 	 	SHEATH	 	MILEAGE	 	SHEATH	 	MILEAGE	 	OWNED	 	MILEAGE	 	OTHER	 	OWNED	 	ASSIGNED	 	OWNED	 	OWNED	 	CARRIERS	 	CARRIERS	 	CARRIERS	 	CARRIERS
	 	 	MILEAGE	 	PENDING	 	MILEAGE	 	OWNED EOY	 	PENDING	 	OWNED	 	CARRIERS	 	ASSIGNED	 	PENDING 02	 	ASSIGNED	 	AVAILABLE	 	ASSIGNED	 	PENDING	 	ASSIGNED	 	AVAILABLE
	MARKET	 	EOY 2009	 	02-2010	 	02-2010	 	2009	 	02-2010	 	02-2010	 	EOY 2009	 	EOY 2009	 	2010	 	02-2010	 	02-2010	 	EOY 2009	 	02-2010	 	02-2010	 	02-2010
	ATLANTA
	 	 	422	 	 	 	10	 	 	 	432	 	 	 	74,228	 	 	 	1,752	 	 	 	75,980	 	 	 	344	 	 	 	32,490	 	 	 	151	 	 	 	32,641	 	 	 	43,339	 	 	 	344	 	 	 	—	 	 	 	344	 	 	 	—	 
	PHOENIX
	 	 	270	 	 	 	10	 	 	 	280	 	 	 	63,496	 	 	 	2,506	 	 	 	86,002	 	 	 	—	 	 	 	15,970	 	 	 	1,059	 	 	 	17,029	 	 	 	48,973	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	CHARLOTTE
	 	 	103	 	 	 	—	 	 	 	103	 	 	 	44,513	 	 	 	—	 	 	 	44,513	 	 	 	—	 	 	 	1,868	 	 	 	—	 	 	 	1,868	 	 	 	42,645	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	RICHMOND
	 	 	53	 	 	 	—	 	 	 	53	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	699	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	699	 	 	 	—	 	 	 	699	 	 	 	—	 
	KANSAS CITY
	 	 	62	 	 	 	—	 	 	 	82	 	 	 	339	 	 	 	—	 	 	 	399	 	 	 	747	 	 	 	34	 	 	 	—	 	 	 	34	 	 	 	365	 	 	 	747	 	 	 	—	 	 	 	747	 	 	 	—	 
	ST. LOUIS
	 	 	6	 	 	 	—	 	 	 	6	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	67	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	67	 	 	 	—	 	 	 	67	 	 	 	—	 
	NASHVILLE
	 	 	7	 	 	 	—	 	 	 	7	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	28	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	28	 	 	 	—	 	 	 	28	 	 	 	—	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	OWNED	 	 	 	 	 	LEASED
	 	 	OWNED	 	FIBER	 	LEASED	 	FIBER
	 	 	FIBER	 	UNDER	 	FIBER	 	UNDER
	MARKET	 	AERIAL	 	GROUND	 	AERIAL	 	GROUND
	ATLANTA
	 	 	0.1	%	 	 	99.9	%	 	SEE NOTE	 	SEE NOTE
	PHOENIX
	 	 	0.0	%	 	 	100.0	%	 	 	N/A	 	 	 	N/A	 
	CHARLOTTE
	 	 	0.0	%	 	 	100.0	%	 	 	N/A	 	 	 	N/A	 
	RICHMOND
	 	 	N/A	 	 	 	N/A	 	 	SEE NOTE	 	SEE NOTE
	KANSAS CITY
	 	 	0.0	%	 	 	100.0	%	 	SEE NOTE	 	SEE NOTE
	ST. LOUIS
	 	 	N/A	 	 	 	N/A	 	 	SEE NOTE	 	SEE NOTE
	NASHVILLE
	 	 	N/A	 	 	 	N/A	 	 	SEE NOTE	 	SEE NOTE








 




			
	NOTE:	 	 CONSTRUCTION TYPE FOR LEASED FIBERS IS NOT PROVIDED BY CARRIERS




 









 










AGLN Conduit Footage & Availability — Charlotte









AGL Networks, March 2010



 









 





AGLN
Conduit Footage and Count — Atlanta









AGL Networks, February 2009




 









 





AGLN Conduit Footage and Count — Phoenix









AGL Networks, November 2009




 









 





AGLN Fiber Footage & Availability — Charlotte








AGL Networks, February 2010




 









 





AGLN Fiber Footage & Availability — Atlanta







AGL Networks, December 2009



 









 





AGLN Fiber Footage & Availability — Phoenix







AGL Networks, December 2009



 









 





AGL Networks St Louis Footprint







AGL Networks, March 2010



 









 





AGL Networks Nashville Footprint







AGL Networks, March 2010



 









 





AGL Networks Kansas City Footprint







AGL Networks, March 2010



 









 





AGL Networks Richmond Footprint








AGL Networks, March 2010



 











 





Alcatel 6901

Enhanced Singlemode Fiber



[ILLEGIBLE] is the most prevalent fiber used today. Alcatel’s E-SMF provides improved performance
in all SMF applications.



As one of the world’s largest manufacturers of communication products, Alcatel has the expertise,
technology and manufacturing resources to provide a total end-to-end
solution to support your
fiber, cable, and systems requirements.



Alcatel Enhanced Singlemode Fiber (E-SMF) extends Alcatel’s premium product portfolio. E-SMF is
designed to provide improved performance across the full 1265 to 1625nm region. It has a minimum
dispersion in the 1310nm window and has a low attenuation in the 1383nm-water peak region to open
up the Extended Band (1360 to 1460nm). Alcatel E-SMF meets the expanded ITU652 Table C requirements
and is available in all Alcatel cable designs including loose tube,
flextube and ribbon.



E-SMF, with its wide operating spectrum, provides optimum performance in access and
metropolitan access applications. The wide spectrum expands future growth capabilities and also
allows flexible configuration of voice, data, & video services within the fiber. For networks built
using singlemode fiber for long distance, E-SMF with its lower attenuation and PMD, provides
superior performance.



E-SMF is manufactured using Alcatel’s APVD process. Combined with Alcatel’s innovative coating
system featuring AFCTM with ColorlockTM, E-SMF offers superb reliability. Even when aged with
hydrogen, E-SMF’s 1383nm attenuation is ≤0.33 dB/km.




	 	 	 	 	 	 	 
	FEATURES	 	BENEFITS
	

	 	Low 1383nm attenuation permits full
utilization of wavelengths from 1265
to 1625nm.
	 	
	 	Extends the use of Coarse
Wavelength Division Multiplexing
(CWDM) into this E-band allowing
savings through cheaper lasers,
multiplexing filters, and higher
number of channels
	 
	 	 	 	 	 	 
	

	 	Low hydrogen sensitivity
	 	
	 	Low attenuation in the 1383nm
region for improved performance
	 
	 	 	 	 	 	 
	

	 	Low dispersion in 1383nm “water
peak” region
	 	
	 	Reduces compensation
requirements by half compared to
the 1550nm region
	 
	 	 	 	 	 	 
	

	 	Lower PMD of 0.08ps/√km
	 	
	 	Extends the PMD distance
performance on 40 Gbit/s systems
by 50% thereby reducing
regeneration cost.
	 
	 	 	 	 	 	 
	

	 	Lower 1550nm attenuation (<0.21
dB/km)
	 	
	 	Extends equipment reach
capabilities by 10%
	 
	 	 	 	 	 	 
	

	 	Lower 1450nm attenuation (<0.26
dB/km) provides better Raman pumping
efficiency
	 	
	 	Every 0.01 dB/km decrease at
1450nm improves the optical
signal to noise ratio by 0.1
	 
	 	 	 	 	 	 
	

	 	AFC Colorlock process incorporates
the fiber color within the fiber
coating.
	 	
	 	The fiber color is always
consistent and distinguishable.
It offers increased reliability
and durability resulting in lower
maintenance and replacement
costs.





KEY INDUSTRY LEADING MILESTONES





		 	1993- Introduced Alcatel’s AFCTM coating process for superior aging performance
	 
		 	1994- Introduced Alcatel’s proprietary Advanced Plasma and Vapor Deposition (APVD) fiber
production process to ensure the highest quality fiber
	 
		 	1996- Developed and introduced ColorLockTM, enhancing fiber identification and colored fiber
reliability
	 
		 	2001- Introduced E-SMF, offering improved aged water peak performance, reduced attenuation, and
enhanced PMD performance.





					
	 	 	 	 	 
	Copyright 2002 ALL RIGHTS
RESERVED 


Rev 1, Mar. 02
	 	
	 	 
















 





Alcatel 6901

Enhanced Singlemode Fiber




Optical Specifications 




Attenuation




	 	 	 	 	 

	Attenuation @1310nm
	 	 	≤ 0.34 dB/km	 
	Attenuation @ 1550nm
	 	 	≤ 0.21 dB/km	 
	Attenuation @ 1625nm
	 	 	≤ 0.24 dB/km	 
	Attenuation @1450nm
	 	 	≤ 0.25 dB/km	 
	Attenuation at 1383nm H2 aged*
	 	 	≤ 0.33 dB/km	 






Attenuation Uniformity



No point discontinuity greater than 0.1 dB at 1310nm and 1550nm.




Wavelength vs. Attenuation



Maximum attenuation change over the window.




	 	 	 	 	 
	Wavelength (nm)	 	Attenuation (dB/km)	 
	1285-1310
	 	 	≤ 0.035	 
	1310-1330
	 	 	≤ 0.03	 
	1525-1550
	 	 	≤ 0.03	 
	1575-1550
	 	 	≤ 0.03	 
	 
	 	 	 	 
	Attenuation with Bending
	 	 	 	 
	 
	 	 	 	 
	100 turns, 60mm diameter @ 1550 & 1620nm:
	 	 	≤ 0.05 dB	 
	1 turn, 32mm diameter @ 1550 & 1620nm:
	 	 	≤ 0.5 dB	 
	 
	 	 	 	 
	Wavelength
	 	 	 	 
	 
	 	 	 	 
	Cutoff Wavelength (cabled)
	 	 	≤ 1260nm	 
	Zero Dispersion Wavelength
	 	 	1310±10nm	 
	 
	 	 	 	 
	Dispersion Slope
	 	 	 	 
	 
	 	 	 	 
	Zero Dispersion Slope
	 	 	< 0.090 ps/nm2*km	 
	 
	 	 	 	 
	PMD
	 	 	 	 
	 
	 	 	 	 
	PMD link design value:**
	 	 	≤ 0.08ps/√Km	 






Dimensional Specifications




	 	 	 	 	 

	Mode Field Diameter @1310nm:
	 	 	9.0±0.4μm	 
	Mode Field Diameter @1550nm:
	 	 	10.2±1.0μm	 
	Fiber Outside Diameter:
	 	 	125.0±1.0μm	 
	Core/Cladding Offset:
	 	 	≤ 0.6μm	 
	Fiber Non-Circularity:
	 	 	≤ 1.0	%
	Colored Coating Outside Diameter:
	 	 	242±7μm	 
	Colored Coating/Clad Concentricity Error:
	 	 	≤ 12μm	 
	Fiber Curl (radius):
	 	 	> 4 meters	 






Mechanical Specifications



Proof Test of AFCTM  ColorLockTM Coated



The entire length is subjected to a tensile proof stress >100 kpsi (0.7 GN/m2); 1%
strain equivalent




Tensile Strength



Dynamic
Tensile Strength (0.5 meter gauge length):




	 	 	 	 	 

	Aged* & Unaged
	 	 	median ≥ 550 kpsi (3.8GN/m2)	 
	 
	 	 	 	 
	Dynamic and Static Fatigue
	 	 	 	 
	 
	 	 	 	 
	Dynamic Fatigue, Tensile:
	 	 	Nd ≥ 20 unaged and aged*	 
	Dynamic Fatigue, 2 Point Bend:
	 	 	Nd ≥ 20 unaged and aged*	 
	Static Fatigue:
	 	 	Ns ≥ 20 aged at 85°C, 85% RH	 
	 
	 	 	 	 
	Coating Performance
	 	 	 	 
	 
	 	 	 	 
	Coating Strip Force:
	 	 	2.0lbf (8.9N) max, 0.3 lbf (1.3N) min.	 
	23°C, 0°C, and 45°C

Aged: 30 days at 85°C and 85% relative
humidity

14 days water immersion at 23°C

Wasp spray exposure (Telcordia)
	 	 	 	 
	Aged: 30 days at 85°C water
	 	 	No delimitation	 






Environmental Specifications




	 	 	 	 	 
	Induced Attenuation @ 1550nm	 	(dB/km)	 
	Temperature Cycling Performance (-60°C to 85°C):
	 	 	≤ 0.05	 
	Temperature Humidity Cycling (-10°C to 85°C, 4-98%RH):
	 	 	≤ 0.05	 
	Water Immersion (23°C):
	 	 	≤ 0.05	 
	Heat Aging (85°C):
	 	 	≤ 0.05	 






Typical Characterization Values




	 	 	 	 	 

	Nominal Zero Dispersion Wavelength:
	 	 	1310nm	 
	Nominal Zero Dispersion Slope:
	 	 	0.086 ps/nm2*km	 
	Effective Group Index @ 1310nm:
	 	 	1.4640	 
	@ 1550nm:
	 	 	1.4645	 
	Backscatter Coefficient @ 1310nm:
	 	 	-76.7 dB	 
	Backscatter Coefficient @ 1550nm:
	 	 	-81.7 dB	 
	Typical Core Diameter:
	 	 	8.8μm	 
	Dynamic Tensile Strength (*Aged):
	 	 	median 750 kpsi (5.26GN/m2)	 
	(0.5m gauge length)
	 	 	 	 
	Dynamic Fatigue (*Aged):
	 	 	Nd=22	 
	Static Fatigue:
	 	 	Ns ≥ 25 aged @ 85°C, 85% RH	 
	Dispersion @1285-1330nm:
	 	 	≤ 2.7 ps/nm*km	 
	Dispersion @1550nm
	 	 	≤ 17ps/nm*km	 





Alcatel’s Enhanced Singlemode Fiber is fully ITU G.652 including table C, IEC 60793-1 and
Telcordia GR-20-CORE compliant.






 




			
	*	 	Aged in 1% hydrogen at one atmosphere per IEC 60793-2.
	 
	**	 	Complies with IEC SC86A, WG1 method 1, 1997.
PMD link design value provides a statistical upper limit for PMD over concatenated fibers.
	 
	Alcatel reserves the right to change specifications without prior notice.
	 
	*	 	Aged for 30 days at 85°C, 85% relative humidity




For additional information visit Alcatel online or call your nearest Optical Fiber Sales
Representative




	 	 	 	 	 

	 
	 	 	[ILLEGIBLE]	 
	Brazil
	 	 	+55 11 3068 9993	 
	France
	 	 	+33 1 55 51 51 36	 
	France (HQ)
	 	 	+33 1 39 19 12 00	 
	Germany
	 	 	+49 2166 27 2164	 
	India
	 	 	+91 11 335 9650	 
	Spain
	 	 	+34 942 247 111	 
	UK
	 	 	+44 1633 413 600	 
	North America
	 	 	+1 828 459 9787	 
	 
	 	 	800 879 9862	 






					
	 	 	 	 	 
	Copyright 2002 ALL RIGHTS RESERVED 

Rev 1, Mar. 02
	 	
	 	 



















 





			
	 	 	 
	
	 	Issue date: 11/07

Supersedes 06/06






Enhanced Single Mode Optical Fibre (ESMF)




Product Type: G.652.D

Coating Type: ColorLockTM and Natural



Draka Comteq Enhanced Single Mode Fibre (ESMF) provides improved performance across the entire
1260 nm to 1625 nm wavelength spectrum. It has a low dispersion in the 1310 nm window and low
attenuation in the 1383 nm water-peak region to allow use of the extended band (1360 nm to 1460
nm). With its wide operating spectrum, ESMF expands the future growth capability of the fibre
and allows flexible configuration of voice, data, and video services within the fibre. It can be
used in all cable constructions, including loose tube, tight buffered, ribbon, and central tube
designs.



The tighter geometrical, attenuation and PMD specifications of ESMF enables superior performance
in long haul, metropolitan, access and premises applications in telecommunications, CATV and
utility networks. ESMF is completely interchangeable with standard single mode fibre.



Draka Comteq’s Advanced Plasma and Vapor Deposition (APVDTM) manufacturing process ensures the
highest quality and purity of fibres. Proprietary ColorLockTM coating process further enhances the
performance, durability and reliability of the fibre, even in the harshest environments.



The fibre complies with or exceeds the ITU-T Recommendation G.652.D, the IEC Int. Standard
60793-2-50 type B.1.3 Optical Fibre Specification, Telcordia GR-20-CORE, ANSI/ICEA S-87-640 and
RUS 7CFR 1755.900.




	 	 	 
	Features	 	Benefits
	• Low 1383 nm (water-peak) attenuation

	 	•     Provides expanded fibre capacity and cost savings
through use of cheaper lasers in the entire 1260 to 1625 nm
range, multiplexing filters and higher number of channels

	 
	 	 
	• Low hydrogen sensitivity

	 	•     Low attenuation in the 1383 nm region even as fibre ages,
for improved performance and long life

	 
	 	 
	• Lower PMD of 0.06 ps/√km link design value

	 	•     Extends the PMD distance performance, reducing

regeneration costs

	 
	 	 
	• Low 1460 nm attenuation (< 0.25 dB/km)

	 	•     Easy design of low cost laser and filter based systems
over a wide wavelength range

	 
	 	 
	 

	 	•     Ensure efficient Raman pumping for C-band amplification

	 
	 	 
	• Proprietary APVDTM manufacturing process

	 	•     Superior geometry, uniformity and purity

	 
	 	 
	• Revolutionary ColorLock coating process

	 	•     Increased reliability, durability, and superior aging
performance, resulting in lower maintenance and replacement
costs

	 
	 	 
	 

	 	•     Makes colour a component of the coating, thus enhancing
fibre identification and coloured fibre reliability

	 
	 	 
	 

	 	•     Consistent, vibrant colour for easy-of-use and flexibility







Draka Comteq | Optical Fibre




	 	 	 	 	 

	Netherlands:

	 	France:
	 	USA:
	Tel: + 31 (0)40 29 58 700

	 	Tel: +33 (0)3 21 79 49 00
	 	Tel: +1 828 459 8446
	Fax. +31 (0)40 29 58 710

	 	Fax: +33 (0)3 21 79 49 33
	 	Fax: +1 828 459 8267






 









 






			
	 	 	 
	
	 	Issue date: 11/07

Supersedes 06/06






Enhanced Single Mode Optical Fibre (ESMF)




Product Type: G.652.D

Coating Type: ColorLockTM and Natural




Optical Specifications (Uncabled fibre)




	 	 	 	 	 
	Attenuation	 	Max. Value (dB/km)	 
	Attenuation at 1310 nm
	 	 	0.33 - 0.35	 
	Attenuation at 1383 nm* 
	 	 	0.32 - 0.35	 
	Attenuation at 1460 nm
	 	 	0.25	 
	Attenuation at 1550 nm
	 	 	0.19-0.21	 
	Attenuation at 1625 nm
	 	 	0.20-0.23	 








 




			
	*	 	Including H2-aging according to IEC 60793-2-50, type B.1.3


Other values
available on request.





Attenuation vs. Wavelength

Maximum attenuation change over the window from reference




	 	 	 	 	 	 	 	 	 
	Wavelength range (nm)	 	Reference λ (nm)	 	 	Difference (dB/km)	 
	1285 - 1330
	 	 	1310	 	 	 	≤ 0.03	 
	1525 - 1575
	 	 	1550	 	 	 	≤ 0.02	 
	1460 - 1625
	 	 	1550	 	 	 	≤ 0.04	 






Point discontinuities

No point discontinuity greater than 0.05 dB at 1310 nm and 1550 nm.




Attenuation with Bending




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Mandrel	 	 	 	 	 	 	Induced	 
	Number of	 	Radius	 	 	Wavelength	 	 	Attenuation	 
	Turns	 	(mm)	 	 	(nm)	 	 	(dB)	 
	100
	 	 	25	 	 	 	1310	 	 	 	≤ 0.05	 
	100
	 	 	25	 	 	 	1550	 	 	 	≤ 0.05	 
	100
	 	 	30	 	 	 	1625	 	 	 	≤ 0.05	 






	 	 	 	 	 
	Cutoff Wavelength	 	 	 	 
	Cable Cutoff
wavelength (λCCf)
	 	≤ 1260 nm






Mode Field Diameter




	 	 	 	 	 
	Wavelength (nm)	 	MFD (μm)	 
	1310
	 	 	9.0 ± 0.4	 
	1550
	 	 	10.1 ± 0.5	 






Chromatic Dispersion




	 	 	 	 	 
	Wavelength (nm)	 	Chromatic Dispersion (ps/[nm.km])	 
	1285 - 1330
	 	 	≤ |3|	 
	1550
	 	 	≤ 18.0	 
	1625
	 	 	≤ 22.0	 
	Zero
Dispersion Wavelength (λ0):
	 	1300-1322 nm	 
	Slope (S0) at λ0:
	 	≤ 0.090 ps/(nm2.km)	 





Polarization Mode Dispersion (PMD)




	 	 	 	 	 
	 	 	(ps/√km)	 
	PMD Link
Design Value**
	 	 	≤ 0.06	 
	Max. Individual Fibre
	 	 	≤ 0.1	 








 




			
	**	 	According to IEC 60794 -3, Ed 3, (Q=0.01%)





Geometrical Specifications




	 	 	 	 	 
	Glass Geometry	 	 	 	 
	Cladding Diameter
	 	125.0 ± 0.7 μm	 
	Core/Cladding Concentricity
	 	≤ 0.5 μm	 
	Cladding Non-Circularity
	 	 	≤ 0.7	%
	Fibre Curl (radius)
	 	 	>  4m	 
	 
	 	 	 	 
	Coating Geometry
	 	 	 	 
	Coating Diameter
	 	 	242 ± 7 μm	 
	Coating / Cladding Concentricity
	 	 	≤  12 μm	 
	Coating Non-Circularity
	 	 	≤ 5	%
	 
	 	 	 	 
	Lengths
	 	Standards lengths up to 50.4 km	 






Mechanical Specifications

Proof test

The entire length is subjected to a tensile proof stress > 0.7
GPa (100 kpsi); 1% strain equivalent.




Tensile Strength

Dynamic tensile strength (0.5 meter gauge length):




			
	 	 	 
	Aged*** and unaged:
	 	median > 3.8 GPa (550 kpsi)








 




			
	***	 	Aging at 85°C, 85% RH, 30 days





Dynamic and Static Fatigue




	 	 	 

	Dynamic fatigue, unaged and aged***

	 	nd > 20
	Static fatigue, aged***

	 	ns > 23






Coating Performance

Coating strip force unaged and aged****:







 





	 	 	 	 	 

	* Average strip force:
	 	1 N to 3 N
	* Peak strip force:
	 	1.3 N to 8.9 N






**** Aging:





	 	•	 	0°C and 45°C
	 
	 	•	 	30 days at 86°C and 85% RH
	 
	 	•	 	14 days water immersion at 23°C
	 
	 	•	 	Wasp spray exposure (Telcordia)





Environmental Specifications




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Induced Attenuation at	 
	Environmental Test	 	Test Conditions	 	 	1310, 1550 nm (dB/km)	 
	Temperature cycling
	 	-60°C to 85°C	 	 	≤ 0.05	 
	Temperature-
	 	-10°C to 85°C, 4-98% RH	 	 	≤ 0.05	 
	Humidity cycling
	 	 	 	 	 	 	 	 
	Water Immersion
	 	14 days; 23°C	 	 	≤ 0.05	 
	Dry Heat
	 	30 days; 85°C	 	 	≤ 0.05	 
	Damp Heat
	 	30 days; 85°C; 85% RH	 	 	≤ 0.05	 






Typical Characterisation Values




	 	 	 	 	 

	Nominal Zero Dispersion Slope
	 	0.085 ps/(nm2.km)
	 
	 	 	 	 
	Effective group index @ 1310 nm
	 	 	1.467	 
	Effective group index @ 1550 nm
	 	 	1.468	 
	Effective group index @ 1625 nm
	 	 	1.468	 
	 
	 	 	 	 
	Raylelgh Backscatter Coefficient for 1 ns pulse width:
	 	 	 	 
	@1310 nm
	 	-79.4 dB	 
	@ 1550 nm
	 	-81.7 dB	 
	@ 1625 nm
	 	-82.5 dB	 
	 
	 	 	 	 
	Median Dynamic Tensile Strength

(Aged at 85°C, 85% RH, 30 days; 0.5 m gauge length)
	 	5.3 GPa (750 kpsi)







 











 










For telecom applications





	•	 	Long-Haul
	 
	•	 	Metropolitan
	 
	•	 	Access
	 
	•	 	FTTx
	 
	•	 	Premises









Value Innovation is a way of looking at the world. How we can help our customers do more, make
more, save more, achieve more.




Key Industry Leading Milestones








Draka’s Enhanced Single-Mode Fiber (ESMF) provides improved performance across the entire 1260 nm
to 1625 nm wavelength spectrum. It has a low dispersion in the 1310 nm window and low attenuation
in the 1383 nm water-peak region to allow use of the extended band (1360 nm to 1460 nm). With its
wide operating spectrum, ESMF expands the future growth capability of the fiber and allows flexible
configuration of voice, data, and video services within the fiber. It can be used in all cable
constructions, including loose tube, tight buffered, ribbon, and central tube designs.



The tighter geometrical, attenuation and PMD specifications of ESMF enable superior performance in
long-haul, metropolitan, access and premises applications in telecommunications, CATV and utility
networks. ESMF is completely interchangeable with standard single-mode fiber.



Draka’s Advanced Plasma Vapor Deposition (APVDTM) manufacturing process ensures the highest quality
and purity of fibers. Proprietary ColorLockTM coating process further enhances the performance,
durability and reliability of the fiber, even in the harshest environments.



The fiber complies with or exceeds the ITU-T Recommendation G.652.D, the IEC International Standard
60793-2-50 type B.1.3 Optical Fiber Specification, Telcordia GR-20-CORE, ANSI/ICEA S-87-640 and RUS
7CFR 1755.900.




	 	 	 
	Features	 	Benefits
	 
	Low 1383 nm (water-peak) attenuation

	 	Provides expanded fiber capacity and cost savings through use of
cheaper lasers in the entire 1260 to 1625 nm range, multiplexing
filters and higher number of channels 
	 
	Low hydrogen sensitivity

	 	Low attenuation in the 1383 nm region even as fiber ages, for
improved performance and long life
	 
	Lower PMD of 0.06 ps/Ökm link design value

	 	Extends the PMD distance performance, reducing regeneration costs
	 
	Low 1460 nm attenuation (< 0.25 dB/km)

	 	• Easy design of low cost laser and filter based systems over a
wide wavelength range
	 
	 	 
	 

	 	• Ensure efficient Raman pumping for C-band amplification
	 
	Proprietary PCVD and APVDTM manufacturing process

	 	Superior geometry, uniformity and purity
	 
	Revolutionary ColorLock-XS coating process

	 	Increased reliability, durability and superior aging
performance, resulting in lower maintenance and replacement
costs. Makes color a component of the coating, thus enhancing
fiber identification and colored fiber reliability. Consistent,
vibrant color for easy-of-use and flexibility






Draka Communications




fibersales@draka.com




 









 










Enhanced Single-Mode Optical Fiber (ESMF)

Americas




Improved performance across the entire 1260 nm to 1625 nm wavelength spectrum




	 	 	 

	Product Type: G.652.D

	 	Issue date: 06/09 (A)
	 
	 	 
	Coating Type: ColorLock-XS and Natural

	 	Supersedes: 11/07






Optical Specifications (Uncabled fiber)




Attenuation




	 	 	 	 	 
	 	 	(dB/km)	 
	Attenuation at 1310 nm
	 	 	0.33 – 0.35	 
	Attenuation at 1383 nm*
	 	 	0.32 – 0.35	 
	Attenuation at 1460 nm
	 	 	0.25	 
	Attenuation at 1550 nm
	 	 	0.19 – 0.21	 
	Attenuation at 1625 nm
	 	 	0.20 – 0.23	 








 




			
	*	 	Including H2-aging according to IEC 60793-2-50, type B.1.3
	 
	 	 	Other values available on request.








Attenuation vs. Wavelength




Maximum attenuation change over the window from reference




	 	 	 	 	 	 	 
	Wavelength range (nm)	 	Reference l (nm)	 	(dB/km)	 
	1285 - 1330
	 	1310	 	 	< 0.03	 
	1525 - 1575
	 	1550	 	 	< 0.02	 
	1460 - 1625
	 	1550	 	 	< 0.04	 






Point discontinuities



No point
discontinuity greater than 0.05 dB at 1310 nm and 1550 nm.




Attenuation with Bending




	 	 	 	 	 	 	 	 	 
	Number of	 	Mandrel	 	Wavelength	 	Attenuation	 
	Turns	 	Radius (mm)	 	(nm)	 	(dB)	 
	100
	 	25	 	1310	 	 	< 0.05	 
	100
	 	25	 	1550	 	 	< 0.05	 
	100
	 	30	 	1625	 	 	< 0.05	 






Cutoff Wavelength




	 	 	 	 	 

	Cable Cutoff wavelength (lccf)
	 	< 1260 nm






Mode Field Diameter




	 	 	 	 	 
	Wavelength (nm)	 	(mm)	 
	1310
	 	 	8.8 to 9.6	 
	1550
	 	 	9.6 to 10.6	 






Chromatic Dispersion




	 	 	 	 	 
	Wavelength (nm)	 	(ps/[nm.km])	 
	1285 – 1330
	 	 	< |3|	 
	1550
	 	 	< 18.0	 
	1625
	 	 	< 22.0	 
	 
	 	 	 	 
	Zero Dispersion Wavelength (lo):
	 	1300 - 1322	 nm
	Slope (So) at lo:
	 	< 0.090 ps/(nm2.km)	 






Polarization Mode Dispersion (PMD)




	 	 	 	 	 
	 	 	(ps/Ökm)	 
	PMD Link Design Value**
	 	 	< 0.06	 
	Max. Individual Fiber
	 	 	< 0.1	 








 




			
	**	 	According to IEC 60794 -3, Ed 3 (Q=0.01%)





Geometrical Specifications





	 	 	 	 	 

	Glass Geometry
	 	 	 	 
	Cladding Diameter
	 	 	125.0 ± 0.7 	mm
	Core/Cladding Concentricity Error
	 	 	< 0.5 	mm
	Cladding Non-Circularity
	 	 	< 0.7	%
	Fiber Curl (radius)
	 	 	> 4 	m
	Coating Geometry
	 	 	 	 
	Coating Diameter
	 	 	242 ± 7 	mm
	Coating/Cladding Concentricity Error
	 	 	< 12 	mm
	Coating Non-Circularity
	 	 	< 5	%
	Lengths
	 	Standard lengths up to 50.4 	km






Mechanical Specifications




Proof test



The entire length is subjected to a tensile proof stress > 0.7 GPa (100 kpsl); 1% strain
equivalent.




Tensile Strength



Dynamic tensile strength (0.5 meter gauge length):




	 	 	 

	Aged*** and unaged:

	 	median > 3.8 GPa (550 kpsi)






 




			
	***	 	Aging at 85°C, 85% RH, 30 days





Dynamic and Static Fatigue




	 	 	 

	Dynamic fatigue, unaged and aged***

	 	nd > 20
	Static fatigue, aged***

	 	ns > 23






Coating Performance




	 	 	 

	Coating strip force unaged and aged****:
	 	 
	* Average strip force:

	 	1 N to 3 N
	* Peak strip force:

	 	1.2 N to 8.9 N








 




			
	****	 	Aging:






	 	•	 	0°C and 45°C
	 
	 	•	 	30 days at 85°C and 86% RH
	 
	 	•	 	14 days water immersion at 23°C
	 
	 	•	 	Wasp spray exposure (Telcordia)





Environmental Specifications




	 	 	 	 	 	 	 
	 	 	 	 	Induced Attenuation at	 
	Environmental Test	 	Test Conditions	 	1310, 1550 nm (dB/km)	 
	 
	Temperature cycling
	 	-60°C to 85°C	 	 	< 0.05	 
	Temperature
	 	-10°C to 85°C, 4-98% RH	 	 	< 0.05	 
	Humidity cycling
	 	 	 	 	 	 
	Water Immersion
	 	14 days; 23°C	 	 	< 0.05	 
	Dry Heat
	 	30 days; 85°C	 	 	< 0.05	 
	Damp Heat
	 	30 days; 85°C; 85% RH	 	 	< 0.05	 






Typical Specifications




	 	 	 	 	 

	Nominal Zero Dispersion Slope
	 	0.085 ps/(nm2.km)	 
	Effective group index @ 1310 nm
	 	 	1,487	 
	Effective group index @ 1550 nm
	 	 	1,468	 
	Effective group index @ 1625 nm
	 	 	1,468	 
	Rayieigh Backscatter Coefficient for 1 ns pulse width:
	 	 	 	 
	@ 1310 nm
	 	-79.4 	dB
	@ 1550 nm
	 	-81.7 	dB
	@ 1625 nm
	 	-82.5 	dB
	 
	 	 	 	 
	Median Dynamic
Tensile Strength
(Aged at 85°C. 85% RH, 30 days; 0.5 m gauge length)
	 	5.3 GPa (750 kpsi)	 







	 	 	 

	Draka Communications
	 	 
	fibersales@draka.com

	 	The Draka Communications policy of continuous Improvement







 











 





Section 2.20(c)




Network and Collocation Facilities


[See attached spreadsheet document]




 









 





	 	 	 	 	 	 	 
	Address	 	Common Name	 	Landlord	 	Market
	2 Concourse, Atlanta, GA

	 	Colocation
	 	Teachers Concourse
	 	ATL
	609 14th St NW, Atlanta, GA (HUT)

	 	Colocation
	 	Ivan Miles
	 	ATL
	120 East Van Buren, Phoenix, AZ

	 	Colocation
	 	Digital Realty Trust
	 	PX
	301 S. 4th St, Phoenix, AZ

	 	Colocation
	 	Telecom Center, LLC
	 	PX
	8521 East Princess Drive, Scottsdale, AZ

	 	Colocation
	 	IO Capital, LLC
	 	PX
	615 N 48th St, Phoenix, AZ

	 	Colocation
	 	IO Capital, LLC
	 	PX
	113 N. Myers Street

	 	Meet-Me Room
	 	Digital Realty Trust
	 	CLT










 









 








Section 2.22




Insurance Policies


[See attached document]




 









 





SECTION 2.22 Insurance Policies Maintained by AGL Resources Inc.

Covering the Operations, Property and Assets of AGL Networks LLC and AGL Investments, Inc.

February 26, 2010




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Limits (In	 
	Insurance Policies	 	Policy Number	 	Insurer/ Reinsurer	 	Note	 	Expiration	 	$Millions)	 
	AGL Networks Policies Covering State of Arizona Operations Only	 	 	 	 
	Primary General Liability

	 	L7218408
	 	United National Insurance
	 	*
	 	12/30/2010
	 	 	1.0	 
	Excess General Liability

	 	XS0064124
	 	United National Insurance
	 	*
	 	12/30/2010
	 	 	4.0	 
	Arizona Auto Liability

	 	20UENQ9403
	 	Hartford
	 	 	 	12/1/2010
	 	 	1.0	 
	Arizona Workers’ Comp/Employers’ Liab.

	 	20WBPK4076
	 	Hartford
	 	 	 	2/1/2010
	 	Stat/1.0
	 
	AGL Resources PRIMARY MULTILINE POLICIES	 	 	 	 
	Multi-Line Policy

	 	MLP1007
	 	GERIC
	 	(a)
	 	10/1/2010
	 	 	3.0	 
	Multi-Line Policy

	 	MLX1007
	 	GERIC
	 	(b)
	 	10/1/2010
	 	 	5.0	 
	 

	 	 	 	GenRe
	 	 	 	10/1/2010	 	 	 	 
	 

	 	 	 	Zurich
	 	 	 	10/1/2011	 	 	 	 
	AGL Resources PROPERTY, WELL CONTROL & ENVIRONMENTAL POLICIES	 	 	 	 
	Property

	 	PRP1008
	 	GERIC/AEGIS/EIM
	 	(c)
	 	10/1/2010
	 	 	47.0	 
	Excess Property

	 	ML31008
	 	GERIC/Zurich
	 	 	 	10/1/2011
	 	 	60.0	 
	Excess Property

	 	L0253A2A08 (Aegis)
 310381-08GP (EIM)
	 	AEGIS/EIM
	 	 	 	10/1/2010
	 	 	188.0	 
	Boiler & Machinery

	 	BM2994449-08
	 	Zurich
	 	 	 	10/1/2011
	 	 	50.0	 
	Terrorism

	 	L0253A1A08 (Aegis)
 310380-08GPT (EIM)
	 	AEGIS/EIM
	 	 	 	10/1/2010
	 	 	47.0	 
	Terrorism

	 	IPR3460404-02
	 	Zurich
	 	 	 	10/1/2011
	 	 	40.0	 
	Environmental Liability

	 	PEC002284901
	 	Indian Harbor
	 	(d)
	 	12/22/2010
	 	 	30.0	 
	Excess Environmental Liability (JISH)

	 	EPC4883230-00
	 	Zurich
	 	(d)
	 	12/22/2010
	 	 	20,0	 
	Control of Well

	 	MU05510272
	 	St Paul
	 	(d)
	 	12/31/2010
	 	 	20.0	 
	AGL Resources EXCESS LIABILITY POLICIES	 	 	 	 
	Excess Multi-Line 1

	 	ML11007
	 	GERIC/AEGIS
	 	(e)
	 	10/1/2010
	 	 	35.0	 
	Excess Multi-Line 2

	 	ML21007
	 	GERIC/EIM
	 	(f)
	 	10/1/2010
	 	 	50.0	 
	Auto Liability & GL Excess

	 	 	 	 	 	 	 	10/1/2010
	 	 	50.0	 
	Excess Multi-Line 3

	 	ML31008
	 	GERIC/Zurich
	 	(g)
	 	10/1/2011
	 	 	40.0	 
	Excess Multi-Line 3

	 	ML31008
	 	GERIC/Zurich
	 	(h)
	 	10/1/2011
	 	 	25.0	 
	Terrorism

	 	L0253A1A07
	 	AEGIS
	 	 	 	10/1/2010
	 	 	50.0	 
	Excess Liability

	 	XOOG24903850
	 	ACE
	 	(d)
	 	12/22/2010
	 	 	15.0	 
	AGL Resources WORKERS’ COMPENSATION POLICIES	 	 	 	 
	Large Deductible (FL, LA, MD, NJ, TN)

	 	Y0253B1A08
	 	Old Republic
	 	 	 	10/1/2010
	 	Statutory
	 
	 

	 	MWC116300
	 	Old Republic
	 	 	 	10/1/2010
	 	Statutory
	 
	XS Self-Insured (GA, VA)

	 	MWXS883
	 	Old Republic
	 	 	 	10/1/2010
	 	Statutory
	 
	AGL Resources EXECUTIVE RISK POLICIES	 	 	 	 
	D&O Side A

	 	DOP10001745800
	 	Endurance
	 	 	 	10/1/2011
	 	 	8.0	 
	Excess Multi-Line 1

	 	ML11007
	 	GERIC/AEGIS
	 	 	 	10/1/2010
	 	 	35.0	 
	Excess Multi-Line 2

	 	ML21007
	 	GERIC/EIM
	 	 	 	10/1/2010
	 	 	50.0	 
	Excess Multi-Line 3

	 	ML31008
	 	GERIC/Zurich
	 	(i)
	 	10/1/2011
	 	 	25.0	 
	Excess Multi-Line 3

	 	ML31008
	 	GERIC/Zurich
	 	(j)
	 	10/1/2011
	 	 	25.0	 
	Side A (DIC)

	 	6800-1380
	 	Federal Ins Co
	 	 	 	10/1/2010
	 	 	20.0	 
	Side A (DIC)

	 	568CM3804
	 	St Paul Mercury
	 	 	 	10/1/2010
	 	 	12.0	 
	IDL (DIC)

	 	MAN729824/01/2009
	 	Axis
	 	 	 	10/1/2010
	 	 	10.0	 
	Basket Aggregate

	 	ML31008
	 	Zurich
	 	 	 	10/1/2011
	 	 	10.0	 








	 	 	 
	 	 	Notes:
	 
	*	 	Coverage required to meet contractual requirement for AM Best rated occurrence based policies
	 
	(a)	 	Multi-Line Policy: Provides coverage for Property; Self-Insured Workers’ Compensation, Employment Practices Liability;
General Liability, Auto Liability; D&O Sides B&C; Fiduciary Liability; Crime
	 
	(b)	 	Multi-Line Policy: Provides coverage for Self-Insured Workers’ Compensation, Employment Practices Liability; General
Liability, Auto Liability; D&O Sides B&C; Fiduciary Liability; Crime

	 	 	
GERIC covers 70% of the first loss under MLX1007 and GenRe covers the remaining 30%
	 	 	The second loss in this layer is covered by Gen Re(30%) and Zurich (70%)

	 
	(c)	 	Provides property coverage excess GERIC MLP1007; Aegis reinsures 90% of $47M and EIM reinsures 10%
	 
	(d)	 	Environmental coverage applies to Jefferson Island Storage and Hub (owned by AGL Investments) and Golden Triangle
Storage (wholly owned by AGLR); Indian Harbor policy provides $30M in limits for JISH and $20M for GTS.

	 	 	Excess liability coverage applies to JISH only
	 	 	Control of Well Coverage applies to JISH and GTS
	 
	(e)	 	Coverage applies to Workers’ Compensation; Employment Practices Liability; General Liability; Auto Liability; Directors &
Officers; Fiduciary Liability
	 
	(f)	 	Coverage applies to Employment Practices Liability; General Liability; Auto Liability; Directors & Officers; Fiduciary Liability
An additional $50M applies to General Liability and Auto Liability
	 
	(g)	 	Coverage under ML3 provides $40M in GL and Automobile Liability limits excess of ML2
	 
	(h)	 	Coverage under ML3 provides $25M in Employment Practices Liability limits in excess of ML2
	 
	(i)	 	Coverage under ML3 provides $25M in D&O limits in excess of ML2
	 
	(j)	 	Coverage under ML3 provides $25M in Fiduciary Liability limits in excess of ML2









 









 








Section 2.23




Bank Accounts


[See attached document]




 









 





DISCLOSURE SCHEDULES TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

AGL NETWORKS, LLC; AGL INVESTMENTS, INC.; and ZAYO GROUP LLC




Section 2.23

BANK ACCOUNTS



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	BANK BALANCE AS OF	 	DATE OF	 	DATE OF
	BANK ACCOUNT NAME AND INSTITUTION	 	 	 	 	 	DECEMBER 31, 2009	 	ISSUE	 	MATURITY
	1 CERTIFICATE DEPOSIT # 5051 AT MUTUAL SAVINGS CREDIT UNION
	 	 	[A]	 	 	$	51,358.62	 	 	3-Feb-09	 	3-Feb-10
	 
	2 CERTIFICATE DEPOSIT # 5052 AT MUTUAL SAVINGS CREDIT UNION
	 	 	[A]	 	 	$	50,139.14	 	 	3-Nov-09	 	3-Nov-10
	 
	3 CERTIFICATE DEPOSIT # 5064 AT MUTUAL SAVINGS CREDIT UNION
	 	 	[A]	 	 	$	55,307.05	 	 	17-Sep-09	 	17-Sep-10
	 
	4 CERTIFICATE DEPOSIT # 5065 AT MUTUAL SAVINGS CREDIT UNION
	 	 	[A]	 	 	$	55,149.50	 	 	26-Sep-09	 	26-Sep-10
	 
	5 CERTIFICATE DEPOSIT # 5066 AT MUTUAL SAVINGS CREDIT UNION
	 	 	[A]	 	 	$	273,784.80	 	 	26-Nov-09	 	26-Nov-10
	 
	6 MUTUAL SAVINGS CREDIT UNION PRIMARY SHARES ACCOUNT
	 	 	[A]	 	 	$	5.13	 	 	 	N/A	 	 	 	N/A	 
	 
	7 JPMORGAN CHASE BANK, N.A. CERTIFICATE OF DEPOSIT (180 DAY TERM)
	 	 	[B]	 	 	$	40,000.00	 	 	8-Aug-09	 	4-Feb-10






 






			
	[A]	 	President, any Vice President, the Treasurer or any Assistant Treasurer of the Company may open an account in the name of the Company
	 
	 	 	• Draws can be made persons designated by the President or by any Vice President acting jointly with the Treasurer or any Assistant Treasurer of the Company

	 
	 	 	• All draws over $25,000 shall be signed by two of said persons
	 
	 	 	• Andy, Managing Director, was added as the secondary signature and co-signer on the account on September 27, 2007
	 
	[B]	 	Pursuant to Deposit Account Agreement dated March 11, 2009, the balance of this account has been assigned to Phoenix, Arizona









 









 








Section 3.1(b)




Agreements Regarding Seller’s Ownership Interests


NONE








 









 








Section 5.4(b)




Operations Prior to Closing




	(xii)	 	See attached spreadsheet of in-process contracts
	 
	(xiii)	 	See attached spreadsheet









 









 








     



     

Contracts Funnel

As of Monday March 22, 2010




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Deal	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Owner	 	Segment	 	Status	 	Party	 	Agreement	 	Description	 	Mkt	 	Status
	AM

	 	Wholesale
	 	Contracts
	 	Abovenet
	 	Service Order #2
	 	Service Order #2 —1033 Jefferson to 56 Marietta
	 	ATL
	 	Contracts sent to AboveNet Tuesday, February 23, 2010.
	AM

	 	Wholesale
	 	Contracts
	 	Abovenet
	 	Service Order #3
	 	3500 Piedmont Rd to 56M
	 	ATL
	 	Contracts sent to AboveNet Friday, March 5, 2010.
	WP

	 	Enterprise
	 	Contracts
	 	AGL Services Company
	 	MSA
	 	 	 	 	 	Received edits from AGLR Thursday, March 18, 2010.
	WP

	 	Enterprise
	 	Contracts
	 	AGL Services Company
	 	Service Order #1
	 	Ring from Ten Peachtree Place to Biltmore
	 	ATL
	 	Received edits from AGLR Thursday, March 18, 2010.
	Pah

	 	Enterprise
	 	Contracts
	 	Apollo Group
	 	Service Order #6
	 	Additional Node 3138 E Elwood
	 	PHX
	 	Contracts approved for Sales to deliver to customer Monday, December 14, 2009.
	AM

	 	Wholesale
	 	Contracts
	 	Cogent
	 	Service Order #5
	 	3402 E University (Phx NAP) bldg add
	 	PHX
	 	Contracts sent to Cogent Thursday, March 11, 2010.
	EB

	 	Enterprise
	 	Contracts
	 	Board of Regents
	 	Service Order #2
	 	Two laterals
	 	ATL
	 	Contracts is drafting.
	AM

	 	Wholesale
	 	Contracts
	 	DukeNet
	 	Amendment
	 	Amend SO #4: 400 Embassy Row + Three Verizon Place relocation
	 	ATL
	 	Contracts is drafting.
	AM

	 	Wholesale
	 	Contracts
	 	FiberLight
	 	Amendment
	 	Amend SO #2: Moved manhole location for tie-in. Add $150 MRR.
	 	ATL
	 	Contracts is drafting.
	BE

	 	Wholesale
	 	Contracts
	 	Global Crossing
	 	MSA
	 	To prepare MSA for customer.
	 	 	 	Negotiating
	BE

	 	Wholesale
	 	Contracts
	 	Global Crossing
	 	Service Order #1
	 	701 E Trade St — 8055 Microsoft Way
	 	CLT
	 	Contracts is drafting.
	BE

	 	Wholesale
	 	Contracts
	 	Global Crossing
	 	Service Order #2
	 	2121 S Price to 801 S 16th St — Pt-to-pt
	 	PHX
	 	Contracts is drafting.
	EB

	 	Enterprise
	 	Contracts
	 	Hewlett Packard
	 	Service Order #2
	 	Campus Renewal
	 	ATL
	 	Contracts approved for Sales to deliver to customer Monday, January 11, 2010.
	AM

	 	Wholesale
	 	Contracts
	 	Internap
	 	Service Order #3
	 	120 EVB to 3402 E University (Phx NAP)
	 	PHX
	 	Contracts is drafting.
	EB

	 	Enterprise
	 	Contracts
	 	Kilpatrick Stockton
	 	MSA
	 	To prepare MSA for customer.
	 	 	 	Negotiated — KS is executing.
	EB

	 	Enterprise
	 	Contracts
	 	Kilpatrick Stockton
	 	Service Order #1
	 	1100 Peachtree —11650 GOW
	 	ATL
	 	Customer is signing.
	AM

	 	Wholesale
	 	Contracts
	 	MClmetro/VBS
	 	Service Order #5
	 	Schwab — 4701 E Francisco, 3415 EIS
	 	PHX
	 	Contracts has drafted. Sales is discussing renewal terms.
	AM

	 	Wholesale
	 	Contracts
	 	MClmetro/VBS
	 	Service Order #6
	 	1715 N Brown Rd, 300 Satellite, VBS tie-ins
	 	ATL
	 	Contracts is drafting.
	BE

	 	Wholesale
	 	Contracts
	 	PAETEC
	 	MSA
	 	To prepare MSA for customer.
	 	 	 	Negotiating
	BE

	 	Wholesale
	 	Contracts
	 	PAETEC
	 	Service Order #1
	 	615 N 48th Laterals
	 	PHX
	 	Customer executed Wednesday, March 10, 2010, but need executed MSA first.
	BE

	 	Wholesale
	 	Contracts
	 	Teliasonera
	 	Service Order #2
	 	113 N Myers—112 N Myers
	 	CLT
	 	Contracts sent to Teliasonera Wednesday, March 17.
	BE

	 	Wholesale
	 	Contracts
	 	Teliasonera
	 	Service Order #3
	 	17 E Virginia / 615 N 48th
	 	PHX
	 	Contracts sent to Teliasonera Wednesday, March 17.
	AM

	 	Wholesale
	 	Contracts
	 	Tower Cloud
	 	Service Order #6
	 	3225 Cumberland, 5865 PIB
	 	ATL
	 	Contracts is drafting.
	BE

	 	Wholesale
	 	Contracts
	 	tw telecom
	 	Service Order #9
	 	tw telecom — Pt-to-Pt
	 	PHX
	 	Contracts is drafting.
	JN

	 	Strategic
	 	Contracts
	 	Woodlawn
	 	MSA
	 	To prepare MSA for customer.
	 	 	 	Negotiating. Using their form. For Richmond — BOA.
	JN

	 	Strategic
	 	Contracts
	 	TCA (aka ATT)
	 	Amendment
	 	AT&T — Buckhead Fibers
	 	ATL
	 	Project Lightspeed fibers. Awaiting customer signature of Amendment #4.
	JN

	 	Strategic
	 	Contracts
	 	TCA (aka ATT)
	 	Amendment
	 	AT&T— Lateral Conduit at 1001 Windward
	 	ATL
	 	Contracts to draft.
	BE

	 	N/A
	 	Contracts
	 	Level 3
	 	Conduit/Fiber Swap
	 	112 N Myers St/113 N Myers St.
	 	CLT
	 	Contracts is drafting.
	N/A

	 	N/A
	 	Contracts
	 	Alexander Street Investors
	 	Collocation
	 	701 E Trade St Meet Me Room
	 	CLT
	 	Contracts is drafting.
	N/A

	 	N/A
	 	Contracts
	 	Salt River Project
	 	Pole Attachment
	 	Phoenix
	 	PHX
	 	Issues with insurance.
	JN

	 	Strategic
	 	Contracts
	 	Sprint
	 	Fiber Outage Letter
	 	SLA issue for an outage in Phoenix
	 	PHX
	 	Negotiating SLA settlement amount.
	BE

	 	Wholesale
	 	Contracts
	 	Windstream
	 	MSA
	 	To prepare MSA for customer.
	 	ATL
	 	In the process of sending Windstream our MSA template.











Page 1 of 1









 











5.4(b)(xiii)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Data room	 	 	 	 	 	 	 	 	 	 
	Customer	 	location	 	CN	 	Description	 	Location	 	MRR	 	Prepay option
	Towercloud

	 	 	2.2.1.105.4.5	 	 	 	718	 	 	Network Lease: Rings (SO#2)
	 	ATL
	 	$	47,000	 	 	Yes
	Towercloud

	 	 	2.2.1.105.5.2	 	 	 	742	 	 	Network Lease: Laterals (SO#3)
	 	ATL
	 	$	65,000	 	 	Yes
	Towercloud

	 	 	 	 	 	 	921	 	 	Service Order #4
	 	ATL
	 	$	10,600	 	 	Yes
	Towercloud

	 	 	 	 	 	 	914	 	 	Service Order #5
	 	ATL
	 	$	600	 	 	Yes
	XO

	 	 	2.2.1.112.4.7	 	 	 	769	 	 	Network Lease: SO# 5 Rings and Laterals
	 	PX
	 	$	18,903	 	 	Yes
	XO

	 	 	2.2.1.112.1.7	 	 	 	780	 	 	Network Lease: SO# 4 Rings and Laterals
	 	ATL
	 	$	35,309	 	 	Yes
	XO

	 	 	2.2.1.112.4.1	 	 	 	770	 	 	Network Lease: Suppliment #1 to SO# 5 Corporate Rings
	 	PX
	 	$	5,893	 	 	Yes
	XO

	 	 	2.2.1.112.4.8	 	 	 	770	 	 	Network Lease: Lateral at 3930 E Watkins St
	 	PX
	 	$	800	 	 	Yes
	XO

	 	 	2.2.1.112.4.9	 	 	 	784	 	 	Network Lease: 7145 E 1st Street
	 	PX
	 	$	2,000	 	 	Yes
	XO

	 	 	2.2.1.112.1.9	 	 	 	873	 	 	Network Lease: SO#4 Supplement #2 4311 Comm Dr
	 	ATL
	 	$	800	 	 	Yes
	TWTC

	 	 	2.2.1.106.2.15	 	 	mult
	 	Network Lease: Atlanta Ring
	 	ATL
	 	$	7,585	 	 	TWTC can take down additional 12 fiber count increments of the entire system for ~$450k
	Eschelon/lntegra

	 	 	2.2.1.61.1.1.1	 	 	 	228	 	 	Network lease SO# 4 6016 S McClintock
	 	PX
	 	$	2,500	 	 	Yes
	Eschelon/lntegra

	 	 	2.2.1.61.1.1.2	 	 	 	225	 	 	Network Lease SO#1 Original Ring A and B
	 	PX
	 	$	10,000	 	 	Yes
	Eschelon/lntegra

	 	 	2.2.1.61.1.1.8	 	 	 	226	 	 	Service Order #2 Tempe South Loop
	 	PX
	 	$	1,000	 	 	Yes
	Eschelon/lntegra

	 	 	2.2.1.61.1.6	 	 	 	670	 	 	Service Order #6 Additional pt-pt laterals
	 	PX
	 	$	18,000	 	 	Yes
	Eschelon/lntegra

	 	 	2.2.1.61.1.7	 	 	 	749	 	 	North Ring COs SO# 7 6246 N 27th Ave 3553 W Greenway Rd
	 	PX
	 	$	8,900	 	 	Yes
	Gila River LEC

	 	 	2.2.1.52.2	 	 	 	 	 	 	SO#1 4Fibers-PHX Ring
	 	PX
	 	$	16,657	 	 	Yes







	 	 	And other related contracts that are incorporated, by reference, in the agreements scheduled above









 









 








Section 5.8(a)




Employees and Severamce


[See attached spreadsheet]





 











 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Separation Benefit
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Costs Increase Upon
	 	 	 	 	 	 	 	 	 	 	Total	 	 	 	 	 	Separation	 	Employment
	Name - First	 	Name - Last	 	Job Title	 	Svc Dt	 	severance	 	Vacation Pay	 	Benefit Costs	 	Anniversary
	Andrew
	 	McGowan	 	Mgr,National Account - AGLN	 	 	8/9/2004	 	 	$	15,795.06	 	 	$	3,948.76	 	 	$	19,743.82	 	 	$	1,316.25	 
	Bernadette
	 	Easler	 	Mgr,National Account - AGLN	 	 	11/2/2009	 	 	$	17,884.62	 	 	$	4,292.31	 	 	$	22,176.92	 	 	$	1,788.46	 
	Brian
	 	Schaller	 	Engr,GIS Support	 	 	1/26/2009	 	 	$	7,846.26	 	 	$	2,157.72	 	 	$	10,003.99	 	 	$	980.78	 
	Darrol
	 	Goolsby	 	Engr,City	 	 	1/26/2009	 	 	$	16,739.52	 	 	$	5,021.85	 	 	$	21,761.37	 	 	$	1,673.95	 
	David
	 	Strickland	 	Mgr,Network Eng & Construction	 	 	1/26/2009	 	 	$	17,312.31	 	 	$	3,462.46	 	 	$	20,774.77	 	 	$	1,731.23	 
	Emily
	 	Bennett	 	Mgr,National Account	 	 	8/7/2006	 	 	$	18,398.38	 	 	$	2,943.74	 	 	$	21,342.12	 	 	$	1,839.84	 
	Frank
	 	Platchek	 	Project Manager -AGLN	 	 	6/11/2007	 	 	$	19,964.52	 	 	$	5,989.35	 	 	$	25,953.87	 	 	$	1,996.45	 
	James
	 	Nolte	 	Managing Dir, Wholesale Sales	 	 	2/2/2004	 	 	$	39,592.50	 	 	$	7,918.50	 	 	$	47,511.00	 	 	$	2,639.50	 
	Jeffrey
	 	Pah	 	Dir,Sales - AGLN	 	 	2/11/2007	 	 	$	25,649.92	 	 	$	6,412.48	 	 	$	32,062.40	 	 	$	2,137.49	 
	Jody
	 	Christensen	 	Mgr,National Account	 	 	7/27/2009	 	 	$	15,739.43	 	 	$	3,147.89	 	 	$	18,887.32	 	 	$	1,573.94	 
	John
	 	Yates	 	Project Manager -AGLN	 	 	3/8/2004	 	 	$	25,651.56	 	 	$	5,919.59	 	 	$	31,571.15	 	 	$	1,973.20	 
	Joshua
	 	Nelson	 	Mgr, Network Operations	 	 	8/23/2004	 	 	$	20,712.90	 	 	$	5,178.23	 	 	$	25,891.13	 	 	$	1,726.08	 
	Kerry
	 	Slatter	 	Mgr,Commercial Transactions	 	 	1/24/2007	 	 	$	17,550.85	 	 	$	4,563.22	 	 	$	22,114.08	 	 	$	1,755.09	 
	Khalilah
	 	Henderson-Hill	 	Assistant I, Administrative	 	 	6/5/2006	 	 	$	8,979.23	 	 	$	2,993.08	 	 	$	11,972.30	 	 	$	997.69	 
	Lance
	 	Ruhl	 	Project Manager -AGLN	 	 	1/26/2004	 	 	$	27,557.01	 	 	$	6,359.31	 	 	$	33,916.32	 	 	$	2,119.77	 
	Larry
	 	Stephens	 	Mgr,Network Deployment	 	 	7/15/2002	 	 	$	41,688.15	 	 	$	8,077.08	 	 	$	49,765.23	 	 	$	2,605.51	 
	Lloyd
	 	Taylor	 	Mgr,City	 	 	2/2/2004	 	 	$	26,987.79	 	 	$	6,227.95	 	 	$	33,215.74	 	 	$	2,075.98	 
	Nicolas
	 	Flores	 	Spec II,GIS	 	 	1/26/2009	 	 	$	7,483.72	 	 	$	2,245.12	 	 	$	9,728.83	 	 	$	935.46	 
	Walter
	 	Harrison	 	Managing Dir, Business Ops	 	 	6/27/1983	 	 	$	72,822.31	 	 	$	12,743.90	 	 	$	85,566.22	 	 	$	—	 
	William
	 	Peeples	 	Managing Dir, Enterprise Sales	 	 	6/30/1980	 	 	$	76,491.37	 	 	$	13,659.17	 	 	$	90,150.54	 	 	$	—	 
	William
	 	Clifton	 	Dir, Business Development	 	 	4/23/2007	 	 	$	24,489.23	 	 	$	4,081.54	 	 	$	28,570.77	 	 	$	2,040.77	 
	James
	 	Gillis	 	President,AGL Networks	 	 	5/5/2003	 	 	$	—	 	 	$	—	 	 	$	—	 	 	$	—	 






 









 






Section 5.8(b) 




Post-Closing Severance



[See attached spreadsheet]





 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Severance Cost
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Increase Upon
	 	 	 	 	 	 	 	 	 	 	Total	 	Employment
	Name - First	 	Name - Last	 	Job Title	 	Svc Dt	 	Severance	 	Anniversary
	Andrew
	 	McGowan	 	Mgr,National Account - AGLN	 	 	8/9/2004	 	 	$	15,795.06	 	 	$	1,316.25	 
	Bernadette
	 	Easler	 	Mgr,National Account - AGLN	 	 	11/2/2009	 	 	$	17,884.62	 	 	$	1,788.46	 
	Brian
	 	Schaller	 	Engr,GIS Support	 	 	1/26/2009	 	 	$	7,846.26	 	 	$	980.78	 
	Darrol
	 	Goolsby	 	Engr,City	 	 	1/26/2009	 	 	$	16,739.52	 	 	$	1,673.95	 
	David
	 	Strickland	 	Mgr,Network Eng & Construction	 	 	1/26/2009	 	 	$	17,312.31	 	 	$	1,731.23	 
	Emily
	 	Bennett	 	Mgr,National Account	 	 	8/7/2006	 	 	$	18,398.38	 	 	$	1,839.84	 
	Frank
	 	Platchek	 	Project Manager -AGLN	 	 	6/11/2007	 	 	$	19,964.52	 	 	$	1,996.45	 
	James
	 	Nolte	 	Managing Dir, Wholesale Sales	 	 	2/2/2004	 	 	$	39,592.50	 	 	$	2,639.50	 
	Jeffrey
	 	Pah	 	Dir,Sales - AGLN	 	 	2/11/2007	 	 	$	25,649.92	 	 	$	2,137.49	 
	Jody
	 	Christensen	 	Mgr,National Account	 	 	7/27/2009	 	 	$	15,739.43	 	 	$	1,573.94	 
	John
	 	Yates	 	Project Manager -AGLN	 	 	3/8/2004	 	 	$	25,651.56	 	 	$	1,973.20	 
	Joshua
	 	Nelson	 	Mgr,Network Operations	 	 	8/23/2004	 	 	$	20,712.90	 	 	$	1,726.08	 
	Kerry
	 	Slatter	 	Mgr,Commercial Transactions	 	 	1/24/2007	 	 	$	17,550.85	 	 	$	1,755.09	 
	Khalilah
	 	Henderson-Hill	 	Assistant I, Administrative	 	 	6/5/2006	 	 	$	8,979.23	 	 	$	997.69	 
	Lance
	 	Ruhl	 	Project Manager -AGLN	 	 	1/26/2004	 	 	$	27,557.01	 	 	$	2,119.77	 
	Larry
	 	Stephens	 	Mgr,Network Deployment	 	 	7/15/2002	 	 	$	41,688.15	 	 	$	2,605.51	 
	Lloyd
	 	Taylor	 	Mgr,City	 	 	2/2/2004	 	 	$	26,987.79	 	 	$	2,075.98	 
	Nicolas
	 	Flores	 	Spec II,GIS	 	 	1/26/2009	 	 	$	7,483.72	 	 	$	935.46	 
	Walter
	 	Harrison	 	Managing Dir, Business Ops	 	 	6/27/1983	 	 	$	72,822.31	 	 	$	—	 
	William
	 	Peeples	 	Managing Dir, Enterprise Sales	 	 	6/30/1980	 	 	$	76,491.37	 	 	$	—	 
	William
	 	Clifton	 	Dir,Business Development	 	 	4/23/2007	 	 	$	24,489.23	 	 	$	2,040.77	 
	James
	 	Gillis	 	President,AGL Networks	 	 	5/5/2003	 	 	$	—	 	 	$	—	 






 









 






Section 5.12(a) 




Capital Expenditures Current Projects



[See attached spreadsheet]





 









 








Schedule 5.12 (a)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Estimated	 	Estimated	 	Non-Recurring
	 	 	 	 	 	 	 	 	Original	 	Total Spent	 	Remaining to	 	Project
	City	 	Driver	 	Project	 	Description	 	Estimate	 	to Date	 	be Spent	 	Revenues
	RICH
	 	CUST	 	TBA	 	BOA- 703 E Grace St	 	$	113,000	 	 	$	—	 	 	$	113,000	 	 	$	460,000	 
	RICH
	 	CUST	 	TBA	 	BOA- Add 8f to 5456 Francestown Rd	 	 	24,000	 	 	 	—	 	 	 	24,000	 	 	 	25,000	 
	KC
	 	CUST	 	041840	 	BOA-1425 Oak St	 	 	100,000	 	 	 	—	 	 	 	100,000	 	 	 	290,000	 
	KC
	 	CUST	 	TBA	 	BOA- Add 8f to 324 E 11th St	 	 	24,000	 	 	 	7,000	 	 	 	17,000	 	 	 	42,500	 
	ATL
	 	CUST	 	042012	 	9300- BOA 5555 Windward Pkwy	 	 	50,500	 	 	 	29,620	 	 	 	20,880	 	 	 	100,800	 
	CLT
	 	CUST	 	040466	 	9345- CLT mkt roll out	 	 	10,970,147	 	 	 	9,811,349	 	 	 	831,610	 	 	 	4,281,666	 
	ATL
	 	DOT	 	041028	 	9300- Relo Hammond Dr	 	 	227,000	 	 	 	83,072	 	 	 	143,928	 	 	 	10,485	 
	ATL
	 	DOT	 	041680	 	Relo- FL DOT Roswell Abernathy	 	 	50,000	 	 	 	6,930	 	 	 	43,070	 	 	 	39,482	 
	ATL
	 	REPAIR	 	041962	 	9300- RPR 1033 Jefferson	 	 	25,000	 	 	 	1,440	 	 	 	23,560	 	 	 	57,871	 
	ATL
	 	DOT	 	040194	 	9300- Relo McGinnis Ferry	 	 	30,000	 	 	 	—	 	 	 	30,000	 	 	 	—	 
	ATL
	 	CUST	 	041540	 	RELO-Snapfinger @ Flat Shoals	 	 	15,000	 	 	 	8,098	 	 	 	6,902	 	 	 	17,040	 
	ATL
	 	CUST	 	040777	 	9300- TowerCloud SO3	 	 	3,552,310	 	 	 	3,695,074	 	 	 	175,000	 	 	 	—	 
	ATL
	 	CUST	 	042088	 	9300-Cardlytics 621 N ave	 	 	16,600	 	 	 	16,940	 	 	 	(340	)	 	 	—	 
	ATL
	 	CUST	 	041763	 	9300-Directpath 2935 Amwiler	 	 	13,800	 	 	 	7,250	 	 	 	6,550	 	 	 	—	 
	PHX
	 	CUST	 	041335	 	9320- Apollo Rings & laterals	 	 	271,200	 	 	 	212,656	 	 	 	58,544	 	 	 	60,000	 
	PHX
	 	CUST	 	041567	 	9320- Clearwire Glendale	 	 	1,027,700	 	 	 	1,031,668	 	 	 	275,000	 	 	 	—	 
	PHX
	 	CUST	 	041673	 	9320- VBS Intel 5000 W Chandle	 	 	115,600	 	 	 	16,452	 	 	 	99,148	 	 	 	—	 
	PHX
	 	CUST	 	041533	 	9320- Cogent SO3 614 N48th St	 	 	5,200	 	 	 	2,466	 	 	 	2,734	 	 	 	10,000	 
	ATL
	 	CUST	 	041103	 	9300- XO ATL Rings	 	 	939,528	 	 	 	835,970	 	 	 	85,000	 	 	 	—	 
	ATL
	 	CUST	 	041568	 	9300- MediaXtream SO1	 	 	19,600	 	 	 	4,420	 	 	 	15,180	 	 	 	—	 
	PHX
	 	CUST	 	041157	 	9320- MTI SO7 North COs	 	 	127,800	 	 	 	92,259	 	 	 	35,541	 	 	 	—	 
	PHX
	 	CUST	 	041852	 	9320-MCI SO#4 3415 Indian S	 	 	99,800	 	 	 	7,244	 	 	 	92,556	 	 	 	—	 
	PHX
	 	CUST	 	039902	 	9320- Scottrade SO1 CN 650	 	 	68,400	 	 	 	36,963	 	 	 	31,437	 	 	 	—	 
	PHX
	 	CUST	 	041307	 	9320- XO SO 5.2 sup	 	 	16,000	 	 	 	3,210	 	 	 	12,790	 	 	 	5,000	 
	ATL
	 	CUST	 	042155	 	9300-FL Abernathy & Northwoods	 	 	19,200	 	 	 	4,387	 	 	 	14,813	 	 	 	—	 
	ATL
	 	CUST	 	039997	 	9300- One Ring 1375 Ptree node	 	 	22,000	 	 	 	8,342	 	 	 	13,658	 	 	 	—	 
	ATL
	 	CUST	 	041823	 	9300- US Carrier SO3	 	 	4,200	 	 	 	1,240	 	 	 	2,960	 	 	 	—	 
	ATL
	 	CUST	 	041868	 	9300-HP 2525 Westside Pkwy	 	 	6,000	 	 	 	—	 	 	 	6,000	 	 	 	—	 
	ATL
	 	CUST	 	042004	 	9300-Google ring to 1033 Jeff	 	 	121,000	 	 	 	—	 	 	 	121,000	 	 	 	—	 
	ATL
	 	CUST	 	042109	 	9300-Google to 56M	 	 	9,200	 	 	 	—	 	 	 	9,200	 	 	 	—	 
	ATL
	 	CUST	 	042191	 	9300-L3 SO#8 2f ring	 	 	19,500	 	 	 	—	 	 	 	19,500	 	 	 	—	 
	ATL
	 	CUST	 	042258	 	9300-TC add 2999 Gateway	 	 	14,000	 	 	 	—	 	 	 	14,000	 	 	 	—	 
	PHX
	 	CS	 	041721	 	9320-twt river pkwy¢ennial	 	 	3,260	 	 	 	—	 	 	 	3,260	 	 	 	9,990	 
	PHX
	 	CS	 	041836	 	9320- twtc Washington @ priest	 	 	18,125	 	 	 	—	 	 	 	18,125	 	 	 	21,750	 
	PHX
	 	CUST	 	041879	 	9320- Cogent SO4 8521 E Prince	 	 	22,200	 	 	 	—	 	 	 	22,200	 	 	 	—	 
	PHX
	 	CS	 	041978	 	9320-twtc 7575 E Redfield Rd	 	 	4,720	 	 	 	—	 	 	 	4,720	 	 	 	12,600	 
	PHX
	 	CS	 	042183	 	9320-twtc McKemy Ave	 	 	3,260	 	 	 	68	 	 	 	3,192	 	 	 	9,990	 






 









 






Section 5.12(b) 




Capital Expenditures Future Projects



[See attached spreadsheet]





 









 








Schedule 5.12 (b)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Estimated	 	 	 	 	 	Estimated
	 	 	 	 	 	 	 	 	Total Spent	 	Original	 	Remaining to
	City	 	Driver	 	Project	 	Description	 	to Date	 	Estimate	 	be Spent
	PHX
	 	CUST	 	041770	 	9320- Ganett 4 node project	 	$	28,695	 	 	$	344,000	 	 	$	315,305	 
	ATL
	 	CUST	 	042259	 	9300-DukeNet- SO #4	 	 	—	 	 	 	226,500	 	 	 	226,500	 
	ATL
	 	CUST	 	042291	 	9300- TowerCloud SO#4-17 Laterals	 	 	—	 	 	 	579,500	 	 	 	579,500	 
	PHX
	 	CUST	 	042167	 	9320-lnsight diversity 6820 Hari Ave SO3 & SO4	 	 	—	 	 	 	71,200	 	 	 	71,200	 
	CLT
	 	CUST	 	042399	 	9345- Deltacom 2f ring 701 E Trade to 8921 Research Dr.	 	 	—	 	 	 	44,600	 	 	 	44,600	 
	PHX
	 	DOT	 	042330	 	9320-Relo at 30th and Van Buren	 	 	—	 	 	 	50,000	 	 	 	50,000	 
	ATL
	 	CUST	 	042381	 	9300-BofA add 8f to 325 E 11th St.	 	 	—	 	 	 	16,000	 	 	 	16,000	 
	PHX
	 	CUST	 	042408	 	9320-Abovenet (2) Fiber PTP connecting 8521 E Princess Dr.	 	 	—	 	 	 	19,800	 	 	 	19,800	 






 









 






Section 5.13 




Tradenames and Trademarks



AGL Networks logo:










 











 





Section 6.3 




Required Consents



FRANCHISE AGREEMENT ASSIGNMENT APPROVALS REQUIRED



Arizona





	 	•	 	Gilbert
	 
	 	•	 	Glendale
	 
	 	•	 	Mesa
	 
	 	•	 	Paradise Valley
	 
	 	•	 	Phoenix
	 
	 	•	 	Scottsdale





Georgia





	 	•	 	College Park
	 
	 	•	 	Decatur
	 
	 	•	 	Norcross





STATE LICENSE ASSIGNMENT APPROVALS REQUIRED





	 	•	 	Georgia PSC (Certificates of Authority to Provide Competitive Local Exchange Services
and to Provide IntraLATA and InterLATA Intrastate Telecommunications)






	 	•	 	Arizona PSC (Buyer encumbrance of Network Assets)
	 
	 	•	 	NCPUC (Notice and Consent)





FEDERAL LICENSE ASSIGNMENT APPROVALS REQUIRED





	 	•	 	FCC (Section 214)





COLOCATION AGREEMENT ASSIGNMENT APPROVALS REQUIRED





	 	•	 	56 Marietta Street, Atlanta (Fiber and Facilities Installation Agreement between
Company and Colo Properties Atlanta LLC, dated 11/1/05)
	 
	 	•	 	8521 East Princess Drive, Scottsdale, AZ (License and Master Service Agreement between
the Company and IO Capital Princess, LLC dated 6/08)
	 
	 	•	 	615 N. 48th Street, Phoenix, AZ (License and Master Service Agreement
between the Company and IO Phoenix One, LLC dated 3/9/09)
	 
	 	•	 	Two Concourse Lease Agreement between the Company and Teachers Concourse, LLC dated           ,
2002 (to the extent Buyer does not comply with the provisions of the lease agreement)





 









 





Section 8.3




Seller Bank Account Information


[The Termination Fee shall be payable immediately by the Buyer to the Seller in cash by wire
transfer of immediately available funds to the account set forth in Section 8.3 of the Company
Disclosure Schedule.]




Wachovia Bank N. A.

Atlanta, Georgia 30303

ABA #061000227

Account #2000022993193

Account Name: AGL Services Corp.




 









 





AGL Networks, LLC

Working Capital Form

Schedule 1.4

June 30, 2010




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	June 30, 2010	 	 	Working Capital	 	 	 	 	 	 	Working Capital	 
	 	 	 	 	 	 	Projection	 	 	Adjustments	 	 	 	 	 	 	Statement	 
	 	 	 	 	CURRENT ASSETS
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	134285	 	 	Accounts Receivable-AGLN
	 	 	2,303,112	 	 	 	 	 	 	 	[6]	 	 	 	2,303,112	 
	 	134610	 	 	Accts Rec — Damage Mains
	 	 	13,706	 	 	 	(13,706	)	 	 	[1]	 	 	 	—	 
	 	139200	 	 	Reserve for Uncollectible Acct
	 	 	(70,674	)	 	 	 	 	 	 	 	 	 	 	(70,674	)
	 	139610	 	 	Provn for Uncoll — Damage Main
	 	 	2,091	 	 	 	(2,091	)	 	 	[1]	 	 	 	—	 
	 	 	 	 	Receivables — Other
	 	 	2,248,235	 	 	 	(15,797	)	 	 	 	 	 	 	2,232,438	 
	 	 	 	 	Receivables — Energy Marketing
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	135450	 	 	Interco Money Pool Non-Utility
	 	 	(52,534,066	)	 	 	52,534,066	 	 	 	[2]	 	 	 	—	 
	 	136071	 	 	A/R Assoc Co — I/U Transfers
	 	 	(19,844	)	 	 	19,844	 	 	 	[2]	 	 	 	—	 
	 	136073	 	 	Intercompany Chargebacks
	 	 	—	 	 	 	—	 	 	 	[2]	 	 	 	—	 
	 	136990	 	 	Intercompany Transfers — Debit
	 	 	52,553,910	 	 	 	(52,553,910	)	 	 	[2]	 	 	 	—	 
	 	 	 	 	Intercompany Receivables
	 	 	—	 	 	 	—	 	 	 	 	 	 	 	—	 
	 	 	 	 	A/R Unbilled Revenue
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Receivables
	 	 	2,248,235	 	 	 	(15,797	)	 	 	 	 	 	 	2,232,438	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Natural Gas Stored Underground
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	 	 	 	LNG Stored
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	145300	 	 	Materials and Operating Suppli
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	145570	 	 	Telecom Systems Held for Resal
	 	 	222,354	 	 	 	(222,354	)	 	 	[3]	 	 	 	—	 
	 	 	 	 	Materials and Supplies
	 	 	222,354	 	 	 	(222,354	)	 	 	 	 	 	 	—	 
	 	 	 	 	Other Inventory
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Inventories
	 	 	222,354	 	 	 	(222,354	)	 	 	 	 	 	 	—	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	157400	 	 	Prepayments — Other
	 	 	403,419	 	 	 	 	 	 	 	 	 	 	 	403,419	 
	 	157405	 	 	CIGNA Prepaid
	 	 	813	 	 	 	(813	)	 	 	[4]	 	 	 	—	 
	 	158000	 	 	Misc/Other Current Assets
	 	 	727,578	 	 	 	 	 	 	 	 	 	 	 	727,578	 
	 	 	 	 	Other Current Assets
	 	 	1,131,810	 	 	 	(813	)	 	 	 	 	 	 	1,130,997	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Total Current Assets
	 	 	3,602,399	 	 	 	(238,964	)	 	 	 	 	 	 	3,363,435	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	CURRENT LIABILITIES
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	225100	 	 	General Accounts Payable
	 	$	(99	)	 	 	 	 	 	 	 	 	 	$	(99	)
	 	225105	 	 	AP — Inventory
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	225120	 	 	Accounts Payable — Accrued
	 	 	(624,295	)	 	 	392,115	 	 	 	[5]	 	 	 	(232,180	)
	 	225150	 	 	A/P Returned Checks
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	225500	 	 	Payroll Deductions
	 	 	65,533	 	 	 	(65,533	)	 	 	[5]	 	 	 	—	 
	 	225501	 	 	U S Savings Bonds Payable
	 	 	100	 	 	 	(100	)	 	 	[5]	 	 	 	—	 
	 	225507	 	 	One Pledge Club Atlanta
	 	 	(1,217	)	 	 	1,217	 	 	 	[5]	 	 	 	—	 
	 	225512	 	 	Employee Stock Purchase Plan
	 	 	(5,840	)	 	 	5,840	 	 	 	[5]	 	 	 	—	 
	 	225521	 	 	P.A.C Payable
	 	 	(70	)	 	 	70	 	 	 	[5]	 	 	 	—	 
	 	225542	 	 	Met Life Deduction
	 	 	33	 	 	 	(33	)	 	 	[5]	 	 	 	—	 
	 	225548	 	 	AFLAC Supplemental Insurance
	 	 	(406	)	 	 	406	 	 	 	[5]	 	 	 	—	 
	 	251409	 	 	Parking Deduction
	 	 	(180	)	 	 	180	 	 	 	[5]	 	 	 	—	 
	 	 	 	 	Accounts Payable
	 	 	(566,441	)	 	 	334,162	 	 	 	 	 	 	 	(232,279	)
	 	 	 	 	Short-Term Debt
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 








Page 1 of 3









 






AGL Networks, LLC

Working Capital Form

Schedule 1.4

June 30, 2010




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	June 30, 2010	 	 	Working Capital	 	 	 	 	 	 	Working Capital	 
	 	 	 	 	 	 	Projection	 	 	Adjustments	 	 	 	 	 	 	Statement	 
	 	230990	 	 	Intercompany Trsfers — Credit
	 	 	(50,728,419	)	 	 	50,728,419	 	 	 	[2]	 	 	 	—	 
	 	 	 	 	Intercompany Payables
	 	 	(50,728,419	)	 	 	50,728,419	 	 	 	 	 	 	 	—	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	220004	 	 	Accrued Vacation Payable
	 	 	(41,618	)	 	 	 	 	 	 	 	 	 	 	(41,618	)
	 	220084	 	 	Misc Liab-Bonuses
	 	 	(594,384	)	 	 	594,384	 	 	 	[5]	 	 	 	—	 
	 	225200	 	 	Payroll Payable
	 	 	(66,588	)	 	 	 	 	 	 	 	 	 	 	(66,588	)
	 	225250	 	 	Accrued Bonus
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	 	 	 	Wages and Salaries
	 	 	(702,590	)	 	 	594,384	 	 	 	 	 	 	 	(108,206	)
	 	 	 	 	Dividends Declared
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	238100	 	 	Taxes Accrued-Federal Income
	 	 	(2,316,292	)	 	 	2,316,292	 	 	 	[5]	 	 	 	—	 
	 	238101	 	 	Taxes Accrued Other-FUI
	 	 	(1,189	)	 	 	1,189	 	 	 	[5]	 	 	 	—	 
	 	238102	 	 	Taxes Accrued Other-FICA
	 	 	(7,764	)	 	 	7,764	 	 	 	[5]	 	 	 	—	 
	 	238103	 	 	Tax Accr Othr-Real&Pers. Prop.
	 	 	(1,050,572	)	 	 	 	 	 	 	 	 	 	 	(1,050,572	)
	 	238105	 	 	Tax Accr Othr-SUI
	 	 	(4,574	)	 	 	4,574	 	 	 	[5]	 	 	 	—	 
	 	238141	 	 	Tax Accru Othr-BusinessLicense
	 	 	200	 	 	 	(200	)	 	 	[5]	 	 	 	—	 
	 	238142	 	 	Tax Accru Othr-Franchise Taxes
	 	 	200	 	 	 	(200	)	 	 	[5]	 	 	 	—	 
	 	238200	 	 	Taxes Accrued-State Income
	 	 	(86,496	)	 	 	86,496	 	 	 	[5]	 	 	 	—	 
	 	244000	 	 	Special Option Tax
	 	 	(38	)	 	 	38	 	 	 	[5]	 	 	 	—	 
	 	245500	 	 	FICA Taxes Payable — EE
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	245501	 	 	Fed. Withholding Taxes — EE
	 	 	1,515	 	 	 	(1,515	)	 	 	[5]	 	 	 	—	 
	 	245502	 	 	State Withholding Tax — EE
	 	 	587	 	 	 	(587	)	 	 	[5]	 	 	 	—	 
	 	245503	 	 	State Sales and Use Tax Payable
	 	 	(192	)	 	 	192	 	 	 	[5]	 	 	 	—	 
	 	245504	 	 	Marta Tax Payable
	 	 	(763	)	 	 	763	 	 	 	[5]	 	 	 	—	 
	 	245516	 	 	Educational Tax Payable
	 	 	(711	)	 	 	711	 	 	 	[5]	 	 	 	—	 
	 	245517	 	 	Homestead Tax Payable
	 	 	(18	)	 	 	18	 	 	 	[5]	 	 	 	—	 
	 	 	 	 	Miscellaneous Taxes Accrued
	 	 	(3,466,106	)	 	 	2,415,534	 	 	 	 	 	 	 	(1,050,572	)
	 	 	 	 	Accrued Relocation Liability
	 	 	—	 	 	 	 	 	 	 	 	 	 	 	—	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Other Accrued Liabilities
	 	 	(4,168,696	)	 	 	3,009,918	 	 	 	 	 	 	 	(1,158,778	)
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	251103	 	 	Percent of CompletionLiability
	 	 	(3,516,883	)	 	 	3,516,883	 	 	 	[5]	 	 	 	—	 
	 	277060	 	 	Provision Post Employment Exp
	 	 	(1,626	)	 	 	1,626	 	 	 	[5]	 	 	 	—	 
	 	 	 	 	Other Current Liabilities
	 	 	(3,518,509	)	 	 	3,518,509	 	 	 	 	 	 	 	—	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Total Current Liabilities
	 	 	(58,982,064	)	 	 	57,591,007	 	 	 	 	 	 	 	(1,391,057	)
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	WORKING CAPITAL
	 	$	(55,379,666	)	 	$	57,352,044	 	 	 	 	 	 	$	1,972,378	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 








	 		
	ADJUSTMENT FOOTNOTES
	 
	[1]	 	Adjustment for DOT Receivables that are not recognized until completed and are accounted for in Section 5.12
	 
	[2]	 	Adjustment intercompany payable, net to Seller and to be retained by Seller
	 
	[3]	 	Adjustment for inventory held for resale already accounted for in Section 5.12
	 
	[4]	 	Adjustment for employee related payroll withholdings to be retained by Seller
	 
	[5]	 	Adjustment for Assumed Liabilities to be retained by Seller
	 
	[6]	 	Treatment to be handled as per Section 1.4




Page 2 of 3









 










AGL Networks, LLC

Working Capital Form

Schedule 1.4

June 30, 2010




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	June 30, 2010	 	 	Working Capital	 	 	Working Capital	 
	 	 	 	 	 	 	 	 	Projection	 	 	Adjustments	 	 	Statement	 




Except for Recurring Project Revenues deriving from Current Projects which are billed prior
to Closing and collected after Closing, Project Costs and Project Revenues shall not be
included in the calculation of Working Capital; the Parties intend for Section 5.12
to govern Project Costs and Project Revenues





Page 3 of 3











 





EXHIBIT 5.15

EXECUTION VERSION




TRANSITION SERVICES AGREEMENT




     This TRANSITION SERVICES AGREEMENT (this “Agreement”), is entered into as of
____________, 2010, by and among AGL Investments, Inc., a Georgia corporation (“Seller”), AGL
Services Company, a Georgia corporation (“AGLS”), and Zayo Group, LLC, a Delaware limited liability
company (“Buyer”).



     WHEREAS, Seller, Buyer and AGL Networks, LLC, a Delaware limited liability Company (the
“Company”), have entered into that certain Membership Interest Purchase Agreement, dated as of
March 23, 2010 (the “Purchase Agreement”), pursuant to which, among other things, Seller has agreed
to sell to Buyer and Buyer has agreed to purchase from Seller the Interests (as such term and other
capitalized terms used herein are defined in the Purchase Agreement);



     WHEREAS, in connection with the transactions contemplated by the Purchase Agreement, Seller
desires to provide to the Company by and through AGLS, and the Company desires to receive from
Seller by and through AGLS, certain services commencing on the Closing Date and subject to the
terms and conditions set forth herein; and



     WHEREAS, the closing of the transactions contemplated by the Purchase Agreement are
conditioned upon, among other things, the execution and delivery of this Agreement.



     NOW, THEREFORE, in consideration of the above recitals and the mutual promises contained
herein, and other good and adequate consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound hereby, agree as follows:



     1. Definitions. For purposes of this Agreement the following terms shall have the
following meanings. Any capitalized term used herein and not otherwise defined herein shall have
the meaning assigned to it in the Purchase Agreement. References in this Agreement to a party mean,
as the context requires, Seller or AGLS, on the one hand, and Buyer, on the other hand, and
references herein to the parties (other than references to third parties) mean collectively Seller,
AGLS and Buyer.



          1.1 “Reimbursable Expenses” means the reasonable and actual out-of-pocket expenses incurred by
AGLS in providing the Services, as identified on Exhibit A, reimbursable by Buyer,
including a reasonable allocation of administrative overhead but excluding profits or similar
markups.




          1.2 “Services” means the administrative and operational support and related services,
functions and tasks required by Buyer, as more particularly described in Exhibit A and
Section 3, to reasonably support the business of the Company. The Services may be changed
or supplemented during the term of this Agreement pursuant to Section 3. If any
service, function, or task not specifically described in Exhibit A is an inherent or
necessary part of the performance of the applicable Service, it will be deemed included within the
scope of that Service.





 









 








     2. Term. The term of this Agreement shall commence on the Closing Date and end three (3) months after the Closing Date (the “Term”), unless earlier terminated in its entirety
pursuant to Section 7 or unless and to the extent extended pursuant to this Agreement. In
the event that any particular Service has not been fully transitioned to the Company by end of the
initial Term, then Buyer shall have the right to extend the Term with respect to such Service on a
month to month basis for an additional monthly fee of twenty-five percent (25%) of the monthly
Services Fee with respect to such Service (i.e. in addition to any other Services Fees and
Reimbursable Expenses provided for hereunder); provided, however, in no event shall
any such extension extend beyond the six (6) month anniversary of the Closing Date.



     3. Services.



          3.1 Provision of Services. AGLS will provide and, as necessary, will cause its
Affiliates to provide, the applicable Services during the Term as set forth in and pursuant to
Exhibit A and this Section 3. Except as otherwise expressly provided in this
Agreement, AGLS will be responsible for providing the facilities, personnel, and other
resources required for performance of the Services. In providing the Services, AGLS shall not be
obligated to: hire any additional employees; maintain the employment of any specific employee; or
purchase, lease or license any additional equipment or software; provided that AGLS maintains
sufficient resources to provide the applicable Services. Notwithstanding anything to the contrary
set forth in this Agreement, neither the Buyer nor the Company shall be required to utilize any or
all of the Services under this Agreement.




          3.2 General Standards of Performance. AGLS will provide and, as necessary, will cause
its Affiliates to provide, the applicable Services with at least the same level of skill, quality,
care, timeliness, and cost-effectiveness as AGLS uses in its own operations. AGLS will comply (and
as applicable cause their respective Affiliates to comply) with all applicable federal, state, and
local laws and regulations in their performance of the applicable Services, and will maintain all
applicable permits and licenses that are in place as of the Closing Date.




          3.3 Transition Assistance. During the Term, AGLS will provide and, as necessary, will
cause its Affiliates to use commercially reasonable efforts to provide consultation, assistance,
and information as reasonably requested by Buyer or the Company and will otherwise perform the
applicable Services, so as to effect a smooth transition of the Company’s business to Buyer.




          3.4 Additional Services. If Buyer reasonably requests that AGLS perform additional
services not included within the scope of the Services, then the parties will promptly negotiate in
good faith regarding whether such additional services should be added to Exhibit A.




     4. Obligations.



          4.1 Access. AGLS shall provide or make available to Buyer and the Company access to
AGLS’s premises and shall provide reasonable access to all relevant information, documentation and
staff reasonably required to enable the parties to perform the applicable Services.




2









 








          4.2 Cooperation. Subject to Section 8 and any applicable laws and
privileges, each party covenants and agrees to cooperate with and provide the other party with all
information regarding itself and the transactions under this Agreement that the other party
reasonably believes is required to comply with all applicable federal, state, county, and local
laws, ordinances, regulations, and codes, and to satisfy the requesting party’s obligations
hereunder.




     5. Services Fee; Invoicing.



          5.1 Services Fee. In consideration for the performance of the Services, during the
Term, Buyer shall pay, or cause to be paid, to AGLS (or its Affiliates as directed by AGLS), an
amount equal to the fees for the Services provided to the Company as set forth on Exhibit
B. (collectively, the “Services Fee”), in accordance with Section 5.2.




          5.2 Invoicing. Within ten (10) days after the end of each calendar month during the
Term, AGLS will send, or cause to be sent, to Buyer (or its Affiliates as directed by Buyer) an
invoice setting forth in reasonable detail a description of the Services provided by Seller and the
Services Fee for the prior month during which Services were provided. Buyer (or its Affiliates)
shall pay to AGLS, or such other Affiliate of AGLS as AGLS directs, the amounts due and payable on
each such invoice within thirty (30) days after receipt thereof. Except as otherwise provided
herein, the Services Fee are the only amounts that will be charged to Buyer or its Affiliates in
connection with the provision of the Services.




          5.3 Books and Records. Seller shall keep books and records of the Services provided
and reasonable supporting documentation of all charges and expenses incurred in providing such
Services, and shall provide written records that verify the dates and times during which the
Services were performed. Seller and its Affiliates shall make such books and records available to
Buyer and the Company, upon reasonable notice, during normal business hours.




     6. Indemnification; Remedies.



          6.1 Indemnification. Each party hereby agrees to indemnify and hold harmless each
other party, its Affiliates and its respective officers, directors, members, managers, employees,
and agents from and against and in respect of any and all claims, demands, complaints, liabilities,
losses, damages and all costs and expenses (including reasonable legal fees) resulting from a
demand, claim, lawsuit, action or proceeding solely relating to any failure to perform any covenant
or agreement of such party set forth in this Agreement. Seller represents and warrants that each of
Seller and its Affiliates, including without limitation AGLS, has all necessary right and authority
to provide the Services to the Company hereunder.




          6.2 Remedies. The parties expressly agree and understand that the remedy at law for
any breach by the other party of any of the terms of this Agreement will be inadequate and that the
damages flowing from such breach are not readily susceptible to being measured in monetary terms.
Accordingly, it is acknowledged that upon adequate proof of a party’s violation of the terms of
this Agreement, the other party will be entitled to specific performance by the defaulting party of
its obligations hereunder, including injunctive relief, a temporary restraining order restraining
any threatened or further breach or obtaining Services from a third party at




3









 







Seller’s sole cost and expense. Nothing in this Section 6.2 will be deemed to limit a
party’s remedies at law or in equity for any breach by a defaulting party of any of the provisions
of this Agreement that may be pursued or availed of by the non-defaulting party. Notwithstanding
anything in this Section 6.2 to the contrary, if Buyer claims that Seller or AGLS is in
breach of this Agreement as a consequence of a deficiency in the performance of Services hereunder
Buyer shall first give Seller and AGLS the right and opportunity to re-perform such Services to the
standards set forth in this Agreement prior to pursuit of any other remedy to which it may be
entitled hereunder.




     7. Termination.



          7.1 Termination for Cause. A party may terminate this Agreement for “cause” upon
providing at least thirty (30) days prior written notice to the other party. For purposes of this
Section 7.1, “cause” shall mean (a) the filing of a petition in bankruptcy or an
assignment for the benefit of creditors by the other party or the adjudication of the other party
as bankrupt, or the appointment of a receiver for the business of the other party or (b) a material
breach by the other party of any of its other obligations under this Agreement.




          7.2 Termination for Non-Payment. Seller may terminate this Agreement due to the
failure of Buyer to pay amounts due under this Agreement within thirty (30) days of its due date.




          7.3 Termination of Services. Buyer may from time to time elect to terminate any or all
of the Services for any reason by providing AGLS with fifteen (15) days’ prior written notice,
which notice shall specify which of the Services are to be terminated (the “Terminated Services”)
and the date on which the Terminated Services are to be terminated (the “Service Termination
Date”). Upon termination of such Terminated Services, no party shall have any further obligations
hereunder with respect to such Terminated Services except that Buyer shall be liable for the fees
and expenses associated with the Terminated Services until the Service Termination Date or such
other date as agreed to among the parties. The termination of the Terminated Services will not
affect this Agreement with respect to any Services not terminated under this Section 7.3.
Subject to Section 2, this Agreement will terminate on the date that Buyer has properly
terminated all Services.




          7.4 Effect of Termination. If this Agreement is terminated pursuant to this
Section 7, all further obligation of the parties under this Agreement shall terminate;
provided, however, that: (a) no party shall be relieved of any obligation or liability
arising from any prior breach by such party of the provisions of this Agreement; (b) all
amounts due from Buyer (whether billed or accrued and unbilled) to Seller shall become immediately
payable; and
(c) notwithstanding anything herein to the contrary, the provisions of Section 1
(Definitions), Section 5 (Services Fee; Invoicing), Section 6 (Indemnification;
Remedies), Section 7 (Termination), Section 8 (Confidentiality) and Section
9 (Miscellaneous) shall survive the termination of this Agreement for any reason.




     8. Confidentiality. The parties acknowledge that any nonpublic information disclosed
or provided by one party to another party in connection with this Agreement will be subject to the
confidentiality provisions of the Purchase Agreement. The terms and conditions of




4









 







this Agreement (including the pricing information contained herein) will be considered to be
confidential information of the parties.




     9. Miscellaneous.



          9.1 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia (without giving effect to the principles of conflicts of law
thereof) as to all matters, including, but not limited to, matters of validity, construction,
effect, performance and remedies.




          9.2 Assignment. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any party, including by operation of law, without the prior written
consent of the other parties (such consent not to be unreasonably withheld); provided,
however, that any party may assign this Agreement and any of its rights, interests and
obligations hereunder to any Affiliate of that party upon written notice to the other party;
provided, further, however, that no such assignment shall relieve such
party of its liabilities and obligations hereunder if such assignee does not perform such
obligations; provided, further, however, neither AGLS nor Seller shall have
any obligation to provide any of the Services to Buyer or any of its Affiliates other than
the Company. Any purported assignment of this Agreement or any of the rights, interests or
obligations hereunder in contravention of this Section 9.3 shall be null and void. Subject
to the foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns, and no other person shall have any
right, benefit or obligation hereunder.




          9.3 Force Majeure. No party shall be liable for failure or delay in performance of its
obligations under this Agreement to the extent such failure or delay is caused by an act of God,
act of a public enemy, war or national emergency, rebellion, insurrection, riot, epidemic,
quarantine restriction, fire, flood, explosion, storm, earthquake, interruption in the supply of
electricity, power, or energy, or other catastrophe, terrorist attack, labor dispute or disruption,
or other event beyond the reasonable control of such party. If a party’s performance under this
Agreement is affected by a force majeure event, such party shall give prompt written notice of such
event to the other party and shall at all times use its commercially reasonable efforts to mitigate
the impact of the force majeure event on its performance under this Agreement. In the event of a
force majeure event as described in this Section 9.4 that affects any parties’ ability to
perform under this Agreement, the parties agree to cooperate in good faith in order to resume the
affected Services as soon as commercially possible to the extent commercially reasonable.




          9.4 Notices. All notices and other communications hereunder shall be given in
accordance with the notice provision of the Purchase Agreement.




          9.5 Counterparts. This Agreement may be executed and delivered (including by facsimile
or other electronic transmission) in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which, when executed and delivered, shall be deemed to be an
original but all of which taken together shall constitute one and the same agreement.




5









 





          9.6 Entire Agreement. This Agreement and the Purchase Agreement (including the
Exhibits and the Schedules thereto) constitute the entire agreement among the parties with respect
to the subject matter hereof and supersede all prior agreements and understandings, whether written
or oral, among the parties with respect thereto.




          9.7 Headings. The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or interpretation of this
Agreement.




          9.8 Severability. If any provision of this Agreement is determined by any court of
competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other terms, conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of the subject matter
hereof is not affected in any manner materially adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest extend possible.




          9.9 Amendment and Modification. This Agreement may be amended, modified or
supplemented only by written agreement of the parties.




          9.10 Waiver of Compliance. Any failure of any party to comply with any obligation,
covenant or condition herein may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, covenant, or condition shall not operate as a waiver
of or estoppel with respect to any subsequent or other failure.




          9.11 Relationship of the Parties. Each of the parties acknowledges and agrees that
AGLS and each of its Affiliates is an independent contractor with respect to Buyer and each of its
Affiliates, and that this Agreement does not create any relationship of agency, joint venture or
partnership between AGLS or any of its Affiliates, on the one hand, and Buyer or any of its
Affiliates, on the other hand. Neither Buyer or the Company, nor any of Buyer’s or the Company’s
employees are or shall be deemed for any purpose to be agents or employees of AGLS or any of its
Affiliates, and neither AGLS or its Affiliates or any of their respective employees are or shall be
deemed for any purpose or at any time to be agents or employees of Buyer or the Company. In all
matters relating to this Agreement and except as otherwise provided in this Agreement, each party
shall be solely responsible far the acts of its employees, agents, and representatives, and the
employees, agents and representatives of one party shall not be considered and shall not hold
themselves out as, employees, agents, representatives or partners of the other party. Except as
otherwise specifically provided herein, neither party shall have, nor shall hold itself out as
having, any right, power or authority to create any obligation, express or implied, on behalf of
the other party.




          9.12 Third Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or remedies of any nature





6









 







whatsoever under or by reason of this Agreement; provided, however, that the
Company shall be deemed an intended third party beneficiary under this Agreement.




          9.13 Construction. Unless the context of this Agreement clearly requires otherwise,
references to the plural include the singular, to the singular include the plural, and to the part
include the whole. Unless the context of this Agreement clearly requires otherwise, use of
masculine, feminine, and neutral pronouns will not be a specific reference to either gender or lack
thereof. The term “including” and similar terms are not limiting, and the term “or” has the
inclusive meaning represented by the term “and/or.” The words “hereof,” “herein,” “hereunder,” and
similar terms in this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement. References to “Sections,” “Subsections,” and “Exhibits” are to
Sections, Subsections and Exhibits, respectively, of this Agreement, unless otherwise specifically
provided.




[Signatures on Following Page]





7









 








     In
Witness Whereof, the parties have caused this
Agreement to be executed as of the date first above written.



	 	 	 	 	 
	 	AGL INVESTMENTS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	AGL SERVICES COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ZAYO GROUP, LLC

 	 
	 	By:  	 	 
	 	 	Name  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Transition Services Agreement]





 









 








Exhibit A of Transition Services Agreement




Services




	 	 	The parties anticipate that Seller, by and through AGLS, will provide the following
services to the Company during the Term of this Agreement. The services in the table
below will be provide for the monthly recurring fee as outlined in the table attached
on Exhibit B.
	 
	1.	 	Office Space and other Tenant Services 






	 	•	 	Office space up to the amount of square footage utilized by the Company as of
the Closing Date at Ten Peachtree Place NE, 14th Floor,
Atlanta, GA 30309 (the “Office Space”) shall be available to the Company during
the Term. AGLS and Buyer shall determine the amount of available square footage
that shall be sub-leased to the Company at Closing.
	 
	 	•	 	Badge access for the employees of the Company (and select employees of the
Buyer) during transition (visitor, contractor and/or tenant badges) including
access to parking, gym and floors 1, 2 and 14.
	 
	 	•	 	Other than the Office Space and other multi-tenant leased space, only Company
will have access to leased properties as of the Closing Date.
	 
	 	•	 	Other tenant services in support of the Office Space including, but not
limited to, building standard O&M expenses, heating, cooling, lighting, power,
water, elevators, fire alarms, security, access control, snow and trash removals,
grounds maintenance, janitorial and pest control, all provided at the same
service level as for AGLS’s other space in the Ten Peachtree Place building.
	 
	 	•	 	Mailroom services for outgoing mail, shipping and receipt of all incoming
items. Resolution of receiving problems with any supplier will be the
responsibility of Buyer.
	 
	 	•	 	A point of contact from AGLS will be named to perform the aforementioned
functions.
	 
	 	•	 	Printers and plotters available for the Company’s use as of the Closing Date
will be provided for use by the Seller for the Company and Buyer while the
Company and Buyer utilize the Office Space.






	2.	 	Fleet Services 






	 	•	 	Trucks and other vehicles currently used by the Company are listed in
Attachment A. During the Term, the Company will continue to use such vehicles at
the cost outlined in Attachment A. Buyer has the option to negotiate the
assignment or purchase of such vehicles with fleet lease providers at the end of
the Term.









Exhibit A - Page 2









 









	 	•	 	After the Term, all fleet vehicles that are not assigned or purchased by
Company or Buyer will be retained by Seller.






	3.	 	Workstation, Application and Server Support Services 






	 	•	 	Thirty-three (33) Standard workstations including peripheral equipment
(Attachment B herein) will be provided with the existing hardware platform to
connect to software utilized by the Company as of the Closing Date. At the end of
the Term, all personal computer equipment, used exclusively by employees of the
Company as of the Closing Date may become the property of the Company at the
election of Buyer for the amounts specified on Exhibit B; provided however, that
such equipment will be “wiped” of all software and metadata and Buyer shall
receive only the reformatted hardware
	 
	 	•	 	Break/fix support will be provided so long as Company occupies the Office
Space.
	 
	 	•	 	Internet access will be provided so long as Company occupies the Office Space.
	 
	 	•	 	To the extent practicable and only so long as Company occupies the Office
Space, access will be provided to all applications and all corresponding data
required for the normal and ordinary course operations of the Company including
but not limited to; AGL Resources Applications used to manage and report on
activities associated with AGL Networks including Oracle and Microsoft.
	 
	 	•	 	AGLS shall own and retain all servers and all licenses (such as Norton
Anti-virus, Oracle and Microsoft) associated with the servers, software and
applications; provided that the Company shall retain (i) the licenses for Nexus
Worx, JDSU Atlas, WhatsUP Gold, Honeywell, Contract Database, and Salesforce.com
and any other systems required for the normal and ordinary course of operations
by the Company, as well as any other software and applications purchased
exclusively for the use of the Company.
	 
	 	•	 	So long as Company occupies the Office Space, AGLS will continue to host
Company applications outlined in Attachment D herein such as Nexus Worx and JDSU
Atlas by using the servers outlined in Attachment C herein.
	 
	 	•	 	AGLS will provide copies of all relevant data in electronic format on or
before the expiration of the Term including, but not limited to copies of shared
documents, user files, and historical invoices.
	 
	 	•	 	AGLS will use reasonable efforts to provide services to the Company with
respect to transitioning the Company away from the use of AGLS’s proprietary
software applications, including, without limitation, the AGLS’s Intranet and
other internal systems.










Exhibit A - Page 3









 












	4.	 	Purchasing 






	 	•	 	AGLS will fulfill and close out any purchase orders in place prior to close
but will not be required to enter into any new purchase orders or fulfill any
purchasing function after close






	5.	 	Messaging 






	 	•	 	Buyer may use Company email addresses for 90 days following the Closing Date.
	 
	 	•	 	AGLS will prominently display notification of the transaction on AGL Networks
website during the Term and shut down AGL Networks website upon expiration of
this agreement.
	 
	 	•	 	AGLS will use reasonable efforts to provide services to the Company with
respect to transitioning employee email access and related services to the
Company’s, or one of its affiliates’, platforms. AGLS will also provide services
to the Company with respect to transitioning applicable Company electronic data
from AGLS systems to the Buyer’s systems.
	 
	 	•	 	PBX services will be provided during the Term. All PBX services and equipment
will remain AGLS property after end of the Term.
	 
	 	•	 	Voicemail will be provided as part of the PBX services.
	 
	 	•	 	800 numbers and other phone numbers used exclusively by employees of the
Company at close will be ported to Buyer as of the Closing Date. Buyer will be
responsible for any/all fees associated with the port of the numbers and on-going
support costs.
These numbers include current employees’ office phone numbers and Customer Service
related numbers, as well as ‘Call Before You Dig’ or other applicable maintenance
numbers.
	 
	 	•	 	Cellular phones and phone numbers used by the Company and its employees and
currently maintained and paid for, in whole or in part, by AGLS will be assigned
to Buyer’s designees in the manner described below (except for such cellular
phones and phone numbers that Buyer and AGLS agree will be terminated or for
which responsibility will be retained by AGLS) (“Company Phones”). Buyer and the
Retained Employees will receive instructions regarding assignment and assumption
of liability of Company Phones no later than the Closing Date. Unless Buyer, the
Company or the Retained Employees, as applicable, accept assignment of, and
assume responsibility for, any post-Closing liabilities associated the Company
Phones arising on and after the Closing Date within 21 days of the Closing Date,
such Company Phones and related services will be terminated. AGLS will bill Buyer
for cellular services consumed by Buyer’s, the Company’s and their employees from
the Closing Date until all charges for such Company Phones billed to AGLS cease.
Seller will be responsible for any/all fees associated with porting, termination
or similar fees associated with the Company Phones










Exhibit A - Page 4









 









	 	 	 	arising at and after the Closing Date. These phone numbers are outlined in
Attachment E herein.
	 
	 	•	 	Blackberry devices and other smart phone devices owned by Company and used by
Company’s employees at the Closing Date will be assigned and transitioned to
Purchaser and its designees, after being scrubbed, at Closing. Retained Employees
will be responsible for saving their own .PST files and synchronizing to a
non-Seller Group BES server. Buyer will be responsible for any/all fees
associated with porting, termination or similar fees and other liabilities
associated with such Blackberry devices arising at and after the Closing Date.
The applicable Company Mobile devices are outlined in Attachment E herein.
	 
	 	•	 	Company can continue to use its trademark, logo, e-mail taglines and name for
phone answering (including the NOC) during the Term.
	 
	6. Financial support services
	 
	 	•	 	The parties will abide by the cash process during the Term as described in
Attachment F.
	 
	 	•	 	AGLS will provide services to the Company with respect to transitioning
customer billing responsibilities to the Buyer from AGLS. During such transition
period, AGLS will provide customer billing services to the Company and services
associated therewith.
	 
	 	•	 	AGLS will provide services to the Company with respect to transitioning
certain finance and accounting support, including, but not limited to, support
for general ledger, accounts receivables, accounts payables, capital project and
asset management accounting including detailed journal entries and backup as
required by the Company.
	 
	 	•	 	AGLS shall cooperate with Buyer and Grant Thornton LLP to perform audit work
as reasonably requested by Buyer and required per Section 5.19 of the Purchase
Agreement.
	 
	 	•	 	AGLS shall forward or cause to be forwarded invoices to the address provided
by the Buyer immediately upon receipt.
	 
	 	•	 	AGLS shall move its outsourced payables management function of the Company
in-house as of the Closing Date and will then transition that function to the
Company.
	 
	 	•	 	AGLS will assist Company and Buyer in researching disputes with customers and
vendors for services provided prior to close.
	 
	7. NOC Services
	 
	 	•	 	AGLS will provide company Network Operations Center (NOC) services including
notification of outages, customer notification for internally and externally
generated maintenances and other alarms in a similar capacity as AGLS provided
prior to close.






Exhibit A - Page 5











 





Attachment A to Exhibit A of Transition Services Agreement




Company Fleet



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	MONTHLY	 	Months In	 	No of Payments	 	Estimated
	 	 	UNIT_NO	 	LTD_USAGE	 	YEAR MAKE MODEL	 	VIN	 	LEASE $	 	Service	 	Left	 	FMV
	 	 	 	8428160	 	 	 	50,843	 	 	2008 TOYOTA TACOMA 4DR

	 	5TEKU72N48Z472003
	 	$	412	 	 	 	28	 	 	 	44	 	 	$	16,700	 
	 	 	 	8428161	 	 	 	60,352	 	 	2008 TOYOTA TACOMA 4DR

	 	5TEKU72N88Z474885
	 	$	412	 	 	 	28	 	 	 	44	 	 	$	15,900	 
	 	 	 	8428162	 	 	 	45,575	 	 	2008 TOYOTA TACOMA 4DR

	 	5TEKU72N58Z471698
	 	$	412	 	 	 	28	 	 	 	44	 	 	$	17,600	 
	 	 	95FLA22
	 	 	840	 	 	1998 CLARK CMP50

	 	CMP570D00086882KF
	 	$	304	 	 	 	131	 	 	 	19	 	 	NA

	[1]
	 	 	3324630	 	 	 	107,558	 	 	2004 DODGE DAKOTA XCAB

	 	1D7GL12K64S720543
	 	$	27	 	 	 	66	 	 	 	0	 	 	$	4,180	 
	 	 	 	8430613	 	 	 	3,717	 	 	2010 TOYOTA TACOMA4X2XCB

	 	5TETU4GNXAZ688813
	 	$	383	 	 	 	5	 	 	 	68	 	 	NA

	[1]
	 	 	3420654	 	 	 	0	 	 	2010 DODGE DAKOTA 4DR

	 	1D7CE3GK1AS172993
	 	$	299	 	 	 	0	 	 	 	72	 	 	NA









 




			
	[1]	 	Unit No 3324630 will go out of service to be replaced by unit No 3420654 the week of April 12, 2010.





Attachment A - Page 1




 









 





Attachment B to Exhibit A of Transition Services Agreement




Standard Workstations



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Equipment	 	 	 	 	Equipment	 	Service	 	 	 	 	 	 	 	 	 	Net Book Value as	 
	Location	 	 	Bldg/Floor	 	Description	 	Tag No	 	User	 	Model No.	 	Delivery Date	 	 	of June 30, 2010	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	1TMKQ11	 	John Yates	 	C400	 	 	7/31/2002	 	 	$	—	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	FXQ0M51	 	Lloyd Taylor	 	D800	 	 	9/1/2004	 	 	$	1,417.41	 
	 	9300	 	 	10 Peachtree
	 	DESKTOP	 	32JLF61	 	Desktop for Scanner	 	GX280	 	 	12/31/2004	 	 	$	413.41	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	HND9481	 	Nicolas Flores-Testing	 	D610	 	 	8/12/2005	 	 	$	1,064.80	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	83GRK81	 	David Strickland	 	D610	 	 	10/3/2005	 	 	$	907.03	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	H3L2Z81	 	Andrew McGowan	 	D610	 	 	12/10/2005	 	 	$	1,063.18	 
	 	9320	 	 	Phoenix
	 	DESKTOP	 	5874191	 	Frank Platchek	 	GX520	 	 	12/19/2005	 	 	$	651.92	 
	 	9300	 	 	Arizona
	 	LAPTOP	 	4ZJTC91	 	Darrol Goolsby	 	D610	 	 	2/2/2006	 	 	$	1,165.14	 
	 	9320	 	 	Phoenix Home operations
	 	LAPTOP	 	CZ4N7C1	 	Frank Platchet	 	D620	 	 	12/14/2006	 	 	$	1,181.52	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	425N7C1	 	Kelly Slater	 	D620	 	 	12/14/2006	 	 	$	1,181.52	 
	 	9320	 	 	10 Peachtree
	 	LAPTOP	 	BSVJ8C1	 	Jeff Pah	 	D620	 	 	12/17/2006	 	 	$	1,181.52	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	2TVJ8C1	 	Jolene Gabbay	 	D620	 	 	12/17/2006	 	 	$	1,181.52	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	C29G8C1	 	Kin Clifton	 	D620	 	 	12/17/2006	 	 	$	1,181.52	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	8P66KC1	 	Andy Harrison	 	D620	 	 	2/12/2007	 	 	$	1,426.30	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	DQR0JC1	 	William Peeples	 	D620	 	 	2/14/2007	 	 	$	1,426.30	 
	 	9300	 	 	10 Peachtree
	 	DESKTOP	 	18B2KC1	 	Brian Schaller	 	GX745	 	 	2/20/2007	 	 	$	777.03	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	5445WC1	 	Frank Bourassa	 	D620	 	 	4/24/2007	 	 	$	1,392.30	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	GQ28WC1	 	Gary Swafford	 	D620	 	 	4/24/2007	 	 	$	1,392.30	 
	 	9300	 	 	10 Peachtree
	 	DESKTOP	 	2DKK6D1	 	Nicholas Flores	 	GX745	 	 	7/10/2007	 	 	$	741.07	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	1Y5PRD1	 	Joshua Nelson	 	D630	 	 	9/28/2007	 	 	$	1,566.20	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	C764SD1	 	Lance Ruhl	 	D630	 	 	10/1/2007	 	 	$	1,466.17	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	GF4SJF1	 	John Yates	 	D630	 	 	1/23/2008	 	 	$	1,709.23	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	78SVHH1	 	Larry Stephens	 	D630	 	 	9/25/2008	 	 	$	1,561.09	 
	 	9320	 	 	Phoenix
	 	LAPTOP	 	5199PH1	 	Mike Pacuk	 	D630	 	 	11/5/2008	 	 	$	1,562.04	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	J4B3TH1	 	Jim Nolte	 	D630	 	 	12/4/2008	 	 	$	1,562.03	 
	 	9345	 	 	10 Peachtree
	 	LAPTOP	 	7CMB5K1	 	Jody Christensen	 	E6400	 	 	6/21/2009	 	 	$	1,291.43	 
	 	9345	 	 	10 Peachtree
	 	LAPTOP	 	C7RTTK1	 	Jason Sturtz	 	E6400	 	 	8/25/2009	 	 	$	1,373.32	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	7BTZ0L1	 	Bernadette Easler	 	E6400	 	 	10/16/2009	 	 	$	1,391.67	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	6BTZ0L1	 	Emily Bennett	 	E6400	 	 	10/16/2009	 	 	$	1,391.67	 
	 	9300	 	 	10 Peachtree
	 	DESKTOP	 	4BF51L1	 	Joshua Nelson	 	GX360	 	 	10/22/2009	 	 	$	623.79	 
	 	9300	 	 	10 Peachtree
	 	DESKTOP	 	7V4X5L1	 	Jim Gillis	 	GX360	 	 	11/10/2009	 	 	$	635.90	 
	 	9320	 	 	10 Peachtree
	 	LAPTOP	 	GTM86L1	 	Frank Platchek	 	E6400	 	 	11/16/2009	 	 	$	1,441.76	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	5VQ86L1	 	Jim Gillis	 	E6400	 	 	11/16/2009	 	 	$	1,441.76	 
	 	9300	 	 	10 Peachtree
	 	LAPTOP	 	9TM86L1	 	Khalilah Henderson-Hill	 	E6400	 	 	11/16/2009	 	 	$	1,441.76	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	40,205.59	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






Attachment B - Page 1




 









 





Attachment C to Exhibit A of Transition Services Agreement




Company Servers



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	APP
	BUS AREA	 	BUSINESS FUNCTIONALITY	 	APP NAME	 	SERVER TECH	 	EXPERT
	Network 

Provisioning /

Engineering
	 	Fiber Inventory, Splicing, Mapping,

route development
	 	Nexus Worx
	 	Local thin clients with java, ASP hosted on

remote datacenter server farm
	 	AGLN

Byers
	 	 	 	 	 	 	 	 	 
	Optical 

Network 

Management
	 	Fiber continuity and fault isolation
	 	JDSU Atlas
	 	Local thin client, 2nd tier app and db server, 3rd

tier remote test heads
	 	AGLN

AGLR
	 	 	 	 	 	 	 	 	 
	Network 

Element 

Management
	 	SNMP Manager polling devices on

internal network
	 	WhatsUP Gold

v.12
	 	Local thin client, with web app on Windows

server VM
	 	AGLN

AGLR
	 	 	 	 	 	 	 	 	 
	Network 

Environmental 

Management
	 	HVAC, access control, UPS, Halon
	 	Honeywell
	 	Thin client, dedicated Windows server, remote

sensing devices
	 	AGLN

AGLR
	 	 	 	 	 	 	 	 	 
	Mapping
	 	Cust maps, franchise maps, route

development
	 	Google Maps

Pro
	 	Thin client, network based server
	 	AGLN
	 
	 	 	 	 	 	 	 	AGLR
	 	 	 	 	 	 	 	 	 
	Mapping
	 	Cust maps, franchise maps, route

development
	 	Map Info
	 	desktop only
	 	AGLN
	 
	 	 	 	 	 	 	 	AGLR
	 	 	 	 	 	 	 	 	 
	Mapping
	 	Spatial Mapping tool
	 	ESRI. 9.3
	 	GAATLP209W
	 	AGLN
	 
	 	 	 	 	 	 	 	AGLR
	 	 	 	 	 	 	 	 	 
	Mapping
	 	Cust maps, franchise maps, route

development
	 	MS Streets &

Trips 2007
	 	desktop only
	 	AGLN

AGLR
	 	 	 	 	 	 	 	 	 
	Drafting /

Engineering
	 	Engineering drawings
	 	Microstation

2009 v.8
	 	desktop only
	 	AGLN

AGLR
	 	 	 	 	 	 	 	 	 
	Drafting /

Engineering
	 	Engineering drawings
	 	Autocad 2009
	 	desktop only
	 	AGLN
	 
	 	 	 	 	 	 	 	AGLR
	 	 	 	 	 	 	 	 	 
	Drafting /

Engineering
	 	Engineering drawings
	 	Visio 2003
	 	desktop only
	 	AGLN
	 
	 	 	 	 	 	 	 	AGLR
	 	 	 	 	 	 	 	 	 
	Project 

Management
	 	Project Planning
	 	MS Project

2003
	 	desktop only
	 	AGLN
	 
	 	 	 	 	 	 	 	AGLR
	 	 	 	 	 	 	 	 	 
	Standard 

Desktop 

applications
	 	Word, Powerpoint, Excel, Access,

Visio
	 	MS Office

2003
	 	desktop only
	 	AGLN

AGLR
	 	 	 	 	 	 	 	 	 
	Document 

Management
	 	Document Management
	 	Adobe Acrobat
	 	desktop only
	 	AGLN
	 
	 	 	 	 	 	 	 	AGLR
	 	 	 	 	 	 	 	 	 
	Document 

Management
	 	Document Management
	 	Nuance PDF

Converter v.5
	 	desktop only
	 	AGLN
	 
	 	 	 	 	 	 	 	AGLR
	 	 	 	 	 	 	 	 	 
	Contract 

Management
	 	Customer / Supplier / Regulatory

agreements
	 	Contract

Database
	 	Local thin client, with web app on dedicated svr

and database on Windows SQL server VM
	 	AGLN
	 
	 	 	 	 	 	 	 	AGLR






Attachment C - Page 1




 









 








Attachment D to Exhibit A of Transition Services Agreement




Company Software Applications



	 	 	 	 	 	 	 	 	 	 	 
	BUSINESS	 	 	 	APP	 	APP	 	 	 	 
	FUNCTIONALITY	 	APP NAME	 	SOURCING	 	LICENSING	 	APP ARCH	 	APP TECH
	Fiber Inventory, Splicing, 

Mapping, route 

development
	 	Nexus Worx
	 	Outside Svcs,

Byers

Engineering
	 	10 read only

seats, 5 edit

seats
	 	ASP, hosted by the

vendor
	 	Internet, java client

side, Oracle spatial
	 	 	 	 	 	 	 	 	 	 	 
	Fiber continuity and fault 

isolation
	 	JDSU Atlas
	 	JDSU
	 	 	 	3-tier browser, App

server, Oracle
	 	Browser, Windows

server, proprietary

remote test heads
	 	 	 	 	 	 	 	 	 	 	 
	SNMP Manager polling 

devices on internal 

network
	 	WhatsUP Gold

v.12
	 	Ipswitch
	 	 	 	2-tier
	 	Thin client, Windows

server in VM
	 	 	 	 	 	 	 	 	 	 	 
	HVAC, access control, 

UPS, Halon
	 	Honeywell
	 	Honeywell
	 	 	 	3-tier browser, App

server
	 	Thin client, dedicated

Windows server,

remote
	 	 	 	 	 	 	 	 	 	 	 
	Cust maps, franchise 

maps, route development
	 	Google Maps Pro
	 	Google
	 	3 seats
	 	ASP
	 	Thin client
	 	 	 	 	 	 	 	 	 	 	 
	Cust maps, franchise 

maps, route development
	 	Map Info
	 	Pitney Bowes
	 	1 seat
	 	3-tier browser, App

server
	 	Thick client
	 	 	 	 	 	 	 	 	 	 	 
	Spatial Mapping tool
	 	ESRI. 9.3
	 	ESRI
	 	25 common

seats in

AGLR.
	 	desktop app
	 	Thin client Citrix
	 	 	 	 	 	 	 	 	 	 	 
	Cust maps, franchise 

maps, route development
	 	MS Streets &

Trips 2007
	 	Microsoft
	 	25
	 	desktop app
	 	Thick client
	 	 	 	 	 	 	 	 	 	 	 
	Engineering drawings
	 	Microstation

2009 v.8
	 	Bentley

Systems
	 	1
	 	desktop app
	 	Thick client
	 	 	 	 	 	 	 	 	 	 	 
	Engineering drawings
	 	Autocad 2009
	 	Autodesk
	 	5
	 	desktop app
	 	Thick client
	 	 	 	 	 	 	 	 	 	 	 
	Engineering drawings
	 	Visio 2003
	 	Microsoft
	 	25
	 	desktop app
	 	Thick client
	 	 	 	 	 	 	 	 	 	 	 
	Project Planning
	 	MS Project 2003
	 	Microsoft
	 	25
	 	desktop app
	 	Thick client
	 	 	 	 	 	 	 	 	 	 	 
	Word, Powerpoint, Excel, 

Access, Visio
	 	MS Office 2003
	 	Microsoft
	 	25
	 	desktop app
	 	Thick client
	 	 	 	 	 	 	 	 	 	 	 
	Document Management
	 	Adobe Acrobat
	 	Adobe
	 	25
	 	desktop app
	 	Thick client
	 	 	 	 	 	 	 	 	 	 	 
	Document Management
	 	Nuance PDF

Converter v.5
	 	Nuance
	 	4
	 	desktop app
	 	Thick client
	 	 	 	 	 	 	 	 	 	 	 
	Customer / Supplier /Regulatory 

agreements
	 	Contract

Database
	 	Contract Logix
	 	20 full seats
	 	3-tier browser, App

server, MS SQL
	 	Thin client






Attachment D - Page 1




 









 








Attachment E to Exhibit A of Transition Services Agreement




Company Mobile Devices



	 	 	 	 	 	 	 
	Wireless	 	 	 	 	 	 
	Number	 	User Name	 	Product Description	 	Vendor
	4043239582
	 	BERNADETTE EASLER
	 	BlackBerry 8330
	 	Verizon Wireless
	3368707649
	 	JAKE STURTZ
	 	BlackBerry 8330
	 	Verizon Wireless
	4042724031
	 	JIM GILLIS
	 	BlackBerry 8830
	 	Verizon Wireless
	4042731220
	 	JIM NOLTE
	 	BlackBerry 8330
	 	Verizon Wireless
	4042958048
	 	DAVID STRICKLAND
	 	BlackBerry 8830
	 	Verizon Wireless
	4043268296
	 	EMILY BENNETT
	 	BlackBerry 8830
	 	Verizon Wireless
	4043545455
	 	LARRY STEPHENS
	 	KPC650
	 	Verizon Wireless
	4044274963
	 	LARRY STEPHENS
	 	BlackBerry 8330
	 	Verizon Wireless
	4044560100
	 	LLOYD TAYLOR
	 	BlackBerry 8330
	 	Verizon Wireless
	4045587594
	 	ANDREW MCGOWEN
	 	BlackBerry 8330
	 	Verizon Wireless
	4045616404
	 	KERRY SLATTER
	 	BlackBerry 7250

EVDO
	 	Verizon Wireless
	4045695601
	 	JOSH NELSON
	 	BlackBerry 8330
	 	Verizon Wireless
	6784098053
	 	JOHN YATES
	 	BlackBerry 8330
	 	Verizon Wireless
	6784273110
	 	WILLIAM PEEPLES
	 	BlackBerry 8330
	 	Verizon Wireless
	6787256902
	 	ANDY HARRISON
	 	BlackBerry 8330
	 	Verizon Wireless
	7043026663
	 	JODY CHRISTENSEN
	 	BlackBerry 8330
	 	Verizon Wireless
	4802098327
	 	JEFFERY PAH
	 	BlackBerry 7250

EVDO
	 	Verizon Wireless
	4802200567
	 	FRANK PLATCHEK
	 	BlackBerry 8330
	 	Verizon Wireless
	4803165382
	 	DARROL GOOLSBY
	 	PC5750
	 	Verizon Wireless
	4803165383
	 	FRANK PLATCHEK
	 	AC595
	 	Verizon Wireless
	4807890855
	 	JOLENE GABBAY
	 	BlackBerry 8330
	 	Verizon Wireless
	4807891925
	 	DAVID FORREST
	 	BlackBerry 8703e
	 	Verizon Wireless
	6024631110
	 	MIKE PACUK
	 	BlackBerry 8330
	 	Verizon Wireless
	4044725309
	 	WILLIAM CLIFTON
	 	Blackberry7520
	 	Sprint / Nextel






Attachment E - Page 1





 









 








Attachment F to Exhibit A of Transition Services Agreement




Cash Process




	•	 	AGLS will wire any and all payments received for Company
to Buyer account established by Buyer as of the Closing Date (Daily)






	 	•	 	Payments received at AGLS offices would be wired
to Buyer the same day as cash payment is verified.
	 
	 	•	 	Payments sent to central lock box would be wired to
Buyer by COB the following day, upon cash receipt and verification.






	•	 	AGLS will send, per Buyer’s instructions payment
reconciliation / wire support / payment application details for Company
to Buyer (Daily)






	•	 	AGLS will provide detail for customer invoice file to Buyer






	•	 	AGLS will change remittance information on any invoices issued per
Buyer instructions
	 
	•	 	Buyer will be responsible for cash application process
	 
	•	 	Buyer will be responsible for close processes
	 
	•	 	Buyer will be responsible for accounts payable process
	 
	•	 	Both AGLS and Buyer shall complete vendor notifications of new billing address






	 	•	 	AGLS to direct any Company invoices received by
AGLS or by any of its vendors to the extent the accounts payable process
was outsourced to Buyer in a timely manner





Attachment F - Page 1




 









 





Exhibit B of Transition Services Agreement




Monthly Services Fees



	 	 	 	 	 	 	 	 	 
	 	 	Rate per Month/Hour	 	Unit of Measure
	Workstation, Application and Services Support Services

	 	$	674.86	 	 	Month
	 	Per AGL Networks LLC Employee
	Office Space and other Tenant Services [1]

	 	$	4.43	 	 	Month
	 	Per Square Footage Occupied by AGL Networks LLC
	Financial Support Functions
	 	 	 	 	 	 	 	 
	- General Ledger Services

	 	$	52.58	 	 	Hour
	 	Per AGL Services Company Employee
	- Corporate Taxes Services

	 	$	50.21	 	 	Hour
	 	Per AGL Services Company Employee
	- Accounts Payable/Accounts Receivable Services

	 	$	32.51	 	 	Hour
	 	Per AGL Services Company Employee
	- Payroll Services

	 	$	37.67	 	 	Hour
	 	Per AGL Services Company Employee
	NOC Services

	 	$	47.62	 	 	Hour
	 	Per AGL Services Company Employee
	Legal Services [2]

	 	$	77.54	 	 	Hour
	 	Per AGL Services Company Employee
	Supply Chain Services [2]

	 	$	38.33	 	 	Hour
	 	Per AGL Services Company Employee
	Human Resources Services [2]

	 	$	55.45	 	 	Hour
	 	Per AGL Services Company Employee








 




			
	[1]	 	The Company occupies approximately 6,725 square fee as of the Closing Date
	 
	[2]	 	Services Fee to the extent utilized during the Term






	•	 	For the first two weeks following the Closing Date, the Financial Support
Functions related to the transition excluding (i) cash management and accounts
receivable functions and (ii) assistance with the audit work performed by Grant
Thornton LLP, shall be provided by AGLS to the Buyer and the Company free of charge.
	 
	•	 	For the first month following the Closing Date, cash management and
accounts receivable functions within the Financial Support Functions shall be
provided by AGLS to the Buyer and the Company free of charge.
	 
	•	 	At no time shall the monthly charges or monthly hours outlined in this
Exhibit B related to NOC Services, Legal Services, Supply Chain Services, Human
Resource Services, and Financial Support Functions but excluding any assistance with
the audit work performed by Grant Thornton LLP, exceed $22,500 and 450 hours,
respectively, without an agreement in writing between AGLS and the Buyer.





Exhibit B - Page 1




 











 





EXHIBIT 5.18

EXECUTION VERSION




GUARANTY AGREEMENT




     THIS GUARANTY AGREEMENT (this “Guaranty”), dated as of ___________, 2010, is made and executed
by AGL RESOURCES INC. , a Georgia corporation (the “Guarantor”), in favor of ZAYO GROUP, LLC, a
Delaware limited liability company (the “Buyer”).



     WHEREAS, the Buyer has entered into that certain Membership Interest Purchase Agreement, dated
as of the date hereof (as such agreement may be amended, supplemented, or restated from time to
time in accordance with the terms and conditions thereof, the “Membership Interest Purchase
Agreement”), with AGL NETWORKS, LLC, a Delaware limited liability company (the “Company”), and AGL
INVESTMENTS, INC., a Georgia corporation (the “Seller”), pursuant to which the Buyer has agreed to
purchase all of the outstanding membership interests of the Company (the “Interests”) from the
Seller;



     WHEREAS, the Seller and the Company are direct or indirect wholly-owned subsidiaries of the
Guarantor; and



     WHEREAS, it is a condition precedent to the Buyer’s obligation to purchase the Interests from
the Seller under the Membership Interest Purchase Agreement that the Guarantor guarantee the
obligations of the Seller under the Membership Interest Purchase Agreement and the other
Transaction Documents (as such term is defined in the Membership Interest Agreement) and the
Guarantor is executing and delivering this Guaranty for the purpose of fulfilling such condition.



     NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the parties hereto, and subject to
the terms hereof and intending to be legally bound, the Guarantor covenants and agrees in favor of
the Buyer as follows:



     Section 1. Definitions. Unless otherwise defined herein, all terms defined in the
Membership Interest Purchase Agreement and used herein shall have the respective meanings given to
such terms in the Membership Interest Purchase Agreement. For purposes of this Guaranty, the term
“Business Day” shall mean any day of the year that is not a Saturday, Sunday or a day on which
commercial banks are required or authorized to be closed in Atlanta, Georgia.



     Section 2. Guaranty. Subject to the terms and conditions hereof, the Guarantor hereby
irrevocably, absolutely and unconditionally guarantees to the Buyer the due and punctual payment of
all obligations, indebtedness and liabilities of the Seller that may now be or hereafter from time
to time become due under the Membership Interest Purchase Agreement or any of the other Transaction
Documents (collectively, the “Obligations”). Subject to Section 3, (i) Guarantor
acknowledges that its obligations and liabilities hereunder are several, independent and separate
from the obligations and liabilities of the Seller or any other guarantor, endorser or surety and
(ii) if at any time the Seller fails, neglects or refuses to timely pay any of the Obligations,
Guarantor shall pay such Obligations.



     Section 3. Demand for Payment. As a condition precedent to the Guarantor’s obligation
under this Guaranty to pay any of the Obligations, written notice must be first given to the Seller
by the Buyer expressly demanding payment of such Obligation and stating the payment due and the
place where such payment is to be made (each, a “Demand”). Each Demand must be given to
the Seller in accordance with the notice provisions of the Membership Interest Purchase Agreement
for notices to the Seller and a copy of such Demand shall be concurrently given to the Guarantor in
accordance with the provisions of Section 7 of this Guaranty. In the event that the Seller
does not pay such Obligation within ten (10)



 









 




Business Days of the date of the related Demand, then the Buyer shall give written notice to
the Guarantor of such failure in accordance with the provisions of Section 7 of this
Guaranty and the Guarantor shall pay such Obligation within five (5) Business Days after the
Guarantor’s receipt of such notice.




     Section 4. Guarantor Obligations to Remain In Effect. The obligations of the Guarantor
under this Guaranty will remain in full force and effect until the Obligations of the Seller under
the Transaction Documents have been fully discharged and terminated.



     Section 5. Reservation of Defenses and Counterclaims.. Notwithstanding any other
provision of this Guaranty, in any action brought with respect to this Guaranty, the Guarantor
expressly reserves to itself and will be entitled to raise as a complete or partial defense to any
liability it may otherwise have hereunder, any defenses or counterclaims to the same extent as such
defenses or counterclaims have been or could have been raised by the Seller.



     Section 6. Representations and Warranties. The Guarantor represents and warrants
to the Buyer that:



     (a) The Guarantor is a corporation duly organized and validly existing under the laws of the
jurisdiction of its incorporation indicated above and has the corporate power and authority to
execute, deliver and perform this Guaranty;



     (b) The execution, delivery and performance of this Guaranty have been and remain duly
authorized by all necessary corporate action on the part of the Guarantor and do not contravene any
contractual restriction binding on the Guarantor or its assets; and



     (c) This Guaranty constitutes the legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting creditor’s rights
and to general equity principles.



     Section 7. Notices. All notices, demands, requests or other communications to be sent
by one party to the other party under this Guaranty must be in writing and will be deemed to have
been validly given by delivery of the same in person to the intended addressee; or by depositing
the same with reputable private courier service for next Business Day delivery or by depositing the
same in the United States mail, postage prepaid, registered or certified mail, return receipt
requested, in either case addressed to the intended addressee at its address set forth below or at
such other address as may be designated in writing by such party as herein provided or sent by fax
at the number designated below with a copy sent via mail or overnight courier. All notices, demands
and requests will be effective upon receipt if delivered by fax or by personal delivery, or one (1)
Business Day after being deposited with the private courier service, or three (3) Business Days
after being deposited in the United States mail as required above. Each party hereto will have the
right from time to time by written notice to the other party hereto to change its address and each
will have the right to specify by written notice other party as its address any other address for
its receipt of notices, demands, requests or other communications under this Guaranty.


Address of the Buyer:



Zayo Group LLC

901 Front Street

Suite 200

Louisville, CO 80027






2









 







Attention: Scott E. Beer, General Counsel

Fax: 303-226-5923



with a copy to:



Holme Roberts & Owen LLP.

1700 Lincoln Street

Suite 4100

Denver, CO 80203

Attention: Hendrik Jordaan, Esq.

Fax: 303-866-0546



Address of the Guarantor:



AGL Resources Inc.

Ten Peachtree Place

Atlanta, GA 30309

Attention: L Scott Cave, Vice President-Finance

Fax:: 404-584-3509



with a copy to:


Kilpatrick Stockton LLP

1100 Peachtree Street

Suite 2800

Atlanta, GA 30309

Attention: Gregory K. Cinnamon

Fax: 404-815-6555




     Section 8. Assignment. This Guaranty will inure to the benefit of and may be enforced
by the Buyer and its successors and assigns, and will be binding upon and enforceable against the
Guarantor and its successors and permitted assigns. The Guarantor may not assign, transfer, or
otherwise convey this Guaranty without the prior written approval of the Buyer.



     Section 9. Governing Law, Severability; Entire Agreement. This Guaranty is to be
interpreted, construed and governed by and in accordance with the laws of the State of Georgia
without regard to principles of conflicts of laws rules which would direct the application of the
law of another jurisdiction. The invalidity of any portion, provision or paragraph of this Guaranty
will not affect or render invalid any other portion, provision or paragraph of this Guaranty. This
Guaranty constitutes the entire agreement between the Guarantor and the Buyer with respect to the
subject matter hereof and supersedes all prior agreements, whether written or oral, between the
parties respecting such matters. No modification of this Guaranty and no waiver of any right or
remedy hereunder, will be binding unless it is in writing and signed by the Guarantor and the
Buyer.



[Signature on Following Page]



3









 





     IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and
delivered by its duly authorized officer or other representative as of the date first set
forth above.



	 	 	 	 	 
	 	AGL RESOURCES INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Guaranty Agreement]




 











 





EXHIBIT 6.8(e)

EXECUTION VERSION




GENERAL RELEASE




     
This GENERAL RELEASE (this “Release”) is being executed and delivered as of
__________
____, 2010 by and on behalf of AGL Resources Inc., a Georgia corporation (“Parent”), and
AGL Investments, Inc., a Georgia corporation (“Seller”, and together with Parent,
“AGL”), pursuant to the “Purchase Agreement” (as defined below).



RECITALS




     A. Pursuant to a Membership Interest Purchase Agreement, dated as of March ___, 2010 (the
“Purchase Agreement”), by and among Seller, AGL Networks, LLC, a Delaware limited liability
company (the “Company”), and Zayo Group, LLC, a Delaware limited liability company
(“Buyer”), Buyer will acquire from Seller all of the issued and outstanding membership
interests of the Company. Capitalized terms used but not defined in this Release shall have the
meanings assigned to such terms in the Purchase Agreement.



     B. As an inducement to Buyer to enter into the Purchase Agreement and consummate the
transactions contemplated thereby, and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by AGL), AGL has agreed to execute and deliver this
Release and to perform its obligations under this Release.


NOW, THEREFORE, AGL covenants and agrees as follows:




AGREEMENT




     1. Release. AGL, on behalf of itself and its “Associated Parties” (as defined in
Section 2(b)), hereby generally, irrevocably, unconditionally and completely (a)
releases and forever discharges each of the “Releasees” (as defined in Section 2)
from each of the “Released Claims” (as defined in Section 2(d)), and (b) waives and
relinquishes each of the Released Claims.



     2. Definitions.



          (a) The term “Affiliate” shall mean and include, with respect to any Person, any
Person who directly or indirectly owns or controls, is owned or controlled by, or is under direct
or indirect common ownership or control with such other Person. Without limiting the generality of
the foregoing, a Person shall be deemed to “own” another Person if it owns, directly or indirectly,
more than fifty percent (50%) of the capital stock or other equity interest of such other Person.




          (b) The term “Associated Parties” shall mean and include,
with respect to AGL:
(i) AGL’s past, present and future successors and assigns; (ii) AGL’s directors, officers,
shareholders and members; and (iii) each Affiliate of AGL.




          (c) The term “Claims” shall mean and include all past,
present and future disputes,
claims, controversies, demands, rights, obligations, liabilities, actions and causes of action of
every kind and nature, including: (i) any unknown, unsuspected or undisclosed claim; (ii) any claim
or right that may be asserted or exercised by Seller in its capacity as a member of the Company or
in any other capacity; and (iii) any claim, right or cause of action based upon any breach of any
express, implied, oral or written contract or agreement.




          (d) The term “Released Claims” shall mean and include each Claim that (i) AGL or any
of its Associated Parties may have had in the past or may now have against any of the Releasees and










 









 







(ii) has arisen or arises directly or indirectly out of, or relates directly or
indirectly to, any circumstance, agreement, activity, action, omission, event or matter
occurring or existing on or prior to the date of this Release that is related, directly
or indirectly, to the Business; provided, however, that “Released Claims” shall exclude
(i) any Claim that Seller or any of its Associated Parties may have against Buyer under
the Purchase Agreement or the other Transaction Documents, including without limitation
those Claims that may be made by an officer, director or member of the management
committee of the Company under or pursuant to Section 5.7 of the Purchase Agreement and
(ii) any Claim that any officer of the Company has for compensation, bonuses, or employee
health or welfare benefits.




          (e) The term “Releasees” shall mean and include: (i) Buyer; (ii) each of the
direct and indirect subsidiaries of Buyer including, for the avoidance of doubt, the
Company; (iii) each other Affiliate of Buyer or any of the other direct and indirect
subsidiaries of such Affiliates; and (iv) the successors and past, present and future
assigns, directors, officers, managers, members, shareholders, partners, employees,
agents, attorneys and representatives of each Person identified or otherwise referred to
in clauses (i) through (iii) of this sentence, other than AGL and its Associated Parties.




     3. Representations and Warranties. AGL represents and warrants
that:



          (a) AGL has no Claims against any of the Releasees;




          (b) AGL has not assigned, transferred, conveyed or
otherwise disposed of any Claim
against any of the Releasees, or any direct or indirect interest in any such Claim, in
whole or in part;




          (c) to the Knowledge of Seller, no other Person has any interest in any of the
Released Claims;




          (d) to the Knowledge of Seller, no Associated Party of AGL has or had any Claim
against any of the Releasees;




          (e) this Release has been duly and validly executed
and delivered on behalf of AGL;




          (f) this Release is a valid and binding obligation
of AGL and, to the Knowledge of
Seller, AGL’s Associated Parties, and is enforceable against AGL and, to the Knowledge of
Seller, each of AGL’s Associated Parties in accordance with its terms;




          (g) there is no Proceeding by or before any Governmental Authority pending or, to
the Knowledge of Seller, threatened against AGL or any of AGL’s Associated Parties that
challenges or would challenge the execution and delivery of this Release or the taking of
any of the actions required to be taken by AGL under this Release;




          (h) neither the execution and delivery of this Release nor the performance of AGL’s
obligation under this Release will (i) result in any violation or breach of any agreement
or other instrument to which AGL is a party or by which AGL is bound (including the
governing documents of AGL), or (ii) result in a violation of any law to which AGL is
subject;




          (i) no authorization, instruction, consent or approval of any Person is required to
be obtained by AGL or, to the Knowledge of Seller, any of AGL’s Associated Parties in
connection with the execution and delivery of this Release or the performance of this
Release; and




          (j) AGL is entering into this Release knowingly, voluntarily and with full knowledge
of its significance and has been advised to consult with an attorney, and has done so.




2









 








     4. Covenant Not to Sue. AGL, on its on behalf and on behalf of its Associate
Parties voluntarily agrees not to sue any Releasee in respect of any Released Claims.



     5. Indemnification. Without in any way limiting any of the rights or remedies
otherwise available to any Releasee, AGL shall indemnify and hold harmless each Releasee
against and from any Damages that are directly suffered or incurred by such Releasee,
that arise directly or indirectly out of or by virtue of, or relate directly or
indirectly to, any failure on the part of AGL to observe, perform or abide by, or any
other breach of, any representation, warranty or covenant contained in this Release. The
Releasees will not be entitled to indemnification pursuant to this Section 5 for
Damages to the extent that the Releasees have been compensated therefor pursuant to
Article IX of the Purchase Agreement.



     6. Miscellaneous.



          (a) Amendment; Waiver. No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Release, and no delay on the part of any Person in
exercising any power, right, privilege or remedy under this Release, shall operate as a
waiver of such power, right, privilege or remedy; and no single or partial exercise of
any such power, right, privilege or remedy shall preclude any other or further exercise
thereof or of any other power, right, privilege or remedy.




          (b) Governing Law. The validity and construction of this Release shall be governed
by the internal laws of the State of Georgia, without regard to the conflicts of law
principles of such State.




          (c) Waiver of Jury Trial. AGL ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS RELEASE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE AGL HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT AGL MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS RELEASE OR THE ACTIONS CONTEMPLATED BY THIS RELEASE. AGL CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT, ASSOCIATED PARTY OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) AGL UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) AGL MAKES THIS WAIVER VOLUNTARILY, AND
(iv) AGL HAS BEEN INDUCED TO ENTER INTO THIS RELEASE BY, AMONG OTHER THINGS, THE WAIVERS
AND CERTIFICATIONS IN THIS SECTION 5(c).




          (d) Construction.




               (i) The heading references of this Release are for convenience purposes only, do not
constitute a part of this Release and will not be deemed to limit or affect any of the
provisions of this Release.



               (ii) As used in this Release, except as otherwise indicated in this Release or as
the context may otherwise require: (A) the words “include” and “including” are deemed to
be followed by “without limitation”; (B) the word “or” is not exclusive; (C) references
to a “Section” are to a section of this Release; (D) the words “this Release,” “hereby,”
“hereof,” “herein,” “hereunder,” and comparable words refer to all of this Release, and
not to any particular Section, preamble, recital, or other subdivision of this Release;
(E) any word in the singular form includes the plural and vice versa; (F) references to
any agreement or other document are to such agreement or document as amended, modified,
superseded, supplemented, and restated now or from time to time after the date of this
Release; (G) references to any law are to it as amended, modified, supplemented, and
restated now or from time to



3









 




time after the date of this Release, and to any corresponding provisions of
successor Legal Requirements; and (H) references to any Person include such Person’s
respective successors and permitted assigns (and in the case of a natural person, such
Person’s heirs, estate, and personal representatives).




          (e) Severability. The provisions of this Release will be deemed severable and the
invalidity or unenforceability of any provision will not affect the validity or
enforceability of the other provisions hereof. If any provision of this Release, or the
application thereof to any Person or any circumstance, is invalid or unenforceable, (i) a
suitable and equitable provision will be substituted therefor in order to carry out, so
far as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision, and (ii) the remainder of this Release and the application of
such provision to other Persons or circumstances will not be affected by such invalidity
or unenforceability, nor will such invalidity or unenforceability affect the validity or
enforceability of such provision, or the application thereof, in any other jurisdiction.




          (f) Entire Agreement. This Release contains the entire understanding between the
parties with respect to the subject matter of this Release, and supersedes all prior
agreements and understandings, oral or written, with respect to such matters.




          (g) Terms of the Purchase Agreement. AGL acknowledges that the representations,
warranties, covenants, agreements, and indemnities contained in the Purchase Agreement
shall not be diminished, modified, altered, or superseded hereby but shall remain in full
force and effect to the full extent provided therein.




          (h) Additional Deliveries. AGL and its Associated Parties shall execute and cause to
be delivered to each Releasee such instruments and other documents, and shall take such
other actions, as such Releasee may reasonably request for the purpose of carrying out or
evidencing any of the actions contemplated by this Release.




          (i) Counterparts. This Release may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Release and all of which, when taken
together, will be deemed to constitute one and the same agreement. The exchange of copies
of this Release and of signature pages by facsimile or other electronic transmission
shall constitute effective execution and delivery of this Release as to the parties and
may be used in lieu of the original Release for all purposes. Signatures to this Release
transmitted by facsimile or other electronic means shall be deemed to be original
signatures for all purposes.




[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]



4









 





     IN WITNESS WHEREOF, AGL has duly executed this Release as of the date first above
written.



	 	 	 	 	 
	 	PARENT:



AGL RESOURCES INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	SELLER:



AGL INVESTMENTS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature page of General Release]