Sample Business Contracts

Broadband Capacity Services Agreement - Progress Telecom Corp. and Direct Partner Telecom Inc.

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[logo] Progress Telecom
       A Progress Energy Company

                          PROGRESS TELECOM CORPORATION

The  undersigned  parties have read and agreed to the terms and  conditions  set
forth in the attached  Broadband  Capacity Services  Agreement (the "Agreement")
and Appendices thereto.

Progress Telecom Corporation              Direct Partner Telecom, Inc.
(herinafter referred to as "Carrier")     (herinafter referred to as "Customer")
                                          By: /s/ James L. Magruder
By: /s/ P. J. Aiello                          ----------------------------------
    ----------------------------------    Name:James L. Magruder
Name:P.J. Aiello                          Title: CEO
Title: VP Sales & Marketing               Date: 10/17/03
Date: 10/31/03

Carrier and Customer may be referred to  individually as "Party" or collectively
as "Parties."

                               NOTICE INFORMATION

All written notices  required under the Agreement,  except as  specifically  set
forth in the Appendices hereto, shall be sent to the following:

To:  Progress Telecom Corporation         To:  Direct Partner Telecom, Inc.
     100 Second Avenue South                   110 East Broward Blvd.
     Suite 500S                                Suite 1100
     St. Petersburg, Florida  33701            Ft. Lauderdale, FL  33301
     Facsimile: (727) 820-5652                 Facsimile: (954) 357-4654
     Attention: Contract Management            Attention: James L. Magruder, Jr.



1. SERVICE.  Carrier agrees to provide  broadband  capacity services in capacity
increments  from DS-3 to  OC-n/STM-n,  Gigabit  Ethernet  or 2.5  gigabit  to 10
gigabit  Wavelengths  (hereinafter  referred  collectively  as the "Service") to
Customer  subject to the terms and conditions  set forth herein.  Service may be
provided through the Carrier's  proprietary  network  ("Network") and/or through
third parties' networks and leased facilities.  Any such third party is referred
to as the "Off-Net  Provider." Service provided entirely on Carrier's Network is
referred to as "On-Net."  Service  provided,  in whole or part,  utilizing third
parties'  networks and leased  facilities  is referred to as  "Off-Net."  On-Net
Service which utilizes the Network and third party  facilities is referred to as
"Off-Net."  On-Net  Service  also is referred  to as "Type I  Service."  Off-Net
Service which utilizes the Network and third party  facilities is referred to as
"Type II Service."  Off-Net Service which solely utilizes third party facilities
is  referred  to as "Type  III  Service."  Where  Carrier  must  build  fiber or
facilities  (e.g.,  obtain space and/or deploy  equipment) to provide Service to
Customer,  the Service shall be treated as On-Net with respect to the build upon
Acceptance of the Service by Customer;  provided that,  notwithstanding anything
else to the contrary  contained in this  Agreement,  with respect to  Customer's
initial order of service in connection  with the build,  Customer  shall have no
right to cancel the order once  submitted to and  accepted by Carrier,  Customer
shall have no right to terminate  service for convenience prior to expiration of
its term,  and  Customer  shall be reliable  for 100% of the  monthly  recurring
charges  applicable  to such  order for its entire  term.  Service  may  include
pre-provisioned capacity, which shall be subject to the terms and conditions set
forth herein and the supplemental  pre-provisioned capacity terms and conditions
set forth in  Appendix  7.  Service  provided on a month to month basis shall be
subject to the terms and conditions  set forth herein the  additional  terms and
conditions  set forth in Appendix  8. E-1 service  shall be subject to the terms
and  conditions  set forth herein and the  additional  terms and  conditions set
forth in Appendix 9.

2. TERM AND TERMINATION.  This agreement shall be effective upon the date of the
last signature of this  agreement.  The term of this agreement shall be five (5)
years from such  effective  date (the  "Term").  The term of any  service  order
pursuant  to this  agreement  shall be as  specified  in the  applicable  access
service request ("ASR").  If no term is specified in an ASR, it shall be one (1)
year.  The term of and ASR shall begin on the date of acceptance by the Customer
as set forth in Appendix 1, Section 2.0. Such date shall hereinafter be referred
to as the Service  Date.  Upon  expiration  of the ASR term,  the Service  shall
automatically  renew  for  successive  one (1)  month ASR terms at the same rate
unless  and until  such time as: (a) either  Party  provides  thirty  (30) days'
written notice of termination  prior to the expiration of the  then-current  ASR
term or (b) the Term has expired.  Upon  expiration  of the  Agreement,  all its
terms and conditions shall continue to apply to any pre-existing  Service or ASR
extending  beyond the Term until  such time as all such  Service  and ASR's have
expired or been terminated.

3.  BILLING AND PAYMENT.  As  compensation  for the Service  provide by Carrier,
Customer  shall pay in U.S.  dollars the recurring and  non-recurring  rates and
charges set forth in the ASR,  together with any  supplemental  charges (such as
for changes to the requested  start date,  design changes and expedites) and any
applicable  Taxes and  Additional  Charges  as  defined  in  Section  15,  below
(collectively,  the  "Charges').  Such  Charges  shall be  invoiced  monthly  in
advance, commencing on the first day of the month following the Service Date and
on the same day of the month for each  month  thereafter.  Charges  shall  begin
accruing  on the  Service  Date and on the same day of the month for each  month
thereafter.  Charges  shall  begin  accruing on the  Service  Date.  The initial
invoice also shall include Charges for Service accrued prior to the commencement
of billing. Payment for such Charges shall be due within thirty (30) days of the
invoice date ("Payment Due Date"). If payment is not received by the Payment Due
Date,  Customer shall be considered  delinquent  and the delinquent  balance due
shall be  subject  to  interest  charges  at the rate of the  lesser  of one and
one-half  percent (1 1/2 %) per month or the highest  amount  permitted  by law,
until paid in full.  If Customer in good faith  disputes any  charges,  it shall
timely pay all  undisputed  charges,  and also  within  thirty  (30) days of the
invoice date give Carrier  written notice of the disputed  amount(s) and written
documentation  of the reason(s)  therefor or any such  disputes  shall be deemed
waived.  Any disputed  amounts that are  determined by Carrier to be in error or
not in compliance  with this  Agreement will be adjusted as a credit on the next
month's invoice following such determination.  Any disputed amounts that in good
faith and  supported  by  reasonable  documentation  are deemed by Carrier to be
correct as billed and in compliance with this Agreement, will be due and payable
by  Customer,  upon  notification  and  demand by  Carrier,  along with the late
payment interest  charges accrued from the Payment Due Date.  Customer shall pay


to Carrier all costs, including, but not limited to, legal fees, court costs and
the fees of any collection agency,  incurred by Carrier in exercising its rights
under this Agreement.

4.  EQUIPMENT  AND  INSTALLATION  FOR  SERVICE.  During the term of the Service,
Customer  grants  Carrier  the right  free of charge to occupy  portions  of the
Customer's  facilities  and  real  property  ("Space")  for  the  placement  and
maintenance of communications  equipment and cabling  ("Carrier  Equipment") and
interconnecting  such  Carrier  Equipment  to the  Network  for the  purpose  of
providing  the Service.  Carrier shall be given  adequate  power for the Carrier
Equipment  without  charge and the right to pass  through  third  party  traffic
without  add/drop  capability.  Carrier shall be permitted seven (7) days a week
access  to the  Space,  subject  to  reasonable  documented  rules  of  Customer
governing such access. Customer shall provide Carrier with written notice of any
proposed modifications being implemented unless Carrier consents to the proposed

5. NETWORK STANDARDS FOR ON-NET CIRCUITS. Carrier's On-Net circuits shall comply
with all relevant provisions of Appendix 1, AT&T Compatibility  Bulletin No. 119
(TA-34) and the following  Bellcore  Publications:  FR-NWT-000440  (transmission
facilities   interfaces);    FR-NWT-000064   (related   LATA   switching);   and
;FR-NWT-000439 (operational technology generic requirements).

6. CREDITS.  Except as otherwise set forth below in this Section 6, in the event
of an interruption in Service (a "Service  Outage"),  Customer shall be entitled
to a credit  against the following  month's  invoice in an amount as set fort in
Appendix 1, Section 4.0. A Service Outage begins when Service is interrupted and
ends  when  Service  is  restored,  but a Service  Outage  will not be deemed to
include Service interruptions caused, or contributed to, directly or indirectly,
by any act or omission  of Customer  and/or  Customer's  end users,  affiliates,
agents  or   representatives,   or  other   third   parties;   the   failure  of
interconnecting  service  or  equipment  not part of the  Carrier  Equipment  or
Service  or  otherwise  within  Carrier's  control;  any  planned  or  emergency
maintenance;  or due to a Force  Majeure  event  or other  circumstances  beyond
Carrier's  reasonable control.  Notwithstanding the foregoing,  a Service Outage
will not qualify for credits or any other  remedy  where the facility or circuit
is inoperative,  but is not released for testing or repair by Customer, or where
Customer  does not give  Carrier  access to the Space.  The credits and right to
cancel  Service as set forth in this Section 6 and Appendix 1,  Sections 4.0 and
5.0,  shall be  Customer's  sole and  exclusive  remedies for any loss or damage
sustained  as a result of any  interruption  or  failure  of the  Service or any
Carrier  Equipment or service used in providing  the Service,  regardless of the
cause, and for however long it shall last. No failure by Carrie pursuant to this
Section  6 or  Appendix  1,  Sections  4.0 and 5.0,  shall be deemed an Event of

7.  DEFAULT.  A Party  shall be deemed in  default  of this  Agreement  upon the
occurrence  of any one (1) or more of the following  events (each,  an "Event of

7.1      A Party makes a general  assignment or  arrangement  for the benefit of
         creditors;   becomes  bankrupt,   becomes  a  debtor  in  a  bankruptcy
         proceeding,  becomes insolvent, however evidenced, or becomes unable to
         pay its debts as the fall due; files a petition or otherwise  commences
         a  proceeding  under  any  bankruptcy,  insolvency,  reorganization  or
         similar law, or has any such petition filed or commenced against it; or
         has a liquidator,  administrator,  receiver,  trustee,  conservator  or
         similar  official  appointed  with  respect to it or any portion of its
         property or assets;
7.2      A Party violates any applicable laws,  statutes,  ordinances,  codes or
         other  legal   requirements  with  respect  to  the  Service  and  such
         violation(s) is not remedied  within the time frame(s)  allowed by law;
         provided, however, that each Party reserves the right to contest and/or
         appeal any such claim of violation in which event the  existence of any
         default  shall be  stayed  pending  resolution  of the  contest  and/or
         appeal; or
7.3      A  Party  fails  to  perform  its  obligations   under  this  Agreement
         (excluding  Customer's  non-payment of disputed charges as set forth in
         Section 3, above)  where such  nonperformance  is neither  excused by a
         Force Majeure event nor remedied  within thirty (30) days after written
         notice thereof;  provided that if such  nonperformance  cannot be cured
         within such thirty (30) day period with the exercise of reasonable  due
         diligence and the defaulting Party provides assurance of its ability to
         perform,  the defaulting  Party shall be given a reasonable  additional
         period of time in which to cure such  nonperformance,  so long as it is
         acting promptly and diligently to cure; or


7.4      The failure by Customer to pay undisputed charges within ten (10) days'
         written notice of non-payment.


8.1      In the event that Customer  and/or  Carrier  terminate  any  particular
         Service  or ASR,  but not the  Agreement,  such  termination  shall not
         affect any other Service or ASR, and Customer shall continue to pay the
         Charges for any Service or ASR not terminated.

8.2      In addition to any other rights of termination  specified herein,  this
         Agreement,  or any Service  provided  hereunder,  may be  terminated by
         Carrier upon thirty (30) days' written notice in the event that a final
         order or judgment is entered in any  lawsuit or  regulatory  proceeding
         restraining  performance  under this Agreement,  declaring or otherwise
         rendering  performance unlawful or compelling removal,  discontinuation
         or divestiture of all or part of the Network,  or directing  Carrier to
         pay an exorbitant or grossly  disproportional amount, in Carrier's sole
         judgment,  for the  acquisition of any easement or  rights-of-way,  and
         such order or judgment, has not been vacated, reversed or stayed within
         thirty (30) days from the date of entry thereof.

8.3      Upon the  occurrence  of an Event of Default by Customer,  upon written
         notice to Customer,  Carrier may terminate the Agreement or any ASR(s),
         in whole or in part, or suspend  Service or any portion thereof with no
         further  performance  obligation,  and Customer shall be liable for all
         amounts due and owing as of such  termination or suspension  date, plus
         early termination  charges as set forth in Appendix 3 Section 5.0 shall

8.4      Upon the  occurrence  of an Event of Default by Carrier,  upon  written
         notice to  Carrier,  Customer,  as its sole and  exclusive  remedy  for
         Carrier's default,  may terminate the applicable ASR(s) or the affected
         Service without  liability for early  termination  charges and shall be
         entitled to a refund of any prepaid amounts for Service not rendered.

8.5      In the event  Customer  terminates  Carrier's use of Space  pursuant to
         Section4,  above,  for any reason,  upon  written  notice to  Customer,
         Carrier  may  terminate  any  affected  Service  without  liability  to
         Customer.  Unless such  termination is due to Carrier's sole negligence
         or willful  misconduct,  Customer shall be liable for early termination
         charges as set forth in Appendix 3, Section 5.0.


10. LIMITATION OF LIABILITY.  Except as otherwise specifically set forth in this
Agreement,  neither  Party  shall be liable to the other Party for any direct or
indirect,  consequential,  special, incidental,  reliance or punitive damages of
any kind or nature whatsoever (including,  but not limited, to any lost profits,
lost revenue, lost savings, cost of substitute equipment or services, or harm to
business),  regardless of the forseeability thereof, whether based upon statute,
contract,  tort,  negligence,  strict liability or otherwise.  Each Party hereby
releases the other Party, its subsidiaries and affiliates,  and their respective
officers,  directors,  managers,  employees and agents from any such claim.  The
limitations  set forth in this  Section 10 shall not limit with respect to third
party claims against Carrier as set forth in Section 11, below.


11.1     Each Party shall indemnify, defend and hold harmless the other from and
         against  any and  all  liabilities,  claims,  damages,  losses,  costs,
         expenses  and  judgments  arising out of or in  connection  with bodily
         injury  (including  death) or damage to tangible property caused by the
         negligence or will misconduct of the indemnifying Party, its employees,
         directors, officers, agents or invitees.

11.2     In  addition  to its  obligations  pursuant  to  Section  11.1,  above,
         Customer  shall  indemnify,  defend and hold harmless  Carrier from and
         against  any  and  all (i)  proceedings  to  recover  taxes,  fines  or
         penalties  for  failure of the  Customer  to obtain or to  maintain  in


         effect  any  necessary  certificates,   permits,  licenses,  approvals,
         authorizations   or  other  authority,   whether   federal,   state  or
         international, to use the Service required to be obtained or maintained
         by Customer under applicable law; (ii) copyright  infringement,  patent
         infringement or unauthorized  use of a trade secret,  trademark,  trade
         name,  or  service  mark by  Customer;  and (iii) any and all claims of
         Customer's end users that use the Service through Customer, and any and
         all third party claims resulting from Customer's use of the Service.

11.3     Procedure.  Each Party agrees to promptly  notify the other  Party,  in
         writing,  of any suit,  claim,  proceeding or threat  thereof for which
         indemnification is sought, and to provide reasonable  assistance to the
         indemnifying  Party upon the  indemnifying  Party's request and at such
         indemnifying  Party's expense.  The  indemnifying  party shall have the
         right to control the defense of any such matter and to all negotiations
         for  settlement  or  compromise  shall be  subject  to the  indemnified
         Party's written consent, which shall not be unreasonably withheld.

12. INSURANCE.  Throughout the term of this Agreement and any extension thereof,
each Party shall maintain,  and upon written request, shall provide to the other
Party  proof of,  adequate  comprehensive  general  liability  insurance  with a
carrier or carriers  reasonably  satisfactory to the other Party with a limit of
not less that $1,000,000 per occurrence for bodily injury liability and property
damage  liability,   including  coverage   extensions  for  blanket  contractual
liability,  personal  injury  liability  and products and  completed  operations
liability.  The policies shall include the other Party as an additional  insured
and shall explicitly waive any right of subrogation.

13. FORCE MAJEURE.  Carrier shall not be held liable for any delay or failure in
performance  of any part of this  Agreement from any cause beyond its reasonable
control and/or without its fault or negligence,  including,  without limitation,
acts of God,  acts of civil or military  authority,  government  laws,  rules or
regulations,  embargoes,  epidemics, war, terrorist acts, riots,  insurrections,
fires, explosions,  earthquakes, nuclear accidents, floods, cable or fiber cuts,
strikes or Party or its affiliates,  power  blackouts,  volcanic  action,  other
major  environmental  disturbances,  unusually  severe  weather  conditions,  or
hurricanes (collectively, "Force Majeure").


         14.1 This  Agreement and all  documents,  data,  information,  maps and
         other materials, which are disclosed by one Party to the other Party in
         fulfilling  the provisions  and the intent of this  Agreement,  are and
         shall  be  deemed   confidential  (the   "Confidential   Information").
         Notwithstanding  the  forgoing,  the  following  information  shall not
         constitute  Confidential  Information:  (a)  information  that was in a
         Party's  possession  prior to  disclosure  from the  other  Party;  (b)
         information  that is or becomes a matter of public  knowledge or record
         through no fault of the Party to whom the information was disclose; (c)
         information  that is rightfully  received by a Party from a third party
         without a duty of confidentiality; (d) information that is disclosed by
         the disclosing Party to a third party without a duty of confidentiality
         on the third party;  and (e) information  that can demonstrate  that it
         developed  independently.  Neither  Party  shall  divulge or  otherwise
         disclose the Confidential  Information to any third party without prior
         written  consent of the other Party,  except that either Party may make
         disclosure on a need-to-know  basis to those employees required for the
         implementation  or performance of the  Agreement.  In addition,  either
         Party may make  disclosure as required by a court order or as otherwise
         required by law,  rule,  regulation or in the  performance of a Party's
         obligations (or those of it affiliates) as a public company.  If either
         Party is  required  by law,  rule,  regulation  or  similar  process to
         disclose any Confidential Information,  it will provide the other Party
         with prompt  written notice of such request or requirement so that such
         Party may seek an appropriate protective order and/or otherwise seek to
         limit such disclosure.

14.2     Upon expiration or termination of this Agreement for any reason or upon
         request  of  a  Party,   each  Party  shall  return  all   Confidential
         Information,  together with any copies of the same, to the other Party.


         The requirements of confidentiality  set forth herein shall survive the
         return  of  such   Confidential   Information   or  the  expiration  or
         termination of this Agreement for a period of two (2) years.

14.3     Nothing  herein  shall be  construed  as granting  any right or license
         under  any  copyrights,   trademarks,   service  marks,   trade  names,
         inventions  or patents now or hereafter  owned or  controlled by either

15. TAXES AND FEES. Any applicable foreign, federal, state or local use, excise,
gross receipts,  sales,  value added or privilege taxes;  duties,  surcharges to
recover universal  service  contributions,  regulatory  assessment fees or other
taxes, fees, charges, surcharges or similar liabilities imposed on or based upon
the provision,  sale or use of the Service  furnished by Carrier  (collectively,
"Taxes and  Additional  Charges")  shall be paid by  Customer in addition to the
regular recurring and non-recurring  rates and charges under each ASR, excluding
taxes based upon  Carrier's net income or real  property.  Applicable  Taxes and
Additional  Charges shall include any new Taxes and Additional  Charges  imposed
after the effective  date of this Agreement and shall also include all interest,
penalties,  fees and other  charges  for late  payment.  In the  event  Customer
believes  it is exempt from any Taxes and  Additional  Charges,  Customer  shall
provide Carrier with a valid exemption  certificate from the appropriate  taxing
authority evidencing such claimed exemption. Customer shall be liable to Carrier
for any and all costs,  expenses and liabilities of any kind incurred by Carrier
(including,  without limitation,  the time value of money related to tax refunds
for payments made by Carrier based upon Customer's Service that are subsequently
exempt  from  taxation)  in  connection   with  an  otherwise   valid  exemption
certificate  not  provided by  Customer  to Carrier  within one (1) month of the
Service Date.

16.  INDEPENDENT  CONTRACTORS.  This  Agreement does not create a partnership or
joint venture between Customer and Carrier. Except as expressly set forth in any
letter of agency  issued by  Carrier  or  Customer  with  respect  to  Carrier's
provision of the Service,  this Agreement does not  contemplate  either Party as
the agent or legal  representative  of the other Party and  neither  Party shall
have  any  authority  to  agree  for or  bind  the  other  Party  in any  manner
whatsoever.  This  Agreement  confers no right of any kind upon any third party.
The  relationship  between  Carrier and  Customer is solely that of  independent

17. WAIVER.  No failure or delay on the part of a Party in exercising any right,
power or privilege  hereunder  and no course of dealing by a Party shall operate
as a waiver thereof nor shall any single or partial exercise of any right, power
or privilege  by such Party  hereunder  preclude  any other or further  exercise
thereof or the exercise of any other right, power or privilege.

18. AMENDMENT.  No subsequent agreement among the Parties concerning the Service
or this Agreement  shall be effective or binding unless it is made in writing by
authorized representatives of the Parties.

19. ENTIRE AGREEMENT.  This Agreement sets forth the entire understanding of the
Parties  and  supersedes  any  and  all  prior   agreements,   arrangements   or
understandings relating to the subject matter hereof. In the event of a conflict
between this  Agreement and any ASR executed  hereunder,  this  Agreement  shall
20.  SEVERABILITY.  If any part of any provision of this  Agreement or any other
agreement,  document or writing  given  pursuant to or in  connection  with this
Agreement  shall be invalid or  unenforceable  under  applicable  law, said part
shall be ineffective to the extent of such invalidity  only,  without in any way
affecting the remaining  parts of said provision or the remaining  provisions of
this Agreement.

21. GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the
State of Florida without regard to choice of law  principles.  Venue for any and
all actions  brought by either party to enforce the terms hereof shall reside in
Pinellas  County,  Florida,  and each party  hereby  irrevocable  submits to the
personal jurisdiction of the courts located in such country.

22.  NON-EXCLUSIVE.  This Agreement is non-exclusive.  Nothing in this Agreement
shall prevent Customer or Carrier from entering into similar  arrangements with,
or otherwise providing services to, any other person or entity.

23.  BENEFITS TO THIRD PARTIES.  This Agreement  shall be binding upon and shall
inure to the benefit of the Parties hereto and their  respective  successors and
permitted assigns. The representations,  warranties, covenants and agreements of


the Parties set forth in this  Agreement are not intended for, nor shall they be
for the  benefit  of, or  enforceable  by, any third party or person not a Party
hereto, including without limitation, Customer's end users.

24.  ASSIGNMENT.  Neither Party may assign its rights or obligations  under this
Agreement  without the other Party's prior written  consent,  which shall not be
unreasonably withheld; provided, however, a Party may, without the other Party's
consent upon giving notice to the other Party, assign its rights and obligations
(in whole but not in part)  hereunder to (i) an Affiliate (as defined  below) or
(ii) any person or entity who buys or is transferred all or substantially all of
the Party's  assets or equity.  Any  attempted  assignment  in  violation of the
foregoing shall be null and void and of no force or effect.  The Parties' rights
and  obligations  will  bind  and  inure  to the  benefit  of  their  respective
successors and permitted  assigns.  "Affiliate"  means any person or entity that
directly or indirectly  controls,  is  controlled by or is under common  control
with the Party.

25. PUBLICITY. This Agreement shall not be construed as granting to either Party
a  license  to use any of the other  Party's  (or its  affiliates')  trademarks,
service marks or trade names ("Trademarks").  Neither Party shall, without prior
written  consent,  use the other Party's  Trademarks in marketing,  promotional,
advertising  or similar  materials,  or in any other  manner.  Neither Party may
issue any public or press  release  regarding  the other Party,  or disclose the
existence of this Agreement, without the prior consent of the other Party.

26.  NEW  RULES OR  ACTIONS.  The  Parties  acknowledge  that  some  rights  and
obligations  of Carrier  under this  Agreement  may be affected by future rules,
regulations,  guidelines,  orders,  treaties  or laws  promulgated,  enacted  or
entered into by federal and state  legislatures,  by federal and state agencies,
local or federal  governments,  and  international  or other  regulatory  bodies
(together  "Rules or  Actions").  In the event  that any such  Rules or  Actions
adversely revise or modify Carrier's  obligations under this Agreement,  Carrier
may, upon written notice to Customer,  require this Agreement be renegotiated in
good faith to reflect the effect of any such Rules or Actions.

27. NETWORK AND SYSTEM  INTEGRITY.  Customer and its end users shall not operate
hardware  or software  that  Carrier,  in its sole  discretion,  deems  harmful,
hazardous or capable of causing interference, congestion or interruptions to the
Network,  Carrier  Equipment  or  Service.  Upon  written or verbal  notice from
Carrier,  Customer  and/or end user(s)  shall  immediately  remove the offending
hardware or software.  If Customer and/or end user(s) fail to do so, Carrier may
suspend  Service without notice;  provided,  however,  that Carrier shall afford
Customer a reasonable opportunity to cure before terminating this Agreement.

28. HEADINGS.  The paragraph headings used in this Agreement are for purposes of
convenience  only and shall not be deemed a part of this  Agreement for purposes
of construction or interpretation.

29. CREDIT APPROVAL AND SECURITY.  Carrier's  provision of Service is contingent
upon continuing credit approval by Carrier.  Customer authorizes Carrier to seek
such details  concerning its credit  background as Carrier deems necessary,  and
consents  to  Carrier's  disclosure  of account  information  to or from  credit
reporting  associations and other providers of  telecommunications  services. At
any time,  Carrier  may  require a  deposit,  letter of credit or other  form of
security in an amount  acceptable to Carrier pursuant to Carrier's credit review

30. CONTRACT  EXECUTION.  Upon execution of this Agreement by both Parties,  any
copy,  duplicate  or  facsimile  of this  executed  Agreement  will be valid and
legally binding with the same force and effect as the executed Agreement bearing
original signatures.

31. APPENDICES.  The following  Appendices shall be attached to and incorporated
into  this  Agreement.  In the  event of any  inconsistency  between  the  terms
contained in the Appendices  and this  Agreement,  the Appendices  shall control
with respect to the specific inconsistency.

Appendix 1        Specifications, Testing and Service Outages
Appendix 2        Maintenance and Repair
Appendix 3        Ordering Procedures and Cancellation/Early Termination Charges
Appendix 4        Pricing
Appendix 5        Sample Access Service Request
Appendix 6        Sample Service Acceptance Notice


                                   APPENDIX 1



1.1      Network Availability Objective measured monthly:

         1.1.1    On-Net Wavelengths:

                                          2.5 or 10 gigabit Unprotected 99.900%
                                          2.5 or 10 gigabit Protected 99.990%

                                          Gigabit Ethernet (intra-metro, only):
                                          Unprotected 99.900%

                                          DS-3 or OC-n/STM-n not Fully Redundant
                                          DS-3 or OC-n/STM-n Fully Redundant

         1.1.2    Off-Net

1.2      Background Bit Error Rate:

         1.2.1    On-Net DS-3 and OC-n/STM-n 2x10 -10

         1.2.2    Off-Net Off-Net provider standards apply

1.3      Error Bursts:                    No more than 1 event second per 24

1.4      Error Free Seconds:

         1.4.1                            On-Net DS-3 and OC-n/STM-n
         1.4.2                            Off-Net Off-Net provider standards

1.5      Bi-Polar Violations:             None

1.6      Clocking:                        Primary reference source, either GPS
                                          or stand-alone Cesium clock, a
                                          Stratum 1 level source.

1.7      Absolute Delay:                  1ms per 125 miles fiber

For purposes of this  Agreement,  "Protected"  refers to Service that utilizes a
circuit  providing  both  working  and  protection  channels.   The  circuit  is
electronically  switched  to the  protection  channel  in the event of a lost of
signal (e.g.,  electronic  failure). A circuit may be further protected by means
of a physically  divers path, which provides  protection in the event of a fiber
cut.  Such a circuit  would provide  Service  referred to as "Fully  Redundant."
"Unprotected"  refers to Service  that  utilizes a circuit  that does not have a
protect  path  available  in the  event of a loss of  signal.  Failures  to meet
specifications  other than the applicable  network  availability  objective will
typically result in an alarm in Carrier's Network Operations Center ("NOC") and,
in the event of such alarm, Carrier will contact Customer, whereupon the Parties
will address the cause of the alarm on an individual basis.

2.0 System  Acceptance  Procedure:  When Carrier has  completed  all work on the
Service,  Carrier  shall test the Service  according to this Appendix 1. Carrier
will then notify  Customer  that the  Service is ready and Carrier  will send to
Customer  the Service  Acceptance  Notice set forth in  Appendix 6  ("Acceptance
Notice")  via  facsimile  or e-mail.  Customer  shall  have the right,  prior to
Acceptance,  to  monitor  the  Service  for up to two (2) days to  determine  if
Service Acceptance  requirements have been met. Customer shall be deemed to have
Accepted  the Service  upon the earlier  of: (i)  Carrier's  receipt of a signed
Acceptance  Notice from Customer;  (ii)  Customer's use of the Service for other
than testing;  or (iii) Customer's  failure to return a signed Acceptance Notice
stating with  specificity the basis for its refusal to accept the Service within


two (2) business days of receipt of the Acceptance  Notice from the Carrier.  In
the event of Acceptance  pursuant to the  foregoing  subpart  (iii),  Acceptance
shall be deemed to have occurred  retroactive to the date of Customer's  receipt
of such  Acceptance  Notice.  If Customer  finds the  Service  does not meet the
specifications;  the  Customer  must  return  the  Acceptance  Notice to Carrier
stating with specificity the basis for its claim. Carrier shall use commercially
reasonable  efforts to repair the Service to meet the  specifications and resend
the Acceptance Notice to Customer as described above.

3.0      System  Acceptance  Criteria:  The following  acceptance  tests will be

         3.1      DS-3, OC-n,  STM-n Gigabit  Ethernet and Wavelengths:  Testing
                  shall  be clear  channel,  head-to-head  cooperative  testing.
                  Testing shall run over a twenty-four (24) hour period mutually
                  agreed upon by the Parties. Customer shall review test results
                  and shall notify  Carrier of its  acceptance.  Customer  shall
                  accept the Service when it is error-free  over any twenty-four
                  (24) hour period.

         3.2      Equipment  Alarm  and  Status  Indication  Functionality:  All
                  equipment  alarm functions and status  indicators  provided by
                  the  equipment   vendor  will  function   properly  under  all
                  simulated (non-destructive) alarm conditions.

4.0      Credits for Service Outages

         4.1      On-Net Service:  For On-Net  circuits,  Customer shall qualify
                  for  credits  in an  amount  equal to  1/1440  of the  monthly
                  recurring   charge   applicable  to  such  circuits  for  each
                  half-hour (or portion  thereof) of a Service Outage rounded up
                  to the next half-hour.

         4.2      Off-Net Service: For Type II Service where a Service Outage is
                  on the Network portion of the Service, the credit procedure in
                  Section 4.1, above,  shall apply to the Network portion of the
                  Service.  For Type II Service where a Service  interruption is
                  on the  non-Network  portion of the  Service,  Customer  shall
                  qualify for credits in an amount equal to the credits  awarded
                  by the Off-Net  provider to Carrier for the  specific  Service
                  interruption. For Type III Service, Customer shall qualify for
                  credits  in an  amount  equal to the  credits  awarded  by the
                  Off-Net   provider  to  Carrier  for  the   specific   Service

5.0      Termination  for Chronic  Severe  Outages  (On-Net  Fully  Redundant or
         Protected Service, only): Upon written notice to Carrier,  Customer may
         terminate  on On-Net  circuit  without  further  liability,  except for
         charges for Service rendered prior to  disconnection,  in the event the
         On-Net circuit  experiences three (3) or more Service Outages amounting
         to an aggregate  period of eight (8) or more hours over any ninety (90)
         day period.


                                   APPENDIX 2

                             MAINTENANCE AND REPAIR

1.0      Performance Monitoring and Reporting.

         1.1      Carrier will be responsible for performing surveillance on its
                  major systems.  However,  Customer may also perform monitoring
                  of Customer's  leased  bandwidth  from  Carrier's  demarcation
                  point at the expense of Customer.

         1.2      Carrier will  sectionalize  faults occurring within the system
                  localized to the Customer system elements as follows:  Carrier
                  transmission  equipment  on the end user  premises;  equipment
                  between Carrier and Carrier's demarcation point.

2.0      Maintenance and Repair

         2.1      Any  maintenance  required  n the  Carrier's  system  will  be
                  performed  by  Carrier  or its  designated  contractors  at no
                  additional cost to Customer.

2.2               Any  maintenance or service  function  performed by Carrier on
                  its  Network  which will or could  affect  Service  provide by
                  Customer  to end  users  will  be  coordinated  and  scheduled
                  through  Customer  contacts  for  maintenance  and  escalation
                  purposes and provide updated lists to Carrier, as necessary.

         2.3      Response  & Repair  Time.  In the event of an  On-Net  Service
                  Outage,   when  necessary,   Carrier  will  make  commercially
                  reasonable  efforts to have  repair  personnel  on site within
                  four (4) hours of learning of the Service Outage. Carrier will
                  use commercially  reasonable efforts to restore the Service on
                  the failed system as follows:

                  (i)      Electronic  Restoration.  In the  event of an  On-Net
                           electronic  failure,  Carrier  will use  commercially
                           reasonable efforts to restore Service to the affected
                           electronics within two (2) hours.

                  (ii)     Cable  Restoration.  Carrier  will  use  commercially
                           reasonable  efforts to restore the cable within eight
                           (8) hours of failure.

         2.4      Carrier will  maintain a twenty-four  (24) hours a day,  seven
                  (7) days a week  point-of-contact  to whom Customer can report
                  system trouble or faults.

         2.5      Equipment Spares.  Carrier will provide all maintenance spares
                  plus repair and return service of defective parts.

         2.6      Scheduled Maintenance.

                  2.6.1    Scheduled  routing   maintenance  will  be  performed
                           during  specified  customer  maintenance  windows and
                           will be communicated in advance to Customer.  Carrier
                           will notify Customer upon completion of the scheduled
                           maintenance work.

2.6.2                      Maintenance which may place the system in jeopardy or
                           require  system down time will  normally be performed
                           during the "Maintenance Window" of 12:00 midnight and
                           6:00 a.m.  Eastern time or, upon Customer's  request,
                           at a time mutually agreed to by Customer and Carrier.
                           Maintenance  that may place the system in jeopardy or
                           require   system  down  time  will  be  cleared  with
                           Customer no less than forty-eight (48) hours prior to
                           commencement.   Notwithstanding  the  foregoing,  the
                           Customer understands and agrees that any time Carrier
                           may  perform  emergency  maintenance,   in  its  sole
                           discretion  and  without  notice,   to  preserve  the
                           overall integrity of its Network.


                                   APPENDIX 3


1.0      Contacts and Contac  Lists.  Once an order is placed by  Customer,  and
         Carrier  has  provided an  acknowledgement  of receipt of such order to
         Customer pursuant to this Appendix 3, all communications by Customer to
         Carrier  with  respect  to such  order  prior to and  after  activation
         (including,  without limitation, any Customer notice of cancellation or
         early  termination)  shall be made to the Account Manager identified in
         the  acknowledgement  of receipt.  Communications  between Customer and
         Carrier  pertaining to Service  related issues shall be as set forth in
         contact lists exchange by the Parties.

2.0      Ordering  Vehicle.  Orders  shall  be  placed  by use of an  ASR.  Upon
         acceptance  of an ASR by  Carrier,  the  ASR  shall  form  part  of the

3.0      Standard On-Net SONET/SDH Service Installation Interval,  Expedites and
         On-Net Service  Installation Delay Credits.  The standard  installation
         interval for On-Net  SONET/SDH  Service is ten (10)  business days from
         Carrier's  receipt of a complete  and  accurate  ASR that  Carrier  has
         available  capacity to provision (a "clean ASR").  Notwithstanding  the
         foregoing,  the Requested  Service Date set forth on a clean ASR is not
         binding  upon  Carrier.   If  Customer   desires  to  expedite  Service
         installation,  Customer shall so inform  Carrier.  Carrier will provide
         Customer with the  applicable  expedite fee,  which is determined on an
         individual  case  basis.  Customer  shall then inform  Carrier  whether
         Customer  desires Carrier to process the Due Date specified on the Firm
         Order  Confirmation,  as described  in Section  4.11,  below,  and such
         failure is not caused by, or contributed to, directly or indirectly, by
         any act or omission of Customer,  third  parties or other causes beyond
         the  reasonable  control of  Carrier,  Customer  shall be entitled to a
         credit  equal  to ten  percent  (10%)  of  the  first  month's  monthly
         recurring  charge  for the  affected  circuit  for  each  day of  delay
         beginning  on the sixth  (6th)  day,  not to  exceed a  maximum  of one
         hundred  (100%)  of  the  affected   circuit's  first  month's  monthly
         recurring  charge.  The foregoing  remedy shall be Customer's  sole and
         exclusive remedy for any installation  delay,  regardless of the cause,
         and for however  long it shall  last,  and no such  installation  delay
         shall be deemed an Event of Default.

4.0      Service Order Intervals and Procedures

4.1      On-Net Service Requests:

         4.11     The ASR and Firm Order  Confirmation-  Customer  will transmit
                  ASR's to Carrier via facsimile or e-mail. Following receipt of
                  the ASR, Carrier shall provide an  acknowledgement  of receipt
                  to Customer via  facsimile or e-mail.  In the event the ASR is
                  acceptable  to Carrier  (i.e.,  the ASR  contains all required
                  information and capacity is available to provision the order),
                  Carrier  will  issue  a Firm  Order  Confirmation  ("FOC")  to
                  Customer  via  facsimile  or  e-mail.   The  FOC   constitutes
                  Carrier's  acceptance of the ASR,  Carrier will provide FOC to
                  Customer   within   two  (2)   business   days  of   Carrier's
                  acknowledgement  of  receipt  of a clean  ASR.  The  FOC  will
                  provide an estimated  in-service date identified on the FOC as
                  the "Due  Date."  Theis  Due  Date  supersedes  the  Requested
                  Service Date set forth on the ASR. In the event the ASR is not
                  acceptable  to  Carrier,  Carrier  will  provide a response to
                  Customer  noting the basis for rejection of the ASR within two
                  (2) business days of receipt.

                  Where an ASR,  acknowledgement of receipt of an ASR, a FOC, an
                  Acceptance    Notice   and/or   a   communication    regarding
                  cancellation or early termination is delivered via e-mail, the
                  e-mail  must  reflect  as its  origin  the  authorized  e-mail
                  address or identity of the sending Party (i.e.,  in the "From"


         4.12     Design  Layout  Record  ("DLR") -  Carrier  will  provide  DLR
                  information  within five (5) business  days of issuance of the
                  FOC unless the order has an expedited  Due Date, in which case
                  the Parties may agree to a different date for provision of the

4.2      Off-Net Service Requests:

         4.21     Request  for  Quotation  - Customer  will  submit to Carrier a
                  request for quotation ("RFQ) specifying the Service requested,
                  the location to be served,  the requested  Service  activation
                  date, the circuit term, and other information  specific to the
                  applicable RFQ.

         4.22     Carrier  Quotation - Carrier  shall,  within five (5) business
                  days of receipt of an RFQ,  contact  Customer  verbally  as to
                  whether or not Carrier can provide the requested  Service.  If
                  Carrier is willing to provide service,  Carrier shall,  within
                  ten  (10)  business  days  of  receipt  of an RFQ,  submit  to
                  Customer a written quotation specifying: (i) the Service to be
                  provided; (ii) the location to be served; (iii) the applicable
                  non-recurring  charge;  (iv) the applicable  monthly recurring
                  charge;  (v) the Service term;  (vi)j the anticipated  Service
                  activation  date based upon the date of receipt of  Customer's
                  order; and (vii) any other terms and conditions  applicable to
                  the particular Off-Net Service,  such as cancellation  charges
                  and installation delay credits, if any.

         4.23     ASR - If Carrier has submitted a quotation under  Subparagraph
                  4.22,  above,  Customer may order the Service  within five (50
                  days of receipt of such  quotation  by tendering to Carrier an
                  ASR  with a copy of the  quotation  attached.  Thereafter  the
                  procedures set forth in  Subparagraphs  4.11 and 4.12,  above,
                  shall apply.

5.0      Cancellation and Early Termination Charges

5.1      For On-Net Service:

         There will be no cancellation  charge if the On-Net Service is canceled
         prior to the  issuance  of the DLR.  If the On-Net  Service is canceled
         after the DLR is issued, but prior to the Service Date,  Customer shall
         pay Carrier's then-current  cancellation charge for that Service. On or
         after the Service Date,  Customer may terminate On-Net Service prior to
         the  expiration  of the Service term by providing  Carrier  thirty (30)
         days' prior written notice of termination, and Customer will be subject
         to a termination charge, as liquidated damages and not as a penalty, in
         the amount of:

         a.       100% of the total monthly  recurring  charges specified in the
                  ASR for the Service  multiplied by the remaining months in the
                  first year of the term, plus

         b.       50% of the total monthly  recurring  charges  specified in the
                  ASR for the Service  multiplied by the remaining  months after
                  the first twelve (12) months of the term.

         Notwithstanding the foregoing, Customer may terminate an On-Net circuit
         that has been in service  for a period of net less than  twelve  months
         without being subject to early termination  charges under the following
         conditions:  (1)  Customer  provides  Carrier no less than  thirty (30)
         days'  written  notice of Customer's  termination/disconnection  of the
         circuit and during that thirty (30) day period, Customer submits an ASR
         acceptable to Carrier for a new circuit and Customer specifies that the
         new circuit  replaces an earlier one and  specifically  identifies  the
         circuit being replaced, and (2) the aggregate monthly recurring charges
         of the new  circuit  over  its term are  equal to or  greater  than the


         payments  Carrier would have  received for the  terminated/disconnected
         circuit over the remainder of its term,  plus Customer pays to Carrier,
         upon thirty (30) days of invoice, any nonrecurring costs Carrier incurs
         as  a  result  of   terminating/disconnecting   the   circuit   and  an
         non-recurring  charge for installation of the new circuit. In the event
         any one of these conditions is not satisfied,  or if the new circuit is
         cancelled prior to activation,  applicable  early  termination  charges
         will apply to the  terminated  circuit.  In  addition,  during any time
         period  between  the  disconnection  of  the  terminated   circuit  and
         activation  of the  replacement  circuit,  Customer will continue to be
         charged, and agrees to pay Carrier, the monthly recurring charge of the
         terminated circuit.

5.2      For Off-Net Service:

         For cancellations  prior to the Service Date,  Customer shall be liable
         for any charges  assessed Carrier by the Off-Net provider and any other
         charges  incurred by  Carrier.  For any  termination  after the Service
         Date,  Customer  shall be liable to  Carrier  for one  hundred  percent
         (100%) of the total monthly  recurring charges specified in the ASR for
         the Service multiplied by the remaining months of the term.

5.3      Liquidated Damages:

         The  Parties  agree  that  Carrier's  damages  in the event of  Service
         cancellation  or termination  are difficult or impossible to ascertain.
         Therefore,  the Parties agree that the liquidated  damages set forth in
         the Section 5 are mutually-agreed  upon as reasonable estimates thereof
         and are not intended as a penalty.


                                   APPENDIX 6


This  Service  Acceptance  Notice has been  prepared  pursuant to the  broadband
services sales agreement (the "Agreement")  between Progress Telecom  ("Carrier)
and Insert Customer Name  ("Customer").  Carrier has completed the  installation
and testing of the following facilities in accordance with the Agreement:

Progress CKT ID

Customer PON

Customer Circuit ID

A LOC                               Z LOC

Capacity                   Completion Date
Service Type               Date

By their respective  signatures below,  Carrier certifies,  and Customer agrees,
that the  above-described  facilities  have been  tested and that the results of
such  tests  (which  are  attached  hereto)  conform  to the  applicable  System
Acceptance Criteria.

Acceptance  shall be deemed to have  occurred  if  Customer  does not respond in
writing within Insert Contractual Interval of receipt of this Service Acceptance
Notice stating with specificity the reason(s) that the circuit does not meet the
applicable System Acceptance Criteria.

Please contact our provisioning  department at 727-820-5400  during the business
hours of 8:00 am to 5:00 pm, Eastern Time,  Monday through Friday,  when you are
ready to place live traffic  over the  circuit.  After  business  hours,  please
contact our Network  Operations Center at 877-782-6621.  Prior to acceptance and
the placement of live traffic over the circuit,  facilities  will be turned down
in the event of an alarm(s)  due to  monitoring  issues in  connection  with our
network. Thank you for you cooperation.

Carrier Representative:                              Date:
                       ----------------------------        ---------------------
Customer Representative:                             Date:
                        ---------------------------        ---------------------
Service Acceptance Date:


The  facilities  tested  DO NOT  meet the  System  Acceptance  Criteria  for the
following reasons:






Customer Representative: _________________________________ Date: _______________


Progress Telecom
A Progress Energy Company

October 17, 2003

Direct Partner Telecom, Inc.
110 East Broward Blvd.
Suite 1100
Ft. Lauderdale, FL 33301
Facsimile: (954) 357-4654
Attention: James L. Magruder, Jr.

Re:      FlexBand 3D Proposal

Dear Mr. Magruder:

This letter constitutes a legally binding letter agreement ("Letter Agreement")
between Progress Telecom Corporation ("Progress Telecom') and Direct Partner
Telecom, Inc. ("DPT") governing DPT's order of broadband capacity from Progress
Telecom pursuant to the "Lit Capacity Proposal For Direct Partner Telecom,"
dated October 17, 2003 (the "Proposal").

Progress Telecom and DPT agreeing to be legally bound, hereby agree as follows:

1.       Except as specifically set forth in the Proposal or this Letter
         Agreement, all broadband capacity orders submitted by DPT to Progress
         Telecom shall be governed by the terms and conditions of the Broadband
         Capacity Services Agreement entered into between Progress Telecom and

2.       DPT has selected the 2nd FlexBand - 48 alternative set forth on page 6
         of the Proposal, which calls for an initial order of twenty-four (24)
         DS-3 equivalents for a monthly recurring charge ("MRC") of [ * ]. DPT
         and Progress Telecom agree that upon activation of the first
         circuit(s), DPT will be liable for an MRC of [ * ], and no later than
         ninety (90) days after the date of this Letter Agreement, whether or
         not all circuits in the initial Phase 1 order have been activated, DPT
         will be liable for an MRC of $[ * ]. Subsequent specified minimum
         commitments remain unchanged. DPT has selected the five (5) year term
         and associated Turn-Up Schedule that includes specified minimum DS-3
         equivalent commitments over the five (5) year term. For purposes of the
         specified minimum commitments over the five (5) year term, excluding
         the initial Phase 1 order, the lowest DS-3 equivalent pricing will
         apply incrementally to the required DS-3 equivalents in excess of the
         initial first twenty-four (24) DS-3 equivalents. The five (5) year term
         commences upon activation of the first DS-3/circuit and all subsequent
         orders are co-terminus with that initial DS-3/circuit.



3.       DPT circuits that are ordered as part of the Proposal can be moved as
         long as the A and Z locations remain locations covered by the selected
         alternative, subject to the following: (i) DPT shall pay a one-time
         charge of $500 per move (ii) if Progress Telecom is requested to order
         the new cross connect(s), the cross-connect fees will be passed through
         to DPT at the new location(s), and (iii) any cross-connect termination
         fees incurred by Progress Telecom at the abandoned location(s) shall be
         passed through to DPT.
4.       Unless otherwise requested by DPT, DPT will order necessary cross
         connects. If Progress Telecom is requested to order any cross connects,
         the cross-connect fees will be passed through to DPT.
5.       If, upon the three (3) year anniversary date of this Letter Agreement,
         Progress Telecom's on-net rates for like circuits have decreased by
         twenty percent (20%) or more, Progress Telecom agrees to enter into
         good faith negotiations with DPT to decrease rates for new circuits on
         a going-forward basis.
6.       Progress Telecom agrees that it will arrange with DPT to provide DPT
         collocation space at the NAP of the Americas for one rack and will only
         charge DPT for power on a pass-through basis.
7.       Upon execution of this Letter Agreement by both Progress Telecom and
         DPT, any copy, duplicate or facsimile of this executed Letter Agreement
         will be valid and legally binding with the same force and effect as the
         executed Letter Agreement bearing original signatures.

If you are in agreement with the foregoing, please so indicate by signing this
Letter Agreement below and returning by facsimile the fully-executed letter to

Sincerely yours,

Progress Telecom Corporation

By:    /s/ P. J. Aiello
Name:   P. J. Aiello
Title:     VP Sales & Marketing

Accepted and agreed to this 17th                             (SEAL)
day of October, 2003.

Direct Partners Telecom, Inc.

By:    /s/ James L. Magruder
Name:   James L. Magruder
Title:     CEO