EXHIBIT 10.48
CONFIDENTIAL PORTION MARKED [*************] HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
FIBER LEASE AGREEMENT
dated April 26, 2002
between
Xxxxxxxx Communications, LLC
and
Metromedia Fiber National Network, Inc.
TABLE OF CONTENTS
ARTICLE 1. Definitions....................................................1
ARTICLE 2. TERMINATION OF FIBER LEASE.....................................3
ARTICLE 3. GRANT OF LEASE AND BACKBONE ACCESS.............................3
ARTICLE 4. CONSIDERATION; FEES............................................4
ARTICLE 5. DELIVERY AND ACCEPTANCE........................................5
ARTICLE 6. COLLOCATION AND MAINTENANCE....................................8
ARTICLE 7. AUTHORIZATIONS.................................................8
ARTICLE 8. Intentionally Omitted..........................................9
ARTICLE 9. INTERCONNECTION OF LESSEE'S SYSTEM.............................9
ARTICLE 10. USE OF THE LESSEE FIBER.......................................11
ARTICLE 11. PAYMENT TERMS.................................................11
ARTICLE 12. INDEMNIFICATION...............................................12
ARTICLE 13. INSURANCE.....................................................12
ARTICLE 14. Taxes and Franchise, License and Permit Fees..................13
ARTICLE 15. Notice........................................................14
ARTICLE 16. Confidentiality and Publicity.................................15
ARTICLE 17. DEFAULT.......................................................16
ARTICLE 18. FORCE MAJEURE.................................................17
ARTICLE 19. ARBITRATION...................................................18
ARTICLE 20. ASSIGNMENT....................................................18
ARTICLE 21. RULES OF CONSTRUCTION.........................................19
ARTICLE 22. Representations and Warranties................................21
ARTICLE 23. LIMITATION OF LIABILITY.......................................22
ARTICLE 24. AUDIT RIGHTS..................................................23
ARTICLE 25. IMPROPER PAYMENTS PROHIBITED..................................23
ARTICLE 26. ENTIRE AGREEMENT; AMENDMENT; EXECUTION........................23
EXHIBITS:
Exhibit A Fiber Testing Specifications
Exhibit B Lessee Fiber and Maps
Exhibit C Buildings
Exhibit D Form of As-Builts
Exhibit E Construction Specifications
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Agreement") is made as of the 26 day of
April, 2002, (the "Effective Date") by and between XXXXXXXX COMMUNICATIONS, LLC,
a Delaware limited liability company ("Xxxxxxxx Communications") and METROMEDIA
FIBER NATIONAL NETWORK, INC., a Delaware corporation ("Lessee").
BACKGROUND
X. Xxxxxxxx Communications owns or controls interstate fiber optic communication
systems located in the continental United States (the "Xxxxxxxx Communications
System");
X. Xxxxxxxx Communications desires to grant to Lessee a lease ("Lease") in
certain optical fibers in the Xxxxxxxx Communications System and Lessee desires
to accept a Lease in such fibers, all upon the terms and conditions set forth in
this Agreement.
TERMS OF AGREEMENT
Accordingly, in consideration of the mutual promises set forth below and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS
The following terms shall have the stated definitions in this Agreement.
"ACCEPTANCE DATE" means the date when Lessee delivers (or is deemed to have
delivered) a notice of acceptance with respect to each delivery of Lessee Fiber
as further described in Section 5.3.
"AFFILIATE" means, with respect to any entity, an entity controlling, controlled
by, or under common control with such entity by means of direct or indirect
equity ownership or otherwise. As used in this Agreement, "control" shall mean
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person or entity, whether through
the ownership of voting securities, by contract or otherwise.
"BACKBONE ACCESS" shall have the meaning set forth in Section 3.4.
"BACKBONE ACCESS CHARGES" shall have the meaning set forth in Section 4.2.
"BUILDING" means any transmission site, regeneration site, or point-of-presence
("POP").
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in Section 16.1.
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"COSTS" means actual and directly related costs accumulated in accordance with
the established accounting procedure used by Xxxxxxxx Communications or Lessee
or their respective contractors or subcontractors, as the case may be, which
costs include the following: (a) labor costs, including wages, salaries,
benefits and overhead allocable to such labor costs (Lessee's or Xxxxxxxx
Communications' overhead allocation percentage shall not exceed the lesser of
(i) the percentage such party allocates to its internal projects or (ii) one
hundred and thirty percent (130%), and (b) other direct costs and out-of-pocket
expenses on a pass-through basis (e.g., equipment, materials, supplies, contract
services, etc.).
"DELIVERY DATE" means each date Xxxxxxxx Communications delivers or previously
delivered Lessee Fiber to Lessee, including all test deliverables.
"DEMARCATION POINT" means the point where Xxxxxxxx Communications's
installation, maintenance and operation obligations terminate as further
described in Article 9.
"DIVERSITY" means the provision of physically separated optical facilities that,
when equipped with suitable optronics, are capable of providing an alternate
transmission path without human or mechanical intervention. The alternate
facilities shall, except at each Demarcation Point, have at least thirty (30)
feet of separation in any direction and shall not be on the same poles, towers,
river crossings, bridges, viaducts, elevated walkways, or similar structures.
"EQUIPMENT" means Lessee's electronic, optronic and power equipment necessary
for the operation of the Lessee Fiber.
"EXPIRATION DATE" shall have the meaning set forth in the definition of "Term"
below.
"FACILITY OWNERS/LENDERS" means any entity (other than Xxxxxxxx Communications):
(a) owning any portion of the System or any property or security interest
therein, (b) leasing to Xxxxxxxx Communications, or providing an Lease to
Xxxxxxxx Communications in, any portion of the System, or (c) that is a lender
(including any party holding legal title or a security interest in the Xxxxxxxx
Communications System as a lessor or a creditor) with respect to Xxxxxxxx
Communications or any Affiliates of Xxxxxxxx Communications.
"FIBER ACCEPTANCE TESTING" shall have the meaning set forth in Section 5.2(a).
"FIBER TESTING SPECIFICATIONS" are set forth in Exhibit A.
"LESSEE FIBER" shall have the meaning set forth in Section 3.1.
"RELEASED PARTY" means each of the following:
(a) any Affiliates of the other party and any Facility Owners/Lenders;
(b) any employee, officer, director, stockholder, partner, member, or
trustee of the other party or of its Affiliates or Facility Owners/Lenders; or
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(c) assignees of the entities included in the above subparagraphs (a)
or (b) and any employee, officer, director, stockholder, partner, member, or
trustee of such assignees.
"RIGHT-OF-WAY AUTHORIZATIONS" means any underlying agreements, easements,
permits, or licenses, by which Xxxxxxxx Communications obtains rights to perform
its obligations hereunder with respect to the Xxxxxxxx Communications System,
Buildings and Lessee Fiber from:
(a) underlying owners of real or personal property, or right-of-way
holders,
(b) grantors of IRU or other rights or licenses with respect to all or
a portion of its System,
(c) parties granting duct usage and pole attachment rights, and
(d) any governmental authority (including franchising agencies,
environmental regulation agencies, and public utility commissions).
"SPLICE POINT" is defined in Section 9.1.
"TERM" begins on the Effective Date and expires 20 years after the latest
Acceptance Date (the "Expiration Date") under this Agreement.
ARTICLE 2. TERMINATION OF FIBER LEASE
This Agreement cancels and replaces the Fiber Lease Agreement dated September
16, 1999 between the parties covering the Xxxxxxxx Communications System,
including all amendments thereto (the "Fiber Lease"). Immediately upon the
Effective Date, the Fiber Lease is terminated and of no further force and
effect.
ARTICLE 3. GRANT OF LEASE AND BACKBONE ACCESS
3.1 LESSEE FIBER. Unless otherwise converted to an IRU pursuant to Section 3.6,
Xxxxxxxx Communications grants to Lessee a Lease in 27,000 fiber miles in the
MFN System (the "Lessee Fiber") for a period of 20 years beginning on the
Acceptance Date for each segment, which Lessee Fiber is identified by segment in
Exhibit B. To the extent the Acceptance Date for any Lessee Fiber has not
occurred as of the Effective Date, Xxxxxxxx Communications has the obligation to
design, engineer, install, and construct or acquire such Lessee Fiber. Unless
otherwise accepted by Lessee, all Lessee Fiber shall provide Diversity. Lessee
agrees to pay the fees set forth in Section 4.1 for the Lessee Fibers.
3.2 LEASE LIMITATIONS. The Lease granted to Lessee hereunder and any rights
granted by Lessee to third party users, are subject to all Right-of-Way
Authorizations applicable to the Xxxxxxxx Communications System and the
Buildings. Lessee will adhere to the requirements of all such Right-of-Way
Authorizations. The Lease of the Lessee Fiber hereunder does not convey
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any legal title to any real or personal property, including the fibers, cable,
or the Xxxxxxxx Communications System. This Lease does not include any Equipment
used to transmit capacity over, or to "light," the Lessee Fiber.
3.3 BUILDING TERMINATION. Xxxxxxxx Communications is obligated to terminate the
Lessee Fiber at a Demarcation Point serving the Buildings listed in Exhibit C.
To the extent the Lessee Fiber does not terminate at the Buildings listed in
Exhibit C as of the Effective Date, Xxxxxxxx Communications has the obligation
to design, engineer, install, and construct or acquire fiber and terminate such
fiber at such Buildings. All such terminations established by Xxxxxxxx
Communications shall comply with the relevant Fiber Testing Specifications
(including the splice loss and optical fiber specifications) set forth in
Exhibit A and with relevant telecommunications industry practices.
3.4 BACKBONE ACCESS. Lessee may access the Lessee Fibers along the backbone of
the Xxxxxxxx Communications System at any Building or mutually agreed upon
Splice Point. Lessee agrees to pay the Backbone Access Payment set forth in
Section 4.2 for such Backbone Access.
3.5 CONVERSION TO IRU. At any time during the Term, upon the request of Lessee
and Lessee's payment to Xxxxxxxx Communications of the net present value of the
Lease Payments and Backbone Access Payments calculated based upon a mutually
agreed upon discount rate, Xxxxxxxx Communications shall grant to Lessee an
Indefeasible Right of Use to the Lessee Fibers and Backbone Access equal to the
remaining term of this Agreement.
ARTICLE 4. CONSIDERATION; FEES
4.1 LEASE PAYMENTS. Xxxxxxxx Communications represents that the fiber miles set
forth in Exhibit B, are either the actual fiber miles (calculated as the route
miles traversed by the Lessee Fiber multiplied by the number of Lessee Fibers on
the route) or a bona fide estimate thereof.
(a) Except as set forth in the following subsection, Lessee shall make
monthly payments to Xxxxxxxx Communications in advance during the Term, in an
amount calculated as [*****] PER FIBER MILE PER MONTH ("Lease Payments") based
27,000 fiber miles set forth in Exhibit B, for a total lease payment of
[********] during the Term. Lease payments begin upon the Effective Date.
(b) The parties agree that Lessee shall make monthly payments in the
amount of [***********] (80,140 fiber miles) up through and including the April
billing (for May service) which represents the monthly charge for 6 fibers along
the route of the Lessee Fiber (the "Penalty Fee"). Thereafter, Lessee shall only
be responsible for Lease Payments equal to the monthly charge for the Lessee
Fibers set forth in Exhibit B. The Penalty Fee is in exchange for the downsizing
of Lessee's commitment in the Fiber Lease to the commitment represented by this
Agreement.
4.2 BACKBONE ACCESS PAYMENTS. In exchange for Backbone Access, Lessee shall make
monthly payments to Xxxxxxxx Communications in advance ("Backbone Access
Payment").
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(a) The Backbone Access Payment is calculated as follows:
Total Price per
Number of fibers fiber per
terminated interconnection
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4.3 PAYMENT TERMS. Building Access Payments and Lease Payments commence on the
first day of the month beginning with the month after the Acceptance Date of the
relevant Lessee Fiber and/or Building, except that the first payment shall
include payment from the Acceptance Date to the last day of the month during
which the Acceptance Date occurs, as well as payment for the first full month
after the Acceptance Date. Lessee shall continue making such payments through
the first day of the month in which the Expiration Date occurs, unless the
Agreement is terminated prior to the Expiration Date as herein provided. All
payments are payable in accordance with Article 11.
4.4 NO BACKBONE ACCESS PAYMENTS AT POPS. Xxxxxxxx Communications will not charge
a Backbone Access Payment for termination within Xxxxxxxx Communications POPs,
transmission sites or regeneration sites where Lessee is collocating with
Xxxxxxxx Communications, or at Lessee's POPs.
ARTICLE 5. DELIVERY AND ACCEPTANCE
5.1 DELIVERY. To the extent not already delivered by Xxxxxxxx Communications and
accepted by Lessee, Xxxxxxxx Communications will use commercially reasonable
efforts to deliver the Lessee Fiber and Buildings by the scheduled Delivery Date
for each stated in Exhibit B and Exhibit C, respectively. In the event Xxxxxxxx
Communications anticipates a failure to deliver
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any of the Lessee Fiber or Buildings by the scheduled Delivery Date, the parties
will designate representatives to meet and review the status of the delivery. If
the scheduled Delivery Date for any segment of Lessee Fiber or a Building is in
fact delayed, such delay will be considered a triggering event for the accrual
of liquidated damages to the Lessee as follows:
(a) Subject to subsections (b), (c) and (d) below, and provided the
delay is not caused in whole or in part by Lessee, Lessee is entitled to a
credit against monthly charges in an amount equal to [***] per fiber mile of the
segment of Lessee Fiber for which the Delivery Date is delayed per month until
such time as such segment is delivered, and a credit against monthly charges in
an amount equal to [******] per delayed Building per month until delivered
("Liquidated Damages");
(b) Liquidated Damages for each segment of Lessee Fibers is limited to
50% of the present value of the total monthly charges payable based on [******]
per fiber mile (using a discount factor of [***]) associated with the fiber
miles for the delayed segment. As an example, if a segment consisting of [***]
fiber miles is delayed under the Agreement, the present value of monthly charges
for that segment is [***********], and the total maximum Liquidated Damages
payable to Lessee for the delayed segment, regardless of duration of delay is
[***********]. Partial months of delay will be credited on a daily pro-rated
basis;
(c) Liquidated Damages for Lessee Fiber for all delays are limited to
[***] of the then-current monthly invoicing of [******] per fiber mile to
Lessee. As an example, if Xxxxxxxx Communications is currently billing Lessee
[********] per month, Lessee is entitled to a maximum of [********] per month in
Liquidated Damages, regardless of the number of delayed segments;
(d) Lessee may terminate the Agreement with respect a delayed segment
of Lessee Fibers or a delayed Building upon 15 days prior written notice to
Xxxxxxxx Communications, unless and until delivery actually occurs. Upon
termination, Liquidated Damages will cease to accrue for the terminated segments
and/or Buildings, and Xxxxxxxx Communications has no further payment obligations
with respect to such segment.
The parties agree that the Liquidated Damages represent a reasonable estimate of
anticipated damages incurred by Lessee in the event of a delay of a segment of
Lessee Fiber or a Building. The Liquidated Damages and termination of a segment
with a reduction of payment obligations are the sole and exclusive remedies of
the Lessee and the sole and exclusive liabilities of Xxxxxxxx Communications
with respect to a delivery delay, and provided each party has complied with the
terms of this Section 5.1, under no circumstances will a delay in the Delivery
Date for a segment of Lessee Fiber or a Building be considered a default.
5.2 ACCEPTANCE AND TESTING OF FIBERS
(a) XXXXXXXX COMMUNICATIONS TESTING. Xxxxxxxx Communications shall give
notice to Lessee at least 21 days prior to the date Xxxxxxxx Communications
intends to begin testing of Lessee Fiber ("Fiber Acceptance Testing"). Lessee
shall have the right, but not the obligation, to have a representative present
at such Fiber Acceptance Testing. Xxxxxxxx
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Communications shall perform Fiber Acceptance Testing of the Lessee Fiber and
provide test deliverables to Lessee in accordance with Exhibit A.
(b) OBJECTIONS TO TEST RESULTS. Lessee shall have 21 calendar days
after receipt of test deliverables to provide Xxxxxxxx Communications written
notice of any bona fide determination by Lessee that the Lessee Fiber does not
meet the Fiber Testing Specifications. Such notice shall identify the specific
data that indicate a failure or other specific reasons that such Lessee Fiber
fail to meet the Fiber Testing Specifications.
(c) RESPONSE TO OBJECTIONS. Upon receiving written notice from Lessee
pursuant to Section 5.2(b), Xxxxxxxx Communications shall either: (i)
expeditiously take such action as shall be reasonably necessary to cause such
portion of the Lessee Fiber to meet the Fiber Testing Specifications and then
re-test the Lessee Fiber in accordance with the provisions of this Article; or
(ii) provide Lessee written notice that Xxxxxxxx Communications disputes
Lessee's determination that the Lessee Fiber does not meet the Fiber Testing
Specifications. After taking corrective actions and re-testing the Lessee Fiber,
Xxxxxxxx Communications shall provide to Lessee a copy of the new test
deliverables and Lessee shall again have all rights provided in this Article
with respect to such new test deliverables. The cycle described above of
testing, taking corrective action and re-testing shall take place until the
Lessee Fiber is accepted.
(d) INDEPENDENT TESTING. If Xxxxxxxx Communications provides notice to
Lessee pursuant to Subsection 5.2(c)(ii), Lessee shall within five calendar days
of such notice designate by written notice to Xxxxxxxx Communications the names
and addresses of three reputable and independent fiber optic testing companies.
Xxxxxxxx Communications shall designate one of such companies to conduct an
independent re-test of the Lessee Fiber for the relevant Lessee Fiber. If, after
such re-testing, the testing company determines that the Lessee Fiber so tested:
(i) meet the Fiber Testing Specifications, then Lessee shall pay the testing
company's charges for performing the testing and the Acceptance Date for the
relevant Lessee Fiber shall be 21 calendar days after the date that Xxxxxxxx
Communications originally provided its test deliverables; or (ii) do not meet
the Fiber Testing Specifications, then Xxxxxxxx Communications shall pay the
testing company's charges for performing the testing and shall perform the
corrective action and re-testing set forth in Subsection 5.2(c)(i).
5.3 ACCEPTANCE. Unless Lessee provides a timely written objection pursuant to
Section 5.2, the Acceptance Date for each delivery occurs on the twenty-first
calendar day after the Delivery Date, or, if earlier, the date Lessee (a)
provides written acceptance of the Lessee Fiber or Building or (b) commences use
of the Lessee Fiber or Building. Any failure by Lessee to accept or reject the
Lessee Fiber within the 21-day period, or any use of the Lessee Fiber by Lessee
Fiber for any purpose other than testing, constitutes acceptance for purposes of
this Agreement and Lessee is deemed to have accepted upon such use or on the
22nd day after the Delivery Date.
5.4 AS-BUILT DRAWINGS. Xxxxxxxx Communications will provide to Lessee, within
180 days of the Acceptance Date, as-built drawings of Lessee Fiber in the format
described in Exhibit D to this Agreement.
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5.5 INTRABUILDING EXTENSIONS. Lessee may elect to obtain either fiber optic or
metallic (e.g., coaxial cable or copper twisted pair) extensions between a
Xxxxxxxx Communications Demarcation Point at a Building and another point within
the same Building. Upon written request for either such extension setting forth
the design and terminating location of such extension, Xxxxxxxx Communications
shall, at its sole discretion and in accordance with its then-standard order
intervals, either (a) construct a Lessee-owned riser for a nonrecurring charge
equal to its Cost; (b) designate at least one, but up to three, reputable
Xxxxxxxx Communications-approved contractors authorized to perform such work, in
which case Xxxxxxxx Communications shall have no responsibility for such
extension and Lessee shall deal directly with any such contractor for
Lessee-owned risers; or (c) provide Xxxxxxxx Communication-owned riser at
Xxxxxxxx Communications' then-current charge. Xxxxxxxx Communications shall
reasonably cooperate with any such approved contractors selected by Lessee to
allow them to perform such work.
5.6 USE OF PARTIALLY COMPLETED SEGMENT. If Xxxxxxxx Communications has not
delivered a segment of Lessee Fiber by the scheduled Delivery Date, but some
portions of the segment are available for use, Xxxxxxxx Communications shall,
upon request of Lessee, permit Lessee to use such available portions and Lessee
shall pay a pro rata share of the lease payment with respect to the Lessee
Fibers in such segment. In addition, in the event that Lessee elects to accept a
portion of a segment of Lessee Fiber prior to the time that a complete segment
or ring is available for use, the late fee payment set forth in Section 5.1
shall be reduced in proportion to the Lessee Fibers in the segment or ring being
utilized.
5.7 EARLY DELIVERY. In the event that Xxxxxxxx Communications has any Lessee
Fibers available prior to the scheduled Delivery Date, Xxxxxxxx Communications
may give notice to Lessee, offering to deliver such Lessee Fibers prior to the
scheduled Delivery Date therefore. Lessee shall advise Xxxxxxxx Communications
whether or not Lessee desires to begin using such Lessee Fibers prior to the
scheduled Delivery Date. If Lessee elects to begin such use prior to the
scheduled Delivery Date, the Term of such Lessee Fibers and payment obligations
shall commence upon the actual Acceptance Date thereof.
ARTICLE 6. COLLOCATION AND MAINTENANCE
Collocation, operation and maintenance of the Lessee Fiber is governed by the
Collocation and Maintenance Agreement, dated contemporaneously with this
Agreement.
ARTICLE 7. AUTHORIZATIONS
7.1 MAINTAINING AUTHORIZATIONS. Xxxxxxxx Communications shall use commercially
reasonable efforts to maintain, renew, or replace the Right-of-Way
Authorizations during the Term. If Xxxxxxxx Communications determines it is not
commercially reasonable to maintain, renew or replace any of its existing
Right-of-Way Authorizations during the Term, then Xxxxxxxx Communications shall
give notice to Lessee and shall cooperate with Lessee, at Lessee's written
request, to attempt to maintain, renew or replace such Right-of-Way
Authorizations, at Lessee's sole Cost. During the last three years of the Term,
upon written notice from Lessee requesting
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such information, Xxxxxxxx Communications shall promptly provide written notice
of the status (including any potential or pending terminations or expirations)
of Right-of-Way Authorizations relating to the Lessee Fiber, including but not
limited to whether or not Xxxxxxxx Communications intends to extend or renew any
Right-of-Way Authorizations. In the event that during the Term any Right-of-Way
Authorization expires or is terminated and is not replaced, Lessee shall have
the right upon 30 days prior written notice to Xxxxxxxx Communications, to
terminate the Lease with respect to the Lessee Fiber affected by such expired or
terminated Right-of-Way Authorization. Upon such termination, Lessee's
obligation to make any Lease payments with respect to which the Lease has been
terminated shall expire.
7.2 EXTENSION OF LEASE TERM. To the extent Xxxxxxxx Communications has elected
to maintain or extend or replace Right-of-Way Authorizations with respect to
this Lease beyond the Term, Lessee may request an extension of the Term of such
Lease, and Xxxxxxxx Communications agrees to negotiate with Lessee with respect
to such extension, but Xxxxxxxx Communications shall have no obligation to grant
any such extension.
ARTICLE 8. INTENTIONALLY OMITTED
ARTICLE 9. INTERCONNECTION OF LESSEE'S SYSTEM
9.1 SPLICE POINTS. In the event Lessee seeks to establish its own
interconnection with the Lessee Fiber to establish Backbone Access, Xxxxxxxx
Communication shall provide, at Lessee's Cost, fiber drops from interconnection
points at Xxxxxxxx Communication System to the edge of Xxxxxxxx Communications
right-of-way at points mutually agreed upon in writing by the parties ("Splice
Point(s)"). Xxxxxxxx Communications shall use commercially reasonable efforts to
provide Splice Points at the locations requested by Lessee subject to the
limitations in the Right-of-Way Authorizations. Subject to the terms of the
Right-of-Way Authorizations and Section 9.3, Xxxxxxxx Communications shall also
provide Lessee reasonable access to any such Splice Points. Unless otherwise
agreed, Lessee must provide and install Lessee-owned manholes/handholes and/or
conduit to the selected Xxxxxxxx Communications manhole/handhole for Splice
Point interconnection. All work in Xxxxxxxx Communications manholes/handholes
and splice enclosures, including splicing and manhole/handhole penetration, will
be managed and supervised by Xxxxxxxx Communications.
9.2 DEMARCATION POINT.
(a) BUILDINGS. The Demarcation Point for a Building shall be at:
(i) Xxxxxxxx Communications' fiber patch panel or the DSX-N
panel (as designated by Xxxxxxxx Communications) for interconnections at
Buildings having either of such panels; or
(ii) the furthest point inside a Building, including a local
exchange carrier's central office, to which Xxxxxxxx Communications is allowed
to take the fiber; and, to the extent Xxxxxxxx Communications is later allowed
to install or access a fiber patch panel or DSX-N
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panel inside of such Building, such point shall become the Demarcation Point and
Xxxxxxxx Communications agrees to deliver Lessee Fiber to such point.
Where neither of the Demarcation Points described in (i) or (ii) above exist,
the Demarcation Point shall be selected by Xxxxxxxx Communications consistent
with reasonable industry and Xxxxxxxx Communications practices.
(b) SPLICE POINTS. The Demarcation Point for each Splice Point is at
the Lessee-provided manhole/handhole unless otherwise agreed upon by the
parties..
9.3 ADDITIONAL LIMITATIONS ON INTERCONNECTION RIGHTS. Lessee's exercise of the
right to interconnect with Lessee Fibers for Backbone Access as set forth in
Section 3.4 and Section 9.1 shall be subject to any prohibitions or restrictions
in Xxxxxxxx Communications' Right-of-Way Authorizations. Lessee may not
establish an interconnection that Xxxxxxxx Communications, in its reasonable
discretion (applied without unreasonable discrimination with respect to
interconnections made by Xxxxxxxx Communications or third parties), determines
is likely to materially and adversely affect the Xxxxxxxx Communications System.
9.4 FACILITIES OWNERSHIP AND CONTROL. Lessee shall retain ownership of any
portion of facilities on its side of the Demarcation Point during the Term of
this Agreement and Xxxxxxxx Communications shall have no obligation to maintain,
repair, relocate, or monitor such Lessee facilities (including any fiber drop
facilities established pursuant to Section 9.1). Lessee shall not access a
splice, splice box, splice vault, or similar facility interconnecting with
Xxxxxxxx Communications' System. Xxxxxxxx Communications shall perform any work
required with respect to such splice facilities and may invoice Lessee for the
Cost of performing such work at the request of Lessee (except to the extent the
work relates to the termination in a Building).
9.5 LESSEE RESPONSIBILITY. Subject to the provisions herein, Lessee shall be
responsible for obtaining the rights required and for all costs of:
(a) obtaining rights of way within or beyond Xxxxxxxx Communications'
Right-of-Way Authorizations;
(b) obtaining building access, entry rights, ducts, or riser cables to
interconnect in buildings or any access beyond Xxxxxxxx Communications'
Demarcation Point with respect to a Building;
(c) providing all Equipment and Xxxxxxxx Communications-approved
materials to construct and install each interconnection, including cables and
conduit and any labor charges associated therewith; and
(d) bringing facilities to and connecting them with Xxxxxxxx
Communications' System.
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9.6 THIRD PARTY RELATIONS. If necessary, and where applicable, Xxxxxxxx
Communications shall assist Lessee, at Lessee's Cost, in obtaining from any land
or building owner, Xxxxxxxx Communications, or private or governmental
right-of-way owner, any rights required to access and exit interconnection
points. Lessee shall use reasonable efforts to avoid damaging the relationships
between Xxxxxxxx Communications and such third parties.
ARTICLE 10. USE OF THE LESSEE FIBER
10.1 OBLIGATION TO COMPLY WITH LAWS; EXCLUSIVE USE. Lessee shall comply in all
material respects with all applicable government codes, ordinances, laws, rules,
regulations, Right-of-Way Authorizations and/or restrictions in its use of
Xxxxxxxx Communications' System. Subject to Article 20, Lessee may use the
Lessee Fiber for any lawful telecommunications purpose. Xxxxxxxx Communications
shall have no right to use Lessee Fiber during the Term of this Agreement.
10.2 SYSTEM DAMAGE. Xxxxxxxx Communications and Lessee shall promptly notify
each other of any matters pertaining to any damage or impending damage to or
loss of the Xxxxxxxx Communications System that are known to such party. Lessee
shall take all commercially reasonable precautions against, and shall assume
liability, subject to the terms herein, for, any damage caused by it to the
Xxxxxxxx Communications System. Lessee shall not use the Lessee Fiber in a way
that interferes in any material way with or materially adversely affects the use
of any fibers of Xxxxxxxx Communications or the Xxxxxxxx Communications System.
10.3 REGULATORY COOPERATION. Each party shall cooperate with and support the
other in complying with any requirements applicable to the Xxxxxxxx
Communications System imposed by any governmental or regulatory agency or
authority.
10.4 LIENS. Lessee shall not cause or permit any part of the Xxxxxxxx
Communications System to become subject to any mechanics lien, materialmans
lien, vendors lien, or any similar lien whether by operation of law or
otherwise. If Lessee breaches its obligations under this Section, it shall
immediately notify Xxxxxxxx Communications in writing, shall promptly cause such
lien to be discharged and released of record without cost to Xxxxxxxx
Communications, and shall indemnify Xxxxxxxx Communications against all costs
and expenses (including reasonable attorney's fees and court costs at trial and
on appeal) incurred in discharging and releasing such lien.
ARTICLE 11. PAYMENT TERMS
11.1 TIME AND METHOD OF PAYMENT. Monthly payments for Lease Fiber and Backbone
Access shall be made by wire transfer, to the account designated on the invoice
of Xxxxxxxx Communications, within thirty (30) days of the delivery of such
invoice. Except as otherwise set forth in this Agreement, all other amounts due
hereunder shall be paid within 30 calendar days of the invoice delivery date.
Except as otherwise provided, payments may be made by check or draft of
immediately available funds delivered to the address designated in writing by
the other party (e.g., in a statement or invoice) or, failing such designation,
to the address for notice
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provided pursuant to Section 15.1. Except as set forth herein, a party may issue
an invoice after incurring any costs subject to reimbursement by the other party
or after the time period during which a charge accrues.
11.2 LATE PAYMENT CHARGES. If Lessee fails to make any payment under this
Agreement when due, such unpaid amounts shall accrue interest, from the date
such payment is due until paid, including accrued interest, at the lower of
eighteen percent (18%) annual interest or the highest percentage allowed by law.
11.3 MONTHLY NETTING AGREEMENT. Notwithstanding anything to the contrary
contained herein, that certain Monthly Netting Agreement between the parties
dated October 30, 2001 shall govern payments made under this Agreement for the
term of such Monthly Netting Agreement.
ARTICLE 12. INDEMNIFICATION
12.1 INDEMNITY OBLIGATION. Each party shall indemnify, defend, protect and hold
harmless the other party, its employees, officers, directors, agents,
shareholders, affiliates, Facility Owners/Lenders, and other parties to
Right-of-Way Authorizations that are entitled to indemnity by such indemnifying
party, from and against, and assumes liability for:
(a) Any injury, loss or damage to any person, tangible property or
facilities of any person or entity (including reasonable attorney's fees and
costs), to the extent arising out of or resulting from the acts or omissions,
negligent or otherwise, of the indemnifying party, its officers, employees,
servants, affiliates, agents or contractors in connection with its performance
under this Agreement; and
(b) Any claims, liabilities or damages arising out of any violation by
the indemnifying party of regulations, rules, statutes or court orders of any
local, state or federal governmental agency, court or body in connection with
its performance under this Agreement.
12.2 NO LIMITATION ON CLAIMS AGAINST OTHER PARTIES. Except as set forth herein,
and subject to the terms of any underlying agreements between Xxxxxxxx
Communications and any third person, nothing contained herein shall operate as a
limitation on the right of either party hereto to bring an action for damages
against any third person, including indirect, special or consequential damages,
based on any acts or omissions of such third person as such acts or omissions
may affect the construction, operation or use of the Lessee Fiber; provided,
however, that each party hereto shall assign such rights of claims, execute such
documents and do whatever else may be reasonably necessary to enable the other
party to pursue any such action against such third person.
ARTICLE 13. INSURANCE
13.1 OBLIGATION TO OBTAIN. During the Term of this Agreement, the parties shall
each obtain and maintain not less than the following insurance:
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(a) Commercial General Liability Insurance, including coverage for sudden and
accidental pollution legal liability, with a combined single limit of
$10,000,000 for bodily injury and property damage per occurrence and in the
aggregate; provided that such coverage may be obtained through a combination of
specific and umbrella or excess liability policies.
(b) Worker's Compensation Insurance in amounts required by applicable law and
Employers Liability Insurance with limits not less than $1,000,000 each
accident. If a party is to perform work in Nevada, North Dakota, Ohio,
Washington, Wyoming, or West Virginia, the party shall participate in the
appropriate state fund(s) to cover all eligible employees and provide a stop gap
endorsement.
(c) Automobile Liability Insurance with a combined single limit of $2,000,000
for bodily injury and property damage per occurrence, to include coverage for
all owned, non-owned, and hired vehicles; provided that such coverage may be
obtained through a combination of specific and umbrella or excess liability
policies.
The limits set forth above are minimum limits and shall not be construed to
limit the liability of either party.
13.2 POLICY REQUIREMENTS. Each party shall obtain and maintain the insurance
policies required above with companies rated A- or better by Best's Key Rating
Guide or with a similar rating by another generally recognized rating agency.
The other party, its Affiliates, officers, directors, and employees, and any
other party entitled to indemnification hereunder shall be named as additional
insureds to the extent of such indemnification. Each party shall provide the
other party with an insurance certificate confirming compliance with the
insurance requirements of this Article. The insurance certificate shall indicate
that the other party shall be notified not less than 30 calendar days prior to
any cancellation or material change in coverage. If either party provides any of
the foregoing coverages through a claims made policy basis, that party shall
cause such policy or policies to be maintained for at least three years beyond
the expiration of this Agreement.
13.3 WAIVER OF SUBROGATION. The parties shall each obtain from the insurance
companies providing the coverages required by this Agreement a waiver of all
rights of subrogation or recovery in favor of the other party and, as
applicable, its members, managers, shareholders, Affiliates, assignees,
officers, directors, and employees or any other party entitled to indemnity
under this Agreement to the extent of such indemnity.
13.4 BLANKET POLICIES; SELF-INSURANCE. Nothing in this Agreement shall be
construed to prevent either party from satisfying its insurance obligations
pursuant to this Agreement (a) under a blanket policy or policies of insurance
that meet or exceed the requirements of this Article or (b) with respect to the
insurance required in Sections 13.1(b) and (c), with the consent of the other
party, which consent shall not be unreasonably withheld, self-insurance.
ARTICLE 14. TAXES AND FRANCHISE, LICENSE AND PERMIT FEES
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14.1 OBLIGATIONS TO PAY RIGHT-OF-WAY CHARGES AND TAXES. The parties acknowledge
that a material premise of this Agreement is that during the Term, Xxxxxxxx
Communications shall obtain, and use commercially reasonable efforts to
maintain, its Right-of-Way Authorizations at its own cost. Xxxxxxxx
Communications shall timely pay any and all (a) taxes, franchise, license and
permit fees based on the physical location of the Xxxxxxxx Communications
System, and/or the construction thereof in or on public roads, highways or
rights-of-way; and (b) Right-of-Way Authorization payments applicable to the
System. Notwithstanding the foregoing, Lessee shall pay any taxes, franchise,
license and permit fees based upon its Lease or use of Lessee Fiber. Failure to
pay such taxes or payments by the party responsible therefor, which continues
after seven (7) calendar days written notice thereof by the other party, shall
authorize, but not obligate, the other party to make such payments and
responsible party shall reimburse the other party for such payments promptly
upon demand together with interest at the rate set forth in Section 14.2 from
the date that the other party made such payment until reimbursed by the
responsible party.
14.2 OBLIGATION TO TIMELY PAY TAXES BASED ON REVENUES. Except as set forth in
Section 14.1, Lessee shall pay any and all sales, use, income, gross receipts or
other taxes assessed based upon revenues Lessee receives due to its use of the
Lessee Fiber.
14.3 RIGHT TO CONTEST TAXES. Notwithstanding any provision herein to the
contrary, a party shall have the right by appropriate proceedings brought in
good faith to protest the imposition and/or amount of any taxes or franchise,
license or permit fees imposed on or assessed against it. In such event, the
protesting party shall indemnify and hold the other party harmless from any
expense, legal action or cost, including reasonable attorney's fees, resulting
from the protesting party's exercise of its rights hereunder.
14.4 PROHIBITION ON AGREEMENTS AFFECTING OTHER PARTY. Without the prior consent
of Lessee, Xxxxxxxx Communications shall not enter into any agreement that would
have the effect of obligating Lessee to pay additional taxes or franchise,
license or permit fees unless such agreement is required by a government or
agency thereof in connection with the grant of a franchise, license, permit or
similar governmental requirement or required pursuant to a Right-of-Way
Authorization.
ARTICLE 15. NOTICE
15.1 ADDRESSES. Unless otherwise provided herein, all notices and communications
concerning this Agreement shall be addressed to the other party as follows:
If to WC: Xxxxxxxx Communications, LLC
Attn: Contract Management
Xxx Xxxxxxxxxx Xxxxxx, XX-0X
Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
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with a copy to: Xxxxxxxx Communications, LLC
Attn: Lease Administration
Xxx Xxxxxxxxxx Xxxxxx, 0X
Xxxxx, XX 00000
Facsimile: (000) 000-0000
and Xxxxxxxx Communications, LLC
Attn: General Counsel
One Technology Center, TC-15A
Tulsa, Oklahoma 7415
Facsimile: (000) 000-0000
If to Lessee: Metromedia Fiber Network Services, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attn: President
Facsimile: (000) 000-0000
With a copy to: Metromedia Fiber Network Services, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
or at such other address as may be designated in writing to the other party (a
party may designate a separate address for delivery of invoices).
15.2 METHOD FOR DELIVERING NOTICES AND INVOICES. Unless otherwise provided
herein, notices and invoices shall be in writing and sent by registered or
certified U.S. Mail, postage prepaid, or by commercial overnight delivery
service, or by facsimile, and shall be deemed served or delivered to the
addressee or its office on the date of receipt acknowledgment, or if by
facsimile, upon confirmation of transmission or if postal claim notices are
given, on the date of its return marked "unclaimed," provided, however, that
upon receipt of a returned notice marked "unclaimed," the sending party shall
make reasonable effort to contact and notify the other party by telephone.
ARTICLE 16. CONFIDENTIALITY AND PUBLICITY
16.1 CONFIDENTIAL INFORMATION. The terms and conditions of this Agreement and
all documents referenced herein, communications between the parties regarding
this Agreement, information provided in connection with or pursuant to this
Agreement or the service to be provided hereunder, as well as any financial or
business information of either party are confidential ("Confidential
Information"). Such Confidential Information shall be held in confidence, and
the receiving party shall afford such Confidential Information the same care and
protection as it affords generally to its own Confidential Information (which in
any case shall be
15
not less than reasonable care) to avoid disclosure to or unauthorized use by any
third party. All Confidential Information shall remain the property of the
disclosing party, shall be used by the receiving party only for its intended
purpose, and such Confidential Information, including all copies thereof, shall
be returned to the disclosing party or destroyed after the receiving party's
need for it has expired or upon the request of the disclosing party.
Confidential Information shall not be reproduced except to the extent necessary
to accomplish the purposes and intent of this Agreement, or as otherwise may be
permitted in writing by the disclosing party. Notwithstanding anything contained
herein to the contrary, neither party shall be required to keep confidential any
information that (a) becomes publicly available other than through the actions
or omissions of the receiving party; (b) is required to be disclosed pursuant to
a governmental or judicial rule, order or regulation; (c) the recipient of the
Confidential Information independently develops; (d) becomes available to the
receiving party without restriction from a third party; (e) is required by its
lender and is given to such lender on a confidential basis; or (f) is subject to
"due diligence" review by a potential acquirer of a significant equity interest
in it or its ultimate or intermediate parent company (a significant equity
interest shall be an interest of at least 5% of the voting equity of a party or
of securities having a market value of at least $100 million) and is given to
such potential acquirer on a confidential basis.
16.2 PUBLICITY. Following the Effective Date, the parties shall coordinate and
cooperate with each other when making public announcements or disclosures to any
governmental entities related to the terms of this Agreement and each party
shall have the right to promptly review, comment upon and approve (such approval
not to be unreasonably withheld or delayed) any publicity materials, press
releases or other public statements or disclosures to governmental entities by
the other party that refer to, or that describe any aspect of this Agreement;
provided, however, that no party shall have an approval right with respect to
any public announcements or disclosures to any governmental entities which are,
in the reasonable judgment of the party making such public announcement or
disclosure, required by law.
ARTICLE 17. DEFAULT
17.1 PARTIAL TERMINATION UPON DEFAULT. Either party, upon written notice to the
other party after the other party's default and the other party's failure to
cure any default in the performance of any material obligation hereunder prior
to the end of the applicable cure period, may terminate this Agreement as herein
provided, provided that at the time of termination such default remains uncured:
(a) Xxxxxxxx Communications may terminate this Agreement, to the extent
that Lessee is the defaulting party; and/or
(b) Lessee may terminate this Agreement, to the extent that the default
relates to the Xxxxxxxx Communications System (or, at Lessee's election, with
respect to any Lessee Fiber for which the Acceptance Date has not occurred as
provided in Article 5), if Xxxxxxxx Communications is the defaulting party.
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17.2 SPECIFIC DEFAULT EVENTS. Events of default shall include but not be limited
to: (a) the making of a general assignment for the benefit of the defaulting
party's creditors; (b) the filing of a voluntary petition in bankruptcy or the
filing of a petition in bankruptcy or other insolvency protection against the
defaulting party which is not dismissed within 90 calendar days thereafter; (c)
the filing by the defaulting party of any petition or answer seeking, consenting
to, or acquiescing in reorganization, arrangement, adjustment, composition,
liquidation, dissolution, or similar relief; (d) any violation by Lessee of the
restrictions set forth in Section 20.3.
17.3 CURE PERIOD. The cure period applicable to Section 17.1 shall be:
(a) with respect to a default in payment, the period ending ten (10)
business days after a written notice of such default is given;
(b) with respect to any other default, the period ending 30 calendar
days after a written notice of such default is given, provided, however, that if
such default cannot with reasonable diligence be cured within such 30-day
period, and such other party has commenced to effect a cure immediately upon
receipt of such notice, and diligently pursues such cure, then such cure period
will be extended for a period reasonably required to cure such default but in no
event more than an additional 30 calendar days.
17.4 FAILURE TO CURE. Upon the failure by the defaulting party to timely cure
any such default after notice thereof from the other party, the other party may,
subject to the provisions of Section 19, take such action as it determines, in
its sole discretion, to be necessary to correct the default, and pursue any
legal remedies it may have under this Agreement, applicable law, or principles
of equity relating to such breach.
17.5 WAIVER OF SPECIFIC DEFAULTS. Any event of default by the defaulting party
may be waived under the terms of this Agreement at the other party's option. Any
such waiver shall be in writing.
17.6 DISPUTED AMOUNTS. Notwithstanding the other provisions of this Article,
failure to pay an amount subject to a bona fide dispute shall not be an event of
default (until such dispute is resolved pursuant to Article 19 or otherwise) to
the extent the disputed amount is (a) less than $100,000 or (b) paid into an
escrow account of a nationally chartered domestic bank with offices in
New York
pending resolution of the dispute. The interest rate set forth in Section 11.2
shall apply to amounts so withheld or paid into escrow by one party and later
awarded to the other party, but the party paying such amounts into escrow shall,
upon closing of an escrow account, be entitled to any interest received from,
and responsible for paying any fees charged by, the bank holding the escrow
funds.
ARTICLE 18. FORCE MAJEURE
Neither party shall be in default under this Agreement with respect to any delay
in such party's performance (other than the payment of monetary amounts due
under this Agreement) caused by any of the following conditions: act of God,
fire, flood, material shortage or unavailability not
17
resulting from the responsible party's failure to timely place orders therefor,
lack of transportation, government codes, ordinances, laws, rules, regulations
or restrictions, war or civil disorder, or any other cause beyond the reasonable
control of such party, provided that the party claiming relief under this
Section shall promptly notify the other in writing of the existence of the event
relied on and the cessation or termination of said event. The party claiming
relief under this Section shall exercise commercially reasonable efforts to
minimize the time for any such delay.
ARTICLE 19. ARBITRATION
19.1 OBLIGATION TO ARBITRATE. Any dispute or disagreement relating to this
Agreement or any matter arising between Lessee and Xxxxxxxx Communications in
connection with this Agreement which is not settled to the mutual satisfaction
of Lessee and Xxxxxxxx Communications within 30 calendar days from the date that
either party informs the other in writing that such dispute or disagreement
exists, shall be settled by arbitration by a single arbitrator in Chicago,
Illinois, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association in effect on the date that such notice is given. If the
parties are unable to agree on a single arbitrator within fifteen calendar days,
the American Arbitration Association shall select an arbitrator. The decision of
the arbitrator shall be final and binding upon the parties and shall include
written findings of law and fact, and judgment may be obtained thereon by either
party in a court of competent jurisdiction. Each party shall bear the cost of
preparing and presenting its own case. The cost of the arbitration, including
the fees and expenses of the arbitrator, shall be shared equally by the parties
unless the award otherwise provides.
19.2 EXCEPTIONS TO ARBITRATION OBLIGATION. The obligation herein to arbitrate
shall not be binding upon any party with respect to requests for preliminary
injunctions, temporary restraining orders or other procedures in a court of
competent jurisdiction to obtain interim relief when deemed necessary by such
court to preserve the status quo or prevent irreparable injury pending
resolution by arbitration of the actual dispute.
ARTICLE 20. ASSIGNMENT
20.1 RESTRICTIONS ON ASSIGNMENT. Except as provided in the second sentence of
this Section, neither party shall assign or otherwise transfer this Agreement or
its rights or obligations hereunder to any other party without the prior written
consent of the other party, which consent shall not be unreasonably withheld or
delayed. Either party shall have the right, without the other party's consent,
to assign or otherwise transfer this Agreement in whole or in part as collateral
to any lender or to any of its Affiliates or to any corporation into which it
may be merged or consolidated or which purchases all or substantially all of its
assets.
20.2 AGREEMENT BINDS SUCCESSORS. This Agreement and each of the party's
respective rights and obligations under this Agreement, shall be binding upon
and shall inure to the benefit of the parties hereto and each of their
respective successors and permitted assigns. Any assignment or transfer shall be
subject to the other party's rights under this Agreement and any assignee or
transferee shall continue to perform the assigning party's obligations under
this Agreement.
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20.3 RESTRICTION ON TRANSFER OF DARK FIBER RIGHTS. Xxxxxxxx Communications is
providing the Lessee Fiber for Lessee's exclusive use. Lessee may not sublease,
swap, assign, license, sublicense, sell or share the Lessee Fiber as "dark
fiber", as such term is commonly understood in the telecommunications industry.
20.4 FINANCING ARRANGEMENTS. Either party shall have the right, directly or
through an Affiliate, to enter into financing arrangements (including secured
loans, leases, sales with lease-back, or leases with lease-back arrangements,
purchase-money or vendor financing, conditional sales transactions, or other
arrangements) with one or more financial institutions, vendors, suppliers or
other financing sources that, with respect to Xxxxxxxx Communications, relate to
the Xxxxxxxx Communications System and, with respect to Lessee, relate to
Lessee's Lease rights (and not to any property right in the Xxxxxxxx
Communications System or the Lessee Fiber).
ARTICLE 21. RULES OF CONSTRUCTION
21.1 GOVERNING LAW. This Agreement shall be deemed a
New York agreement and
shall be governed by and construed in accordance with the domestic laws of the
State of
New York applicable to
New York agreements, without reference to its
choice of law principles.
21.2 INTERPRETATION. The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement or as
amplifying or limiting any of its content. Words in this Agreement that import
the singular connotation shall be interpreted as plural, and words that import
the plural connotation shall be interpreted as singular, as the identity of the
parties or objects referred to may require. References to "person" or "entity"
each include natural persons and legal entities, including corporations, limited
liability companies, partnerships, sole proprietorships, business divisions,
unincorporated associations, governmental entities, and any entities entitled to
bring an action in, or that are subject to suit in an action before, any state
or federal court of the United States. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be followed
by the words "without limitation." "Days" refers to calendar days, except that
references to "business days" exclude Saturdays, Sundays and holidays during
which nationally chartered banks in
New York,
New York are authorized or
required to close. Unless expressly defined herein, words having well-known
technical or trade meanings shall be so construed.
21.3 CUMULATIVE REMEDIES. Except as set forth to the contrary herein, any right
or remedy of either party shall be cumulative and without prejudice to any other
right or remedy, whether contained herein or not.
21.4 NO THIRD-PARTY RIGHTS. Nothing in this Agreement is intended to provide any
legal rights to anyone not an executing party of this Agreement except under the
indemnification and insurance provisions and except (a) as set forth in Sections
22.4 and 23.2 and (b) that the Facility Owners/Lenders shall be entitled to rely
on and have the benefit of Article 23.
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21.5 AGREEMENT FULLY NEGOTIATED. This Agreement has been fully negotiated
between and jointly drafted by the parties.
21.6 DOCUMENT PRECEDENCE. In the event of a conflict between the provisions of
this Agreement and those of any Exhibit, the provisions of this Agreement shall
prevail and such Exhibits shall be corrected accordingly.
21.7 INDUSTRY STANDARDS. Except as otherwise set forth herein, for the purpose
of this Agreement the normal standards of performance within the
telecommunications industry in the relevant market shall be the measure of
whether a party's performance is reasonable and timely.
21.8 CROSS REFERENCES. Except as the context otherwise indicates, all references
to Exhibits, Parts, Schedules, Articles, Sections, Subsections, Clauses, and
Paragraphs refer to provisions of this Agreement.
21.9 LIMITED EFFECT OF WAIVER. The failure of either Xxxxxxxx Communications or
Lessee to enforce any of the provisions of this Agreement, or the waiver thereof
in any instance, shall not be construed as a general waiver or relinquishment on
its part of any such provision, but the same shall nevertheless be and remain in
full force and effect.
21.10 SEVERABILITY. If any term, covenant or condition in this Agreement shall,
to any extent, be invalid or unenforceable in any respect under the laws
governing this Agreement, the remainder of this Agreement shall not be affected
thereby, and each term, covenant or condition of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
21.11 NO PARTNERSHIP CREATED. The relationship between Xxxxxxxx Communications
and Lessee shall not be that of partners, agents, or joint venturers for one
another, and nothing contained in this Agreement shall be deemed to constitute a
partnership or agency agreement between them for any purposes, including federal
income tax purposes. The parties, in performing any of their obligations
hereunder, shall be independent contractors or independent parties and shall
discharge their contractual obligations at their own risk.
21.12 NO REIMBURSEMENT. Unless provided otherwise herein, each party shall
perform its obligations without right of reimbursement or contribution from the
other party.
21.13 RIGHT TO SUBCONTRACT. Xxxxxxxx Communications or the underlying facility
owner may subcontract for any of its obligations hereunder, including splicing
and testing services. Xxxxxxxx Communications may fulfill its obligations to
provide Lessee Fiber in its System by constructing, acquiring title to,
acquiring rights in, leasing, entering into financing leases, or otherwise
obtaining a right to use its System or various portions thereof. The use of any
such subcontractor, underlying Lease provider, financing arrangement, or other
arrangement shall not relieve Xxxxxxxx Communications of its obligations
hereunder.
21.14 SURVIVAL. No termination or expiration of this Agreement, either in part
or in whole, shall affect the rights or obligations of any party hereto: (i)
with respect to any payment hereunder for
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services rendered prior to the date of termination; (ii) pursuant to Articles
12, 13, 14, 16, 19, 21, 23, and 24 entitled Indemnification; Insurance; Taxes
and Franchise, License, and Permit Fees; Confidentiality and Publicity;
Arbitration; Rules of Construction; Limitation of Liability; and Audit Rights;
respectively; or (iii) pursuant to other provisions of this Agreement that, by
their sense and context, are intended to survive termination of this Agreement.
ARTICLE 22. REPRESENTATIONS AND WARRANTIES
22.1 AGREEMENT VALIDITY. Each party represents and warrants that:
(a) It has the full right and authority to enter into, execute, deliver
and perform its obligations under this Agreement;
(b) It has taken all requisite corporate action to approve the
execution, delivery and performance of this Agreement;
(c) This Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms;
(d) Its execution of and performance under this Agreement shall not
violate any applicable existing regulations, rules, statutes or court orders of
any local, state or federal government agency, court or body; and
(e) It has the right pursuant to such party's Right-of-Way
Authorizations to grant the rights to the other party as set forth in this
Agreement.
22.2 ACCEPTANCE DATE REPRESENTATIONS. As of the Acceptance Date for any Lessee
Fiber, Xxxxxxxx Communications represents that:
(a) Xxxxxxxx Communications or the underlying facility owner for any
portion of the Lessee Fiber shall have obtained all Right-of-Way Authorizations
necessary for the installation and use of the Lessee Fiber hereunder;
(b) Xxxxxxxx Communications shall have obtained by Lease agreement,
lease, or otherwise the right to use portions of the Lessee Fiber it does not
own;
(c) Xxxxxxxx Communications shall have obtained all Right-of-Way
Authorizations for the Lessee Fiber;
(d) no Right-of-Way Authorizations for such Lessee Fiber impose
unreasonable limitations or requirements on Lessee's exercise of its rights
under this Agreement; and
(e) the Lessee Fiber has been designed, engineered, installed, and
constructed in accordance with the specifications set forth in Exhibit E and in
compliance with all applicable
21
building, construction and safety codes for such construction and installation,
as well as any and all other applicable governmental laws, codes, ordinances,
statutes and regulations.
22.3 DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT,
Xxxxxxxx Communications MAKES NO WARRANTY TO LESSEE OR ANY OTHER PERSON OR
ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE DESCRIPTION, QUALITY,
MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF ANY FIBERS OR ANY
SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL
OF WHICH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED.
22.4 NO THIRD-PARTY WARRANTIES. NO FACILITY OWNERS/LENDERS HAVE MADE ANY
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO LESSEE CONCERNING
Xxxxxxxx Communications, LESSEE FIBERS, THE CABLE, OR THE SYSTEM OR AS TO ANY OF
THE MATTERS SET FORTH IN SECTIONS 22.1 OR 22.2. NO LESSEE LENDERS HAVE MADE ANY
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO Xxxxxxxx
Communications CONCERNING LESSEE, LESSEE FIBERS, THE CABLE, ANY LEASES OR THE
Xxxxxxxx Communications SYSTEM OR AS TO ANY OF THE MATTERS SET FORTH IN SECTIONS
22.1 OR 22.2 OR AS TO ANY OTHER MATTER.
ARTICLE 23. LIMITATION OF LIABILITY
23.1 RESTRICTION ON TYPES OF LIABILITY. Notwithstanding any provision of this
Agreement to the contrary, in no event shall either party be liable to the other
party for any special, incidental, indirect, punitive, reliance or consequential
damages, whether foreseeable or not, arising out of, or in connection with this
Agreement, in tort, breach of contract, breach of warranty, strict liability or
any other cause of action, including damage or loss of property or equipment,
loss of profits or revenue, cost of capital, cost of replacement services, or
claims of customers, whether occasioned by any repair or maintenance performed
by, or failed to be performed by, the first party or any other cause whatsoever.
23.2 NO RECOURSE AGAINST RELEASED PARTIES. Neither party shall have any recourse
of any kind against any Released Party or any assets of a Released Party under
this Agreement, it being expressly agreed and understood that no liability
whatever shall attach to or be incurred by any Released Party under or by reason
of this Agreement or any other instrument, arrangement or understanding related
to Lessee Fiber. Each party waives all such recourse to the extent set forth in
this Section on behalf of its successors, assigns, and any entity claiming by,
through, or under such party.
23.3 NO PERSONAL LIABILITY. Each action or claim against any party arising under
or relating to this Agreement shall be made only against such party as a
corporation, and any liability relating thereto shall be enforceable only
against the corporate assets of such party. No party shall seek to xxxxxx the
corporate veil or otherwise seek to impose any liability relating to, or arising
from, this Agreement against any shareholder, employee, officer, director or
agent of the other party. Each
22
of such persons is an intended beneficiary of the mutual promises set forth in
this Section and shall be entitled to enforce the obligations or provisions of
this Section.
ARTICLE 24. AUDIT RIGHTS
Each party shall keep such books and records (which shall be maintained on a
consistent basis and substantially in accordance with generally accepted
accounting principles) as shall readily disclose the basis for any charges
(except charges fixed in advance by this Agreement or by separate agreement of
the parties) or credits, ordinary or extraordinary, billed or due to the other
party under this Agreement and shall make them available for examination, audit,
and reproduction by the other party and its agents for a period of one year
after such charge or credit is billed or due. To the extent a party seeks
reimbursement of out-of-pocket costs or services provided on a per-hour basis,
it shall provide reasonable supporting documentation to the other party.
ARTICLE 25. IMPROPER PAYMENTS PROHIBITED
Neither party shall use any funds received under this agreement for illegal or
otherwise "improper" purposes. Neither party shall pay any commission, fees or
rebates to any employee of the other party. If either party has reasonable cause
to believe that one of the provisions in this article has been violated, it, or
its representative, may audit the books and records of the other party for the
sole purpose of establishing compliance with such provisions.
ARTICLE 26. ENTIRE AGREEMENT; AMENDMENT; EXECUTION
26.1 INTEGRATION; INCORPORATION; MODIFICATION. This Agreement constitutes the
entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior agreements whether written or
oral relating to the subject matter hereof, which are of no further force or
effect. The Exhibits and Schedules referred to herein are integral parts hereof
and are hereby made a part of this Agreement. This Agreement may be modified or
supplemented only by an instrument in writing executed by a duly authorized
representative of each party.
26.2 COUNTERPARTS; EXECUTION. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
instrument. A party may duly execute and deliver this Agreement by execution and
facsimile delivery of the signature page of a counterpart to the other party,
provided that, if delivery is made by facsimile, the executing party shall
promptly deliver a complete counterpart that it has executed to the other party.
23
In confirmation of their consent to the terms and conditions contained in this
Agreement and intending to be legally bound hereby, the parties have executed
this Lease Agreement as of the date first above written.
METROMEDIA FIBER NATIONAL NETWORK, INC., a Delaware corporation
Signature: /s/ Xxxxxxx X. La Perch
-------------------------------------------------
(Print) Name: Xxxxxxx X. La Perch
---------------------------------------------
(Print) Title: President
---------------------------------------------
XXXXXXXX COMMUNICATIONS, LLC, a Delaware limited liability company
Signature: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
(Print) Name: Xxxxxx X. Xxxxxx
---------------------------------------------
(Print) Title: President & CEO
---------------------------------------------
24
EXHIBIT A
XXXXXXXX FIBER SPLICING, TESTING AND
ACCEPTANCE STANDARDS AND PROCEDURES
1. Testing
X. Xxxxxxxx Communications shall use an optical time domain
reflectometer ("OTDR") to test splices and shall use an OTDR and a 1-km launch
reel to test pigtail connectors. Such initial construction tests shall be
uni-directional and performed at 1550 nm.
B. The loss value of the pigtail connector and its associated splice
measured from a two point uni-directional OTDR test will not exceed 0.8 dB. For
values greater than this, the splice will be broken and re-spliced until an
acceptable loss value is achieved. If after five (5) attempts, the contractor is
not able to produce a loss value less than 0.8 dB, the splice will be marked as
Out-of-Spec (OOS). The pigtail connector and associated splice with launch box
connector shall not have reflectance >-45dB, i.e., -43 dB or -41 dB is
unacceptable. If cleaning does not reduce reflectance then contractor must
re-splice a new pigtail.
C. If the loss value for a splice, when measured in one direction with
an OTDR, exceeds 0.15 dB, Xxxxxxxx Communications shall break the splice and
re-splice until the loss value is 0.15 dB or less, provided that, if Xxxxxxxx
Communications is not able to achieve a loss value of 0.15 dB after three total
splicing attempts, then the maximum loss value shall be 0.3 dB. If, after two
additional resplicing attempts, Xxxxxxxx Communications is not able to achieve a
loss value of 0.3 dB or less, then Xxxxxxxx Communications shall xxxx the splice
as Out-of-Spec (OOS).
2. End-to-End Testing
A. After Xxxxxxxx Communications has established end-to-end
connectivity on the fibers during initial construction, it shall:
o perform bi-directional end-to-end tests,
o test continuity to confirm that no fibers have been
"frogged" or crossed at any splice points,
o record loss measurements using a light source and a power
meter, and
o take OTDR traces and record splice loss measurements.
X. Xxxxxxxx Communications shall perform the bi-directional end-to-end
tests and OTDR traces at both 1310 nm and 1550 nm, provided that 1310nm OTDR
tests are not required for spans longer than 64 kilometers. Xxxxxxxx
Communications shall measure and verify losses for each splice point in both
directions and average the loss values. The average of all bi-directional splice
losses within each span shall be 0.15 dB or less. Xxxxxxxx Communications shall
xxxx any splice point as Out-of-Spec (OOS) that has an average loss value, based
on bi-directional OTDR testing, in excess of 0.3 dB. No reflective splices will
be accepted.
Exhibit A - Page 1
3. Post-Construction Testing
After performing permanent resplicing (in conjunction with repair of a cable
cut, replacement of a segment of cable, or other work after initial installation
and splicing of the cable), the test procedures set forth in Section 2
(End-to-End Testing) of this Exhibit, shall apply to the relevant fibers and
cable segments. The provisions in Sections 4 (OTDR Equipment and Settings) and 5
(Acceptance Test Deliverables) of this Exhibit, that are relevant to such
testing shall also apply. Xxxxxxxx Communications may, after the Acceptance
Date, adopt any alternative methods of testing that are generally accepted in
the industry and that provide sufficient data to fulfill the objectives of the
tests set forth in this exhibit.
4. Out-of-Spec Splices
Out-of-Spec splices shall be noted, but shall not preclude acceptance of a fiber
if the Out-of-Spec condition does not affect transmission capability (based on
use of then-prevailing telecommunications industry standards applicable to
equipment generally used with the relevant type of fiber) or create a
significant possibility of an outage.
5. OTDR Equipment and Settings
Xxxxxxxx Communications shall use OTDR equipment and settings that are, in its
reasonable opinion, suitable for performing accurate measurements of the fiber
installed. Such equipment and settings shall include, without limitation, the
Laser Precision TD3000 and CMA4000 models and compatible models for OTDR
testing, and the following settings:
A. Index of refraction settings:
1310 nm 1550 nm
----------------- ----------------
Lucent Truwave 1.4738 1.4732
Corning SMF-28 1.4675 1.4681
Corning SMF-LS 1.471 1.470
Corning LEAF 1.470 1.469
Sumitomo fiber 1.467 1.467
Exhibit A - Page 2
6. Acceptance Test Deliverables
Xxxxxxxx Communications shall provide data sheets or computer media containing
the following information for the relevant fibers and cable segments:
A. Verification of end-to-end fiber continuity with power level
readings for each fiber taken with a light source and power meter.
B. Verification that the loss at each splice point is either (i) below
0.3 dB or (ii) in accordance with the requirements of Section 4 of this Exhibit.
C. The final bi-directional OTDR test data, with distances.
D. Cable manufacturer, cable type (buffer/ribbon), fiber type, cable
reel number, number of fibers, number of fibers per tube, and distance of each
section of cable between splice points.
E. Final pigtail OTDR test data
7. General Testing Procedures and Delivery of Test Results
A. If Xxxxxxxx Communications Fiber Acceptance Testing of a Selected
Segment begins prior to the twentieth (20th) day after the Effective Date, then
Xxxxxxxx Communications shall provide Lessee with a copy of the test
deliverables on a Segment-by-Segment basis by twenty (20) calendar days after
the later of (i) the conclusion of such Fiber Acceptance Testing of a Segment or
(ii) the Effective Date.
B. If Xxxxxxxx Communications Fiber Acceptance Testing begins on or
after the twentieth (20th) day after the Effective Date, the provisions of this
subsection shall apply. Xxxxxxxx Communications Fiber Acceptance Testing shall
progress Segment by Segment along the Route as cable splicing progresses, so
that test deliverables may be reviewed in a timely manner. Lessee shall have the
right, but not the obligation, to have an individual present to observe the
Fiber Acceptance Testing. Within twenty (20) calendar days after the conclusion
of any Fiber Acceptance Testing of the Lessee Fibers conducted by Xxxxxxxx
Communications in any given Segment, Xxxxxxxx Communications shall provide
Lessee with a copy of the test deliverables.
X. Xxxxxxxx Communications shall, upon written request, provide Lessee
with its testing schedule for any Segment promptly after developing such
schedule.
Exhibit A - Page 3
8. Lessee Testing
The following procedures shall apply to Lessee testing:
A. If Xxxxxxxx Communications' Fiber Acceptance Testing begins on or
after the twentieth (20th) day after the Effective Date, Lessee may perform its
own concurrent Fiber Acceptance Testing of the Lessee Fibers at the same time
Xxxxxxxx Communications performs testing at each location. If Lessee elects to
perform such testing, it shall notify Xxxxxxxx Communications of its intent to
do so no later than ten (10) days after the Effective Date. The parties shall
cooperate to facilitate such separate, but concurrent, Fiber Acceptance Testing,
provided that the Lessee shall conform to Xxxxxxxx Communications testing
schedule.
B. If Xxxxxxxx Communications' Fiber Acceptance Testing begins prior to
the twentieth (20th) day after the Effective Date, or if Lessee does not elect
to perform concurrent testing pursuant to Subsection 8.A of this Exhibit, Lessee
may perform its own Fiber Acceptance Testing of the Lessee Fibers after Xxxxxxxx
Communications Fiber Acceptance Testing begins. Lessee shall provide Xxxxxxxx
Communications at least seven (7) days' prior notice of Lessee's testing
schedule. Xxxxxxxx Communications shall have the right, but not the obligation,
to have an individual present to observe Lessee's Fiber Acceptance Testing.
C. Within twenty (20) calendar days after the conclusion of any Fiber
Acceptance Testing of the Lessee Fibers conducted by Lessee in any given
Segment, the Lessee shall notify Xxxxxxxx Communications of any detected
failures to meet the specifications set forth in Section 2 of this Exhibit. The
Lessee's exercise or non-exercise of its right to conduct Fiber Acceptance
Testing pursuant shall not extend or shorten the time periods for Lessee to
determine, pursuant to the Agreement, if the Fibers meet the Acceptance
Standards.
D. The Lessee must notify Xxxxxxxx Communications of its intent to
perform acceptance testing within 10 calendar days following the later of the
date it receives notification of route completion or the date it receives the
results of Final Acceptance Testing.
1. Testing
X. Xxxxxxxx Communications shall use an optical time domain
reflectometer ("OTDR") to test splices and shall use an OTDR and a 1-km launch
reel to test pigtail connectors. Such initial construction tests shall be
uni-directional and performed at 1550 nm.
B. The loss value of the pigtail connector and its associated splice
measured from a two point uni-directional OTDR test will not exceed 0.8 dB. For
values greater than this, the splice will be broken and re-spliced until an
acceptable loss value is achieved. If after five (5) attempts, the contractor is
not able to produce a loss value less than 0.8 dB, the splice will be marked as
Out-of-Spec (OOS). The pigtail connector and associated splice with launch box
connector shall not have reflectance >-45dB, i.e., -43 dB or -41 dB is
unacceptable. If cleaning does not reduce reflectance then contractor must
re-splice a new pigtail.
Exhibit A - Page 4
C. If the loss value for a splice, when measured in one direction with
an OTDR, exceeds 0.15 dB, Xxxxxxxx Communications shall break the splice and
re-splice until the loss value is 0.15 dB or less, provided that, if Xxxxxxxx
Communications is not able to achieve a loss value of 0.15 dB after three total
splicing attempts, then the maximum loss value shall be 0.3 dB. If, after two
additional resplicing attempts, Xxxxxxxx Communications is not able to achieve a
loss value of 0.3 dB or less, then Xxxxxxxx Communications shall xxxx the splice
as Out-of-Spec (OOS).
2. End-to-End Testing
A. After Xxxxxxxx Communications has established end-to-end
connectivity on the fibers during initial construction, it shall:
o perform bi-directional end-to-end tests,
o test continuity to confirm that no fibers have been
"frogged" or crossed at any splice points,
o record loss measurements using a light source and a power
meter, and
o take OTDR traces and record splice loss measurements.
X. Xxxxxxxx Communications shall perform the bi-directional end-to-end
tests and OTDR traces at both 1310 nm and 1550 nm, provided that 1310nm OTDR
tests are not required for spans longer than 64 kilometers. Xxxxxxxx
Communications shall measure and verify losses for each splice point in both
directions and average the loss values. The average of all bi-directional splice
losses within each span shall be 0.15 dB or less. Xxxxxxxx Communications shall
xxxx any splice point as Out-of-Spec (OOS) that has an average loss value, based
on bi-directional OTDR testing, in excess of 0.3 dB. No reflective splices will
be accepted.
3. Post-Construction Testing
After performing permanent resplicing (in conjunction with repair of a cable
cut, replacement of a segment of cable, or other work after initial installation
and splicing of the cable), the test procedures set forth in Section 2
(End-to-End Testing) of this Exhibit, shall apply to the relevant fibers and
cable segments. The provisions in Sections 4 (OTDR Equipment and Settings) and 5
(Acceptance Test Deliverables) of this Exhibit, that are relevant to such
testing shall also apply. Xxxxxxxx Communications may, after the Acceptance
Date, adopt any alternative methods of testing that are generally accepted in
the industry and that provide sufficient data to fulfill the objectives of the
tests set forth in this exhibit.
4. Out-of-Spec Splices
Out-of-Spec splices shall be noted, but shall not preclude acceptance of a fiber
if the Out-of-Spec condition does not affect transmission capability (based on
use of then-prevailing telecommunications industry standards applicable to
equipment generally used with the relevant type of fiber) or create a
significant possibility of an outage.
5. OTDR Equipment and Settings
Exhibit A - Page 5
Xxxxxxxx Communications shall use OTDR equipment and settings that are, in its
reasonable opinion, suitable for performing accurate measurements of the fiber
installed. Such equipment and settings shall include, without limitation, the
Laser Precision TD3000 and CMA4000 models and compatible models for OTDR
testing, and the following settings:
A. Index of refraction settings:
1310 nm 1550 nm
----------------- ----------------
Lucent Truwave 1.4738 1.4732
Corning SMF-28 1.4675 1.4681
Corning SMF-LS 1.471 1.470
Corning LEAF 1.470 1.469
Sumitomo fiber 1.467 1.467
Exhibit A - Page 6
6. Acceptance Test Deliverables
Xxxxxxxx Communications shall provide data sheets or computer media containing
the following information for the relevant fibers and cable segments:
A. Verification of end-to-end fiber continuity with power level
readings for each fiber taken with a light source and power meter.
B. Verification that the loss at each splice point is either (i) below
0.3 dB or (ii) in accordance with the requirements of Section 4 of this Exhibit.
C. The final bi-directional OTDR test data, with distances.
F. Cable manufacturer, cable type (buffer/ribbon), fiber type, cable
reel number, number of fibers, number of fibers per tube, and
distance of each section of cable between splice points.
G. Final pigtail OTDR test data
7. General Testing Procedures and Delivery of Test Results
A. If Xxxxxxxx Communications Fiber Acceptance Testing of a Selected
Segment begins prior to the twentieth (20th) day after the Effective Date, then
Xxxxxxxx Communications shall provide Lessee with a copy of the test
deliverables on a Segment-by-Segment basis by twenty (20) calendar days after
the later of (i) the conclusion of such Fiber Acceptance Testing of a Segment or
(ii) the Effective Date.
B. If Xxxxxxxx Communications Fiber Acceptance Testing begins on or
after the twentieth (20th) day after the Effective Date, the provisions of this
subsection shall apply. Xxxxxxxx Communications Fiber Acceptance Testing shall
progress Segment by Segment along the Route as cable splicing progresses, so
that test deliverables may be reviewed in a timely manner. Lessee shall have the
right, but not the obligation, to have an individual present to observe the
Fiber Acceptance Testing. Within twenty (20) calendar days after the conclusion
of any Fiber Acceptance Testing of the Lessee Fibers conducted by Xxxxxxxx
Communications in any given Segment, Xxxxxxxx Communications shall provide
Lessee with a copy of the test deliverables.
X. Xxxxxxxx Communications shall, upon written request, provide Lessee
with its testing schedule for any Segment promptly after developing such
schedule.
Exhibit A - Page 7
8. Lessee Testing
The following procedures shall apply to Lessee testing:
A. If Xxxxxxxx Communications' Fiber Acceptance Testing begins on or
after the twentieth (20th) day after the Effective Date, Lessee may perform its
own concurrent Fiber Acceptance Testing of the Lessee Fibers at the same time
Xxxxxxxx Communications performs testing at each location. If Lessee elects to
perform such testing, it shall notify Xxxxxxxx Communications of its intent to
do so no later than ten (10) days after the Effective Date. The parties shall
cooperate to facilitate such separate, but concurrent, Fiber Acceptance Testing,
provided that the Lessee shall conform to Xxxxxxxx Communications testing
schedule.
B. If Xxxxxxxx Communications Fiber Acceptance Testing begins prior to
the twentieth (20th) day after the Effective Date, or if Lessee does not elect
to perform concurrent testing pursuant to Subsection 8.A of this Exhibit, Lessee
may perform its own Fiber Acceptance Testing of the Lessee Fibers after Xxxxxxxx
Communications Fiber Acceptance Testing begins. Lessee shall provide Xxxxxxxx
Communications at least seven (7) days' prior notice of Lessee's testing
schedule. Xxxxxxxx Communications shall have the right, but not the obligation,
to have an individual present to observe Lessee's Fiber Acceptance Testing.
C. Within twenty (20) calendar days after the conclusion of any Fiber
Acceptance Testing of the Lessee Fibers conducted by Lessee in any given
Segment, the Lessee shall notify Xxxxxxxx Communications of any detected
failures to meet the specifications set forth in Section 2 of this Exhibit. The
Lessee's exercise or non-exercise of its right to conduct Fiber Acceptance
Testing pursuant shall not extend or shorten the time periods for Lessee to
determine, pursuant to the Agreement, if the Fibers meet the Acceptance
Standards.
D. The Lessee must notify Xxxxxxxx Communications of its intent to
perform acceptance testing within 10 calendar days following the later of the
date it receives notification of route completion or the date it receives the
results of Final Acceptance Testing.
Exhibit A - Page 8
EXHIBIT B
LESSEE FIBERS
------------------------------------------------------------------------------------------------------------------------------------
MFN ACCEPTANCE NO. OF FIBERS FIBER ROUTE MILES RATE PER MONTHLY LEASE PER
ROUTE SEGMENTS DATE ROUTE MILES PER ROUTE ACCEPTED FIBER MILE ROUTE
------------------------------------------------------------------------------------------------------------------------------------
Atlanta to Nashville 04/24/00 200 2 400 [**********] [*********************]
Atlanta to Jacksonville 06/15/00 350 2 000 [**********] [*********************]
Xxxxxxx xx Xxxxxxxxxx, XX 05/24/00 820 2 1640 [**********] [*********************]
Boston to Albany 09/27/00 180 2 360 [**********] [*********************]
Chicago to Cleveland 09/21/01 500 2 1000 [**********] [*********************]
Cincinnati to Chicago 01/08/01 440 2 880 [**********] [*********************]
Nashville to Cincinnati 01/08/01 210 2 420 [**********] [*********************]
Cleveland to New York 06/05/01 760 2 1520 [**********] [*********************]
Dallas to Kansas City 11/27/00 690 2 1380 [**********] [*********************]
Daytona Beach to Tampa 02/01/00 160 2 320 [**********] [*********************]
Denver to Salt Lake City 03/28/00 400 2 800 [**********] [*********************]
Houston to Dallas 1 05/26/00 250 2 500 [**********] [*********************]
Houston to Atlanta 1 05/26/00 1000 2 2000 [**********] [*********************]
Jacksonville to Miami 07/05/00 332 2 664 [**********] [*********************]
Kansas City to Denver 12/13/99 610 2 1220 [**********] [*********************]
St. Louis to Chicago 06/08/01 313 2 626 [**********] [*********************]
Kansas City to St. Louis 06/04/01 427 2 854 [**********] [*********************]
Los Angeles to San Diego 05/23/01 200 2 400 [**********] [*********************]
Minneapolis to Kansas City 12/13/99 500 2 1000 [**********] [*********************]
New Orleans to Tallahassee 03/28/00 400 2 800 [**********] [*********************]
Phoenix to Houston 11/11/00 1200 2 2400 [**********] [*********************]
Portland to Sacramento 06/12/01 700 2 1400 [**********] [*********************]
Sacramento to Los Angeles 11/28/01 750 2 1500 [**********] [*********************]
Sacramento to Salt Lake City 12/18/00 630 2 1260 [**********] [*********************]
Sacramento To San Francisco 03/23/01 100 2 200 [**********] [*********************]
San Diego to Phoenix 02/26/01 350 2 700 [**********] [*********************]
San Francisco to Santa Xxxxx 02/16/01 56 2 112 [**********] [*********************]
Seattle to Portland 10/28/01 250 2 500 [**********] [*********************]
Tallahassee to Miami 05/24/00 580 2 1160 [**********] [*********************]
Santa Xxxxx to Modesto 07/24/01 142 2 284 [**********] [*********************]
TOTALS 27,000 [*********************]
13,500
Exhibit B - Page 1
MFN LEASED FIBER NETWORK
(MAP)
Exhibit B - Page 2
EXHIBIT C
BUILDINGS
--------------------------------------------------------------------------------------------------------------------
POP
SELECTED SEGMENT LOCATIONS TRANSMISSION SITE LOCATIONS
--------------------------------------------------------------------------------------------------------------------
ATLN - WASH
ATLANTA, GA ATLANTA POP - 000 XXXXXX XXXXXX, XXXXXXX, XX 00000
Lawrenceville 000 Xxxxx Xx., Xxxxxxxxxxxxx, XX 00000
Athens (a\k\a Hull) 000 Xxxxx Xxxx, Xxxx, XX 00000
Xxxxxxxx 0000 Xxxxxxx Xxxx Xx., Xxxxxxxx, XX 00000
Greenville 0000 Xxxxxxx Xx., Xxxxxxxxxx, XX 00000
SPARTANBURG, SC SPARTANBURG POP - BTC BUILDING, 000 X. XXXXXX XX., XXXXX 0,
XXXXXXXXXXX, XX 00000
York 0000 Xxxxxxxxx Xx., Xxxxxx, XX 00000
XXXXXXXXX, XX CHARLOTTE POP - 000 X. XXXXXX XX., XXXXXXXXX, XX 00000
Salisbury (a\k\a Mt. Ulla) 000 Xxxxxxx Xx., Xx. Xxxx, XX 00000
Kernersville Jct. LOT #51M, 0000 Xxx Xxxxx Xxxx, Xxxxxxxxxxxx,
XX 00000
SPUR TO GREENSBORO & RALEIGH, NC
GREENSBORO, NC GREENSBORO POP - SOUTH ELM CENTER, 000-X XXXXX XXXXX XXXX,
XXXXXXXXXX, XX 00000
Chapel Hill 0000 Xxx Xxxxxxxxxx Xx., Xxxxxx Xxxx, XX 00000
RALEIGH, NC RALEIGH POP - 0000 XXXXXXX XXXXX, XXXX. #0, XXXXX 000,
XXXXXXX, XX 00000
Reidsville 0000 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000
Chatham 000 Xxxxxxx Xx., Xxxxxxx, XX 00000
Appomattox Xxx. 000 XX, Xxxxxxxxxx, XX 00000
Scottsville Jct. Xxxxxxx 000, Xxxxxxxxxxx, XX 00000
SPUR TO RICHMOND, VA
Goochland 0000 Xxxxx Xx. Xxxx, Xxxxxxxxx, XX 00000
RICHMOND, VA RICHMOND POP - 0000 X. XXXXX XX., XXXXX 000, XXXXXXXX, XX
00000
Unionville 00000 Xxxxxxx Xx., Xxxxxxxxxx, XX 00000
Manassas 10699 Piperlane, Manassas, VA 20110
WASHINGTON, DC WASHINGTON DC POP - 0000 X XX. XX, XXXXX 000, XXXXXXXXXX, XX
00000
--------------------------------------------------------------------------------------------------------------------
HSTN - DLLS (IXC)
HOUSTON, TX HOUSTON POP - 0000 XXXXX XXXXXX, XXXXXXX, XX 00000
Xxxxxx Road 000 Xxxxxx Xxxx, Xxxxxxx XX, 00000
Willis (a\k\a Montgomery Co.) 00000 XX 00 XXXXX, Xxxxxx, XX 00000
Madison Xxxxx 0, Xxx 000, Xxxxxxxxxxxx, XX 00000
Buffalo 00000 XX 00 Xxxxx, Xxxxxxx, XX 00000
Streetman 00000 XX 00 Xxxxx, Xxxxxxxxx, XX 00000
Exhibit C - Page 1
Ennis 0000 XX 00 Xxxxx, Xxxxx, XX 00000
DALLAS, TX DALLAS POP - ONE MAIN PLACE, 0000 XXXX XXXXXX, XXXXX X-000
XXXXXX, XX 00000
KSCY - DNVR
KANSAS CITY, MO KANSAS CITY POP - THE XXXXXX BLDG., 0000 XXXXX XXX. #000,
XXXXXX XXXX, XX 00000
Xxxxxxxx 00000 000xx Xx., Xxxxxxxx, XX 00000
TOPEKA, KS TOPEKA POP - 000 XX XXXXXX, XXXXXX, XX 00000
Xxxxx (a\k\a Xxxxxx) 0000 Xxxxxx Xx. 000, Xxxxx Xxxx, XX 00000
Elmdale XX 0, Xxxxxxx, Xxxxxxxxxx Xxxxx, XX 00000
Newton 000 Xxxxxx Xxxx, Xxxxxx, XX 00000
Inman 000 Xxxx Xxx., Xxxxx, XX 00000
Ellinwood 0000 X XXXXXX XX. XXXX, Xxxxxxxxx, XX 00000
Bison Rural Xx. 0, Xxxxx, XX 00000
Xxxxx Rural Xx. 0, Xxxxx, XX 00000
Grainfield 0000 XXXXXX XXXX 00, Xxxxxxxxxx, XX 00000
Oakley (a\k\a Monument) 0000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000
Goodland 0000 Xxxxxx Xxxx #00, Xxxxxxxx, XX 00000
Burlington (a\k\a Xxxxxxx) 00000 Xxxxxx Xx. 00, Xxxxxxxxxx, XX 00000
Flagler 0000 Xxxxxx Xx. XX, Xxxxxxx, XX 00000
Woodrow 0000 XXXXXXX 00, Xxxxxxx, XX 00000
Strasburg 0000 X Xxxxxx Xx., 000, Xxxxxxxxx, XX 00000
XXXXXX, XX 000 00XX XX., XXXXX 000, XXXXXX, XX 00000
--------------------------------------------------------------------------------------------------------------------
LSAN - SNDG
LOS ANGELES, CA ONE WILSHIRE BLDG., 000 XXXXX XXXXX, XXXXX 0000, XXX
XXXXXXX, XX 00000
Pomona 0000 Xx Xxxxxx Xxx., Xxxxxx, XX 00000
RIVERSIDE, CA RIVERSIDE POP - 0000 XXXXXXXXXX XXX., XXXXXXXXX, XX 00000
Xxxxxxxxxxxx 00000 Xxxxx Xxxx, Xxx Xxxx, XX 00000
Escondido 0000 Xxxxx Xxxxxxxxx Xxxx., Xxxxxxxxx, XX
00000
SAN DIEGO, CA XXXXXXX MESA COMPLEX, 0000 XXXXXXX XXXXX, XXX XXXXX, XX 00000
--------------------------------------------------------------------------------------------------------------------
SNDG - PHNX
SAN DIEGO, CA XXXXXXX MESA COMPLEX, 0000 XXXXXXX XXXXX, XXX XXXXX, XX 00000
Oceanside 0000 Xxxxxxxx Xxx., Xxxxxxxxx, XX 00000
Laguna Nigel 0000 Xxxxxx Xxxxxxxxxx, Xxx. 000, Xxxxxx
Xxxxx, XX 00000
Exhibit C - Page 2
RIVERSIDE, CA RIVERSIDE POP - 0000 XXXXXXXXXX XXX., XXXXXXXXX, XX 00000
Banning 0000 X. Xxxxxxxx Xxx, Xxxxxxx, XX 00000
Indio 00000 Xxxxx Xxxx, Xxxxx, XX 00000
Mortmar (a\k\a Mecca) 00000 Xxx 000, Xxxxx, XX 00000
Flowing Well (a\k\a Niland) 0000 X. Xxxxxxxxxx Xx., Xxxxxx, XX 00000
Ogillay (a\k\a Winterhaven & Sidewinder) 000 Xxxxxxxxxx Xx. Xxxxxxxxxxx, XX 00000
Ligurta 00000 X. Xxxxxx 00 0/0, Xxxxxxx, XX 00000
Growler 000 X. Xxxxxx 00X, Xxxx, XX 00000
Xxxxx (a\k\a Agua Caliente) 00000 Xxxxx Xxxx Xxxxxxxx, Xxxx Xxxxxxxx, XX
00000
Palo Verde 0000 X. 000xx Xxx, Xxxx Xxxxx, XX 00000
PHOENIX, AZ PHOENIX POP - 00 X. XXXXXXXX, XXXXXXX, XX 00000
--------------------------------------------------------------------------------------------------------------------
PTLD - SCRM
PORTLAND, OR PORTLAND POP - 000 XX XXXXXXXXXX XX., 0XX XX., XXXXX 000,
XXXXXXXX, XX 00000
Salem 0000 Xxxxxx Xxxxxx Xxxx XX, Xxxxx, XX 00000
Shedd Xxxxxx Xxxx Xxxx & Xxxxx Xxxx Xxxx, Xxxxx, XX
00000
Jasper (a\k\a Springfield) 00000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, XX 00000
Oakridge X. Xxxx Xxxxxxxx Xxxx & Xxx 00, Xxxxxxxx, XX
00000
Chemult Hwy 97 South, Btwn Chalet and Featerbed 1,
Xxxxxxx, XX 00000
Chiloquin Hwy 00 Xxxxx & 0xx xxxx Xxxxx xx Xxx 00,
Xxxxxxxxx, XX 00000
S. Kalamath XX Xxxxxx xx Xxxxxx Xxxx & Xxx 00, Xxxxxxxx
Xxxxx, XX 00000
Tionesta XX 00 & Xxxxxx Xxxxx Xxxx, Xxxxxxx, XX 00000
Fall River Valley Red Mountain Road @ Xxxxx Road, Fall River
Xxxxx, CA 96028
Oak Run North on Oak Run to Xxxx Xxxx, Xxx Xxx, XX
00000
Red Bluff Xxxxx Road North of Pymire on Xxxxxxxx xx
Xxxx, Xxx Xxxxx, XX 00000
S. Chico Xxxxx Xxxxx Xxxx, Xxxxx, XX 00000
Xxxxx 0000 Xxxxxx Xxxx @ X. Xxxxxxx Xxxx, Xxxxx, XX
00000
Xxxxxxx Xxxxxxxxxx Xxxxxx Xxxx @ XX 000, Xxxxxxx, XX
00000
SACRAMENTO, CA SACRAMENTO POP II - 000 X. XX., XXXXX 000, XXXXXXXXXX, XX
00000
--------------------------------------------------------------------------------------------------------------------
SCRM - LSAN
SACRAMENTO, CA SACRAMENTO POP II - 0000 'X' XX., XXXXX 000, XXXXXXXXXX, XX
00000
Exhibit C - Page 3
Herald 00000 Xxxx Xxxx Xxxx, Xxxxxx, XX 00000
Stockton 0000-0000 X Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000
MODESTO, CA MODESTO POP - 0000 00XX XX., XXXXXXX, XX 00000
Xxxxxx (a\k\a Merced) 0000 X. Xxxxxxxx Xxxx, Xxxxxx, XX 00000
Madera (a\k\a Chowchilla) Adjacent to 00000 Xxxxx Xx Xxxxx, Xxxxxxxxxx,
XX 00000
FRESNO, CA FRESNO POP - 000 X. XXXXXXXXX XXXXXX, XXXXXX, XX 00000
Dinuba 40063 Road 00 - Xxxxx 00 Xxxx, Xxxxxx, XX
00000
Tulare 000 X. Xxxx Xxxxxx, Xxxxxx, XX 00000
Delano 00000 Xxxxxxxx Xxxx, Xxxxxx, XX 00000
BAKERSFIELD, CA BAKERSFIELD POP - 0000 X XXXXXX XXXXXXXXXXX, XX 00000
Xxxxx A35947 Xxxxxxxx Xxxxx Xxxx, Xxxxx, XX 00000
Tehachapi 00000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxx, Xxxxxx,
XX 00000
Palmdale 00xx Xxxxxx Xxxx @ Xxxx X Xxx., Xxxxxxxx, XX
00000
Adelanto 00000 Xxxxx Xx., Xxxxxxxx, XX 00000
Ontario 000 X. Xxxxxxxx, Xxx X & X, Xxxxxxx, XX 00000
LOS ANGELES, CA LOS ANGELES POP - ONE WILSHIRE BLDG., 000 XXXXX XXXXX, XXXXX
0000, XXX XXXXXXX, XX 00000
-----------------------------------------------------------------------------------------------------------------------
PHNX - HSTN
PHOENIX, AZ PHOENIX POP - 00 X. XXXXXXXX, XXXXXXX, XX 00000
Queen Creek (a\k\a Florence) 0000 X. Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000
Red Rock 00000 X. Xxxxxx Xxxxxxxx, Xxx Xxxx, XX 00000
TUCSON, AZ TUCSON POP - 135 & 000 XXXXX 0XX XXX., XXXXXX, XX 00000
Mescal (a\k\a Benson) 0000 Xxxxx Xxxxx Xxxx, Xxxxxx, XX 00000
Dragoon 0000 X. Xxxxxxx Xxxx, Xxxxxxx, XX 00000
Luzena (a\k\a Bowie) 0000 X. Xxxxxx Xxxx, Xxxxx, XX 00000
Road Forks 000 Xxxxx Xxxxx, Xxxx Xxxxx, XX 00000
Separ (a\k\a Silver City) 0000 Xxxxx Xxxx, Xxxxxx Xxxx, XX 00000
Carne (a\k\a Deming) 00000 Xxxxx Xxxx XX, Xxxxxx, XX 00000
Afton (a\k\a Las Cruces) 0000 Xxxxxx Xxxx, X000, Xxx Xxxxxx, XX 00000
EL PASO, TX EL PASO POP - 000 X. XXXXXXXX XXXXXX, XX XXXX, XX 00000
Tornillo (a\k\a Fabens) 00000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000
Ft. Xxxxxxx 0000 Xxxxx Xxxx, Xx. Xxxxxxx, XX 00000
Van Horn 428 Fuest Ranch; 144163 X-00, Xxx Xxxx, XX
00000
Valentine 00000 XX Xxx 00, Xxxxxxxxx, XX 00000
Exhibit C - Page 4
Marfa 1500 W. San Antonio, Marfa, RX 79843
Alpine 00000 XX Xxx 00, Xxxxxx, XX 00000
Marathon 00000 XX Xxx 00, Xxxxxxxx, XX 00000
Xxxxxxxxx 000 X. Xxx 00, Xxxxxxxxx, XX 00000
Langtry 0000 X. Xxx 00, Xxxxxxx, XX 00000
Comstock 00000 XX Xxx 00 X, Xxxxxxxx, XX 00000
Del Rio 0000 XX Xxx 00 X, Xxx Xxx, XX 00000
Bracketville 00000 XX Xxx 00 X, Xxxxxxxxxxxx, XXX 00000
Sabinal 00 X.X. 000 Xxxxxx, Xxxxxxx, XX 00000
Hondo 0000 X.X. 0000, Xxxxx, XX 00000
SAN ANTONIO, TX SAN ANTONIO POP - 0000 X. XXXX XXXXXX, XXX XXXXXXX, XX, 00000
Kingsbury 0000 XX 0000, Xxxxxxxxx, XX 00000
AUSTIN, TX AUSTIN POP - 000 XXXXXX XXXXXX, XXXXXX, XX 00000
Giddings (a\k\a McDade) 0000 Xxx 000 X, XxXxxx, XX 00000
Brenham 00 Xxxxxxxxxx Xxxx, Xxxxxxx, XX 00000
Waller 00000 XX 000, Xxxxxx, XX 00000
HOUSTON, TX HOUSTON POP - 0000 XXXXX XXXXXX, XXXXXXX, XX 00000
------------------------------------------------------------------------------------------------------------------------
BSTN - ALBY
BOSTON, MA BOSTON POP - XXX XXXXXX XXXXXX, 0XX XXXXX, XXXXXX, XX 00000
WORCESTER, MA WORCHESTER POP - 000 XXXX XXXXXX, XXXXXXXXX, XX 00000
SPRINGFIELD, MA SPRINGFIELD POP - XXX XXXXXXX XXXXXX, 0XX XXXXX,
XXXXXXXXXXX, XX 00000
Lee 000 Xxxx Xxxx, Xxxxx xx Xxxxxxx Xxxxx, Xxx,
XX 00000
ALBANY, NY ALBANY POP - 000 XXXXXXXXXX XXX., 0XX XX., XXXXX 000,
XXXXXX, XX 00000
------------------------------------------------------------------------------------------------------------------------
SCRM - SLKC
SACRAMENTO, CA SACRAMENTO POP II - 0000 'X' XX., XXXXX 000, XXXXXXXXXX, XX
00000
Auburn Alt. 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, XX 00000
Blue Canyon Xxxx Xxxxxx Xxxx xxx X-00, Xxxx Xxxxxx, XX
00000
Truckee 00000 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000
RENO, NV RENO POP - 000 XXXXXXX XX., XXXX, XX 00000
Hot Springs Flat (a\k\a Fallon) Exit 65 off X-00, Xxxxxxxxxxx Xx., Xxxxxx, XX 00000
Lovelock 00 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000
Mill City (a\k\a Imlay) Exit 149 on I-80, Xxx 00, Xxxxx X Xxxx Xxxx
Xxxxx, Xxxxx, XX 00000
Golconda Butte (a\k\a Winnemucca) Exit 187 off I-80, North of interchange,
Xxxxxxxxxx, XX 00000
Exhibit C - Page 5
Snow Gulch Exit 222 off I-80, 1.9 miles North of Access,
Snow Gulch, NV 89444
Xxxxxx (a\k\a Eureka) Exit 254 off I-80 North, East 3.5 miles,
Xxxxxx, XX 00000
Hunter (a\k\a McGill) Exit 292 off I-80, North of intersection,
then East, XxXxxx, XX 00000
Deeth (a\k\a Elko) Exit 333 off I-80, 5 miles East on Xxxxx
Xxxxxxxx Xx, Xxxx, XX 00000
Oasis Exit 000 xxx X-00, Xxxxx, XX 00000
Wendover 0000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000
Xxxxxx 9.5 miles Xxxx xx X-00, Xxxxx, XX 00000
Timpie (a\k\a Tooele) 00000 Xxxx Xxxxxx Xxxx, Xxxxxx, XX 00000
SALT LAKE CITY, UT SALT LAKE CITY POP - 0000 XXXXXX XXXXX XXXXX, XXXX XXXX
XXXX, XX 00000
----------------------------------------------------------------------------------------------------------------------
HSTN - ATLN
HOUSTON, TX 0000 XXXXX XXXXXX, XXXXXXX, XX 00000
Kingwood (a\k\a Huffman or Xxxxxx) 00000 Xxxxxxx-Xxxxxxxxx X, Xxxxxxx, XX 00000
Sour Lake (a\k\a Hardin) 00000 Xxxxxxx 000, Xxxx Xxxx, XX 00000
Buna (a\k\a Jasper) Xxx 00 Xxxxx, Xxxx, XX 00000
Ragley (a\k\a Xxxxxxxxxx) 00000 Xxx 000 Xxxxx, Xxxxxx, XX 00000
Xxxxxx (a\k\a Xxxxxxxxxx) 0000 Xxxxxx Xx., Xxxxxx, XX 00000
Port Barre (a\k\a St. Xxxxxx or Washington) 0000 Xxxxxxx 000, Xxxxxxxxxx, XX 00000
Zachary Jct. (a\k\a Xxxxxxxxx or Jackson) 0000 X Xxxxxxx 000, Xxxxxxx, XX 00000
SPUR TO NEW ORLEANS, LA
BATON ROUGE, LA BATON ROUGE POP - 000 X. XXXX., XXXXX 000, XXXXX XXXXX, XX
00000
Reserve (a\k\a Gramercy or Garyville) 0000 Xxxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000
NEW ORLEANS, LA NEW ORLEANS POP - 000 XXXXXX XXX., XXXXX 0000, XXX XXXXXXX,
XX 00000
Greensburg (a\k\a St. Helena) Hwy 43 North, Xxxxxxxxxx, XX 00000
Xxxxxxxxx (x\x\x Xxxxxxxx) 000 Xxx 000, Xxxxxxxxx, XX 00000
Seminary (a\k\a Covington Co.) 00 Xxxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000
SPUR TO JACKSON, MS
Mendenhall 0000 Xxxxxxx, Xxx 00, Xxxxxxxxxx, XX 00000
JACKSON, MS XXXXXXX POP - CAPITOL BLDG, 000 X. XXXXXXX XX. XXXXX 000,
XXXXXXX, XX 00000
Laurel (a\k\a Jasper or Sandersville) 0000 Xxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000
Quitman (a\k\a Jasper Co.) 000 Xxxx Xxxx, Xxxxxxx, XX 00000
Linden (a\k\a Merengo or Sweetwater) Xxx 00 Xxxxx, Xxxxxxxxxx, XX 00000
Selma (a\k\a Dallas Co. or Browns) 0000 Xxxxxx Xxxx 000, Xxxxxx, XX 00000
Clanton (a\k\a Xxxxxxx or Billingsley) 0000 Xxxxxxx Xxxx #000, Xxxxxxxxxxx, XX 00000
SPUR TO BIRMINGHAM, AL
Exhibit C - Page 6
Calera 000 Xxxxxx Xxxx 00, Xxxxxx, XX 00000
BIRMINGHAM, AL BIRMINGHAM POP - 0000 XXXX XXXXX XXXXXX XXXXX, XXXXX
000,XXXXXXXXXX, XX 00000
Alexander City (a\k\a Coosa or Kellyton) 000 Xxxxxxx 0, Xxxxxxxx, XX 00000
Wadley (a\k\a Xxxxxxxx Co.) 0000 Xxxxxx Xx 00, Xxxxxx, XX 00000
Newnan (a\k\a Coweta Co.) 00 Xxxx Xxxxx Xxxx, Xxxxxx, XX 00000
ATLANTA, GA ATLANTA POP - 000 XXXXXX XXXXXX, XXXXXXX, XX 00000
-------------------------------------------------------------------------------------------------------------------------
ATLN - JCVL
ATLANTA, GA ATLANTA POP - 000 XXXXXX XXXXXX, XXXXXXX, XX 00000
Covington 00000 Xxx Xxxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000
Monticello 0000 Xxxxxxx 00 Xxxxx, Xxxxxxxxxx, XX 00000
MACON, GA MACON POP - CHARTER MEDICAL BLDG., 000 XXXXXXXX XX., XXXXX
000, XXXXX, XX 00000
Montrose 0000 Xxxxxxx 00 X, Xxxxxxxx, XX 00000
Alamo Xxxxx 0 Xxx 000, Xxxxx, XX 00000
Xxxxxx 000 Xxxxxxxx Xxxx XX, Xxxxxx, XX 00000
Patterson 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX 00000
Folkston Xxxxx 0 Xxx 000, Xxxxxxxx, XX 00000
JACKSONVILLE, FL JACKSONVILLE POP - 000 X. XXXXX XX., XXXXXXXXXXXX, XX 00000
-------------------------------------------------------------------------------------------------------------------------
MPLS - KSCY
MINNEAPOLIS, MN MINNEAPOLIS POP - 000 00XX XXX. XXXXX, XXXXX 000,
XXXXXXXXXXX, XX
Northfield 0000 000xx Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000
Owantonna (a\k\a Hope) 0000 XX 00xx Xxxxxx, Xxxxxxxxx, XX 00000
Xxxxxx Town (a\k\a Xxxxxx) 000 000xx Xxxxxx, Xxxxxx Xxxx, XX 00000
Latimer 0000 Xxxxx Xxxxxx, xxxxxxx, XX 00000
Roland 00000 000xx Xxxxxx, Xxxxxx, XX 00000
DES MOINES, IA DES MOINES POP - 0000X XXXXXXXX XXXX, XXX XXXXXX, XX 00000
Osceola 0000-X XX Xxxxxxx 00, Xxxxxxx, XX 00000
Ridgeway 00000 X. 000xx Xxxxx, Xxxxxxxx, XX 00000
Maysville (a\k\a Xxxxxxxxxx) 00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000
Plattsburgh (a\k\a Lilly) 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
KANSAS CITY, MO KANSAS CITY POP - THE XXXXXX BLDG., 0000 XXXXX XXX. #000,
XXXXXX XXXX, XX 00000
-------------------------------------------------------------------------------------------------------------------------
JCVL - MIAM
JACKSONVILLE, FL JACKSONVILLE POP - 000 X. XXXXX XX., XXXXXXXXXXXX, XX 00000
St. Augustine Beach 000 Xxxxx Xxxx 000 Xxxx, Xx. Xxxxxxxxx, XX
00000
Exhibit C - Page 7
DAYTONA BEACH, FL DAYTONA BEACH POP - 000 X. XXXXXXXX, XXXXXXX XXXXX, XX 00000
Titusville 0000 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000
MELBOURNE, FL MELBOURNE POP - 0000 XXXX XXXXXX, XXXXXXXXX, XX 00000
Vero Beach 0000 Xxx Xxxxx Xxxxxxx XX, Xxxx Xxxxx, XX
00000
Stuart 0000 XX Xxxxxxxx Xxxxxx, Xxxxxx, XX, 00000
XXXX XXXX XXXXX, XX XXXX XXXX XXXXX POP - 000 XXXXXXX XX., XXXX XXXX XXXXX, XX
00000
FT. LAUDERDALE, FL FT. LAUDERDALE POP - 000 XX 0XX XX., XX. XXXXXXXXXX, XX 00000
MIAMI, FL MIAMI POP II - 000 XX 0XX XXXXXX, XXXXX, XX 00000
------------------------------------------------------------------------------------------------------------------------
TLHS - MIAM
TALLAHASSEE, FL TALLAHASSEE POP - 0000 X. XXXXX, XXXXXXXXXXX, XX 00000
Perry (a\k\a Xxxxxx Co. or Iddo) 00000 X XX 00, Xxxx, XX 00000
Cross City (a\k\a Xxxxxx Co. or Tennille) 00000 X XX 00, Xxxxx Xxxx, XX 00000
Chiefland (a\k\a Levy Co.) 000 X Xxxx Xx., Xxxxxxxxx, XX 00000
Crystal River (a\k\a Citrus Co. or Red Level) 0000 Xxx Xxxxx Xxxx., Xxxxxxx Xxxxx, XX 00000
Brooksville (a\k\a Hernando Co. or Garden Grove) 00000 Xxxxxx Xxxx, Xxxxxxxxxxx, XX 00000
TAMPA, FL TAMPA POP - 0000 X. 00XX, XXXXX, XX 00000
Wimauma (a\k\a Lithia or Ft. Lonesome) 00000 Xxxxx Xxxx 000, Xxxxxx, XX 00000
Zolfo Springs (a\k\a Xxxxxx Co. or Ona) 000 X XX 000, Xxxxx Xxxxxxx, XX 00000
Arcadia (a\k\a Desoto Co.) 00000 XX XX 000, Xxxxxxx, XX 00000
FT. XXXXX, FL FT. XXXXX POP - 0000 XXXXXXXX, XX. XXXXX, XX 00000
Labelle (a\k\a Xxxxxx Co. or Goodno) 0000 XX 00 Xxxx, XxXxxxx, XX 00000
Belle Glade (a\k\a Palm Beach Co.) 5115 US 00, Xxxxx Xxxxx, XX 00000
Xxxxxx (x\x\x Xxxxxxx Xx.) 0000 XX 00xx Xxxxxx, Xxxxxx, XX 00000
XXXXX, XX MIAMI POP II - 000 XX 0XX XXXXXX., XXXXX, XX 00000
------------------------------------------------------------------------------------------------------------------------
NWOR - TLHS
NEW ORLEANS, LA NEW ORLEANS POP - POYDROUS PLAZA, 000 XXXXXX XXX, XXXXX
0000, XXX XXXXXXX, XX 00000
Slidell 00000 Xxxxxxx 00, Xxxxxxx, XX 00000
Pass Christian 00000 Xxxxx Xxxxxx Xxxx, Xxxx Xxxxxxxxx, XX
00000
Van Cleave 00000 Xxxxx Xxxx, Xxx Xxxxxx, XX 00000
Xxxxxx Creek 0000 Xxxxxx Xxxx, Xxxxxx, XX 00000
MOBILE, AL MOBILE POP - 00 X XXXXXXXX XXXXXX, XXXXXX, XX 00000
Robertsdale 00000 XX Xxxxxxx 00, Xxxxxxxxxxx, XX 00000
PENSACOLA, FL PENSACOLA POP - 000 X. XXXXXX XXXXXX, XXXXXXXXX, XX 00000
Milton 00000 Xxxxxxx 00, Xxxxxx, XX 00000
Exhibit C - Page 8
DeFuniak Springs 00 Xxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, XX 00000
Free Port (a\k\a Xxxxx De Xxxx) 0000 Xxxxx Xxxxxxx 00, Xxxxx Xx Xxxx, XX 00000
Youngstown (a\k\a Juniper Creek) 00000 X. Xxxxxxx 00, Xxxxxxx Xxxxx, XX 00000
Hosford (a\k\a Xxxxxx) Xxxx xx Xxx 00 xx Xxx 00, Xxxxxx, XX 00000
TALLAHASSEE, FL TALLAHASSEE POP - 0000 X. XXXXX, XXXXXXXXXXX, XX 00000
---------------------------------------------------------------------------------------------------------------------
SCRM - SNFC
SACRAMENTO, CA SACRAMENTO POP II - 0000 'X' XXXXXX, XXXXXXXXXX, XX 00000
Bay Point 000 Xxxxx Xxxx, Xxx Xxxxx, XX 00000
Creed 0000 Xxxxx Xxxx, Xxxxxx Xxxx, 00000
XXXXXXX, XX OAKLAND POP - 0000 XXXXXXXX, XXXXXXX, XX 00000
XXX XXXXXXXXX, XX SAN FRANCISCO POP - 000 XXXX XX., 0XX XXXXX, XXX XXXXXXXXX,
XX 00000
---------------------------------------------------------------------------------------------------------------------
SNFC - SNTC
SAN FRANCISCO, CA 000 XXXX XX., 0XX XX., XXX XXXXXXXXX, XX 00000
SANTA CLARA, CA SANTA XXXXX POP - 0000 XXXXXXX XXXXXX, XXXXX XXXXX, XX 00000
---------------------------------------------------------------------------------------------------------------------
SNTC - MDST
SANTA CLARA, CA SANTA XXXXX POP - 0000 XXXXXXX XXXXXX, XXXXX XXXXX, XX 00000
Freemont 00000 Xxxxx Xxxx, Xxxxxxxx, XX 00000
Xxxxxx 00000 X. Xxxx Xxxx, Xxxxxx, XX 00000
MODESTO, CA MODESTO POP - 0000 00XX XXXXXX, XXXXXXX, XX 00000
---------------------------------------------------------------------------------------------------------------------
DNVR - SLKC
DENVER, CO DENVER, CO POP - 000 00XX XX., XXXXX 000, XXXXXX, XX 00000
Platteville 000 Xxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000
Nunn 00000 Xxxx Xxxxxx Xxxx 000, Xxxx, XX 00000
Remount 000 Xxxx 000, Xxxxxxx Xxxxxx, XX 00000
West Laramie 000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000
Wagonhound Creek 3 miles Xxxxx xx XX 00, X00X, X00X, Sec 25, Xxx
Xxxxxxxx, XX 00000
Sinclair 6 miles South off Plant Road, T21N, R86W, Sec
35, Xxxxxxxx, WY 92334
Echo Springs 5.9 miles Xxxxx xx XX 000, Xxxx 000, X00X, X00X,
Sec 3, Xxxxxxx, XX 00000
Table Rock 000 Xxxxxx Xxxx 00, Xxxxx Xxxx Xxxx, Xxxxx
Xxxx, XX 00000
Exhibit C - Page 9
South Xxxxxx 000 Xxxxxx Xxxx 00, Xxxxx Xxxxxx Xxxx, Xxxxx
Xxxxxx, XX 00000
Little America 0 Xxxxxx Xxxx 0-00, Xxxxxxxx Xxxxxxxx Xxxx,
Xxxxx Xxxxx, XX 00000
Fort Bridger 0000 Xxxxx Xxxxxxx 000, Xx. Xxxxxxx, XX 00000
Xxxxxxx Flats 00000 Xxxxx Xxxxxxx 000, Xxxxxxxx, XX 00000
Wanship 0000 Xxxxx Xxxx Xxxxxxx Xxxx, Xxxxxxxxx, XX
00000
XXXX XXXX XXXX, XX XXXX XXXX XXXX, XX POP - 0000 XXXXXX XXXXX XXXXX, XXXX XXXX
XXXX, XX 00000
-----------------------------------------------------------------------------------------------------------------------
STTL - PTLD
SEATTLE, WA SEATTLE, WA POP - 0000 0XX XXXXXX, XXXXXXX, XX 00000
Kalama 0000 Xxxxxx Xx, Xxxxxx, XX 00000
Cantraila 0000 Xxxxxxxxx Xxxxx Xx., Xxxxxxxx, XX 00000
Payallup 0000 000xx Xx., Xxxxxxxx, XX 00000
PORLAND, OR PORTLAND, OR POP - 000 XX XXXXXXXXXX XX., 0XX XX., XXXXX
000, XXXXXXXX, XX 00000
-----------------------------------------------------------------------------------------------------------------------
DLLS - KSCY
DALLAS, TX DALLAS, TX POP II - 000 X. XXXXX, XXXXXX, XX 00000
Denton 0000 X-00 X., Xxxxxx, XX 00000
Thackerville Xxxxx 0, Xxx 00 (north on I-35 from Dallas
to MP4), Xxxxxxxx, XX 00000
Springer Xxxxx 0, Xxx 00-X, Xxxxxxxx, XX 00000
Byars Xxxxx 0, Xxx 00, Xxxxx, XX 00000
Shawnee 000 Xxxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000
Drumright Xxxxx 0, Xxx 000-0, Xxxxxxxxx, XX 00000
TULSA, OK TULSA, OK POP - 00 X. XXXXXX, XXXXX, XX 00000
Barnsdall Barnsdall X 00 & 000, Xxxxxxxxx, XX 00000
Tyro SW 75 to 0000 Xx, Xxxx, XX 00000
Chanute 00000 Xxxx Xxxx, Xxxxxxx, XX 00000
Selma Station 00000 XX 000 Xxxx, Xxxxxxx, XX 00000
Springhill 00000 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000
KANSAS CITY, MO KANSAS CITY, MO POP II - 0000 X. 00XX XXXXXX, XXXXXX XXXX,
XX 6410
-----------------------------------------------------------------------------------------------------------------------
KSCY - CHCG
KANSAS CITY, MO KANSAS CITY, MO POP II - 0000 X. 00XX XXXXXX, XXXXXX XXXX,
XX 6410
Elm 00000 Xxxx Xx, Xxxx Xxxx, XX 00000
Valley City 000 XX 000 Xx, Xxxx Xxxxxx, XX 00000
Pilot Grove 00000 XXX 000, Xxxxx Xxxxx, XX 00000
COLUMBIA, MO COLUMBIA, MO POP - 0000 XXXXXXX XXXX XXXX, XXXXXXXX, XX 00000
Exhibit C - Page 10
Centrailia Station 00000 Xxx XX, Xxxxxxxxxx, XX 00000
Buell 0000 Xxx 000, Xxxxx, XX 00000
Maryknoll 0000 Xxxx Xx, X'Xxxxxx, XX 00000
ST. LOUIS, MO THE VALLEY BLDG., 000 XXXXXX XXXXXX, XXXXX 000, XX. XXXXX,
XX 00000
Worden 0000 Xxxxxx Xxxx, Xxxxxx, XX 00000
Farmersville 0000 Xxxx Xx, Xxxxxxxx, XX 00000
SPRINGFIELD, IL SPRINGFIELD, IL POP - 0000 XXXXX 0XX XXXXXX, XXXXXXXXXXX, XX
00000
Hartsburg 000 0000 Xx, Xxxxxxxxx, XX 00000
Peoria 000 Xxxx Xxxx Xxxxxx, Xxxxxx, XX 00000
Gridley 00000 Xxxx Xxxxx Xxxx, Xxxxxxx, XX 00000
Xxxxxx 00000 Xxxxx Xxxxxx Xxxx, Xxxxxx, XX 00000
Plainfield 00000 Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxx, XX
00000
CHICAGO, IL CHICAGO, IL POP II - 0000 XXXXXXX XXXXX, XXXXXXX, XX 00000
------------------------------------------------------------------------------------------------------------------------
DYBH - TAMP
XXXXXXX XXXXX, XX - Xxxxxxx, XX XXXXXXX XXXXX, XX POP - 000 X. XXXXXXXX, XXXXXXX XXXXX, XX
00000
Osteen 000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000
ORLANDO, FL - TAMPA, FL ORLANDO, FL POP - 000 XXXXXXXX XX., XXXXXXX, XX 00000
Haines 000 X Xxxxxxx 00-00 Xxxxx, Xxxxxx Xxxx, XX
00000
Lakeland 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000
TAMPA, FL TAMPA, FL POP - 0000 X. 00XX, XXXXX, XX 00000
------------------------------------------------------------------------------------------------------------------------
CLEV - NYCM
CLEVELAND, OH CLEVELAND, OH POP - XX XXXXX BLDG, 0000 XXXXXX XXX., XXXXX
000, XXXXXXXXX, XX 00000
Trumbull (a\k\a Montvile) 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000
Conneaut (a\k\a Monroe) 0000 XX0 Xxxxxx Xxxx, Xxxxxxxx, XX 00000
Waterford (a\k\a Union City) 0000 Xxxxxx Xxxx, Xxxxx Xxxx, XX 00000
Brockton (a\k\a Portland) 0000 Xxxx Xxxxxx, Xxxxxxxx, XX 00000
Angola (a\k\a North Xxxxxxx) 00000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX 00000
West Senece (a\k\a Buffalo Jct.) 0000 Xxxxxxx Xxxxxx, Xxxx Xxxxxx, XX 00000
BUFFALO, NY BUFFALO, NY POP - 000 XXXXXXXX XXX., 0XX XX., XXXXXXX, XX
00000
Batavia 0000 Xxxxx Xxxx, Xxxxxxx, XX 00000
ROCHESTER, NY ROCHESTER, NY POP - XXX XXXX XXXX XX., XXXXX 000, XXXXXXXXX,
XX 00000
Xxxxxxxxx (a\k\a Rochester Jct.) 00 Xxxx Xxxxxxx Xxxx, Xxxx Xxxxxxxxx, XX 00000
Waterloo 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000
Exhibit C - Page 11
SYRACUSE, NY SYRACUSE, NY POP - 0 XXXXXXX XXXXXX, XXXXX X-00, XXXXXXXX,
XX 00000
Conastoata Jct. 0000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000
Rome (a\k\a Oneida or Xxxxxxxxxxxx) 0000 Xxxxxx Xxxx, Xxxx, XX 00000
Herkimer (a\k\a Llion or Danube) 0000 Xxxxx Xxxxx 0-X, Xxxxxxxx, XX 00000
Westmere (a\k\a Florida) 0000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000
Albany Jct. XXX Xxx Xxxx Xxxx #000.0, Xxxxxx, XX 00000
ALBANY, NY ALBANY, NY POP - 000 XXXXXXXXXX XXX., 0XX XX, XXXXX 000,
XXXXXX, XX 00000
Albany Jct. 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000
Sugarties 0000 Xxxx'x Xxxxxxx, Xxxxxxxxx, XX 00000
New Paltz 00 Xxxxx Xxxxxxxxx Xxxx, Xxx Xxxxx, XX 00000
Suffern (a\k\a Woodbury) 0 Xxxxxxxxx Xx, Xxxxxxx, XX 00000
Xxxxx Ferry (a\k\a Greensburg) 00 Xxx Xxxxxxx Xxx., Xxxxx Xxxxx, XX 00000
XXX XXXX XXXX, XX XXX XXXX XXXX, XX POP 1 - 60 XXXXXX ST, 00XX XXXXX, XXXXX
0000, XXX XXXX XXXX, XX 00000
-----------------------------------------------------------------------------------------------------------------------
CHCG - CLEV
CHICAGO, IL (II) CHICAGO, IL POP II - 0000 XXXXXXX XXXXX, XXXXXXX, XX 00000
Glenwood 00000 Xxxxxxxxxx Xxx., Xxxxxxx Xxxxxxx, XX
00000
Chesterton 0000 X Xxxxxx Xxxx 000, Xxxxxxxxxx, XX 00000
SOUTH BEND, IN SOUTH BEND, IN POP - 000 XXXXXXXX, XXXXX XXXX, XX 00000
Shishewana 0000 X. XX 00, Xxxxxxxxxxx, XX 00000
Angola 000 X. Xxxxx Xxxxxx, Xxxxxx, XX 00000
Fayette 00000 Xxxxxx Xxxx 00, Xxxxxx, XX 00000
TOLEDO, OH TOLEDO, OH POP - 000 XXXXXX XX., XXXXXX, XX 00000
Freemont 000 Xxxxxx Xxxx 000, Xxxxxxx, XX 00000
Xxxxxxxxxx 0000 Xxxx Xxxx, Xxxxxxxxxx, XX 00000
CLEVELAND, OH CLEVELAND, OH POP - XX XXXXX BLDG, 0000 XXXXXX XXX., XXXXX
000, XXXXXXXXX, XX 00000
-----------------------------------------------------------------------------------------------------------------------
ATLN - NSVL
ATLANTA, GA (II) ATLANTA, GA POP (II) - 0000 XXXXXXXX XXXXX, XXXXXXXX, XX
00000
Douglasville 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000
Felton 00 X Xxxxxxx Xxxx, Xxxxxxxx, XX 00000
Rome 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx, XX 00000
Trion 000 Xxxxxxxx Xxxx, Xxxxx, XX 00000
CHATTANOOGA, TN CHATTANOGA, TN POP - 0000 XXXXXXX XXX., XXXXXXXXXXX, XX 00000
Jasper 0000 Xxx 000, Xxx Xxxxx, XX 00000
Manchester 00 Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000
Exhibit C - Page 12
Murfresboro 0000 Xxx 00, Xxxxxxxxxxxx, XX 00000
NASHVILLE, TN NASHVILLE, TN POP - 0000 0XX XXX XXXXX, XXXXXXXXX, XX 00000
-----------------------------------------------------------------------------------------------------------------------
NSVL - CNCN
NASHVILLE, TN NASHVILLE, TN POP - 0000 0XX XXX XXXXX, XXXXXXXXX, XX 00000
Portland 0000 Xxx 00 X, Xxxxxxxx, XX 00000
Morgantown 0000 Xxxxxxxx Xxxxxx Xx, Xxxxxxxxxx, XX 00000
Whitesville 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxxxxxx, XX
00000
Irvington 000 Xxxxxx Xxxx, Xxxxxx, XX 00000
LOUISVILLE, KY LOUISVILLE, KY POP - 000 XXXXX 0XX XX., XXXXXXXXXX, XX 00000
Bedford 000 Xxxxxx - Xxxxxxx Xx, Xxxxxxx, XX 00000
Dillsboro 00000 Xxxxx Xxx Xx, Xxxxxxxxx, XX 00000
CINCINNATI, OH CINCINNATI, OH POP - 0000 X. 0XX XXXXXX, XXXXXXXXXX, XX 00000
-----------------------------------------------------------------------------------------------------------------------
CNCN - CHCG
CINCINNATI, OH CINCINNATI, OH POP - 0000 X. 0XX XXXXXX, XXXXXXXXXX, XX 00000
Brooksville 0000 Xxxxx Xxxx, Xxxxxxxxxxx, XX 00000
Kinghtstown 2753 1100 North, Lewisville, IN 47352
INDIANAPOLIS, IN INDIANAPOLIS, IN POP - 000 XXXXXXXX XXX., XXXXX 0,
XXXXXXXXXXXX, XX 00000
Xxxxxx 0000 Xxxx 000 Xxxxx, Xxxx Xxxxxxx, XX 00000
Chalmers 00000 Xxxxx 000 Xxxx, Xxxxxxxx, XX 00000
Xxxxxx 0000 Xxxxx 000 Xxxx, Xxxxxxx, XX 00000
Glenwood 00000 Xxxxxxxxxx Xxx, Xxxxxxx Xxxxxxx, XX
00000
CHICAGO, IL CHICAGO, IL POP II - 0000 XXXXXXX XXXXX, XXXXXXX, XX 00000
-----------------------------------------------------------------------------------------------------------------------
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Exhibit C - Page 13
EXHIBIT D
FORM OF AS-BUILTS
1. Alignment Sheets
A. As-Built Alignment Sheets shall include the following information:
Cable Information: cable type, fiber type, reel number, cable composition
Right-of-Way: landowner/facility owner, border locations (per muncipality)
Route Information: manhole/handhole location and number, manhole/handhole size
and ownership, splice locations, cable length markers at splice points and slack
coils, splice enclosure type, attachment height (when applicable), pole number
(when applicable), bore location (when applicable), bridge/tunnel attachment
(when applicable), offset and depty (when applicable), location of utility
crossings, location of reference points/permanent structures, transitional
points, street names, conduit and innerduct position information/butterflies
B. As-Built Alignment Sheets shall be updated with actual construction field
data.
C. The scale of As-Built Alignment Sheets shall not exceed 1" = 200' in
metropolitan areas (areas where there is either extensive development and
improvement or rapid growth (new building construction)) or 1" = 500' in
non-metropolitan areas.
2. Format
Drawings shall be "blue lines", as such term is understood in the industry or in
CAD format revision 14 or a later revision. The Xxxxxxxx Communications may,
after the Acceptance Date, adopt any replacement method of creating or providing
drawings that is generally accepted in the industry and that provides equivalent
information.
3. Transmission Site Floor Plans
Floor plans for Transmission Sites shall show rack placement and assignment for
Lessee's floor space.
Exhibit D - Page 1
EXHIBIT E
CONSTRUCTION SPECIFICATIONS
PART 1 - CABLE AND OPTICAL FIBER SPECIFICATIONS
1. The fiber optic cable shall be single or double armor in design or
contained in steel conduit with at least schedule 40 wall thickness. The cable
may be either loose tube or central core in construction. The central strength
member shall be dielectric. Each buffer tube or ribbon shall contain no more
than 12 fibers.
2. All connectors shall be Ultra FC-PC or SC-PC unless both parties
agree to another type.
3. Fiber type shall be as specified in Exhibits D for each Selected
Segment.
4. Manufacturers' specifications for Corning SMF-28, SMF-LS, SMF-LEAF
are attached and incorporated herein.
PART 2 -- Cable Installation Specifications
1. Material
o Steel or PVC conduit shall be minimum schedule 40 wall thickness.
o Any exposed steel conduit, brackets or hardware (e.g., bridge attachments)
shall be hot-dipped galvanized after fabrication.
o All split steel shall be flanged.
o Handholes shall have a minimum H-15loading rating.
o Manholes shall have a minimum H-20 loading rating.
o Warning signs shall display universal do not dig symbol, "Warning-Buried
Fiber-Optic Cable," company name and logo, local and emergency One Call
toll-free numbers.
2. Minimum Depths
Minimum cover required in the placement of the conduit/cable shall be forty-two
inches (42"), except in the following instances:
o The minimum cover in ditches adjacent to roads, highways, railroads and
interstates is forty-eight inches (48") below the clean out line or
existing grade, whichever is greater.
o The minimum cover across streams, river washes, and other waterways shall
be sixty inches (60") below the clean out line or existing grade, whichever
is greater.
o At locations where the cable crosses other subsurface utilities or other
structures, the cable/conduit shall be installed to provide a minimum of
twelve inches (12") of vertical
Exhibit E - Page 1
clearance from the utility/obstacle. The cable/conduit can be placed above
the utility/obstacle, provided the minimum clearance and applicable minimum
depth can be maintained; otherwise the cable/conduit shall be installed
under the existing utility or other structure.
o In rock, the cable/conduit shall be placed to provide a minimum of eighteen
inches (18") below the surface of the solid rock, or provide a minimum of
forty-two inches (42") of total cover, whichever requires the least rock
excavation.
o Where existing pipe is used, current depth is sufficient.
3. Buried Cable Warning Tape
All cable/conduit shall be installed with buried cable warning tape. The warning
tape shall be:
o laid a minimum of twelve inches (12") above the cable/conduit
o generally placed at a depth of twenty-four inches (24") below grade and
directly above the cable/conduit
o a minimum of three inches (3") wide and display "Warning-Buried Fiber-Optic
Cable," a company name, logo and emergency one-call toll-free number
repeated every twenty-four inches (24").
4. Conduit Construction
o Conduits may be placed by means of trenching, plowing, xxxx and bore,
multi-directional bore or directional bore.
o Conduits shall generally be placed on a level grade parallel to the
surface, with only gradual changes in grade elevation.
o Steel conduit shall be joined with threaded collars, Zap-Lok or welding.
(Welding is the preferred method.)
o All crossings of paved city, county, state, federal, and interstate
highways, or railroad crossings shall be encased in conduit.
o All crossings of major streams, rivers, bays and navigable waterways shall
be placed in HDPE, PVC or steel conduit, or shall use specially armored
submarine cable.
o At all foreign utility/underground obstacle crossings, conduit shall be
placed and shall extend at least five feet (5') beyond the outer limits of
the obstacle in both directions.
o All xxxx and bores shall use HDPE or steel conduit.
o All directional or mini-directional bores shall use HDPE or steel conduit.
o Any cable placed in swamp or wetland areas shall be placed in HDPE, PVC, or
steel conduit.
5. Innerduct Installation
o No cable shall be placed directly in any split/solid steel conduit without
innerduct. o Innerduct(s) shall extend beyond the end of all conduits a
minimum of eighteen inches (18").
6. Cable Installation in Conduit
o The cable shall be installed using either a sealed pneumatic cable blowing
system or a
Exhibit E - Page 2
powered pulling winch and hydraulic powered assist pulling wheels.
o The maximum pulling force to be applied to the cable shall be six hundred
pounds (600 lbs.).
o Sufficient pulling assists shall be available and used to insure the
maximum pulling force is not exceeded at any point along the pull.
o The cable shall be lubricated at the reel and all pulling assist locations.
o A pulling swivel breakaway rated at six hundred pounds (600 lbs.) shall be
used at all times.
o Splices shall be allowed only at planned junctions and reel ends.
o All splices shall be contained in a handhole or manhole. o A minimum of
twenty meters (20m) of slack cable shall be left in all intermediate
handholes and manholes.
o A minimum of thirty meters (30m) of slack cable shall be left in all splice
locations.
o A minimum of fifty meters (50m) of slack cable shall be left in
Transmission Sites and points of presence.
o Inside of buildings or when installed in solid steel conduit, PVC
conduit/innerduct may be split, with the cable installed inside the split
duct but all other instances require solid PVC conduit/innerduct.
7. Manholes and Handholes
o Manholes shall be placed in traveled surface streets and shall have locking
lids.
o Handholes shall be placed in all other areas, and be installed with a
minimum of eighteen inches (18") of soil covering lid.
8. EMS Markers
EMS Markers shall be placed directly above the lid of all buried handholes or
shall be fabricated into the lids of the handholes.
9. Cable Markers (Warning Signs)
o Cable markers shall be installed at all changes in cable running line
direction, splices, pull boxes, assist-pulling locations, and at both sides
of street, highway or railroad crossings.
o Markers shall be spaced at intervals of no more than five hundred feet
(500') apart in metropolitan areas (areas where there is either extensive
development and improvement or rapid growth (new building construction))
and within line of sight (not to exceed one thousand feet (1,000')) in
non-metropolitan areas.
o Markers shall be positioned so that they can be seen from the location of
the cable and generally set facing perpendicular to the cable running line.
o Splices and pull boxes shall be marked on the cable marker post.
10. Fiber Optic Groundwire
The Xxxxxxxx Communications, Inc. (Vyvx) Optical Groundwire Specifications
(Issue 1; October 15, 1996) shall apply to optical groundwire (aerial fibers
installed within power transmission
Exhibit E - Page 3
groundwire cable). Sections 2 through 9 of this Exhibit shall not apply to
optical groundwire. Upon written request, Xxxxxxxx shall promptly provide MFN a
copy of its Optical Groundwire Specifications.
11. Updating of Specifications
The Xxxxxxxx Communications may revise these Cable Installation Specifications
to include new procedures, materials, or processes so long as the changes
achieve the objectives of the specifications set forth above and are in
accordance with, or superior to, then-current telecommunications industry
standards.
Exhibit E - Page 4
EXECUTION COPY
CONFIDENTIAL PORTION MARKED [*************] HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT ("Amendment") is made by and between XXXXXXXX
COMMUNICATIONS, LLC, a Delaware limited liability company ("Xxxxxxxx
Communications"), METROMEDIA FIBER NATIONAL NETWORK, INC., a Delaware
corporation ("Lessee") and METROMEDIA FIBER NETWORK SERVICES, INC. ("MFNS") a
Delaware corporation.
Background
Lessee and Xxxxxxxx Communications are parties to the Lease Agreement dated
April 26, 2002 (the "Agreement").
On May 20, 2002, Lessee and most of its direct and indirect domestic
subsidiaries, including MFNS, each filed voluntary petitions for reorganization
pursuant to Chapter 11 of title 11 of the United States Code. (the "Bankruptcy
Code") with the United States Bankruptcy Court for the Southern District of
New
York (the "Bankruptcy Court") and Lessee is currently operating its business and
managing its property as a debtor-in-possession.
The parties now wish to amend the Agreement in accordance with the terms set
forth in this Amendment.
NOW THEREFORE, for mutual consideration, the value of which the parties
acknowledge, the terms of the Agreement are amended as follows:
1. Capitalized terms not otherwise defined in this Amendment have the meaning
ascribed in the Agreement.
2. On the Effective Date, pursuant to Section 20.1, the Agreement as amended is
wholly assigned from Lessee to MFNS, and thereafter all references to "Lessee"
refer to MFNS and MFNN is discharged from further obligation.
3. The definition of "Term" is deleted and replaced with the following:
"'TERM' begins on the date of full execution of the First Amendment to this
Agreement and includes the initial term and any subsequent renewal terms."
4. Section 3.1 is deleted and replaced with the following:
"During the Term, unless otherwise converted to an IRU pursuant to Section 3.6,
Xxxxxxxx Communications grants to Lessee a Lease in 14,770 fiber miles in the
Xxxxxxxx Communications System (the 'Lessee Fiber').
[****************************************************
********************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
*****************************************************]
CONFIDENTIAL
PAGE 1 OF 4
EXECUTION COPY
5. The following Section 3.6 is added to the Agreement:
"TERM. The initial term of the agreement expires [*********] years after the
Effective Date of the First Amendment to this Agreement, with [***************]
renewal periods. Unless Lessee provides a minimum of 60 days notice of
termination prior to the expiration of the then-current term, the Agreement
automatically renews under the same terms and conditions."
6. EXHIBITS B AND C are wholly replaced with EXHIBIT B-1 AND C-1, attached to
this Amendment.
7. Section 4.1(a) is modified as follows: "27,000" is replaced with "14,770";
"[********]" is replaced with "[********]".
8. Section 17.7 is added to the Agreement:
"CROSS DEFAULT. Xxxxxxxx Communications and Lessee are parties to a second Lease
Agreement dated April 26, 2002 pursuant to which Xxxxxxxx Communications is the
lessee (the "Metro Agreement"). The parties agree that a default under the Metro
Agreement is deemed a default under this Agreement, giving the non-defaulting
party the right to terminate if the Metro Agreement is likewise terminated. The
right to terminate under this Section 17.7 automatically expires if the
non-defaulting party does not provide notice, within 60 days after termination
of the Metro Agreement, of its intent to exercise its right to terminate this
Agreement. Such termination shall be effective 120 days after such notice, if
given.
9. EFFECTIVE DATE. This Amendment is effective upon the date of the last
signature hereto ("Effective Date"). The parties agree that the new billing rate
as specified in paragraph 7 of this Amendment is effective October 1, 2002. To
be sure, any invoices rendered during September 2002 for October services, will
be adjusted accordingly. Notwithstanding the foregoing, the parties acknowledge
that the Amendment must be approved by the Bankruptcy Court pursuant to an
order, in form and substance acceptable to Xxxxxxxx Communications and Lessee,
which provides for, among other things, the following: (i) assumption of the
Agreement, as amended, pursuant to section 365 of the Bankruptcy Code, and (ii)
a finding that the parties negotiated the Amendment at arm's length and in good
faith. If such approval is not obtained on or before October 17, 2002 or such
later date as the parties may agree to, this Amendment will be null and void and
of no force or effect and Lessee agrees to pay the difference between the
amended amounts invoiced for October and the actual amounts owed under the
Agreement.
10. ASSUMPTION AND WAIVER OF SPECIFIC CLAIMS. Following the assumption of the
Agreement, if the Agreement is terminated due to Lessee's failure to perform or
its rejection thereof, nothing herein constitutes a waiver of Xxxxxxxx
Communications' right to a general unsecured claim for all outstanding
pre-petition amounts owed under the Agreement and an administrative claim for
post-petition damages caused by any breach of the Agreement, or of the right of
MFN or any party in interest to object to any such claim. Any and all
administrative
CONFIDENTIAL
PAGE 2 OF 4
EXECUTION COPY
expense claims will require Xxxxxxxx Communications to satisfy the requirements
of the Bankruptcy Code to establish the claim and is without prejudice to any
other party's right to contest such claim.
11. As additional consideration, Lessee agrees to provide Xxxxxxxx
Communications with the opportunity to view all future local and long-haul
capacity requirements of Lessee and will have the opportunity to displace any
other capacity provider currently used by Lessee as such service contracts
expire. Notwithstanding anything in this paragraph, Lessee is not obligated to
purchase any services from Xxxxxxxx Communications that do not strictly meet
Lessee's requirements, or to execute orders if the terms of service are not
competitive with other third-party providers of the same or similar service.
12. Except as amended, all of the original terms and conditions of the Agreement
continue in full force and effect, neither party is in currently in default, and
the Agreement, as amended is hereby ratified and confirmed.
13. This Amendment may be executed in counterparts, each of which taken together
constitute one and the same instrument.
The parties have executed this Amendment on the dates set forth below.
METROMEDIA FIBER NATIONAL NETWORK, INC., a Delaware corporation
Signature: /s/ Xxxxxxx X. La Perch
--------------------------------------
(Print) Name: Xxxxxxx X. La Perch
----------------------------------
(Print) Title: Sr. Vice President
----------------------------------
Date: 10/10/02
--------------------------------------------
METROMEDIA FIBER NETWORK SERVICES, INC., a Delaware corporation
Signature: /s/ Xxxxxxx X. La Perch
--------------------------------------
(Print) Name: Xxxxxxx X. La Perch
----------------------------------
(Print) Title: Sr. Vice President
----------------------------------
Date: 10/10/02
--------------------------------------------
CONFIDENTIAL
PAGE 3 OF 4
EXECUTION COPY
XXXXXXXX COMMUNICATIONS, LLC, a Delaware limited liability company
Signature: /s/ Xxxxx X. Xxxxxx
--------------------------------------
(Print) Name: Xxxxx X. Xxxxxx
----------------------------------
(Print) Title: Chief Operating Officer
----------------------------------
Date: 10/2/02
--------------------------------------------
CONFIDENTIAL
PAGE 4 OF 4
EXECUTION COPY
EXHIBIT B-1
SELECTED SEGMENTS
MFN ACCEPTANCE ROUTE NO. OF FIBERS FIBER ROUTE MILES
ROUTE SEGMENTS DATE MILES PER ROUTE ACCEPTED
-------------------------------------------------------------------------------------------------------
Atlanta to Washington, DC 05/24/00 820 2 1640
Dallas to Kansas City 11/27/00 690 2 1380
Denver to Xxxx Xxxx Xxxx 00/00/00 000 0 000
Xxxxxxx to Dallas(1) 05/26/00 250 2 500
Houston to Atlanta(1) 05/26/00 1000 2 2000
Kansas City to Denver 12/13/99 610 2 1220
Boston to Albany 9/27/00 180 2 360
Los Angeles to San Diego 05/23/01 200 2 400
Minneapolis to Kansas City 12/13/99 500 2 1000
Phoenix to Houston 11/11/00 1200 2 2400
Sacramento to Salt Lake City 12/18/00 630 2 1260
Sacramento To San Francisco 03/23/01 100 2 200
San Diego to Phoenix 02/26/01 350 2 700
Minneapolis to Chicago 455 2 910
-------
TOTALS 14,770
=======
CONFIDENTIAL
FIRST AMENDMENT TO LEASE AGREEMENT
EXHIBIT B-1
EXECUTION COPY
EXHIBIT C-1
COLLOCATION SITES
SELECTED SEGMENT POP LOCATIONS TRANSMISSION SITE LOCATIONS
---------------- ------------- ---------------------------
ATLN - WASH
Lawrenceville 000 Xxxxx Xx., Xxxxxxxxxxxxx, XX 00000
Athens (a\k\a Hull) 000 Xxxxx Xxxx, Xxxx, XX 00000
Xxxxxxxx 0000 Xxxxxxx Xxxx Xx., Xxxxxxxx, XX
00000
Greenville 0000 Xxxxxxx Xx., Xxxxxxxxxx, XX 00000
SPARTANBURG, SC SPARTANBURG POP - BTC BUILDING, 000 X. XXXXXX XX., XXXXX 0,
XXXXXXXXXXX, XX 00000
York 0000 Xxxxxxxxx Xx., Xxxxxx, XX 00000
XXXXXXXXX, XX CHARLOTTE POP - 000 X. XXXXXX XX., XXXXXXXXX, XX 00000
Salisbury (a\k\a Mt. Ulla) 000 Xxxxxxx Xx., Xx. Xxxx, XX 00000
Kernersville Jct. LOT #51M, 0000 Xxx Xxxxx Xxxx,
Xxxxxxxxxxxx, XX 00000
SPUR TO GREENSBORO & RALEIGH, NC
Reidsville 0000 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000
Chatham 000 Xxxxxxx Xx., Xxxxxxx, XX 00000
Appomattox Xxx. 000 XX, Xxxxxxxxxx, XX 00000
Scottsville Jct. Xxxxxxx 000, Xxxxxxxxxxx, XX 00000
SPUR TO RICHMOND, VA
Unionville 00000 Xxxxxxx Xx., Xxxxxxxxxx, XX
00000
Manassas 10699 Piperlane, Xxxxxxxx, XX 00000
HSTN - DLLS (IXC)
HOUSTON, TX HOUSTON POP - 0000 XXXXX XXXXXX, XXXXXXX, XX 00000
Willis (a\k\a Montgomery Co.) 00000 XX 00 XXXXX, Xxxxxx, XX 00000
Madison Xxxxx 0, Xxx 000, Xxxxxxxxxxxx, XX
00000
Buffalo 00000 XX 00 Xxxxx, Xxxxxxx, XX 00000
Streetman 00000 XX 00 Xxxxx, Xxxxxxxxx, XX 00000
CONFIDENTIAL
FIRST AMENDMENT TO LEASE AGREEMENT
EXHIBIT C-1
EXECUTION COPY
Ennis 0000 XX 00 Xxxxx, Xxxxx, XX 00000
KSCY - DNVR
KANSAS CITY, MO KANSAS CITY POP - THE XXXXXX BLDG., 0000 XXXXX XXX. #000,
XXXXXX XXXX, XX 00000
Xxxxxxxx 00000 000xx Xx., Xxxxxxxx, XX 00000
TOPEKA, KS TOPEKA POP - 000 XX XXXXXX, XXXXXX, XX 00000
Xxxxx (a\k\a Xxxxxx) 0000 Xxxxxx Xx. 000, Xxxxx Xxxx, XX
00000
Elmdale XX 0, Xxxxxxx, Xxxxxxxxxx Xxxxx, XX
00000
Xxxxxx 000 Xxxxxx Xxxx, Xxxxxx, XX 00000
Inman 000 Xxxx Xxx., Xxxxx, XX 00000
Ellinwood 0000 X XXXXXX XX. XXXX, Xxxxxxxxx, XX
00000
Bison Rural Xx. 0, Xxxxx, XX 00000
Xxxxx Rural Xx. 0, Xxxxx, XX 00000
Grainfield 0000 XXXXXX XXXX 00, Xxxxxxxxxx, XX
00000
Oakley (a\k\a Monument) 0000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000
Goodland 0000 Xxxxxx Xxxx #00, Xxxxxxxx, XX
Burlington (a\k\a Xxxxxxx) 00000 Xxxxxx Xx. 00, Xxxxxxxxxx, XX
00000
Flagler 0000 Xxxxxx Xx. XX, Xxxxxxx, XX 00000
Woodrow 0000 XXXXXXX 00, Xxxxxxx, XX 00000
Strasburg 0000 X Xxxxxx Xx., 000, Xxxxxxxxx, XX
00000
PTLD - SCRM
PORTLAND, OR PORTLAND POP - 000 XX XXXXXXXXXX XX., 0XX XX., XXXXX 000,
XXXXXXXX, XX 00000
SCRM - SLKC
SACRAMENTO, CA SACRAMENTO POP II - 000 X. XX., XXXXX 000, XXXXXXXXXX, XX 00000
Auburn Alt. 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, XX
00000
Blue Canyon Xxxx Xxxxxx Xxxx xxx X-00, Xxxx
Xxxxxx, XX 00000
Truckee 00000 Xxxxxxxxx Xxxx, Xxxxxxx, XX
00000
RENO, NV RENO POP - 000 XXXXXXX XX., XXXX, XX 00000
Hot Springs Flat (a\k\a Fallon) Exit 65 off X-00, Xxxxxxxxxxx Xx.,
Xxxxxx, XX 00000
Lovelock 00 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000
Mill City (a\k\a Imlay) Exit 149 on X-00, Xxx 00, Xxxxx X
Xxxx Xxxx Acres, Imlay, NV 89418
CONFIDENTIAL
FIRST AMENDMENT TO LEASE AGREEMENT
EXHIBIT C-1
EXECUTION COPY
Golconda Butte (a\k\a Winnemucca) Exit 187 off I-80, North of
interchange, Xxxxxxxxxx, XX 00000
Snow Gulch Exit 222 off I-80, 1.9 miles North of
Access, Snow Gulch, NV 89444
Xxxxxx (a\k\a Eureka) Exit 254 off I-80 North, East 3.5
miles, Xxxxxx, XX 00000
Hunter (a\k\a McGill) Exit 292 off I-80, North of
intersection, then East, XxXxxx, XX
00000
Deeth (a\k\a Elko) Exit 333 off I-80, 5 miles East on Xxxxx
Xxxxxxxx Xx, Xxxx, XX 00000
Oasis Exit 000 xxx X-00, Xxxxx, XX 00000
Wendover 0000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxx, XX
00000
Xxxxxx 9.5 miles Xxxx xx X-00, Xxxxx, XX
00000
Timpie (a\k\a Tooele) 00000 Xxxx Xxxxxx Xxxx, Xxxxxx, XX
00000
SALT LAKE CITY, UT SALT LAKE CITY POP - 0000 XXXXXX XXXXX XXXXX, XXXX XXXX XXXX,
XX 00000
HSTN - ATLN
HOUSTON, TX 0000 XXXXX XXXXXX, XXXXXXX, XX 00000
Kingwood (a\k\a Huffman or Xxxxxx) 00000 Xxxxxxx-Xxxxxxxxx X, Xxxxxxx,
XX 00000
Sour Lake (a\k\a Xxxxxx) 00000 Xxxxxxx 000, Xxxx Xxxx, XX 00000
Buna (a\k\a Jasper) Xxx 00 Xxxxx, Xxxx, XX 00000
Ragley (a\k\a Xxxxxxxxxx) 00000 Xxx 000 Xxxxx, Xxxxxx, XX 00000
Basile (a\k\a Xxxxxxxxxx) 0000 Xxxxxx Xx., Xxxxxx, XX 00000
Port Barre (a\k\a St. Xxxxxx or Washington) 0000 Xxxxxxx 000, Xxxxxxxxxx, XX 00000
Zachary Jct. (a\k\a Xxxxxxxxx or Jackson) 0000 X Xxxxxxx 000, Xxxxxxx, XX 00000
SPUR TO NEW ORLEANS, LA
Greensburg (a\k\a St. Helena) Hwy 43 North, Xxxxxxxxxx, XX 00000
Xxxxxxxxx (x\x\x Xxxxxxxx) 000 Xxx 000, Xxxxxxxxx, XX 00000
Seminary (a\k\a Xxxxxxxxx Co.) 00 Xxxxx Xxxxx Xxxx, Xxxxxxxx, XX
00000
SPUR TO JACKSON, MS
Laurel (a\k\a Jasper or Sandersville) 0000 Xxxxxx Xxxx, Xxxxxxxxxxxx, XX
00000
Quitman (a\k\a Jasper Co.) 000 Xxxx Xxxx, Xxxxxxx, XX 00000
Linden (a\k\a Merengo or Sweetwater) Xxx 00 Xxxxx, Xxxxxxxxxx, XX 00000
Selma (a\k\a Dallas Co. or Browns) 0000 Xxxxxx Xxxx 000, Xxxxxx, XX 00000
CONFIDENTIAL
FIRST AMENDMENT TO LEASE AGREEMENT
EXHIBIT C-1
EXECUTION COPY
Clanton (a\k\a Xxxxxxx or Billingsley) 0000 Xxxxxxx Xxxx #000, Xxxxxxxxxxx,
XX 00000
SPUR TO BIRMINGHAM, AL
Alexander City (a\k\a Coosa or Kellyton) 000 Xxxxxxx 0, Xxxxxxxx, XX 00000
Xxxxxx (a\k\a Xxxxxxxx Co.) 0000 Xxxxxx Xx 00, Xxxxxx, XX 00000
Newnan (a\k\a Coweta Co.) 00 Xxxx Xxxxx Xxxx, Xxxxxx, XX 00000
MPLS - KSCY
MINNEAPOLIS, MN 000 00XX XXX. XXXXX, XXXXX 000, XXXXXXXXXXX, XX
Northfield 0000 000xx Xxxxxx Xxxx, Xxxxxxxxxx,
XX 00000
Owantonna (a\k\a Hope) 0000 XX 00xx Xxxxxx, Xxxxxxxxx, XX
00000
Xxxxxx Town (a\k\a Xxxxxx) 000 000xx Xxxxxx, Xxxxxx Xxxx, XX
00000
Latimer 0000 Xxxxx Xxxxxx, xxxxxxx, XX 00000
Xxxxxx 00000 000xx Xxxxxx, Xxxxxx, XX 00000
DES MOINES, IA DES MOINES POP - 0000X XXXXXXXX XXXX, XXX XXXXXX, XX 00000
Osceola 0000-X XX Xxxxxxx 00, Xxxxxxx, XX
00000
Ridgeway 00000 X. 000xx Xxxxx, Xxxxxxxx, XX
00000
Maysville (a\k\a Xxxxxxxxxx) 00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxx,
XX 00000
Plattsburgh (a\k\a Lilly) 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000
SCRM - SNFC
SACRAMENTO, CA SACRAMENTO POP II - 0000 'X' XXXXXX, XXXXXXXXXX, XX 00000
Bay Point 000 Xxxxx Xxxx, Xxx Xxxxx, XX 00000
Creed 0000 Xxxxx Xxxx, Xxxxxx Xxxx, 00000
XXX XXXXXXXXX, XX SAN FRANCISCO POP - 000 XXXX XX., 0XX XXXXX, XXX XXXXXXXXX, XX
00000
CONFIDENTIAL
FIRST AMENDMENT TO LEASE AGREEMENT
EXHIBIT C-1
CONFIDENTIAL PORTION MARKED [*************] HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT ("Amendment") is made by and between WILTEL
COMMUNICATIONS, LLC, a Delaware limited liability company ("WilTel
Communications"), and METROMEDIA FIBER NETWORK SERVICES, INC. ("Lessee") a
Delaware corporation.
Background
Metromedia Fiber National Network, Inc., a Delaware corporation ("MFNN") and
WilTel Communications executed that certain Lease Agreement dated April 26,
2002, as amended October 10, 2002 (the "Agreement").
The Agreement was wholly assigned by MFNN to Lessee on October 10, 2002.
The parties now wish to amend the Agreement to remove certain Lessee Fiber in
accordance with the terms set forth in this Amendment.
NOW THEREFORE, for mutual consideration, the value of which the parties
acknowledge, the terms of the Agreement are amended as follows:
1. Capitalized terms not otherwise defined in this Amendment have the meaning
ascribed in the Agreement.
2. The reference to "14,770 fiber miles" in Section 3.1 is replaced with "14,410
fiber miles".
3. EXHIBIT B-1 is wholly replaced with EXHIBIT B-2 attached to this Amendment.
4. Section 4.1(a) is modified as follows: "14,770" is replaced with "14,410";
"[********]" is replaced with "[********]".
5. EFFECTIVE DATE. This Amendment is effective upon the date of the last
signature hereto ("Effective Date").
CONFIDENTIAL
PAGE 1 OF 4
6. Lessee Fiber Interconnections. WilTel Communications will provide Lessee
Fiber/Backbone Access as detailed below, at the specified pricing
(notwithstanding Article 3):
BACKBONE
DEMARCATION LEASE ACCESS NON-RECURRING
MARKET POINTS PAYMENTS PAYMENTS CHARGES OTHER
------ ----------- -------- -------- ------------- -----
Los Angeles, CA 624 South Grand, [**] [**] Lessee pays for Cost of Lessee, at
Suite 1706 (1 fiber connectivity its sole
Wilshire) to the between fiber cost, will
"Meet-me-Room" on distribution panels. perform its
the 4th floor of own splice
the same building and test. WC
(non-diverse) will provide
LOA.
Dallas, TX . WC 5th Floor POP [**] [**] Lessee pays for Cost of
at 400 S. Akard any splicing and testing
to designated work and fiber
manhole serving connectivity between
Lessee Fiber from fiber distribution
same Building panels.
(non-diverse)
Chicago, IL WC's floor [*******] Lessee pays for Cost of
connecting to ~ 5 any splicing and testing
mile lateral work and fiber
terminating in connectivity between
previously agreed fiber distribution
upon manhole panels
serving Lessee
Fiber.
Kansas City WC POPs at 1102 [*******] Lessee pays for Cost of
Grand Avenue, fiber connectivity
#300 and 1212 E. between fiber
19th Street distribution panels.
(non-diverse)
6. Except as amended, all of the original terms and conditions of the Agreement
continue in full force and effect, neither party is in currently in default, and
the Agreement, as amended is hereby ratified and confirmed.
CONFIDENTIAL
PAGE 2 OF 4
7. This Amendment may be executed in counterparts, each of which taken together
constitute one and the same instrument.
The parties have executed this Amendment on the dates set forth below.
METROMEDIA FIBER NETWORK SERVICES, INC., a Delaware corporation
Signature: /s/ William G. La Perch
--------------------------------------------------
(Print) Name: William G. La Perch
----------------------------------------------
(Print) Title: SVP - Network Services
----------------------------------------------
Date: 2/14/03
--------------------------------------------------------
WILTEL COMMUNICATIONS, LLC, a Delaware limited liability company
Signature: /s/ T. J. Gallagher
--------------------------------------------------
(Print) Name: T. J. Gallagher
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(Print) Title: VP & GM, Business Development
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Date: 2/14/03
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CONFIDENTIAL
PAGE 3 OF 4
EXHIBIT B-2
SELECTED SEGMENTS
MFN ACCEPTANCE ROUTE NO. OF FIBERS FIBER ROUTE MILES
ROUTE SEGMENTS DATE MILES PER ROUTE ACCEPTED
-------------- -------------- ----- ------------- -----------------
Atlanta to Washington, DC 05/24/00 820 2 1640
Dallas to Kansas City 11/27/00 690 2 1380
Denver to Salt Lake City 03/28/00 400 2 800
Houston to Dallas 1 05/26/00 250 2 500
Houston to Atlanta 1 05/26/00 1000 2 2000
Kansas City to Denver 12/13/99 610 2 1220
Los Angeles to San Diego 05/23/01 200 2 400
Minneapolis to Kansas City 12/13/99 500 2 1000
Phoenix to Houston 11/11/00 1200 2 2400
Sacramento to Salt Lake City 12/18/00 630 2 1260
Sacramento To San Francisco 03/23/01 100 2 200
San Diego to Phoenix 02/26/01 350 2 700
Minneapolis to Chicago 455 2 910
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TOTALS 14,410
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CONFIDENTIAL
SECOND AMENDMENT TO LEASE AGREEMENT
EXHIBIT B-2
EXECUTION COPY CONFIDENTIAL
CONFIDENTIAL PORTION MARKED [*************] HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
COLLOCATION AND MAINTENANCE AGREEMENT
BETWEEN
WILLIAMS COMMUNICATIONS, LLC ("PROVIDER")
AND
METROMEDIA FIBER NATIONAL NETWORK, INC., ("CUSTOMER")
DATED APRIL 26, 2002
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TABLE OF CONTENTS
ARTICLE PAGE
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ARTICLE I. DEFINITIONS....................................................1
ARTICLE II. CONSIDERATION, FEES AND PAYMENT TERMS.........................3
ARTICLE III. GRANT OF LICENSE AND COLLOCATION.............................6
ARTICLE IV. INTENTIONALLY OMITTED........................................10
ARTICLE V. TERM..........................................................10
ARTICLE VI. CUSTOMER FIBER MAINTENANCE...................................10
ARTICLE VII. AUDIT RIGHTS................................................11
ARTICLE VIII. WARRANTIES.................................................11
ARTICLE IX. DEFAULT......................................................12
ARTICLE X. INDEMNIFICATION...............................................13
ARTICLE XI. LIMITATION OF LIABILITY......................................14
ARTICLE XII. INSURANCE...................................................15
ARTICLE XIII. TAXES......................................................16
ARTICLE XIV. NOTICE......................................................16
ARTICLE XV. CONFIDENTIALITY..............................................17
ARTICLE XVI. PROHIBITION ON IMPROPER PAYMENTS............................18
ARTICLE XVII. FORCE MAJEURE; EMINENT DOMAIN..............................18
ARTICLE XVIII. SETTLEMENT OF DISPUTES....................................19
ARTICLE XIX. RULES OF CONSTRUCTION.......................................19
ARTICLE XX. ASSIGNMENT...................................................21
ARTICLE XXI. ENTIRE AGREEMENT; AMENDMENT; EXECUTION......................21
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EXHIBITS
Exhibit A Collocation Sites
Exhibit B Operations Specifications
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COLLOCATION AND MAINTENANCE AGREEMENT
(LONG-HAUL FIBER)
This
COLLOCATION AND MAINTENANCE AGREEMENT (this "Agreement") is made,
as of the 26 day of April, 2002 (the "Effective Date") by and between WILLIAMS
COMMUNICATIONS, LLC ("Provider"), a Delaware limited liability company, having
its principal office at One Technology Center, Tulsa, Oklahoma 74103 and
METROMEDIA FIBER NATIONAL NETWORK, INC. ("Customer"), a Delaware corporation
having its principal office at 360 Hamilton Avenue, White Plains,
New York
10601.
BACKGROUND
A. On this same date, the parties are entering a Fiber Lease Agreement ("Fiber
Agreement") pursuant to which Customer agrees to lease from Provider certain
fiber optic strands (the "Customer Fibers"); and
B. Customer desires to have Provider operate and maintain the Customer Fibers
and Provider desires to provide such services to Customer on the terms and
conditions set forth herein; and
C. In addition to maintenance services, Customer desires to acquire from
Provider, and Provider desires to provide to Customer, certain collocation
rights and services for the Customer Fibers upon the terms and conditions set
forth in this Agreement; and
NOW, THEREFORE, in consideration of the mutual promises set forth below, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I. DEFINITIONS
Capitalized terms and phrases used in this Agreement shall have the following
meanings:
"ADDITIONAL SERVICES" shall have the definition set forth in Section 3.4.
"AFFILIATE" means, with respect to any entity, an entity controlling, controlled
by, or under common control with such entity by means of direct or indirect
majority equity ownership or otherwise. As used in this Agreement, "control"
shall mean possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a person or entity, whether
through the ownership of voting securities, by contract or otherwise.
"BASIC SERVICES" shall have the definition set forth in Section 3.3.
"CLAIM" means any claim, action, dispute, or proceeding of any kind between
Customer (or any of its Affiliates, successors or assigns) and Provider (or any
of its Affiliates, successors, or assigns) and any other claim, transaction,
occurrence, loss, liability, expense or other matter arising out of, in
connection with, or in any way related to, the Collocation Sites and this
Agreement, including the Exhibits hereto.
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"COLLOCATION NOTICE" is defined in Section 3.5(a).
"COLLOCATION SITE" shall mean each location in which Customer is granted
collocation rights hereunder, including POPs, regeneration and transmission
sites, central offices and commercial buildings. The initial Collocation Sites
are listed in Exhibit A, (includes the specified number of racks listed for each
such location) and any provided in the future pursuant to Section 3.5(a).
"COSTS" means actual and directly related costs accumulated in accordance with
the established accounting procedure used by Provider or Customer or their
respective contractors or subcontractors, as the case may be, which costs
include the following: (a) labor costs, including wages, salaries, benefits and
overhead allocable to such labor costs (Customer's or Provider's overhead
allocation percentage shall not exceed the lesser of (i) the percentage such
party allocates to its internal projects or (ii) one hundred and thirty percent
(130%), and (b) other direct costs and out-of-pocket expenses on a pass-through
basis (e.g., equipment, materials, supplies, contract services, etc.).
"CUSTOMER EQUIPMENT" means optronic (opto-electrical), electronic, or optical
equipment, or materials, interconnection facilities, or other equipment owned,
possessed, or utilized by Customer.
"FACILITY OWNERS/LENDERS" means any entity (other than Provider): (a) owning any
portion of the Collocation Site or Customer Fibers or any property or security
interest therein, (b) leasing to Provider, or providing an IRU to Provider in,
any portion of the Customer Fibers, or (c) that is a lender (including any party
holding legal title or a security interest in Provider's network as a lessor or
a creditor) with respect to Provider or any Affiliates of Provider.
"FORCE MAJEURE EVENT" shall mean any event due to causes beyond the reasonable
control of a Party, including, but not limited to: act of God; fire; flood;
material shortage or unavailability not resulting from the responsible Party's
failure to timely place orders or take other necessary actions therefor,
government codes, ordinances, laws, rules, regulations, or restrictions; war or
civil disorder; provided that (i) a loss by a Party of employees (other than by
reason of one or more Force Majeure Events), (ii) strikes and other labor
actions involving a Party's own work force, (iii) the failure (other than by
reason of force majeure) of any subcontractor, supplier or transporter to
perform its obligations to a Party (except on account of insolvency) unless such
supplies or transportation or other services are generally unavailable in the
marketplace, and (iv) any increase a Party's costs, shall not in and of itself
constitute a Force Majeure Event; and provided that an act or omission shall not
be deemed to be "beyond its control" if committed, omitted or caused by such
Party, or its employees, officers, agents or affiliates, or by any corporation
or other business entity that holds a controlling interest in said Party,
whether held directly or indirectly.
"INSTALLATION DATE" is the first date the Collocation Site is ready and
available for installation of Customer Equipment.
"LEASE CLAIMS" shall have the meaning set forth in Section 11.4.
"PARTY" or "PARTIES" shall mean either Customer, Provider or both.
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"PERSON" shall mean an individual; association, partnership, corporation,
limited liability company or other legally recognized entity.
"POP" means a telecommunications point of presence and, unless the context
indicates otherwise, refers to a Provider-designated point of presence located
along the route of the Customer Fibers.
"RELEASED PARTY" means each of the following:
(a) any Affiliates of the other party and any Facility Owners/Lenders;
(b) any employee, officer, director, stockholder, partner, member, or
trustee of the other party or of its Affiliates or Facility
Owners/Lenders; or
(c) assignees of the entities included in the above subparagraphs (a)
or (b) and any employee, officer, director, stockholder, partner,
member, or trustee of such assignees.
"TAKING" shall have the definition set forth in Section 17.2.
"TERM" means the term of this Agreement as defined in Section 5.1.
"UNDERLYING LANDLORD" means any entity (other than Provider) leasing to Provider
any Collocation Site.
ARTICLE II. CONSIDERATION, FEES AND PAYMENT TERMS
2.1 CHARGES FOR MAINTENANCE. Notwithstanding anything contained herein to the
contrary, Customer agrees to pay Provider monthly charges for maintenance
services equal to [********] through the April, 2002 billing cycle for receipt
of such services through May, 2002. For each month during the Term thereafter,
Customer shall pay Provider a maintenance fee of [*****] per fiber mile, per
month for the maintenance services set forth in Article 6 of this Agreement,
such amount totaling $[******] per month (27,000 fiber miles x [**]). Invoices
for such maintenance services shall be issued monthly.
2.2 CHARGES FOR COLLOCATION.
(a) BASIC SERVICES. Customer shall pay for the use of the rack space
and associated Basic Services (including power up to 30 amps per rack):
(i) at Collocation Sites listed in the Fiber Lease
Agreement that service the Customer Fibers at the
rate of [****] per rack per month; and
(ii) at additional Collocation Sites ordered after the
Effective Date at Provider's then current standard
rates.
(b) ADDITIONAL SERVICES. If Customer chooses to receive Additional
Services, it shall pay any and all (initial and continuing) costs reasonably
incurred by Provider in providing such Additional
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Services. Upon at least thirty (30) days' notice to Customer, Provider may
adjust recurring charges for the Additional Services once each calendar year to
equal its then-current standard charges.
(i) The current charge for additional racks (including up to
20 amps of power per rack) is [*****] per rack per month.
(ii) The current monthly service charges for additional power
are [***] per AC/amp or DC/amp (in excess of 20 combined amps per
rack).
(iii) Customer shall pay a non-recurring charge for initial
installation of Additional Service at a POP, which charges are forth in
the table below.
DESCRIPTION OF CHARGE NONRECURRING CHARGE
Initial Installation Charge per rack [******]
Per 10 AC or DC/amps (over combined 20) up [****] per amp
to 60 amps per rack total.
Charge for more than 60 amps per rack total [***]
(iv) Provider agrees that Customer may cross-connect with
third parties at each Collocation Site. Provider will charge and
Customer will pay the following charges for interconnecting within
Provider's POP:
o A non-recurring charge of [*****] per cross-/interconnect
(covers testing, cords...etc.)
o A monthly recurring charge of [****] for a single riser and
[*****] for dual risers per 4 fibers.
(c) ESCORTED ACCESS. Customer shall pay Provider's charges for escorted
access to Collocation Sites, which may include minimum call-out times, and
night, weekend, and holiday differentials or multipliers as set forth below:
o Monday-Friday, 8:00 am to 5:00 pm local (2 hour min) [****]
o Monday-Friday, 5:01 pm to 7:59 am local (4 hour min) [****]
o Saturday & Sunday (4 hour min) [****]
o Holidays (4 hour min) [****]
(d) EARLY TERMINATION. Except as set forth in Section 3.2, Customer is
liable for Collocation Charges (a) for one year after the Installation Date at
each POP, and (b) for five years after the Installation Date at each non-POP. If
Customer elects to terminate use of any racks it shall do so by giving Provider
30 days prior written notice and paying a termination fee equal to such charges.
(e) ANCILLARY CHARGES. Current ancillary charges related to changes of
the Basic Services or the Additional Services are set forth in the table below:
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ANCILLARY CHARGES CHARGE PER OCCURRENCE
Each change of Transmission Service Order (prior to spec [****]
being written)
Each change of Transmission Service Order (after spec [******]
written but before install)
Each change of Transmission Service Order (after install) [************]
Order Cancellation of Additional Services (>/= 30 days [****]
from Additional Services Ready Date)
Order Cancellation of Additional Services (< 30 days from [******]
Additional Services Ready Date)
All charges set forth in Subsections 2.2 (b), (c), (d) and (e) are subject to
change upon at least thirty (30) days' notice from Provider to Customer after
the first anniversary of the Effective Date.
2.3 METHOD OF PAYMENT. All payments to be made pursuant to this Agreement may be
made by check or draft of immediately available funds delivered to the address
designated in writing by the other Party (e.g., in a statement or invoice) or,
failing such designation, to the address for notice to such other Party provided
pursuant to Article XIV. Each Party shall make all payments in United States
currency.
2.4 TIME OF PAYMENT.
(a) Recurring charges for maintenance services and collocation services
are invoiced in advance. Payments shall be prorated, as necessary, for the first
and last months such charges apply. Notwithstanding anything to the contrary in
this Agreement and regardless of whether Customer is ready to utilize the
collocation space in each of the Collocation Sites, the Collocation charges
shall begin to apply upon the Installation Date at the relevant site.
(b) Provider shall issue invoices for any Additional Services after the
calendar month during which it provided such Additional Services, provided that
it may issue invoices for nonrecurring charges (including any Cost
reimbursement) based upon estimates of such charges and Customer shall pay such
invoices prior to performance of the work by Provider. Within thirty (30) days
of completion of the work, Provider shall invoice Customer for any Costs of such
work exceeding the estimate, or if the estimate exceeds the actual Costs,
Provider shall refund the Customer the difference.
(c) Except as otherwise set forth in this Agreement, all amounts are
payable within thirty (30) calendar days of the invoice delivery date, as
determined by Section 14.2. Notwithstanding anything to the contrary contained
herein, Customer shall pay the maintenance and collocation fees during the term
of that certain Monthly Netting Agreement executed by the Parties on October 20,
2002, in accordance with the provisions of such Monthly Netting Agreement.
2.5 NO OTHER FEES. Except as otherwise set forth in this Agreement, neither
party shall charge the other party any maintenance, right-of-way, conduit
occupancy, or other recurring charges.
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ARTICLE III. GRANT OF LICENSE AND COLLOCATION
3.1 GRANT OF LICENSE.
(a) Customer's rights under this Agreement are solely contractual,
granting Customer an exclusive license to locate, install, maintain and operate
Customer Equipment at each Collocation Site, but only as permitted by this
Agreement and only to the extent expressly set forth in this Agreement or an
accepted order for collocation services. No use of a Collocation Site required
or permitted under this Agreement shall create or vest in Customer any
easements, leasehold interests, or other ownership or property rights of any
nature in Provider's real or personal property. Customer shall provide,
maintain, and for all purposes be solely responsible for all Customer Equipment
at Collocation Sites.
(b) Customer shall have the exclusive right to use the rack space
allocated to Customer in each Collocation Site for any lawful telecommunications
purpose. Provider shall have no right to use the Customer's rack space in any
Collocation Site during the Term except in the event of a Customer default and
subsequent termination of this Agreement.
(c) In addition to the restrictions set forth in Article XX, Customer
shall not, directly or indirectly, convey any interest, sublicense or sublease
in the Collocation Site or any racks at such site (including Customer's right to
occupy the Collocation Site) to any other person, firm or entity, without the
prior written consent of Lessor.
3.2 COLLOCATION SITES.
(a) Provider agrees to provide and Customer agrees to pay for the
Collocation Sites and corresponding number of racks identified in Exhibit A
under the column "Racks pre 6/1/02" in each of Provider's Collocation Sites. The
monthly charges for such racks and associated collocation services total
[********], which Customer agrees to pay Provider through the April, 2002
billing cycle for receipt of such services through May, 2002. On June 1, 2002,
this Agreement expires with respect to all the racks so identified, including
associated collocation services, and neither party has any further liability
with respect to such racks accruing after June 1, 2002.
(b) As of June 1, 2002, Provider agrees to provide and Customer agrees
to pay for the Collocation Sites and corresponding number of racks identified in
Exhibit A under the column "Racks post 6/1/02", together with associated
collocation services ordered by Customer. The current monthly invoice for such
collocation is [********].
(c) After execution of this Agreement, any requests by Customer for
racks at the Collocation Sites set forth in Exhibit A shall be considered a
request for Additional Services as defined below.
3.3 BASIC SERVICES. At each Collocation Site, Provider will provide to Customer
the number of racks specified in Exhibit A, plus HVAC, and 30 amps of negative
48v DC power per rack (collectively, the "Basic Services"). A rack space shall
be adequate to contain a rack (measuring 26 inches (width) x 24 inches (depth) x
78 or 84 inches (height)). The total linear inches for Customer rack space
within each location shall not exceed the sum of the number of rack spaces for
such location multiplied by 26 inches. To the extent Provider has additional
available and uncommitted collocation
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space and power at the Collocation Sites, Customer may order additional Basic
Services. Customer shall use the standard Provider procedures for ordering such
additional Basic Services.
3.4 ADDITIONAL SERVICES. Customer may request in writing separate caged access,
installation services, AC power or additional DC power, additional back-up
power, technical assistance, additional space or racks, cross-connects, or
additional HVAC (collectively referred to as the "Additional Services") at any
Collocation Site. Within thirty (30) business days after receiving such written
request, Provider shall notify Customer whether the Additional Services are
available and, if they are, Provider's standard rates for the Additional
Services as set forth in Section 2.2(b). Customer shall provide written notice
to Provider confirming its request for such Additional Services at the quoted
rates prior to Provider providing such Additional Services. If upgrades or
expansions to a Collocation Site or its facilities are necessary to accommodate
Customer's request, Provider may charge the entire Costs of such upgrades or
expansions to Customer to be paid in advance.
3.5 DELIVERY AND INSTALLATION.
(a) No later than sixty (60) days prior to Customer's desired
Installation Date at any Collocation Site, Customer shall provide to Provider
the "Collocation Notice." The Collocation Notice shall include notice of
Customer's desire to collocate in a particular Collocation Site, a copy of
Customer's construction design drawings and installation schedule. The
Collocation Notice shall also include: (a) Customer's requested installation
date(s); (b) any excess cable storage requirements; (c) identification of all
Customer Equipment to be installed; (d) a diagram of the desired location of the
Customer Equipment; (e) the space, power, environmental and other requirements
for the Customer Equipment; (f) all other information reasonably required by
Provider. Within thirty (30) business days of receiving the Collocation Notice,
Provider shall respond with its acceptance or rejection.
(b) Customer shall, at its expense, cause Customer Equipment to be
delivered, installed, and maintained in a safe condition and meeting or
exceeding the standards of Provider. Provider shall allow Customer reasonable
access to each Collocation Site for purposes of installing Customer Equipment,
provided that, if a Collocation Site is not ready for installation of equipment
other than security, alarm, HVAC, power, back-up power or other common systems
on such date, Provider shall allow such access within five (5) days of the first
date such Collocation Site is ready for such installation. Provider shall
provide Customer with at least thirty (30) days notice prior to the date it
estimates each Collocation Site will be ready for installation of Customer
Equipment.
3.6 ALARMS.
(a) Provider shall continuously monitor Collocation Site security,
environmental, and power alarms at one or more manned monitoring centers. At
Customer's request, Provider shall establish procedures to allow Customer, at
Customer's expense, to share or (at Provider's option) receive indirectly
security and environmental alarm information where technically feasible.
(b) Each Party shall promptly notify the other of any matters
pertaining to any damage or impending damage to or loss of the use of
Collocation Site or surrounding premises that are known to it and that could
reasonably be expected to adversely affect the Collocation Site.
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3.7 COLLOCATION SITE MAINTENANCE. Customer shall provide all maintenance and
repair of Customer Equipment. Any improvement, modification, addition to,
relocation, or removal of Customer Equipment, shall be subject to Provider's
prior review and written approval. Customer shall pay the cost of such
improvement, modification, addition to, relocation, or removal of, the Customer
Equipment. Provider's approval will not be unreasonably withheld. Provider's
maintenance responsibility shall be limited to the demarcation point and the
associated cross connect at that point.
3.8 USE OF CUSTOMER EQUIPMENT.
(a) POWER USE. Customer shall not install any electrical or other
equipment that overloads any electrical paneling, circuitry, or wiring.
(b) STANDARDS. Customer shall ensure that Customer Equipment is
installed, operated, and maintained to meet or exceed any reasonable
requirements of Provider, any requirements of Provider's building management or
insurance underwriters, and any applicable local, state and federal codes and
public health and safety laws and regulations (including fire regulations and
the National Electric Code).
(c) INTERVENTION. If any part of the Customer Fibers or Customer
Equipment is not placed and maintained in accordance with the terms and
conditions of this Agreement and Customer fails to correct the violation within
(i) ten (10) days if the violation creates a life safety hazard, or (ii) thirty
(30) days for any other violation, each from receipt of written notice thereof
from Provider, then Provider may, at its option, without further notice to
Customer, correct the deficiency at Customer's expense without liability (except
to the extent the Agreement permits recovery for Provider's gross negligence)
for damages to the fiber, Customer Equipment or for any interruption of
Customer's services. As soon as practicable thereafter, Provider shall advise
Customer in writing of the work performed or the action taken. Customer shall
reimburse Provider for all Costs reasonably incurred by Provider associated with
any work or action performed by Provider pursuant hereto.
(d) THREAT TO PERSONS OR PROPERTY. If Provider determines that
Customer's actions or failure to fulfill an obligation of this Agreement, or its
Customer Equipment poses an immediate threat to the safety of Provider's
employees or the public, interferes with the performance of Provider's service
obligations, or poses an immediate threat to the physical integrity of
Provider's facilities, Provider may perform such work and/or take such action
that it deems necessary without notice to Customer and without subjecting itself
to any liability (except to the extent the Agreement permits recovery for
Provider's gross negligence) for damage to the fiber, Customer Equipment or for
any interruption of Customer's services. As soon as practicable thereafter,
Provider shall advise Customer in writing of the work performed or the action
taken. Customer shall reimburse Provider for all expenses reasonably incurred by
Provider associated with any work or action performed by Provider pursuant
hereto. Customer shall remit payment to Provider within thirty (30) calendar
days from its receipt of Provider's invoice therefor.
3.9 ACCESS TO COLLOCATION SITE. Provider shall provide Customer with escorted
twenty-four hour access to Customer's assigned racks and, as reasonably
necessary, other portions of Provider's common space. Customer agrees to pay the
fees set forth in Section 2.2(d) for escorted access. To obtain such
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access, Customer shall provide Provider with reasonable advance notice and
Provider shall provide escorted access. Provider shall use reasonable efforts to
respond to emergency requests for such access.
(a) NOTICE. Customer shall notify Provider Network Operations Center
prior to entering a Collocation Site and shall comply with any reasonable
Provider notice procedures.
(b) SECURITY. Customer shall abide by Provider's reasonable security
requirements. When deemed appropriate by Provider, Customer employees,
customers, or representatives shall be issued passes or visitor identification
cards which must be presented upon request before entry to Collocation Sites and
surrendered upon demand or upon termination of the Agreement. Such passes or
other identification shall be issued only to persons meeting any reasonable
security criteria applicable at the relevant Collocation Site for such purpose.
Nothing in this Subsection shall be construed as preventing Customer from having
twenty-four hour escorted access to Collocation Sites.
(c) RIGHT TO TERMINATE INDIVIDUAL'S ACCESS. Notwithstanding any other
provision of this Agreement, Provider shall, without threat of liability, have
the right to immediately terminate the right of access of any Customer personnel
or representative should it determine in its sole discretion for any lawful
reason that termination of such access is in its best interest. Provider shall
promptly notify Customer of any such termination, and Customer shall have a
reasonable opportunity to demonstrate that the terminated rights of access
should be reinstated. Any termination of a specific individual's access shall
remain in effect pending Provider's final determination as to the advisability
of such reinstatement.
(d) REMOVAL OF CUSTOMER EQUIPMENT. Within sixty (60) days after the end of the
Term or Customer's abandonment of any collocation arrangement at a Collocation
Site, Customer shall remove all Customer Equipment from the System or any other
Provider facilities at Customer's sole cost under Provider's supervision.
Customer shall provide Provider with at least sixty (60) days' notice prior to
such removal. If Customer fails to remove the same within said sixty-day period,
Provider shall either:
(i) remove Customer's Equipment and issue an invoice to Customer
for the cost of removal and storage; or
(ii) notify Customer that Provider elects to take ownership of
such abandoned Customer Equipment, in which case Customer shall
execute a bill of sale or other document evidencing Provider's title
to such Customer Equipment.
3.10 NO RESTRICTIONS. Provider's right to maintain and operate its facilities in
such a manner as will best enable it to fulfill its own service requirements is
in no manner limited by this Agreement, except as specifically set forth in this
Agreement.
3.11 INSPECTIONS. Provider reserves the right to make periodic inspections of
any part of the Collocation Sites; provided that Customer shall have the right
to have one or more of its employees or representatives present during the time
of any such inspection. Provider shall give Customer advance notice of such
inspections, except in those instances where Provider determines that safety
considerations justify the need for such an inspection without the delay of
providing notice. The making of periodic inspections or the failure to do so
shall not operate to impose upon Provider any
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liability of any kind whatsoever nor relieve Customer of any responsibility,
obligation, or liability allocated to it in this Agreement.
3.12 LIENS AND ENCUMBRANCES. Customer shall not have the power, authority or
right to create and shall not permit any lien or encumbrance, including, without
limitation, tax liens, mechanics' liens, or other liens or encumbrances with
respect to work performed, in connection with the installation, repair,
maintenance or operation of its Customer Equipment or other property installed
within the Collocation Site.
3.13 SUBORDINATION. Customer's rights under this Agreement shall be totally
subordinate to any bona fide mortgages, loans, deeds of trust, or any other
borrowing upon the real or personal property which may be incurred by Provider.
Customer shall sign any such reasonable documents as are necessary to satisfy
any lender, private or institutional, to reflect said subordination.
3.14 INDEPENDENT PARTIES. The presence of a Provider or Customer employee or
representative (as an inspector or otherwise) while an employee or
representative of the other party is at the Collocation Site or performing work
pursuant to this Agreement shall not make either party liable for the actions of
the other party and shall not be deemed to waive the responsibility of either
party to perform its obligations in a safe and workmanlike manner.
ARTICLE IV. INTENTIONALLY OMITTED
ARTICLE V. TERM
5.1 TERM. The Term of this Agreement begins on the Effective Date and expires
co-terminously with the Fiber Lease Agreement.
5.2 EFFECT OF TERMINATION. No termination of this Agreement shall affect the
rights or obligations of any Party hereto:
(a) with respect to any payment hereunder for services
rendered prior to the date of termination;
(b) pursuant to Articles VII (Audit Rights), X
(Indemnification), XI (Limitation of Liability), XII (Insurance), XIII
(Taxes), XV (Confidentiality), XVI (Prohibition on Improper Payments),
XVIII (Settlement of Disputes), or XIX (Rules of Construction) or
Sections 8.2 (Disclaimer of Warranty) or 8.3 (No Third-Party
Warranties); or
(c) pursuant to other provisions of this Agreement that, by
their sense and context, are intended to survive termination of this
Agreement.
ARTICLE VI. CUSTOMER FIBER MAINTENANCE
6.1 MAINTENANCE SERVICES. During the Term of this Agreement, Provider shall
provide, or cause to be provided by contractors selected by Provider, emergency
and non-emergency maintenance and repair of the Customer Fibers all pursuant to
the operations specifications set forth in Exhibit B. Provider, at
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Customer's sole expense and at Provider's or its subcontractor's then prevailing
rates, shall perform maintenance and repair necessitated by Customer's
negligence or willful misconduct or Customer's elective maintenance or repair
requests.
6.2 MAINTENANCE OF CUSTOMER'S EQUIPMENT EXCLUDED. Provider shall have no
obligation under this Agreement to maintain, repair or replace Customer's
Equipment.
6.3 NO UNAUTHORIZED ACCESS TO SYSTEM. Customer shall not access the Customer
Fibers (other than pursuant to this Agreement).
6.4 RELOCATION. If Provider is required to relocate the Customer Fibers,
Provider shall give Customer not less than 180 calendar days' prior written
notice (unless Provider has received less than 180 days' notice, in which case
Provider shall give notice to Customer as promptly as reasonably practicable
after Provider receives such notice or determines that a relocation is
necessary) of such relocation. Provider shall use commercially reasonable
efforts to arrange for such relocation as promptly as practicable. Provider
shall provide Customer with updated as-built drawings with respect to any
relocated portion of the relocated System not later than 180 calendar days
following the completion of such relocation. Provider shall perform any
relocation such that: (a) the relocated facilities shall be constructed and
tested in accordance with the specifications and requirements set forth in the
Fiber Lease Agreement, including the applicable Exhibits; (b) the relocation
shall not result in a materially adverse change to the operations, performance,
or interconnections of Customer, or the end points or meet points of the
Customer Fibers; (c) the relocation maintains diversity of Customer Fibers, if
diversity existed prior to the relocation; and (d) the relocation shall not
unreasonably interrupt service on the Customer Fibers. Customer shall receive at
least twenty-one (21) calendar days advance notice of any interruption in
service of Customer Fibers which will be caused by a relocation, and such
relocation shall be coordinated such that any interruption shall only occur
between the hours of 12 midnight and 6 A.M. local time on Saturdays and Sundays.
ARTICLE VII. AUDIT RIGHTS
Each party shall keep such books and records (which shall be maintained on a
consistent basis and substantially in accordance with generally accepted
accounting principles) as shall readily disclose the basis for any charges
(except charges fixed in advance by this Agreement or by separate agreement of
the parties) or credits, ordinary or extraordinary, billed or due to the other
party under this Agreement and shall make them available for examination, audit,
and reproduction by the other party and its agents for a period of one year
after such charge or credit is billed or due. To the extent a party seeks
reimbursement of out-of-pocket costs or services provided on a per-hour basis,
it shall provide reasonable supporting documentation to the other party.
ARTICLE VIII. WARRANTIES
8.1 AGREEMENT VALIDITY. Each party represents and warrants that: (a) it has the
full right and authority to enter into, execute, deliver and perform its
obligations under this Agreement; (b) it has taken all requisite corporate
action to approve the execution, delivery and performance of this Agreement; (c)
this Agreement constitutes a legal, valid and binding obligation enforceable
against such party in accordance with its terms; (d) its execution of and
performance under this Agreement
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shall not violate any applicable existing regulations, rules, statutes or court
orders of any local, state or federal government agency, court or body; and (e)
it has the right pursuant to such party's Right-of-Way Authorizations to grant
the rights to the other party as set forth in this Agreement.
8.2 DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT,
PROVIDER MAKES NO WARRANTY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY, WHETHER
EXPRESS, IMPLIED, OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY,
COMPLETENESS OR FITNESS FOR ANY PURPOSE OF ANY FIBERS OR ANY SERVICE PROVIDED
HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH
WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED.
8.3 NO THIRD-PARTY WARRANTIES. NO FACILITY OWNERS/LENDERS HAVE MADE ANY
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO CUSTOMER
CONCERNING PROVIDER, CUSTOMER FIBERS OR AS TO ANY OF THE MATTERS SET FORTH IN
SECTIONS 8.1 OR 8.2. NO CUSTOMER LENDERS HAVE MADE ANY REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO PROVIDER CONCERNING CUSTOMER,
CUSTOMER FIBERS OR AS TO ANY OF THE MATTERS SET FORTH IN THIS AGREEMENT.
ARTICLE IX. DEFAULT
9.1 TERMINATION UPON DEFAULT. Either party, upon written notice to the other
party after the other party's default and the other party's failure to cure any
default in the performance of any material obligation hereunder prior to the end
of the applicable cure period, may terminate this Agreement as herein provided,
provided that at the time of termination such default remains uncured.
9.2 SPECIFIC DEFAULT EVENTS. Events of default shall include but not be limited
to: (a) the making of a general assignment for the benefit of the defaulting
party's creditors; (b) the filing of a voluntary petition in bankruptcy or the
filing of a petition in bankruptcy or other insolvency protection against the
defaulting party which is not dismissed within 90 calendar days thereafter; (c)
the filing by the defaulting party of any petition or answer seeking, consenting
to, or acquiescing in reorganization, arrangement, adjustment, composition,
liquidation, dissolution, or similar relief; (d) any violation by Customer of
the restrictions set forth in Article 20.
9.3 CURE PERIOD. The cure period applicable to Section 9.1 shall be:
(a) with respect to a default in payment, the period ending ten (10)
business days after a written notice of such default is given;
(b) with respect to any other default, the period ending 30 calendar
days after a written notice of such default is given, provided, however, that if
such default cannot with reasonable diligence be cured within such 30-day
period, and such other party has commenced to effect a cure immediately upon
receipt of such notice, and diligently pursues such cure, then such cure period
will be extended for a period reasonably required to cure such default but in no
event more than an additional 30 calendar days.
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9.4 FAILURE TO CURE. Upon the failure by the defaulting party to timely cure any
such default after notice thereof from the other party, the other party may take
such action as it determines, in its sole discretion, to be necessary to correct
the default, and pursue any legal remedies it may have under this Agreement,
applicable law, or principles of equity relating to such breach.
9.5 WAIVER OF SPECIFIC DEFAULTS. Any event of default by the defaulting party
may be waived under the terms of this Agreement at the other party's option. Any
such waiver shall be in writing.
9.6 DISPUTED AMOUNTS. Notwithstanding the other provisions of this Article,
failure to pay an amount subject to a bona fide dispute shall not be an event of
default to the extent the disputed amount is (a) less than $100,000 or (b) paid
into an escrow account of a nationally chartered domestic bank to be established
by the parties within thirty (30) days of the Effective Date of this Agreement.
ARTICLE X. INDEMNIFICATION
10.1 INDEMNITY. Each party shall indemnify, defend, protect and hold harmless
the other party, its employees, officers, directors, agents, shareholders,
affiliates, Facility Owners/Lenders, and other parties to Right-of-Way
Authorizations that are entitled to indemnity by such indemnifying party (the
"Indemnitor"), from and against, and assumes liability for:
(a) Any injury, loss or damage to any person, tangible property or
facilities of any person or entity (including reasonable attorneys' fees and
costs), to the extent arising out of or resulting from the acts or omissions,
negligent or otherwise, of the indemnifying party, its officers, employees,
servants, affiliates, agents or contractors in connection with its performance
under this Agreement; and
(b) Any claims, liabilities or damages arising out of any violation by
the indemnifying party of regulations, rules, statutes or court orders of any
local, state or federal governmental agency, court or body in connection with
its performance under this Agreement.
10.2 NO LIMITATION ON CLAIMS AGAINST OTHER PARTIES. Except as set forth herein,
and subject to the terms of any underlying agreements between Provider and any
third person, nothing contained herein shall operate as a limitation on the
right of either party hereto to bring an action for damages against any third
person, including indirect, special or consequential damages, based on any acts
or omissions of such third person as such acts or omissions may affect the
construction, operation or use of the Customer Fibers; provided, however, that
each party hereto shall assign such rights of claims, execute such documents and
do whatever else may be reasonably necessary to enable the other party to pursue
any such action against such third person.
10.3 NOTICE. Provider and Customer agree to promptly provide each other with
notice of any claim which may result in an indemnification obligation hereunder.
The Indemnitor may defend such claim with counsel of its own choosing provided
that no settlement or compromise of any such claim shall occur without the
consent of the other Party, which consent shall not be unreasonably withheld or
delayed.
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10.4 MATERIAL AND CONTINUING OBLIGATION. Each Party's obligation to indemnify,
defend, protect, and save the other Party harmless is a material obligation to
the continuing performance of the other Party's obligations hereunder.
ARTICLE XI. LIMITATION OF LIABILITY
11.1 RESTRICTION ON TYPES OF LIABILITY. NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE OR CONSEQUENTIAL
DAMAGES, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH THIS
AGREEMENT, IN TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY OR
ANY OTHER CAUSE OF ACTION, INCLUDING DAMAGE OR LOSS OF PROPERTY OR EQUIPMENT,
LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, COST OF REPLACEMENT SERVICES, OR
CLAIMS OF CUSTOMERS, WHETHER OCCASIONED BY ANY REPAIR OR MAINTENANCE PERFORMED
BY, OR FAILED TO BE PERFORMED BY, THE FIRST PARTY OR ANY OTHER CAUSE WHATSOEVER.
11.2 NO RECOURSE AGAINST RELEASED PARTIES. Neither party shall have any recourse
of any kind against any Released Party or any assets of a Released Party under
this Agreement, it being expressly agreed and understood that no liability
whatever shall attach to or be incurred by any Released Party under or by reason
of this Agreement or any other instrument, arrangement or understanding related
to Customer Fibers or Collocation Sites. Each party waives all such recourse to
the extent set forth in this Section on behalf of its successors, assigns, and
any entity claiming by, through, or under such party.
11.3 NO PERSONAL LIABILITY. Each action or claim against any party arising under
or relating to this Agreement shall be made only against such party as a
corporation, and any liability relating thereto shall be enforceable only
against the corporate assets of such party. No party shall seek to pierce the
corporate veil or otherwise seek to impose any liability relating to, or arising
from, this Agreement against any shareholder, employee, officer, director or
agent of the other party. Each of such persons is an intended beneficiary of the
mutual promises set forth in this Section and shall be entitled to enforce the
obligations or provisions of this Section.
11.4 PURSUIT OF ACTIONS AGAINST UNDERLYING LANDLORDS. Notwithstanding the
foregoing provisions of this Article, AND ONLY TO THE EXTENT PROVIDER IS
REQUIRED under the terms and provisions of any underlying lease or agreement to
indemnify an Underlying Landlord from and against any and all claims, suits,
judgments, liabilities, losses and expenses (hereinafter "Lease Claims") arising
out of service interruption, cessation, unreliability of or damage to the
Collocation Site, regardless of whether such Lease Claims arise from the sole or
partial negligence, willful misconduct or other action or inaction of such
Underlying Landlord, Customer hereby releases such Underlying Landlord, and
hereby waives, all Lease Claims arising out of service interruption, cessation,
unreliability of or damage to the Collocation Site regardless of whether such
claims, suits, judgments, liabilities, losses or expenses arise from the sole or
partial negligence, willful misconduct or other action or inaction, of such
Underlying Landlord. Customer shall notify Provider in writing before pursuing
any such Lease Claim against an Underlying Landlord and such notification shall
make specific reference to this provision of the Agreement, and Provider shall
respond in writing within sixty (60) days after receipt of such
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notification as to whether or not the terms of such underlying lease require
Customer to release and waive such Lease Claim against the Underlying Landlord
in question.
ARTICLE XII. INSURANCE
12.1 OBLIGATION TO OBTAIN. During the Term of this Agreement, the parties shall
each obtain and maintain not less than the following insurance:
(a) Commercial General Liability Insurance, including coverage for
sudden and accidental pollution legal liability, with a combined single limit of
$10,000,000 for bodily injury and property damage per occurrence and in the
aggregate; provided that such coverage may be obtained through a combination of
specific and umbrella or excess liability policies.
(b) Worker's Compensation Insurance in amounts required by applicable
law and Employers Liability Insurance with limits not less than $1,000,000 each
accident. If a party is to perform work in Nevada, North Dakota, Ohio,
Washington, Wyoming, or West Virginia, the party shall participate in the
appropriate state fund(s) to cover all eligible employees and provide a stop gap
endorsement.
(c) Automobile Liability Insurance with a combined single limit of
$2,000,000 for bodily injury and property damage per occurrence, to include
coverage for all owned, non-owned, and hired vehicles; provided that such
coverage may be obtained through a combination of specific and umbrella or
excess liability policies.
If the Landlord imposes more stringent insurance requirements pursuant to the
relevant lease (as it may be modified from time to time), Customer shall
promptly comply with the Landlord's requirements, after receiving written notice
of such requirements. Provider shall, upon Customer's request, provide a copy of
the relevant provisions of the lease to Customer, to the extent such disclosure
is not prohibited by the terms of the lease.
The limits set forth in this Section are minimum limits and shall not be
construed to limit the liability of either party.
12.2 POLICY REQUIREMENTS. Each party shall obtain and maintain the insurance
policies required above with companies rated A- or better by Best's Key Rating
Guide or with a similar rating by another generally recognized rating agency.
The other party, its Affiliates, officers, directors, and employees, and any
other party entitled to indemnification hereunder shall be named as additional
insureds to the extent of such indemnification. Each party shall provide the
other party with an insurance certificate confirming compliance with the
insurance requirements of this Article. The insurance certificate shall indicate
that the other party shall be notified not less than 30 calendar days prior to
any cancellation or material change in coverage. If either party provides any of
the foregoing coverages through a claims made policy basis, that party shall
cause such policy or policies to be maintained for at least three years beyond
the expiration of this Agreement.
12.3 WAIVER OF SUBROGATION. The parties shall each obtain from the insurance
companies providing the coverages required by this Agreement a waiver of all
rights of subrogation or recovery in favor of
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the other party and, as applicable, its members, managers, shareholders,
Affiliates, assignees, officers, directors, and employees or any other party
entitled to indemnity under this Agreement to the extent of such indemnity.
12.4 BLANKET POLICIES; SELF-INSURANCE. Nothing in this Agreement shall be
construed to prevent either party from satisfying its insurance obligations
pursuant to this Agreement (a) under a blanket policy or policies of insurance
that meet or exceed the requirements of this Article or (b) with respect to the
insurance required in Sections 12.1(b) and (c), with the consent of the other
party, which consent shall not be unreasonably withheld, self-insurance.
ARTICLE XIII. TAXES
13.1 TAXES. Provider shall be responsible for all ad valorem property taxes
relating to portions of its network, excluding the Customer Fibers, as well as
any taxes required for the provision of the maintenance and collocation services
under this Agreement.
13.2 COOPERATION. Provider and Customer acknowledge and agree that it is their
mutual objective and intent to minimize to the extent feasible all taxes and
that they will cooperate with each other and coordinate their mutual efforts to
achieve such objectives in accordance with the provisions of this Article. The
Parties shall cooperate in any contest of any taxes or fees and in making tax
related reports and filings, so as to avoid, to the extent reasonably possible,
prejudicing the interests of the other Party.
ARTICLE XIV. NOTICE
14.1 NOTICE ADDRESSES. Unless otherwise provided in this Agreement, all notices
and communications concerning this Agreement shall be in writing and addressed
to the other Party as follows:
If to Customer: Metromedia Fiber National Network, Inc.
Attn: President
360 Hamilton Avenue
White Plains,
New York 10601
Facsimile: (914) 421-7550
with a copy to: Metromedia Fiber National Network, Inc.
Attn: General Counsel
One North Lexington Avenue
White Plains, New York 10601
Facsimile: (914) 421-6793
If to Provider: Williams Communications, LLC
Attn: Contract Management
One Technology Center, MD-6H
Tulsa, Oklahoma 74103
Facsimile No.: (918) 547-0460
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with a copy to: Williams Communications, LLC
Attn: IRU Administration
One Technology Center, TC-8A
Tulsa, OK 74103
Facsimile: (918) 547-2991
and Williams Communications, LLC
Attn: General Counsel
One Technology Center, TC-15A
Tulsa, Oklahoma 7415
Facsimile: (918) 547-2630
or at such other address as may be designated in writing to the other Party.
14.2 NOTICE AND INVOICE DELIVERY. Unless otherwise provided herein, notices and
invoices shall be: (a) hand delivered, (b) sent by registered or certified U.S.
Mail, postage prepaid, (c) by commercial overnight delivery service, or (d)
transmitted by facsimile, and shall be deemed served or delivered to the
addressee or its office when received at the address for notice specified above
when hand delivered, three (3) United States Postal Service business days after
deposit in the mail when sent by U.S. mail on the day after being sent when sent
by overnight delivery service, and upon confirmation of sending when sent by
facsimile.
ARTICLE XV. CONFIDENTIALITY
15.1 CONFIDENTIALITY OBLIGATION. If either Party provides confidential
information to the other or, if in the course of performing under this Agreement
or negotiating this Agreement a Party learns confidential information regarding
the facilities or plans of the other, the receiving Party shall (a) protect the
confidential information from disclosure to third parties with the same degree
of care accorded its own confidential and proprietary information, but in any
case with at least reasonable care and (b) refrain from using such confidential
information except in negotiating or performing under this Agreement.
Notwithstanding the above, a Party may provide such confidential information to
its directors, officers, members, managers, employees, agents, and contractors,
consultants ("Representatives"), Affiliates, contractors, financial
institutions, lenders, Underlying Landlords, potential assignees (who are bound
by a written agreement restricting use and disclosure of confidential
information), and Representatives of Affiliates, in each case whose access is
reasonably necessary. Each such recipient of confidential information shall be
informed by the Party disclosing confidential information of its confidential
nature, and shall be directed to treat such information confidentially and shall
agree to abide by these provisions. In any event, each Party shall be liable
(with respect to the other Party) for any breach of this provision by any entity
to whom that Party discloses confidential information. The terms of this
Agreement (but not its execution or existence) shall be considered confidential
information for purposes of this Article, except as set forth in Section 15.3.
The obligations set forth in this Section shall survive expiration or
termination of this Agreement for a period of two (2) years, except that, with
respect to any confidential information designated by the disclosing Party as a
trade secret, and entitled to protection as such, the obligations set forth in
this Section shall survive such expiration or termination indefinitely.
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15.2 PERMITTED DISCLOSURES. Notwithstanding any other provision herein, neither
Provider nor Customer shall be required to hold confidential any information
that:
(a) becomes publicly available other than through the recipient;
(b) is required to be disclosed by a governmental, regulatory
authority, or judicial order, rule, or regulation or proceedings with respect to
this Agreement or a Party's obligations as a publicly held company, provided
that a Party subject to such requirement shall promptly notify the other Party
of such requirement;
(c) is independently developed by the disclosing Party;
(d) becomes available to the disclosing Party without restriction from
a third party;
(e) to the extent disclosure by the receiving Party as required by
applicable law or regulation.
15.3 GOODWILL AND PUBLICITY. Neither Party shall use the name, trade name,
service mark, or trademark of the other in any promotional or advertising
material without the prior written consent of the other. Provided each Party
consents, the Parties shall coordinate and cooperate with each other when making
public announcements related to the terms of this Agreement and each Party shall
have the right to promptly review, comment upon, and approve any publicity
materials, press releases, or other public statements by the other Party that
refer to, or that describe any aspect of, this Agreement.
ARTICLE XVI. PROHIBITION ON IMPROPER PAYMENTS
Neither Party shall use any funds received under this Agreement for illegal or
otherwise "improper" purposes. Neither Party shall pay any commission, fees or
rebates to any employee of the other Party. If either Party has reasonable cause
to believe that one of the provisions in this Article has been violated, it, or
its representative, may audit the books and records of the other Party for the
sole purpose of establishing compliance with such provisions, to the extent
reasonably necessary.
ARTICLE XVII. FORCE MAJEURE; EMINENT DOMAIN
17.1 EXCUSED PERFORMANCE. Neither Provider nor Customer shall be in default
under this Agreement with respect to any delay in its performance (other than
the payment of monetary amounts due under this Agreement) caused by any Force
Majeure Event. The Party claiming relief under this Article shall promptly
notify the other in writing of the existence of the Force Majeure Event relied
on, the expected duration of the Force Majeure Event, and the cessation or
termination of the Force Majeure Event. The Party claiming relief under this
Article shall exercise commercially reasonable efforts to minimize the time for
any such delay.
17.2 EMINENT DOMAIN. Should any portion of a Collocation Site or the Customer
Fibers be acquired by eminent domain, nationalization, or expropriation (each of
which, a "Taking") by any authority or entity possessing such power, then each
Party shall be excused from performance of its obligations to the extent
provided in Section 17.1. Provider shall give Customer notice of any proposed
Taking
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within fifteen (15) days of Provider itself receiving notice of any proceedings.
In the proceeding for any such Taking or an involuntary discontinuance of the
use of a portion of the Collocation Site or the Customer Fibers in anticipation
of a Taking, the interests of Customer and Provider in the affected portion
shall be severed. Any awards resulting from the proceeding or otherwise provided
shall be allocated between Customer and Provider in accordance with such
interests. In addition, Customer and Provider shall each be entitled to claim
and receive the portion of the total award attributable to its interest in the
affected assets and may claim damages payable on account of relocation or
re-routing expenses relating to the Taking.
ARTICLE XVIII. SETTLEMENT OF DISPUTES
18.1 OBLIGATION TO ARBITRATE. Any dispute or disagreement relating to this
Agreement or any matter arising between Customer and Provider in connection with
this Agreement which is not settled to the mutual satisfaction of Customer and
Provider within 30 calendar days from the date that either party informs the
other in writing that such dispute or disagreement exists, shall be settled by
arbitration by a single arbitrator in Chicago, Illinois, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in effect
on the date that such notice is given. If the parties are unable to agree on a
single arbitrator within fifteen calendar days, the American Arbitration
Association shall select an arbitrator. The decision of the arbitrator shall be
final and binding upon the parties and shall include written findings of law and
fact, and judgment may be obtained thereon by either party in a court of
competent jurisdiction. Each party shall bear the cost of preparing and
presenting its own case. The cost of the arbitration, including the fees and
expenses of the arbitrator, shall be shared equally by the parties unless the
award otherwise provides.
18.2 EXCEPTIONS TO ARBITRATION OBLIGATION. The obligation herein to arbitrate
shall not be binding upon any party with respect to requests for preliminary
injunctions, temporary restraining orders or other procedures in a court of
competent jurisdiction to obtain interim relief when deemed necessary by such
court to preserve the status quo or prevent irreparable injury pending
resolution by arbitration of the actual dispute.
ARTICLE XIX. RULES OF CONSTRUCTION
19.1 INTERPRETATION. The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement or as
amplifying or limiting any of its content. Words in this Agreement that import
the singular connotation shall be interpreted as plural, and words that import
the plural connotation shall be interpreted as singular, as the identity of the
Parties or objects referred to may require. References to "person" or "entity"
each include natural persons and legal entities, including corporations, limited
liability companies, partnerships, sole proprietorships, business divisions,
unincorporated associations, governmental entities, and any entities entitled to
bring an action in, or that are subject to suit in an action before, any state
or federal court of the United States. The word "including" means "including,
but not limited to." "Days" refers to calendar days, except that references to
"banking days" exclude Saturdays, Sundays and holidays during which nationally
chartered banks in the United States are authorized or required to close. Unless
expressly defined herein, words having well-known technical or trade meanings
shall be so construed.
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19.2 CUMULATIVE REMEDIES; INSURANCE. Except as set forth to the contrary herein,
any right or remedy of Provider or Customer shall be cumulative and without
prejudice to any other right or remedy, whether contained herein or not. The
provisions of Article XII (Insurance) shall not be construed as limiting the
Indemnitor's obligations pursuant to Article X (Indemnification) or other
provisions of this Agreement.
19.3 NO THIRD-PARTY RIGHTS. Nothing in this Agreement is intended to provide any
legal rights to anyone not an executing Party of this Agreement except under the
indemnification and insurance provisions and except that Underlying Landlord and
Facility Owners/Lenders shall be entitled to rely on and have the benefit of
Sections 8.3, 10.1, 11.2 and 11.3.
19.4 AGREEMENT FULLY NEGOTIATED. This Agreement has been fully negotiated
between and jointly drafted by Provider and Customer.
19.5 INDUSTRY STANDARDS. Except as otherwise set forth herein, for the purpose
of this Agreement the normal standards of performance within the
telecommunications industry in the relevant market shall be the measure of
whether a Party's performance is reasonable and timely.
19.7 CROSS REFERENCES. Except as the context otherwise indicates, all references
to Exhibits, Articles, Sections, Subsections, Clauses, and Paragraphs refer to
provisions of this Agreement.
19.8 LIMITED EFFECT OF WAIVER. The failure of either Provider or Customer to
enforce any of the provisions of this Agreement, or the waiver thereof in any
instance, shall not be construed as a general waiver or relinquishment on its
part of any such provision, but the same shall nevertheless be and remain in
full force and effect.
19.9 APPLICABLE LAW. The domestic laws of the State of New York, without
reference to its choice of law principles, shall govern this Agreement and it
shall be construed accordingly. The laws of such state shall govern all disputes
referred to arbitration and the statute of limitations and the remedies for any
wrongs that may be found.
19.10 SEVERABILITY. If any term, covenant or condition in this Agreement shall,
to any extent, be invalid or unenforceable in any respect under the laws
governing this Agreement, the remainder of this Agreement shall not be affected
thereby, and each term, covenant or condition of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
19.11 NO PARTNERSHIP CREATED. The relationship between Provider and Customer
shall not be that of partners, agents, or joint venturers for one another, and
nothing contained in this Agreement shall be deemed to constitute a partnership
or agency agreement between them for any purposes, including federal income tax
purposes. Provider and Customer, in performing any of their obligations
hereunder, shall be independent contractors or independent parties and shall
discharge their contractual obligations at their own risk.
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ARTICLE XX. ASSIGNMENT
20.1 RESTRICTIONS ON ASSIGNMENT. Except as provided in the second sentence of
this Section and Section 20.4, neither party shall assign or otherwise transfer
this Agreement or its rights or obligations hereunder to any other party without
the prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed. Either party shall have the right, without the
other party's consent, to assign or otherwise transfer this Agreement in whole
or in part as collateral to any lender or to any of its Affiliate's or to any
corporation into which it may be merged or consolidated or which purchases all
or substantially all of its assets.
20.2 AGREEMENT BINDS SUCCESSORS. This Agreement and each of the parties'
respective rights and obligations under this Agreement, shall be binding upon
and shall inure to the benefit of the parties hereto and each of their
respective successors and permitted assigns. Any assignment or transfer shall be
subject to the other party's rights under this Agreement and any assignee or
transferee shall continue to perform the assigning party's obligations under
this Agreement.
20.3 CONDITIONS TO EFFECTIVE ASSIGNMENT. Except as otherwise stated herein, an
assignment (or other transfer) of this Agreement or a Party's rights or
obligations hereunder to any other party shall not be effective without (a)
either the prior written consent of the non-assigning party, or, if such consent
is not required, written notice to the non-assigning Party and (b) the written
agreement of the assignee to be bound by the indemnification provisions and
limitations on liability and recourse set forth in this Agreement.
20.4 TRANSFER OF COLLOCATION RIGHTS. Lessee shall not, directly or indirectly,
convey any interest in the rights granted herein with respect to any collocation
services provided to Lessee hereunder, or Lessee's right to occupy any
Collocation Sites or racks, to any other person, firm or entity, without the
prior written consent of Provider, which consent shall not unreasonably withheld
or delayed. Any conveyance by Customer of any collocation services shall not
release Customer of its duties, obligations and liabilities hereunder and any
and all of the rights and interests of the transferee of such collocation
services shall be subject to the terms and provisions of this Agreement.
20.5 CHANGE IN CONTROL NOT AN ASSIGNMENT. Notwithstanding any presumptions under
applicable state law that a change in control of a Party constitutes an
assignment of an agreement, a change in control of a Party, not made for
purposes of circumventing restrictions on assignment or of depriving the other
Party of rights under this Agreement, shall not be deemed an assignment for
purposes of this Agreement.
20.6 RIGHT TO SUBCONTRACT. Provider may subcontract for testing, maintenance,
repair, restoration, relocation, or other operational and technical services it
is obligated to provide hereunder or may have the underlying facility owner or
its contractor perform such obligations.
ARTICLE XXI. ENTIRE AGREEMENT; AMENDMENT; EXECUTION
21.1 INTEGRATION; EXHIBITS. This Agreement constitutes the entire and final
agreement and understanding between Provider and Customer with respect to the
subject matter hereof and supersedes all prior agreements relating to the
subject matter hereof, which are of no further force or effect. The Exhibits
referred to herein are integral parts hereof and are made a part of this
Agreement by reference.
21
EXECUTION COPY CONFIDENTIAL
21.2 NO PAROLE AMENDMENT. This Agreement may only be amended, modified, or
supplemented by an instrument in writing executed by duly authorized
representatives of Provider and Customer.
21.3 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one and the same instrument.
21.4 FACSIMILE DELIVERY. This Agreement may be duly executed and delivered by a
Party by execution and facsimile delivery of the signature page of a counterpart
to the other Party, provided that, if delivery is made by facsimile, the
executing Party shall promptly deliver a complete counterpart that it has
executed to the other Party.
IN WITNESS WHEREOF and in confirmation of their consent to the terms
and conditions contained in this Agreement and intending to be legally bound
hereby, Provider and Customer have executed this Agreement as of the Effective
Date.
WILLIAMS COMMUNICATIONS, LLC METROMEDIA FIBER NATIONAL
NETWORK, INC.
By: /s/ Howard E. Janzen By: /s/ William G. La Perch
------------------------------ ------------------------------
Print Name: Howard E. Janzen Print Name: William G. La Perch
---------------------- ---------------------
Title: President & CEO Title: President
--------------------------- --------------------------
22
EXECUTION COPY CONFIDENTIAL
EXHIBIT A
COLLOCATION SITES
NOTATIONS:
1) Term Liability for transmission sites is to be calculated from Route
Acceptance date + 1825 days (5yrs * 365days)
2) Term Liability for Points of Presence (POPs) is to be calculated from the
Install complete date + 365 days (1yr * 365days)
3) Rack charges above the contract rate of $350.00 are only on racks that are
above the contractual commitment from Lessor.
4) N/A will be used to denote any site that has passed the END OF TERM for which
no Term Liability exists.
RACKS RACKS
TRANSMISSION SITE PRE END OF POST
SELECTED SEGMENT POP LOCATIONS LOCATIONS 6/1/02 TERM RACK RATE 6/1/02
---------------- ------------- ----------------- ------ ------ --------- ------
ATLN - WASH
ATLANTA, GA ATLANTA POP - 874 DEKALB AVENUE, ATLANTA, GA 0 N/A [*****************] 0
30307
Lawrenceville 790 Mcart Rd., 2 05/24/05 [*****************] 2
Lawrenceville, GA
30245
Athens (a\k\a Hull) 920 Smith Road, 2 05/24/05 [*****************] 2
Hull, GA 30646
Hartwell 4260 Liberty Mill 6 05/24/05 [*****************] 6
Rd., Hartwell, GA
30643
Greenville 9744 Augusta Rd., 6 05/24/05 [*****************] 5
Greenville, SC 29669
SPARTANBURG, SC SPARTANBURG POP - BTC BUILDING, 145 N. 2 N/A [*****************] 2
CHURCH ST., SUITE 3, SPARTANBURG, SC 29306
York 2154 Templeton Rd., 6 05/24/05 [*****************] 6
Clover, SC 29710
CHARLOTTE, NC CHARLOTTE POP - 112 N. MEYERS ST., 3 N/A [*****************] 3
CHARLOTTE, NC 28202
Salisbury (a\k\a Mt. Ulla) 295 Upright Rd., Mt. 2 05/24/05 [*****************] 2
Ulla, NC 28125
Kernersville Jct. LOT #51M, 1334 Old 2 05/24/05 [*****************] 2
Salem Road,
Kernersville, NC
27284
SPUR TO GREENSBORO & RALEIGH, NC
GREENSBORO, NC GREENSBORO POP - SOUTH ELM CENTER, 201-E 0 N/A [*****************] 0
CREEK RIDGE ROAD, GREENSBORO, NC 27406
Chapel Hill 6102 Old Greensboro 2 05/24/05 [*****************] 2
Rd., Chapel Hill, NC
27516
RALEIGH, NC RALEIGH POP - 3440 TARHEEL DRIVE, BLDG. #3, 2 N/A [*****************] 0
SUITE 105, RALEIGH, NC 27609
Reidsville 1301 Ashley Loop, 2 05/24/05 [*****************] 2
Reidsville, NC 27320
Chatham 945 Transco Rd., 5 05/24/05 [*****************] 5
Chatham, VA 24531
Appomattox Hwy. 691 SW, 2 05/24/05 [*****************] 2
Appomattox, VA 24522
Scottsville Jct. Highway 643, 4 05/24/05 [*****************] 2
Scottsville, VA 24590
SPUR TO RICHMOND, VA
Goochland 3901 River Rd. West, 2 05/24/05 [*****************] 2
Goochland, VA 23063
RICHMOND, VA RICHMOND POP - 3600 W. BROAD ST., SUITE 472, 0 N/A [*****************] 0
RICHMOND, VA 23230
Unionville 74444 Everona Rd., 2 05/24/05 [*****************] 2
Unionville, VA 22587
Manassas 10699 Piperlane, 2 05/24/05 [*****************] 2
Manassas, VA 20110
WASHINGTON, DC WASHINGTON DC POP - 1220 L ST. NW, SUITE 0 N/A [*****************] 0
200, WASHINGTON, DC 20005
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 49
Exhibit A - Page 1
EXECUTION COPY CONFIDENTIAL
HSTN - DLLS (IXC)
HOUSTON, TX HOUSTON POP - 1124 HARDY STREET, HOUSTON, TX 6 N/A [*******************] 16
77020
Richey Road 300 Richey Road, 2 05/26/05 [*****************] 2
Houston TX, 77020
Willis (a\k\a Montgomery Co.) 16533 IH 45 NORTH, 2 05/26/05 [*****************] 2
Willis, TX 77378
Madison Route 2, Box 213, 2 05/26/05 [*****************] 2
Madisonville, TX
77864
Buffalo 23433 IH 45 North, 2 05/26/05 [*****************] 2
Buffalo, TX 75831
Streetman 16108 IH 45 North, 6 05/26/05 [*****************] 6
Streetman, TX 75859
Ennis 3910 IH 45 North, 2 05/26/05 [*****************] 2
Ennis, TX 75120
DALLAS, TX DALLAS POP - ONE MAIN PLACE, 1201 MAIN 0 N/A [*****************] 0
STREET, SUITE C-112 DALLAS, TX 75202
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 32
KSCY - DNVR
KANSAS CITY, MO KANSAS CITY POP - THE BRYANT BLDG., 1102 3 N/A [*******************] *5
GRAND AVE. #300, KANSAS CITY, MO 64106
Lawrence 13804 246th St., 2 12/13/04 [*****************] 1
Lawrence, KS 66044
TOPEKA, KS TOPEKA POP - 101 SE MONROE, TOPEKA, KS 66603 2 N/A [*****************] 1
Allen (a\k\a Miller) 1836 County Rd. 330, 2 12/13/04 [*****************] 1
Osage City, KS 66868
Elmdale RR 1, Elmdale, 6 12/13/04 [*****************] 6
Cottonwood Falls, KS
66850
Newton 937 Falcon Road, 2 12/13/04 [*****************] 1
Newton, KS 67114
Inman 380 Plum Ave., 2 12/13/04 [*****************] 1
Inman, KS 67546
Ellinwood 1150 E BARTON CO. 2 12/13/04 [*****************] 1
ROAD, Ellinwood, KS
67526
Bison Rural Rt. 1, Bison, 6 12/13/04 [*****************] 6
KS 67520
Ellis Rural Rt. 1, Ellis, 2 12/13/04 [*****************] 1
KS 67637
Grainfield 1102 COUNTY ROAD 50, 2 12/13/04 [*****************] 1
Grainfield, KS 67737
Oakley (a\k\a Monument) 2317 Daydream Road, 2 12/13/04 [*****************] 1
Monument, KS 67747
Goodland 5655 County Road 2 12/13/04 [*****************] 1
#16, Goodland, KS
67735
Burlington (a\k\a Bethune) 32353 County Rd. 40, 6 12/13/04 [*****************] 6
Burlington, CO 80805
Flagler 7250 County Rd. HH, 2 12/13/04 [*****************] 1
Flagler, CO 80815
Woodrow 1018 HIGHWAY 71, 2 12/13/04 [*****************] 1
Woodrow, CO 80757
Strasburg 2598 S County Rd., 2 12/13/04 [*****************] 1
157, Strasburg, CO
80136
DENVER, CO 910 15TH ST., SUITE 716, DENVER, CO 80202 8 N/A [*****************] 0
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 36
LSAN - SNDG
LOS ANGELES, CA ONE WILSHIRE BLDG., 624 SOUTH GRAND, SUITE 0 N/A [*****************] 0
1706, LOS ANGELES, CA 90017
Pomona 1800 Mt Vernon Ave., 2 [*****************] 2
Pomona, CA 91768
RIVERSIDE, CA RIVERSIDE POP - 1550 MALBOROUGH AVE., 2 N/A [*****************] 0
RIVERSIDE, CA 92507
Lindenberger 29801 Scott Road, 0 [*****************] 0
Sun City, CA 92584
Escondido 1747 South Escondido 0 [*****************] 0
Blvd., Escondido, CA
92025
Exhibit A - Page 2
EXECUTION COPY CONFIDENTIAL
SAN DIEGO, CA KEARNEY MESA COMPLEX, 8923 COMPLEX DRIVE, 2 N/A [*****************] 0
SAN DIEGO, CA 92123
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 2
SAN DIEGO, CA KEARNEY MESA COMPLEX, 8923 COMPLEX DRIVE, 0 N/A [*****************] 0
SAN DIEGO, CA 92123
Oceanside 1806 Missions Ave., 0 02/26/06 [*****************] 0
Oceanside, CA 92507
Laguna Nigel 2734 Camino 0 02/26/06 [*****************] 0
Capistrano, Ste.
157, Laguna Nigel,
CA 92677
RIVERSIDE, CA RIVERSIDE POP - 1550 MALBOROUGH AVE., 2 N/A [*****************] 2
RIVERSIDE, CA 92507
Banning 2010 E. Westward 5 02/26/06 [*****************] 6
Ave, Banning, CA
92220
Indio 46501 Wheel Road, 2 02/26/06 [*****************] 2
Indio, CA 92201
Mortmar (a\k\a Mecca) 99815 Hwy 111, 2 02/26/06 [*****************] 2
Mecca, CA 92254
Flowing Well (a\k\a Niland) 7835 E. Noffsinger 2 02/26/06 [*****************] 2
Rd., Niland, CA 92257
Ogillay (a\k\a Winterhaven & 672 Sidewinder Rd. 5 02/26/06 [*****************] 5
Sidewinder) Winterhaven, CA 92283
Ligurta 10045 S. Avenue 20 2 02/26/06 [*****************] 2
3/4, Ligurta, AZ
85356
Growler 283 N. Avenue 49E, 2 02/26/06 [*****************] 2
Roll, AZ 85347
Hyder (a\k\a Agua Caliente) 43603 South Agua 2 02/26/06 [*****************] 2
Caliente, Agua
Caliente, AZ 85333
Palo Verde 8416 S. 299th Ave, 2 02/26/06 [*****************] 2
Palo Verde, AZ 85343
PHOENIX, AZ PHOENIX POP - 17 E. VIRGINIA, PHOENIX, AZ 12 N/A [*****************] 0
85004
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 27
PTLD - SCRM
PORTLAND, OR PORTLAND POP - 707 SW WASHINGTON ST., 4TH 18 N/A [******************* 17
FL., SUITE 410, PORTLAND, OR 97205
Salem 1244 Howell Praire 2 06/12/06 [*****************] 2
Road NE, Salem, OR
97301
Shedd Boston Mill Road & 2 06/12/06 [*****************] 2
Seven Mile Lane,
Shedd, OR 97377
Jasper (a\k\a Springfield) 37385 Jasper Lowell 2 06/12/06 [*****************] 2
Road, Jasper, OR
97438
Oakridge N. Fish Hatchery 5 06/12/06 [*****************] 6
Road & Hwy 58,
Oakridge, OR 97463
Chemult Hwy 97 South, Btwn 2 06/12/06 [*****************] 2
Chalet and Featerbed
1, Chemult, OR 97731
Chiloquin Hwy 97 South & 1st 5 06/12/06 [*****************] 6
road North of Hwy
62, Chiloquin, OR
97624
S. Kalamath SW Corner of Keller 2 06/12/06 [*****************] 2
Road & Hwy 39,
Kalamath Falls, OR
97624
Tionesta CR 97 & Gravel Plant 2 06/12/06 [*****************] 2
Road, Alturas, CA
96015
Fall River Valley Red Mountain Road @ 2 06/12/06 [*****************] 2
Brown Road, Fall
River Mills, CA 96028
Oak Run North on Oak Run to 5 06/12/06 [*****************] 6
Fern Road, Oak Run,
CA 96069
Red Bluff Baker Road North of 2 06/12/06 [*****************] 2
Pymire on Eastside
of Road, Red Bluff,
CA 96080
S. Chico Tokay Ranch Road, 2 06/12/06 [*****************] 2
Chico, CA 95973
Exhibit A - Page 3
EXECUTION COPY CONFIDENTIAL
Biggs 3951 Farris Road @ 2 06/12/06 [*****************] 2
B. Gridley Road,
Biggs, CA 95917
Robbins Sacramento Valley 2 06/12/06 [*****************] 2
Road @ SR 113,
Robbins, CA 95645
SACRAMENTO, CA SACRAMENTO POP II - 770 L. ST., SUITE 120, 15 N/A {******************* 14
SACRAMENTO, CA 95814
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 71
SCRM - LSAN
SACRAMENTO, CA SACRAMENTO POP II - 770 L. ST., SUITE 120, 0 N/A [*****************] 0
SACRAMENTO, CA 95814
Herald 13368 Alta Mesa 2 11/28/06 [*****************] 2
Road, Herald, CA
95638
Stockton 3105-3139 E 2 11/28/06 [*****************] 2
Carpenter Road,
Stockton, CA 95205
MODESTO, CA MODESTO POP - 13TH & M ST., MODESTO, CA 95354 2 [*****************] 2
Winton (a\k\a Merced) 3291 W. Bellevue 5 11/28/06 [*****************] 6
Road, Merced, CA
95348
Madera (a\k\a Chowchilla) Adjacent to 24311 2 11/28/06 [*****************] 2
Santa Fe Drive,
Chowchilla, CA 93610
FRESNO, CA FRESNO POP - 364 W. FALLBROOK AVENUE, 2 N/A [*****************] 2
FRESNO, CA 93711
Dinuba 40063 Road 56 - 2 11/28/06 [*****************] 2
Route 23 East,
Dinuba, CA 93618
Tulare 739 N. Oaks Street, 5 11/28/06 [*****************] 6
Tulare, CA 93274
Delano 11094 Browning Road, 2 11/28/06 [*****************] 2
Delano, CA 93215
BAKERSFIELD, CA BAKERSFIELD POP - 2020 P STREET BAKERSFIELD, 2 N/A 2
CA 93301
Arvin A35947 Comanche 2 11/28/06 [*****************] 2
Point Road, Arvin,
CA 93203
Tehachapi 11253 Tehachapi 5 11/28/06 [*****************] 6
Willow Springs Road,
Mojave, CA 93501
Palmdale 17th Street East @ 2 11/28/06 [*****************] 2
East Q Ave.,
Palmdale, CA 93350
Adelanto 19402 Koala Rd., 2 11/28/06 [*****************] 2
Adelanto, CA 92301
Ontario 350 S. Milliken, Ste 2 11/28/06 [*****************] 2
O & P, Ontario, CA
91761
LOS ANGELES, CA LOS ANGELES POP - ONE WILSHIRE BLDG., 624 0 N/A [*****************] 0
SOUTH GRAND, SUITE 1706, LOS ANGELES, CA
90017
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 42
PHNX - HSTN
PHOENIX, AZ PHOENIX POP - 17 E. VIRGINIA, PHOENIX, AZ 0 N/A [*****************] 0
85004
Queen Creek (a\k\a Florence) 6268 E. Heritage 2 11/11/05 [*****************] 2
Road, Florence, AZ
35242
Red Rock 22640 E. Camino 2 11/11/05 [*****************] 2
Adelante, Red Rock,
AZ 85245
TUCSON, AZ TUCSON POP - 135 & 139 NORTH 6TH AVE., 2 N/A [*****************] 1
TUCSON, AZ 85701
Mescal (a\k\a Benson) 3153 Train Track 2 11/11/05 [*****************] 2
Road, Benson, AZ
85602
Dragoon 4846 E. Dragoon 5 11/11/05 [*****************] 5
Road, Dragoon, AZ
85609
Luzena (a\k\a Bowie) 2403 W. Luzena Road, 2 11/11/05 [*****************] 2
Bowie, AZ 85606
Road Forks 390 Union Trail, 2 11/11/05 [*****************] 2
Road Forks, NM 88045
Separ (a\k\a Silver City) 4261 Separ Road, 2 11/11/05 [*****************] 2
Silver City, NM 88061
Carne (a\k\a Deming) 11485 Mundo Road NE, 2 11/11/05 [*****************] 2
Deming, NM 88030
Exhibit A - Page 4
EXECUTION COPY CONFIDENTIAL
Afton (a\k\a Las Cruces) 9500 County Road, 5 11/11/05 [*****************] 5
B004, Las Cruces, NM
88005
EL PASO, TX EL PASO POP - 501 W. OVERLAND AVENUE, EL 2 N/A [*****************] 2
PASO, TX 79901
Tornillo (a\k\a Fabens) 19750 Alameda 2 11/11/05 [*****************] 2
Avenue, Fabens, TX
79853
Ft. Hancock 1291 Lasca Road, Ft. 2 11/11/05 [*****************] 2
Hancock, TX 79839
Van Horn 428 Fuest Ranch; 5 11/11/05 [*****************] 6
144163 I-10, Van
Horn, TX 79855
Valentine 14338 US Hwy 90, 2 11/11/05 [*****************] 1
Valentine, TX 79854
Marfa 1500 W. San Antonio, 2 11/11/05 [*****************] 1
Marfa, RX 79843
Alpine 22313 US Hwy 90, 5 11/11/05 [*****************] 5
Alpine, TX 79830
Marathon 26372 US Hwy 90, 2 11/11/05 [*****************] 2
Marathon, TX 79842
Sanderson 538 E. Hwy 90, 2 11/11/05 [*****************] 2
Sanderson, RX 79848
Langtry 4297 E. Hwy 90, 2 11/11/05 [*****************] 2
Langtry, TX 78871
Comstock 33838 US Hwy 90 W, 2 11/11/05 [*****************] 2
Comstock, TX 78837
Del Rio 4256 US Hwy 90 E, 5 11/11/05 [*****************] 5
Del Rio, TX 78841
Bracketville 15402 US Hwy 90 E, 2 11/11/05 [*****************] 2
Bracketville, TTX
78832
Sabinal 61 C.R. 305 Knippa, 2 11/11/05 [*****************] 1
Sabinal, TX 78870
Hondo 3280 C.R. 4514, 2 11/11/05 [*****************] 2
Hondo, TX 78861
SAN ANTONIO, TX SAN ANTONIO POP - 1203 N. FRIO STREET, SAN 2 N/A [*****************] 1
ANTONIO, TX, 78207
Kingsbury 3004 FM 1104, 5 11/11/05 [*****************] 6
Kingsbury, TX 78838
AUSTIN, TX AUSTIN POP - 500 CHICON STREET, AUSTIN, TX 2 N/A [*****************] 1
78702
Giddings (a\k\a McDade) 2230 Hwy 290 E, 2 11/11/05 [*****************] 2
McDade, TX 78650
Brenham 55 Wildflower Road, 2 11/11/05 [*****************] 2
Brenham, TX 77833
Waller 20805 FM 362, 2 11/11/05 [*****************] 1
Waller, TX 77484
HOUSTON, TX HOUSTON POP - 1124 HARDY STREET, HOUSTON, TX 0 N/A [*****************] 0
77020
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 75
BSTN - ALBY
BOSTON, MA BOSTON POP - PRUDENTIAL INSURANCE BLDG., 800 0 N/A [*****************] 0
BOYLSTON ST., 15TH FL., SUITE 1530, BOSTON,
MA 02199
WORCESTER, MA WORCHESTER POP - 474 MAIN STREET, WORCESTER, 2 N/A [*****************] 2
MA 01608
SPRINGFIELD, MA SPRINGFIELD POP - ONE FEDERAL STREET, 6TH 2 N/A [*****************] 2
FLOOR, SPRINGFIELD, MA 01105
Lee 250 West Road, North 2 09/27/05 [*****************] 2
of Service Plaza,
Lee, MA 01238
ALBANY, NY ALBANY POP - 194 WASHINGTON AVE., 5TH FL., 0 N/A [*****************] 0
SUITE 502, ALBANY, NY 12210
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 6
SCRM - SLKC
SACRAMENTO, CA SACRAMENTO POP II - 770 L. ST., SUITE 120, 0 N/A [*****************] 0
SACRAMENTO, CA 95814
Auburn Alt. 1725 Auburn Ravine 2 12/18/05 [*****************] 2
Road, Auburn, CA
95603
Blue Canyon Blue Canyon Exit off 2 12/18/05 [*****************] 2
I-80, Blue Canyon,
CA 95714
Truckee 10136 Hirshdale 2 12/18/05 [*****************] 2
Road, Truckee, CA
96161
Exhibit A - Page 5
EXECUTION COPY CONFIDENTIAL
RENO, NV RENO POP - 220 GARDNER ST., RENO, NV 89503 5 N/A [*****************] 5
Hot Springs Flat (a\k\a Fallon) Exit 65 off I-80, 2 12/18/05 [*****************] 2
Nightingale Rd.,
Fallon, NV 89406
Lovelock 55 Cornell Avenue, 2 12/18/05 [*****************] 2
Lovelock, NV 89419
Mill City (a\k\a Imlay) Exit 149 on I-80, 2 12/18/05 [*****************] 2
Lot 14, Block B Mill
City Acres, Imlay,
NV 89418
Golconda Butte (a\k\a Winnemucca) Exit 187 off I-80, 5 12/18/05 [*****************] 5
North of
interchange,
Winnemucca, NV 89445
Snow Gulch Exit 222 off I-80, 2 12/18/05 [*****************] 2
1.9 miles North of
Access, Snow Gulch,
NV 89444
Dunphy (a\k\a Eureka) Exit 254 off I-80 2 12/18/05 [*****************] 2
North, East 3.5
miles, Eureka, NV
89821
Hunter (a\k\a McGill) Exit 292 off I-80, 2 12/18/05 [*****************] 2
North of
intersection, then
East, McGill, NV
89318
Deeth (a\ka Elko) Exit 333 off I-80, 5 5 12/18/05 [*****************] 5
miles East on North
Frontage Rd, Elko,
NV 89835
Oasis Exit 380 off I-80, 2 12/18/05 [*****************] 2
Oasis, NV 89830
Wendover 3131 East Frontage 2 12/18/05 [*****************] 2
Road, Wendover, UT
84083
Barrow 9.5 miles West of 2 12/18/05 [*****************] 2
I-80, Barro, UT 84083
Timpie (a\k\a Tooele) 15516 West Rowley 2 12/18/05 [*****************] 2
Road, Tooele, UT
84022
SALT LAKE CITY, UT SALT LAKE CITY POP - 5035 HAROLD GATTY 18 N/A [******************* 16
DRIVE, SALT LAKE CITY, UT 84116
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 57
HSTN - ATLN
HOUSTON, TX 1124 HARDY STREET, HOUSTON, TX 77020 0 N/A [*****************] 0
Kingwood (a\k\a Huffman or Harris) 33902 2 05/26/05 [*****************] 2
Huffman-Cleveland R,
Huffman, TX 77336
Sour Lake (a\k\a Hardin) 29979 Highway 105, 6 05/26/05 [*****************] 6
Sour Lake, TX 77659
Buna (a\k\a Jasper) Hwy 62 South, Buna, 2 05/26/05 [*****************] 2
TX 77612
Ragley (a\k\a Beauregard) 17329 Hwy 171 North, 2 05/26/05 [*****************] 2
Ragley, LA 70657
Basile (a\k\a Evangeline) 1919 Hunter Rd., 6 05/26/05 [*****************] 5
Basile, LA 70515
Port Barre (a\k\a St. Landre or 2343 Highway 359, 6 05/26/05 [*****************] 6
WASHINTGON) Washington, LA 70589
Zachary Jct. (a\k\a Feliciana or 1479 A Highway 964, 5 05/26/05 [*****************] 3
Jackson) Jackson, LA 70748
SPUR TO NEW ORLEANS, LA
BATON ROUGE, LA BATON ROUGE POP - 445 N. BLVD., SUITE 600, 1 N/A [*****************] 1
BATON ROUGE, LA 70802
Reserve (a\k\a Gramercy or Garyville) 5599 Airline 2 05/26/05 [*****************] 2
Highway, Garyville,
LA 70084
NEW ORLEANS, LA NEW ORLEANS POP - 639 LOYOLA AVE., SUITE 4 N/A [*****************] 1
2020, NEW ORLEANS, LA 70113
Greensburg (a\k\a St. Helena) Hwy 43 North, 2 05/26/05 [*****************] 2
Greensburg, LA 70441
Tylertown (a\k\a Walthall) 967 Hwy 583, 2 05/26/05 [*****************] 2
Tylertown, MS 39667
Seminary (a\k\a Covington Co.) 11 Kelly Creek Road, 6 [*****************] 6
Seminary, MS 39479
SPUR TO JACKSON, MS
Mendenhall 3498 Simpson, Hwy 2 05/26/05 [*****************] 2
49, Mendenhall, MS
39114
JACKSON, MS JACKSON POP - CAPITOL BLDG, 111 E. CAPITOL 0 N/A [*****************] 0
ST. SUITE 248, JACKSON, MS 39201
Exhibit A - Page 6
EXECUTION COPY CONFIDENTIAL
Laurel (a\k\a Jasper or Sandersville) 1666 Bonner Road, 2 05/26/05 [*****************] 2
Sandersville, MS
39477
Quitman (a\k\a Jasper Co.) 240 Vyvx Lane, 2 05/26/05 [*****************] 2
Quitman, MS 39955
Linden (a\k\a Merengo or Sweetwater) Hwy 69 South, 2 05/26/05 [*****************] 2
Sweetwater, AL 36782
Selma (a\k\a Dallas Co. or Browns) 1713 County Road 6 05/26/05 [*****************] 6
179, Browns, AL 36724
Clanton (a\k\a Chilton or 4521 Chilton Road 2 05/26/05 [*****************] 2
Billingsley) #352, Billingsley,
AL 36006
SPUR TO BIRMINGHAM, AL
Calera 157 County Road 95, 2 05/26/05 [*****************] 2
Calera, AL 35041
BIRMINGHAM, AL BIRMINGHAM POP - 2001 PARK PLACE TOWERS 0 N/A [*****************] 0
NORTH, SUITE 102,BIRMINGHAM, AL 35203
Alexander City (a\k\a Coosa or 250 Highway 9, 6 05/26/05 [*****************] 6
Kellyton) Kellyton, AL 35089
Wadley (a\k\a Randolph Co.) 1140 County Rd 41, 2 05/26/05 [*****************] 2
Wadley, AL 36276
Newnan (a\k\a Coweta Co.) 65 Mayo Royal Road, 2 05/26/05 [*****************] 2
Newnan, GA 30263
ATLANTA, GA ATLANTA POP - 874 DEKALB AVENUE, ATLANTA, GA 0 N/A [*****************] 0
30307
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 68
ATLN - JCVL
ALANTA, GA ATLANTA POP - 874 DEKALB AVENUE, ATLANTA, GA 0 N/A [*****************] 0
30307
Covington 10816 Old Atlanta 2 06/15/05 [*****************] 2
Highway, Covington,
GA 30014
Monticello 8036 Highway 11 2 06/15/05 [*****************] 2
South, Monticello,
GA 31064
MACON, GA MACON POP - CHARTER MEDICAL BLDG., 577 2 N/A [*****************] 1
MULBERRY ST., SUITE 175, MACON, GA 31201
Montrose 4060 Highway 80 W, 2 06/15/05 [*****************] 2
Montrose, GA 31065
Alamo Route 1 Box 304, 6 06/15/05 [*****************] 6
Alamo, GA 30411
Baxley 544 Buckhorn Road 2 06/15/05 [*****************] 2
NE, Baxley, GA 31513
Patterson 5860 North Campus 2 06/15/05 [*****************] 2
Road, Patterson, GA
31557
Folkston Route 1 Box 845, 2 06/15/05 [*****************] 2
Folkston, GA 31537
JACKSONVILLE, FL JACKSONVILLE POP - 608 W. ADAMS ST., 4 N/A [*****************] 2
JACKSONVILLE, FL 32204
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 21
MPLS - KSCY
MINNEAPOLIS, MN 511 11TH AVE. SOUTH, SUITE 201, MINNEAPOLIS, 8 N/A [*****************] 6
MN
Northfield 6730 320th Street 2 12/13/04 [*****************] 2
West, Northfield, MN
55057
Owantonna (a\k\a Hope) 6391 SW 68th Street, 2 12/13/04 [*****************] 2
Owantonna, MN 55060
Hanlon Town (a\k\a Tenold) 807 435th Street, 6 12/13/04 [*****************] 6
Hanlon Town, IA 50444
Latimer 1825 Finch Avenue, 2 12/13/04 [*****************] 2
latimer, IA 50452
Roland 12951 610th Avenue, 2 12/13/04 [*****************] 2
Roland, IA 50236
DES MOINES, IA DES MOINES POP - 4500B CARLISLE ROAD, DES 3 N/A [*****************] 1
MOINES, IA 50317
Osceola 2241-B US Highway 6 12/13/04 [*****************] 6
69, Osceola, IA 50213
Ridgeway 20469 W. 230th 2 12/13/04 [*****************] 2
Place, Ridgeway, MO
64481
Maysville (a\k\a Weathersby) 99 Southeast Dallas 2 12/13/04 [*****************] 2
Road, Weathersby, MO
64497
Plattsburgh (a\k\a Lilly) 2821 Southwest 2 12/13/04 [*****************] 2
Street, Plattsburg,
MO 64497
Exhibit A - Page 7
EXECUTION COPY CONFIDENTIAL
KANSAS CITY, MO KANSAS CITY POP - THE BRYANT BLDG., 1102 0 N/A [*****************] 0
GRAND AVE. #300, KANSAS CITY, MO 64106
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 33
JCVL - MIAM
JACKSONVILLE, FL JACKSONVILLE POP - 608 W. ADAMS ST., 0 N/A [*****************] 0
JACKSONVILLE, FL 32204
St. Augustine Beach 302 State Road 206 2 07/05/05 [*****************] 2
West, St. Augustine,
FL 32086
DAYTONA BEACH, FL DAYTONA BEACH POP - 111 N. SEAGRAVE, DAYTONA 2 N/A [*****************] 1
BEACH, FL 32114
Titusville 2002 Parish Road, 2 07/05/05 [*****************] 2
Titusville, FL 32796
MELBOURNE, FL MELBOURNE POP - 1110 LINE STREET, MELBOURNE, 2 N/A [*****************] 1
FL 32901
Vero Beach 2108 Old Dixie 6 07/05/05 [*****************] 6
Highway SE, Vero
Beach, FL 32962
Stuart 4537 SE Commerce 2 07/05/05 [*****************] 2
Avenue, Stuart, FL,
34997
WEST PALM BEACH, FL WEST PALM BEACH POP - 410 HAMPTON RD., WEST 2 N/A [*****************] 1
PALM BEACH, FL 33405
FT. LAUDERDALE, FL FT. LAUDERDALE POP - 220 NW 2ND ST., FT. 2 N/A [*****************] 1
LAUDERDALE, FL 33311
MIAMI, FL MIAMI POP II - 200 SE 1ST STREET, MIAMI, FL 4 N/A [*****************] 0
33131
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 16
TLHS - MIAM
TALLAHASSEE, FL TALLAHASSEE POP - 1416 S. ADAMS, 0 N/A [*****************] 0
TALLAHASSEE, FL 32301
Perry (a\k\a Taylor Co. or Iddo) 10000 N US 19, Iddo, 2 05/24/05 [*****************] 2
FL 32347
Cross City (a\k\a Taylor Co. or 23076 S US 19, Cross 2 05/24/05 [*****************] 1
Tennille) City, FL 32647
Chiefland (a\k\a Levy Co.) 606 S Main St., 2 05/24/05 [*****************] 1
Chiefland, FL 32626
Crystal River (a\k\a Citrus Co. or 6584 Sun Coast 2 05/24/05 [*****************] 2
Red Level) Blvd., Crystal
River, FL 34428
Brooksville (a\k\a Hernando Co. or 20032 Powell Road, 6 05/24/05 [*****************] 6
Garden Grove) Brooksville, FL 34609
TAMPA, FL TAMPA POP - 1700 N. 25TH, TAMPA, FL 33605 2 N/A [*****************] 2
Wimauma (a\k\a Lithia or Ft. 12225 State Road 2 05/24/05 [*****************] 1
Lonesome) 674, Lithia, FL 33547
Zolfo Springs (a\k\a Hardee Co. or 205 S CR 663, Zolfo 2 05/24/05 [*****************] 2
Ona) Springs, FL 33865
Arcadia (a\k\a Desoto Co.) 12721 SE CR 763, 2 05/24/05 [*****************] 1
Arcadia, FL 34266
FT. MYERS, FL FT. MYERS POP - 1547 SEABOARD, FT. MYERS, 3 N/A [*****************] 2
FL 33916
Labelle (a\k\a Hendry Co. or Goodno) 4331 SR 80 East, 2 05/24/05 [*****************] 2
LaBelle, FL 33935
Belle Glade (a\k\a Palm Beach Co.) 5115 US 27, Belle 2 05/24/05 [*****************] 1
Glade, FL 33430
Weston (a\k\a Broward Co.) 2002 SW 26th Street, 4 05/24/05 [*****************] 4
Weston, FL 33326
MIAMI, FL MIAMI POP II - 200 SE 1ST STREET., MIAMI, FL 0 N/A [*****************] 0
33131
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 27
NWOR - TLHS
NEW ORLEANS, LA NEW ORLEANS POP - POYDROUS PLAZA, 639 LOYOLA 0 N/A [*****************] 0
AVE, SUITE 2020, NEW ORLEANS, LA 70113
Slidell 46532 Highway 90, 2 03/28/05 [*****************] 1
Slidell, LA 70461
Pass Christian 13343 Cable Bridge 6 03/28/05 [*****************] 6
Road, Pass
Christian, MS 39571
Van Cleave 11151 Oneal Road, 2 03/28/05 [*****************] 1
Van Cleave, MS 39565
Miller Creek 3735 Newman Road, 2 03/28/05 [*****************] 1
Mobile, AL 36695
Exhibit A - Page 8
EXECUTION COPY CONFIDENTIAL
MOBILE, AL MOBILE POP - 50 N LAWRENCE STREET, MOBILE, 2 N/A [*****************] 1
AL 36602
Robertsdale 22154 US Highway 90, 2 03/28/05 [*****************] 1
Robertsdale, AL 36695
PENSACOLA, FL PENSACOLA POP - 221 N. BAYLEN STREET, 2 N/A [*****************] 1
PENSACOLA, FL 32501
Milton 10955 Highway 90, 6 03/28/05 [*****************] 6
Milton, FL 32583
DeFuniak Springs 35 Wells Street, 2 03/28/05 [*****************] 1
Defuniak Springs, FL
32433
Free Port (a\k\a Ponce De Leon) 9926 State Highway 2 03/28/05 [*****************] 1
90, Ponce De Leon,
FL 32455
Youngstown (a\k\a Juniper Creek) 12440 E. Highway 20, 2 03/28/05 [*****************] 1
Juniper Creek, FL
32466
Hosford (a\k\a Harold) West of Hwy 65 on 2 03/28/05 [*****************] 1
Hwy 20, Harold, FL
32334
TALLAHASSEE, FL TALLAHASSEE POP - 1416 S. ADAMS, 4 N/A [*****************] 2
TALLAHASSEE, FL 32301
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 24
SCRM - SNFC
SACRAMENTO, CA SACRAMENTO POP II - 1005 'B' STREET, 0 N/A [*****************] 0
SACRAMENTO, CA 95814
Bay Point 487 Canal Road, Bay 2 03/23/06 [*****************] 2
Point, CA 94565
Creed 6732 Creed Road, 2 03/23/06 [*****************] 2
Suisin City, 94585
OAKLAND, CA OAKLAND POP - 1330 BROADWAY, OAKLAND, CA 0 N/A [*****************] 0
94612
SAN FRANCISCO, CA SAN FRANCISCO POP - 200 PAUL ST., 4TH FLOOR, 0 N/A [*****************] 0
SAN FRANCISCO, CA 94124
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 4
SNFC - SNTC
SAN FRANCISCO, CA 200 PAUL ST., 4TH FL., SAN FRANCISCO, CA 0 N/A [*****************] 0
94124
SANTA CLARA, CA SANTA CLARA POP - 3045 RAYMOND STREET, SANTA 0 N/A [*****************] 0
CLARA, CA 95054
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 0
SNTC - MDST
SANTA CLARA, CA SANTA CLARA POP - 3045 RAYMOND STREET, SANTA 0 N/A [*****************] 0
CLARA, CA 94536
Freemont 37975 Shinn Road, 2 07/24/06 [*****************] 2
Freemont, CA 94536
Tracey 11660 W. Lime Road, 2 07/24/06 [*****************] 2
Tracey, CA 95354
MODESTO, CA MODESTO POP - 1224 13TH STREET, MODESTO, CA 0 N/A [*****************] 0
95354
----------------------------------------------------------------------------------------------------------------------------------
ROUTE RACK COUNT 4
---------------------------------------------------------------------------------------------------------------------------------
GRAND TOTAL RACK COUNT 594
Exhibit A - Page 9
EXECUTION COPY CONFIDENTIAL
EXHIBIT B
OPERATIONS SPECIFICATIONS
1. MAINTENANCE
A. NCC Functions. Provider shall operate a manned Network Control Center ("NCC")
twenty-four (24) hours a day, seven (7) days a week that monitors the Customer
Fiber by means of remote surveillance equipment and dispatches maintenance and
repair personnel to handle and repair problems detected by the NCC or reported
by Customer or other parties. Provider shall provide Customer a toll-free
telephone number to report problems to the NCC.
B. Fiber Maintenance. Provider shall perform appropriate routine maintenance on
the Customer Fiber in accordance with Provider's then-current preventative
maintenance procedures. Provider's preventative maintenance procedures shall not
substantially deviate from industry practice.
C. Collocation Site Maintenance. Provider shall perform appropriate routine
maintenance on regenerator, optical amplifier, and junction buildings, including
the DC power plant, HVAC equipment, and basic building safety equipment
including alarms and emergency generators in accordance with Provider's then
current preventative maintenance procedures. Provider's maintenance procedures
shall not substantially deviate from industry practice.
D. Route Patrol. Provider shall patrol the route on a reasonable, routine basis
and shall perform all required cable locates. Provider shall belong to a state
or regional one-call (call-before you dig) center when available.
E. Spare Cable. Provider shall maintain an inventory of spare cable at strategic
locations to facilitate timely restoration.
2. PLANNED NETWORK MAINTENANCE PROCEDURE (PNMP)
A. Timing. Provider shall avoid performing maintenance between 0600-2200 Central
time, Monday through Friday, inclusive, that will have a disruptive impact on
the continuity or performance level of the Customer Fibers. However, the
preceding sentence does not apply to restoration of continuity to a severed or
partially severed fiber optic cable, restoration of dysfunctional power and
ancillary support equipment, or correction of any potential jeopardy conditions.
B. Notice. Provider shall provide Customer with telephone, facsimile, or written
notice of all non-emergency planned network maintenance (a) no later than three
business days prior to performing maintenance that, in its reasonable opinion,
has a substantial likelihood of affecting Customer's traffic for up to 50
milliseconds, and (b) no later than ten business days prior to performing
maintenance that, in its reasonable opinion, has a substantial likelihood of
affecting Customer's traffic for more than 50 milliseconds. If Provider's
planned activity is canceled or
Exhibit B, Page 1
EXECUTION COPY CONFIDENTIAL
delayed, Provider shall promptly notify Customer and shall comply with the
provisions of the previous sentence to reschedule any delayed activity.
C. PNMP Updates. Provider may update it's PNMP and Technical Assistance
Procedure from time to time so long as the changes in procedures are reasonable
and no less favorable to the Customer. Provider shall promptly provide Customer
a copy of its then current PNMP and Technical Assistance Procedure documents
upon Customer's request. Customer hereby acknowledges receipt of Provider's PNMP
and Technical Assistance Procedure documents dated February 11, 2002.
3. FIBER AND CABLE
A. Emergency Repair. Provider shall correct or repair cable discontinuity or
damage. Provider shall use commercially reasonable efforts to repair cable
traffic discontinuity within the following timeframes:
o Dispatch of personnel to problem area - immediately upon learning of
discontinuity
o Arrival of first maintenance employee on site - within four (4) hours
of learning of discontinuity
o Restoration of cable continuity - continuity of at least one fiber
shall be established within six (6) hours of learning of discontinuity;
restoration shall continue until all in-service fibers are restored
o Electronic failure response time is two (2) hours.
B. Permanent Repair. Within twenty-four (24) hours after completion of an
emergency repair, Provider shall - commence its planning for permanent repair,
shall notify Customer of such plans, and shall implement such permanent repair
within an appropriate time thereafter.
C. Splicing Specifications. Provider shall comply with the cable splicing
specifications as provided in the Fiber Lease Agreement. Provider shall provide
to Customer any modifications to these specifications for Customer's approval,
which shall not be unreasonably withheld or delayed, so long as the
modifications do not substantially deviate from industry standards.
4. MISCELLANEOUS
A. Full-Time Dispatch Capability. Provider's maintenance employees shall be
available for dispatch twenty-four (24) hours a day, seven (7) days a week.
Provider shall use commercially reasonable efforts to have its first maintenance
employee at the site requiring an emergency maintenance activity within four (4)
hours from the time of alarm identification by Provider's NCC or notification by
Customer, whichever occurs first. Emergency maintenance is defined as any
service-affecting situations requiring an immediate response.
B. Standard of Care; Cooperation. In performing its services hereunder, Provider
shall take workmanlike care to prevent impairment to the signal continuity and
performance of the System. In addition, Provider shall reasonably cooperate with
Customer in sharing information and analyzing the disturbances regarding the
cable and/or fiber facilities.
Exhibit B, Page 2
EXECUTION COPY CONFIDENTIAL
C. Customer Equipment. Nothing contained herein shall make Provider responsible
for Customer Equipment. If, however, Provider agrees to maintain Customer
Equipment, Customer shall provide equipment spares, vendor training and
documentation for each technician along the System route when Customer uses
equipment different from that used by Provider.
D. Escalation List. Provider shall, at Customer's request, provide Customer an
operations escalation list for use in reporting and seeking redress of
exceptions noted in Provider's performance of maintenance.
Exhibit B, Page 3
EXECUTION COPY
CONFIDENTIAL PORTION MARKED [*************] HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
FIRST AMENDMENT TO
COLLOCATION AND MAINTENANCE AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") is made by and between WILLIAMS
COMMUNICATIONS, LLC, a Delaware limited liability company ("Provider"),
METROMEDIA FIBER NATIONAL NETWORK, INC., a Delaware corporation ("Customer") and
METROMEDIA FIBER NETWORK SERVICES, INC. ("MFNS") a Delaware corporation.
Background
Provider and Customer are parties to the
Collocation and Maintenance Agreement
dated April 26, 2002 (the "Agreement").
On May 20, 2002, Customer and most of its direct and indirect domestic
subsidiaries, including MFNS, each filed voluntary petitions for reorganization
pursuant to Chapter 11 of title 11 of the United States Code. (the "Bankruptcy
Code") with the United States Bankruptcy Court for the Southern District of New
York (the "Bankruptcy Court") and Customer is currently operating its business
and managing its property as a debtor-in-possession.
The parties now wish to amend the Agreement in accordance with the terms set
forth in this Amendment.
NOW THEREFORE, for mutual consideration, the value of which the parties
acknowledge, the terms of the Agreement are amended as follows:
1. Capitalized terms not otherwise defined in this Amendment have the meaning
ascribed in the Agreement.
2. On the Effective Date, pursuant to Section 20.1, the Agreement as amended is
wholly assigned from Lessee to MFNS, and thereafter all references to "Customer"
refer to MFNS and MFNN is discharged from further obligation.
3. EXHIBIT A is replaced with EXHIBIT A-1, attached to this Amendment.
4. Section 2.1 is deleted and replaced with the following:
"CHARGES FOR MAINTENANCE. Customer shall pay Provider a maintenance fee of
[*****] per fiber mile, per month for the maintenance services set forth in
Article 6 of this Agreement, such amount currently totaling [*******] per month
(14,770 fiber miles x [**]). Invoices for such maintenance services shall be
issued monthly."
5. Section 3.2 is deleted and replaced with the following:
"3.2 Collocation Sites.
(a) As of the Effective Date of the First Amendment to this Agreement,
Provider agrees to provide and Customer agrees to pay for the Collocation Sites
and corresponding
CONFIDENTIAL
PAGE 1 OF 3
EXECUTION COPY
number of racks identified in EXHIBIT A-1 together with associated collocation
services ordered by Customer. The current monthly invoice for collocation racks
will be [*******].
(b) Any additional requests by Customer for racks at the Collocation
Sites Set forth in Exhibit A-1 shall be considered a request for Additional
Services as defined below."
6. Section 9.4 is modified by the addition of the following sentence at the end:
"Such legal remedies include, but shall not be limited to, the termination of
this Agreement and the Fiber Agreement."
7. ASSUMPTION AND WAIVER OF SPECIFIC CLAIMS. Following the assumption of the
Agreement, if the Agreement is terminated due to Lessee's failure to perform or
its rejection thereof, nothing herein constitutes a waiver of Williams
Communications' right to a general unsecured claim for all outstanding
pre-petition amounts owed under the Agreement and an administrative claim for
post-petition damages caused by any breach of the Agreement, or of the right of
MFN or any party in interest to object to any such claim. Any and all
administrative expense claims will require Williams Communications to satisfy
the requirements of the Bankruptcy Code to establish the claim and is without
prejudice to any other party's right to contest such claim.
8. EFFECTIVE DATE. This Amendment is effective upon the date of the last
signature hereto ("Effective Date"). The parties agree that the new monthly
billing rate as specified in paragraph 5 of this Amendment is effective October
1, 2002. To be sure, any invoices rendered during September 2002 for October
services, will be adjusted accordingly. Notwithstanding the foregoing, the
parties acknowledge that the Amendment must be approved by the Bankruptcy Court
pursuant to an order, in form and substance acceptable to Provider and Customer,
which provides for, among other things, the following: (i) assumption of the
Agreement, as amended, pursuant to section 365 of the Bankruptcy Code, and (ii)
a finding that the parties negotiated the Amendment at arm's length and in good
faith. If such approval is not obtained on or before October 17, 2002 or such
later date as the parties may agree to, this Amendment will be null and void and
of no force or effect and Customer agrees to pay the difference between the
amended amounts invoiced for October and the actual amounts owed under the
Agreement.
9. Except as amended, all of the original terms and conditions of the Agreement
continue in full force and effect, neither party is in currently in default, and
the Agreement, as amended is hereby ratified and confirmed.
10. This Amendment may be executed in counterparts, each of which taken together
constitute one and the same instrument.
Signatures on following page
CONFIDENTIAL
PAGE 2 OF 3
EXECUTION COPY
The parties have executed this Amendment on the dates set forth below above.
METROMEDIA FIBER NETWORK SERVICES, INC., a Delaware corporation
Signature: /s/ William G. La Perch
-------------------------------------------------
(Print) Name: William G. La Perch
---------------------------------------------
(Print) Title: Sr. Vice President
---------------------------------------------
(Print) Date: 10/10/02
----------------------------------------------
METROMEDIA FIBER NATIONAL NETWORK, INC., a Delaware corporation
Signature: /s/ William G. La Perch
-------------------------------------------------
(Print) Name: William G. La Perch
---------------------------------------------
(Print) Title: Sr. Vice President
---------------------------------------------
(Print) Date: 10/10/02
----------------------------------------------
WILLIAMS COMMUNICATIONS, LLC, a Delaware limited liability company
Signature: /s/ Frank M. Semple
-------------------------------------------------
(Print) Name: Frank M. Semple
---------------------------------------------
(Print) Title: Chief Operating Officer
---------------------------------------------
(Print) Date: 10/2/02
----------------------------------------------
CONFIDENTIAL
PAGE 3 OF 3
EXECUTION COPY
EXHIBIT A-1
COLLOCATION SITES
SELECTED SEGMENT POP LOCATIONS TRANSMISSION SITE LOCATIONS RACK RATE # OF
RACKS
---------------------------------------------------------------------------------------------------------------
ATLN - WASH
Lawrenceville 790 Mcart Rd., $[******] 1
Lawrenceville, GA 30245
Athens (a\k\a Hull) 920 Smith Road, Hull, GA $[******] 1
30646
Hartwell 4260 Liberty Mill Rd., $[******] 2
Hartwell, GA 30643
Greenville 9744 Augusta Rd., $[******] 1
Greenville, SC 29669
SPARTANBURG, SC SPARTANBURG POP - BTC BUILDING, 145 N. CHURCH $[******] 1
ST., SUITE 3, SPARTANBURG, SC 29306
York 2154 Templeton Rd., Clover, $[******] 2
SC 29710
CHARLOTTE, NC CHARLOTTE POP - 112 N. MEYERS ST., CHARLOTTE, NC $[******] 1
28202
Salisbury (a\k\a Mt. Ulla) 295 Upright Rd., Mt. Ulla, $[******] 1
NC 28125
Kernersville Jct. LOT #51M, 1334 Old Salem $[******] 1
Road, Kernersville, NC 27284
SPUR TO GREENSBORO & RALEIGH, NC
Reidsville 1301 Ashley Loop, $[******] 1
Reidsville, NC 27320
Chatham 945 Transco Rd., Chatham, VA $[******] 2
24531
AppomattFPox Hwy. 691 SW, Appomattox, VA $[******] 1
24522
Scottsville Jct. Highway 643, Scottsville, VA $[******] 1
24590
SPUR TO RICHMOND, VA
Unionville 74444 Everona Rd., $[******] 1
Unionville, VA 22587
Manassas 10699 Piperlane, Manassas, $[******] 1
VA 20110
ROUTE RACK COUNT 18
HSTN - DLLS (IXC)
HOUSTON, TX HOUSTON POP - 1124 HARDY STREET, HOUSTON, TX [******] 2
77020
Willis (a\k\a Montgomery Co.) 16533 IH 45 NORTH, $[******] 1
Willis, TX 77378
Madison Route 2, Box 213, $[******] 1
Madisonville, TX
77864
CONFIDENTIAL
FIRST AMENDMENT TO
COLLOCATION AND MAINTENANCE AGREEMENT
EXHIBIT A-1
EXECUTION COPY
Buffalo 23433 IH 45 North, $[******] 2
Buffalo, TX 75831
Streetman 16108 IH 45 North, $[******] 1
Streetman, TX 75859
Ennis 3910 IH 45 North, $[******] 1
Ennis, TX 75120
ROUTE RACK COUNT 8
KSCY - DNVR
KANSAS CITY, MO KANSAS CITY POP - THE BRYANT BLDG., 1102 $[******] 2
GRAND AVE. #300, KANSAS CITY, MO 64106
Lawrence 13804 246th St., $[******] 1
Lawrence, KS 66044
TOPEKA, KS TOPEKA POP - 101 SE MONROE, TOPEKA, KS 66603 $[******] 1
Allen (a\k\a Miller) 1836 County Rd. 330, $[******] 1
Osage City, KS 66868
Elmdale RR 1, Elmdale, $[******] 2
Cottonwood Falls, KS
66850
Newton 937 Falcon Road, $[******] 1
Newton, KS 67114
Inman 380 Plum Ave., $[******] 1
Inman, KS 67546
Ellinwood 1150 E BARTON CO. $[******] 1
ROAD, Ellinwood, KS
67526
Bison Rural Rt. 1, Bison, $[******] 2
KS 67520
Ellis Rural Rt. 1, Ellis, $[******] 1
KS 67637
Grainfield 1102 COUNTY ROAD 50, $[******] 1
Grainfield, KS 67737
Oakley (a\k\a Monument) 2317 Daydream Road, $[******] 1
Monument, KS 67747
Goodland 5655 County Road $[******] 1
#16, Goodland, KS
Burlington (a\k\a Bethune) 32353 County Rd. 40, $[******] 2
Burlington, CO 80805
Flagler 7250 County Rd. HH, $[******] 1
Flagler, CO 80815
Woodrow 1018 HIGHWAY 71, $[******] 1
Woodrow, CO 80757
CONFIDENTIAL
FIRST AMENDMENT TO
COLLOCATION AND MAINTENANCE AGREEMENT
EXHIBIT A-1
EXECUTION COPY
Strasburg 2598 S County Rd., $[******] 1
157, Strasburg, CO
80136
ROUTE RACK COUNT 21
PTLD - SCRM
PORTLAND, OR PORTLAND POP - 707 SW WASHINGTON ST., 4TH $[******] 7
FL., SUITE 410, PORTLAND, OR 97205
ROUTE RACK COUNT 7
SCRM - SLKC
SACRAMENTO, CA SACRAMENTO POP II - 770 L. ST., SUITE 120, $[******] 2
SACRAMENTO, CA 95814
Auburn Alt. 1725 Auburn Ravine $[******] 1
Road, Auburn, CA
95603
Blue Canyon Blue Canyon Exit off $[******] 1
I-80, Blue Canyon,
CA 95714
Truckee 10136 Hirshdale $[******] 1
Road, Truckee, CA
96161
RENO, NV RENO POP - 220 GARDNER ST., RENO, NV 89503 $[******] 2
Hot Springs Flat (a\k\a Fallon) Exit 65 off I-80, $[******] 1
Nightingale Rd.,
Fallon, NV 89406
Lovelock 55 Cornell Avenue, $[******] 1
Lovelock, NV 89419
Mill City (a\k\a Imlay) Exit 149 on I-80, $[******] 1
Lot 14, Block B Mill
City Acres, Imlay,
NV 89418
Golconda Butte (a\k\a Winnemucca) Exit 187 off I-80, $[******] 2
North of
interchange,
Winnemucca, NV 89445
Snow Gulch Exit 222 off I-80, $[******] 1
1.9 miles North of
Access, Snow Gulch,
NV 89444
Dunphy (a\k\a Eureka) Exit 254 off I-80 $[******] 1
North, East 3.5
miles, Eureka, NV
89821
Hunter (a\k\a McGill) Exit 292 off I-80, $[******] 1
North of
intersection, then
East, McGill, NV
89318
Deeth (a\ka Elko) Exit 333 off I-80, 5 $[******] 2
miles East on North
Frontage Rd, Elko,
NV 89835
CONFIDENTIAL
FIRST AMENDMENT TO
COLLOCATION AND MAINTENANCE AGREEMENT
EXHIBIT A-1
EXECUTION COPY
Oasis Exit 380 off I-80, $[******] 1
Oasis, NV 89830
Wendover 3131 East Frontage $[******] 1
Road, Wendover, UT
84083
Barrow 9.5 miles West of $[******] 1
I-80, Barro, UT 84083
Timpie (a\k\a Tooele) 15516 West Rowley $[******] 1
Road, Tooele, UT
84022
SALT LAKE CITY, UT SALT LAKE CITY POP - 5035 HAROLD GATTY 11
DRIVE, SALT LAKE CITY, UT 84116 [**************
*****]
ROUTE RACK COUNT 32
HSTN - ATLN
HOUSTON, TX 1124 HARDY STREET, HOUSTON, TX 77020 $[******] 4
Kingwood (a\k\a Huffman or Harris) 33902 $[******] 1
Huffman-Cleveland R,
Huffman, TX 77336
Sour Lake (a\k\a Hardin) 29979 Highway 105, $[******] 1
Sour Lake, TX 77659
Buna (a\k\a Jasper) Hwy 62 South, Buna, $[******] 1
TX 77612
Ragley (a\k\a Beauregard) 17329 Hwy 171 North, $[******] 1
Ragley, LA 70657
Basile (a\k\a Evangeline) 1919 Hunter Rd., $[******] 2
Basile, LA 70515
Port Barre (a\k\a St. Landre or 2343 Highway 359, $[******] 1
Washington) Washington, LA 70589
Zachary Jct. (a\k\a Feliciana or 1479 A Highway 964, $[******] 1
Jackson) Jackson, LA 70748
SPUR TO NEW ORLEANS, LA
Greensburg (a\k\a St. Helena) Hwy 43 North, $[******] 1
Greensburg, LA 70441
Tylertown (a\k\a Walthall) 967 Hwy 583, $[******] 1
Tylertown, MS 39667
Seminary (a\k\a Covington Co.) 11 Kelly Creek Road, $[******] 2
Seminary, MS 39479
SPUR TO JACKSON, MS
Laurel (a\k\a Jasper or Sandersville) 1666 Bonner Road, $[******] 1
Sandersville, MS
39477
Quitman (a\k\a Jasper Co.) 240 Vyvx Lane, $[******] 1
Quitman, MS 39955
CONFIDENTIAL
FIRST AMENDMENT TO
COLLOCATION AND MAINTENANCE AGREEMENT
EXHIBIT A-1
EXECUTION COPY
Linden (a\k\a Merengo or Sweetwater) Hwy 69 South, $[******] 1
Sweetwater, AL 36782
Selma (a\k\a Dallas Co. or Browns) 1713 County Road $[******] 2
179, Browns, AL 36724
Clanton (a\k\a Chilton or 4521 Chilton Road $[******] 1
Billingsley) #352, Billingsley,
AL 36006
SPUR TO BIRMINGHAM, AL
Alexander City (a\k\a Coosa or 250 Highway 9, $[******] 1
Kellyton) Kellyton, AL 35089
Wadley (a\k\a Randolph Co.) 1140 County Rd 41, $[******] 1
Wadley, AL 36276
Newnan (a\k\a Coweta Co.) 65 Mayo Royal Road, $[******] 1
Newnan, GA 30263
ROUTE RACK COUNT 25
MPLS - KSCY
MINNEAPOLIS, MN 511 11TH AVE. SOUTH, SUITE 201, MINNEAPOLIS, $[******] 2
MN
Northfield 6730 320th Street $[******] 1
West, Northfield, MN
55057
Owantonna (a\k\a Hope) 6391 SW 68th Street, $[******] 1
Owantonna, MN 55060
Hanlon Town (a\k\a Tenold) 807 435th Street, $[******] 2
Hanlon Town, IA 50444
Latimer 1825 Finch Avenue, $[******] 1
Latimer, IA 50452
Roland 12951 610th Avenue, $[******] 1
Roland, IA 50236
DES MOINES, IA DES MOINES POP - 4500B CARLISLE ROAD, DES $[******] 1
MOINES, IA 50317
Osceola 2241-B US Highway $[******] 2
69, Osceola, IA 50213
Ridgeway 20469 W. 230th $[******] 1
Place, Ridgeway, MO
64481
Maysville (a\k\a Weathersby) 99 Southeast Dallas $[******] 1
Road, Weathersby, MO
64497
Plattsburgh (a\k\a Lilly) 2821 Southwest $[******] 1
Street, Plattsburg,
MO 64497
ROUTE RACK COUNT 14
CONFIDENTIAL
FIRST AMENDMENT TO COLLOCATION AND MAINTENANCE AGREEMENT
EXHIBIT A-1
EXECUTION COPY
SCRM - SNFC
SACRAMENTO, CA SACRAMENTO POP II - 1005 'B' STREET, $[******] 2
SACRAMENTO, CA 95814
Bay Point 487 Canal Road, Bay $[******] 1
Point, CA 94565
Creed 6732 Creed Road, $[******] 1
Suisin City, 94585
SAN FRANCISCO, CA SAN FRANCISCO POP - 200 PAUL ST., 4TH FLOOR, $[******] 4
SAN FRANCISCO, CA 94124 --
ROUTE RACK COUNT 8
---
GRAND TOTAL RACK COUNT 133
===
CONFIDENTIAL
FIRST AMENDMENT TO COLLOCATION AND MAINTENANCE AGREEMENT
EXHIBIT A-1
CONFIDENTIAL PORTION MARKED [*************] HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
SECOND AMENDMENT TO COLLOCATION AND MAINTENANCE AGREEMENT
THIS SECOND AMENDMENT (this "Amendment") is made by and between WILTEL
COMMUNICATIONS, LLC, a Delaware limited liability company ("Provider") and
METROMEDIA FIBER NETWORK SERVICES, INC. ("Customer") a Delaware corporation.
Background
Metromedia Fiber National Network, Inc ("MFNN") and Provider entered into that
certain Collocation and Maintenance Agreement dated April 26, 2002, as amended
October 10, 2002 (the "Agreement").
The Agreement was wholly assigned by MFNN to Customer on October 10, 2002.
The parties now wish to amend the Agreement to change the total maintenance fee
obligation to conform to the number of Lessee Fibers under the Fiber Lease
Agreement and to add certain Collocation Sites in accordance with the terms set
forth in this Amendment.
NOW THEREFORE, for mutual consideration, the value of which the parties
acknowledge, the terms of the Agreement are amended as follows:
1. Capitalized terms not otherwise defined in this Amendment have the meaning
ascribed in the Agreement.
2. The clause in Section 2.1 "such amount currently totaling $[******] per month
(14,770 fiber miles x $[*])" is deleted and replaced with "such amount currently
totaling $[******] per month (14,410 fiber miles x $[*]):
3. Pursuant to Section 3.2 (a)(ii) of the Agreement, Customer hereby agrees
that, in addition to the Collocation Sites listed in the Agreement, Customer
shall pay for the additional Collocation Sites and corresponding number of racks
identified under both "Phase 1" and "Phase 2" in EXHIBIT A-1 to this Amendment
(the "Additional Collocation Sites"). The Parties further agree to update and
replace Exhibit A-1 at such time that all Additional Collocation Sites for
"Phase 2" of that exhibit have been identified. All Additional Collocation Sites
will be invoiced by WiltTel at the following rates:
$[***] per rack per month at Transmission Sites (Op/Amp)
$[***] per rack per month at POPs.
Such rates shall include HVAC and 20amps of negative 48v DC power per rack. Each
additional 10 amps up to 60 amps per rack total at the Additional Collocation
Sites shall be charged to Customer at the rate of $[***] per month. Customer
shall pay a non-recurring charge for initial installation of racks and the
provision of initial excess power requirements at the Additional Collocation
Sites as follows:
CONFIDENTIAL
SECOND AMENDMENT TO COLLOCATION AND MAINTENANCE AGREEMENT
PAGE 1 OF 3
$[*****] per Transmission Site (Op/Amp)
$[*****] per POP
No other non-recurring charges shall apply to the initial installations at the
Additional Collocation Sites. Thereafter, except as set forth in paragraph 4,
all other non-recurring charges set forth in Subsection 2.2(b), (c), (d) and (e)
of the Agreement shall apply to the Additional Collocation Sites.
4. The parties acknowledge that the list of Additional Collocation Sites is
subject to amendment pursuant to a Master Agreement for Professional Services of
even date herewith between Customer and Williams Communications Managed
Services, LLC. Customer will not be charged any additional fees under
Subsections 2.2(b), (c) , (d) or (e) for such an amendment.
5. EFFECTIVE DATE. This Amendment is effective upon the date of the last
signature hereto ("Effective Date").
6. Except as amended, all of the terms and conditions of the Agreement continue
in full force and effect, neither party is in currently in default, and the
Agreement, as amended is hereby ratified and confirmed.
7. This Amendment may be executed in counterparts, each of which taken together
constitute one and the same instrument.
Signatures on following page
CONFIDENTIAL
SECOND AMENDMENT TO COLLOCATION AND MAINTENANCE AGREEMENT
PAGE 2 OF 3
The parties have executed this Amendment on the dates set forth below above.
METROMEDIA FIBER NETWORK SERVICES, INC., a Delaware corporation
Signature: /s/ William G. La Perch
-------------------------------------------
(Print) Name: William G. La Perch
---------------------------------------
(Print) Title: SVP - Network Services
---------------------------------------
(Print) Date: 2/14/03
----------------------------------------
WILTEL COMMUNICATIONS, LLC, a Delaware limited liability company
Signature: /s/ T. J. Gallagher
-------------------------------------------
(Print) Name: T. J. Gallagher
---------------------------------------
(Print) Title: VP & GM, Business Development
---------------------------------------
(Print) Date: 2/14/03
----------------------------------------
CONFIDENTIAL
SECOND AMENDMENT TO COLLOCATION AND MAINTENANCE AGREEMENT
PAGE 3 OF 3
EXHIBIT A-1
ADDITIONAL COLLOCATION SITES
PHASE 1
SALT LAKE CITY TO DENVER
WCG MFN
SITE ADDRESS CITY ST TYPE # OF RACKS
---- ------- ---- -- ---- ----------
SALT LAKE CITY 5035 HAROLD GATTY DRIVE SALT LAKE CITY UT POP 0
COALVILLE 1779 SOUTH EAST WANSHIP ROAD COALVILLE UT OP/AMP 1
HILLIARD FLATS 14563 STATE HWY 150 EVANSTON WY OP/AMP 1
FORT BRIDGER 3602 STATE HWY 412 FORT BRIDGER WY OP/AMP 1
LITTLE AMERICA 7 CTY. RD.4-90 AMERICAN METHANOL RD. GREEN RIVER WY REGEN 2
SOUTH BAXTER 740 CTY. RD.30 SOUTH BAXTER ROAD SOUTH BAXTER WY OP/AMP 1
TABLE ROCK 168 CTY. RD.55 TABLE ROCK ROAD TABLE ROCK WY OP/AMP 1
ECHO SPRINGS 5.9M SO. SH789 EXIT 187 RAWLINS WY OP/AMP 1
SINCLAIR 6M SOUTH OFF PLANT ROAD SINCLAIR WY OP/AMP 1
ELK MOUNTAIN 3M NORTH ON SH72 ELK MOUNTAIN WY REGEN 2
WEST LARAMIE 824 HERRICK LANE LARAMIE WY OP/AMP 1
CHEYENNE 310 ROAD 206 GRANITE CANYON WY OP/AMP 1
NUNN 13485 WELD COUNTY ROAD 108 NUNN CO OP/AMP 1
PLATTEVILLE 350 FRONT STREET PLATTEVILLE CO OP/AMP 1
DENVER 910 15TH STREET SUITE 716 DENVER CO POP 4
--
TOTAL 19
==
MINNEAPOLIS TO BROADVIEW (CHICAGO)
WCG MFN
SITE ADDRESS CITY ST TYPE # OF RACKS
---- ------- ---- -- ---- ----------
MINNEAPOLIS 511 11TH AVENUE SUITE 210 MINNEAPOLIS MN POP 1
ROBERTS 597 HIGHLAND DRIVE ROBERTS WI OP/AMP 1
MENOMONIE NORTH 6156 CTY RD. E MENOMONIE WI OP/AMP 1
FALL CREEK EAST 13435 CTY RD. D FALL CREEK WI OP/AMP 1
MERRILLAN WEST 10022 GARAGE ROAD MERRILLAN WI REGEN 2
TOMAH 29179 DORSETT AVENUE TOMAH WI OP/AMP 1
GRAND MARSH 2655 5TH AVENUE GRAND MARSH WI OP/AMP 1
PARDEEVILLE NORTH 7883 STATE HWY 44 PARDEEVILLE WI OP/AMP 1
MADISON 612 WEST MAIN MADISON WI POP 2
DOUSMAN 311 VENTURE DRIVE DOUSMAN WI OP/AMP 1
MILWAUKEE 507 SOUTH 2ND STREET SUITE 200 MILWAUKEE WI POP 1
ZION 43185 NORTH HWY 41 ZION IL OP/AMP 1
CHICAGO II (BRVW) 2101 ROBERTS DRIVE BROADVIEW IL POP 0
--
TOTAL 14
==
CONFIDENTIAL
SECOND AMENDMENT TO COLLOCATION AND MAINTENANCE AGREEMENT
EXHIBIT A-1
