Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
FIBER OPTIC USE AGREEMENT
BETWEEN
FIVECOM, INC.
AND
MCI TELECOMMUNICATIONS CORPORATION
FIBER OPTIC USE AGREEMENT
TABLE OF CONTENTS
ARTICLE TITLE PAGE NO.
ARTICLE I FIVECOM SYSTEM AND MCI FIBERS...............................1
ARTICLE II SCHEDULE....................................................2
ARTICLE III ACCEPTANCE..................................................2
ARTICLE IV DELIVERABLES................................................3
ARTICLE V TERM AND INDEFEASIBLE RIGHT OF USE..........................4
ARTICLE VI TERMS OF PAYMENT............................................5
ARTICLE VII MAINTENANCE AND REPAIR OF THE MCI FIBERS....................5
ARTICLE VIII WARRANTIES..................................................7
ARTICLE IX TAXES.......................................................7
ARTICLE X LIABILITY...................................................8
ARTICLE XI FORCE MAJEURE...............................................8
ARTICLE XII PERMITS AND REQUIRED RIGHTS-OF-WAY..........................9
ARTICLE XIII RELOCATION OF THE FlVECOM SYSTEM AND THE MCI
FIBERS......................................................9
ARTICLE XIV CONDEMNATION...............................................10
ARTICLE XV USE OF THE MCI FIBERS......................................10
ARTICLE XVI OWNERSHIP OF THE MCI FIBERS................................10
ARTICLE XVII RIGHT OF FIRST REFUSAL and OPTION TO LEASE
ADDITIONAL DARK FIBERS.....................................11
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ARTICLE XVIII REGENERATORS...............................................11
ARTICLE XIX CONFIDENTIALITY............................................11
ARTICLE XX DEFAULT....................................................12
ARTICLE XXI NOTICES....................................................12
ARTICLE XXII ASSIGNMENT; SUCCESSION.....................................13
ARTICLE XXIII VENDORS....................................................14
ARTICLE XXIV GOVERNING LAW..............................................14
ARTICLE XXV DISPUTE RESOLUTION.........................................14
ARTICLE XXVI LIENS......................................................16
ARTICLE XXVII MISCELLANEOUS..............................................16
ARTICLE XXVIII INSURANCE..................................................17
ARTICLE XXIX ENTIRE AGREEMENT...........................................17
EXHIBITS
EXHIBIT A MAP OF LOCATION OF MCI FIBERS
EXHIBIT B TECHNICAL SPECIFICATIONS
EXHIBIT C ACCEPTANCE TEST PLAN
EXHIBIT D ACCEPTANCE NOTICE
EXHIBIT E SPECIFICATIONS
EXHIBIT F CONSTRUCTION AND MILESTONE SCHEDULE
EXHIBIT G EMERGENCY MAINTENANCE PROCEDURES
EXHIBIT H ROUTINE MAINTENANCE STANDARDS
EXHIBIT I SHELTER EQUIPMENT LAYOUT
EXHIBIT J CONFIDENTIALITY AGREEMENT
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FIBER OPTIC USE AGREEMENT
THIS AGREEMENT (hereinafter referred to as the "Agreement") made and
entered into as of the 2nd day of January, 1997, by and between FiveCom, LLC
(hereinafter referred to as "FiveCom"), a Massachusetts corporation, having an
office at 000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 000000 and MCI
TELECOMMUNICATIONS CORPORATION (hereinafter referred to as "MCI"), a Delaware
corporation, having an office at 0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
WHEREAS, MCI is in the business of providing long distance
telecommunications services: and
WHEREAS, MCI desires to utilize FiveCom's fiber optic access services
for the purpose of providing telecommunications services and FiveCom is willing
to provide its fiber optic access services to MCI for that purpose;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto hereby expressly agree as follows:
ARTICLE I FIVECOM SYSTEM AND MCI FIBERS
1.1 FiveCom will construct and install four (4) True Wave dark optical
fibers between the Lightwave Distribution Frame at MCI's Nashua NH terminal, One
Indian Head Plaza, Suite 517 and the Lightwave Distribution Frame at MCI's
Portland, ME Terminal at 1 City Center, 4th Floor including any connectors
thereto as depicted in Exhibit A, attached hereto. Four (4) AT&T True Wave dark
fibers will be dedicated to MCI's use along the cable system (the "MCI Fibers").
1.2 The MCI Fibers shall be provided to MCI in accordance with the
technical specifications (hereinafter referred to as the "Specifications") set
forth in Exhibit B, attached hereto and incorporated herein. FiveCom shall
comply in all material respects with any and all applicable building,
construction and safety codes for the construction and installation of the MCI
Fibers as well as any and all other applicable federal, state and local laws,
codes, ordinances, statutes and regulations.
1.3 The MCI Fibers shall be 100% diverse with a minimum of twenty-five
(25) feet separation from existing AT&T and Sprint fiber optic facilities.
1.4 MCI shall allow FiveCom to construct the MCI Fibers into MCI's
facilities, and shall provide all electricity, sanitary facilities and other
utilities at its locations as FiveCom may reasonably require to provide safe and
convenient working
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
conditions for its personnel for the installation of the MCI Fibers into MCI's
locations and for the maintenance and repair of the MCI Fibers. FiveCom shall
have no responsibility for any damage or loss to the MCI Fibers or any portion
or component thereof which is on or in an MCI location, either before or after
installation, if such damage or loss results from a fire, other casualty, theft,
mysterious disappearance, vandalism or condemnation.
ARTICLE II SCHEDULE
2.1 FiveCom shall use its best efforts to complete construction and
installation and have the MCI Fibers ready for testing no later than April 1,
1997.
2.2 In the event the MCI Fibers are not made available for MCI testing
by April 1, 1997 then, MCI, in its sole discretion, may deduct the sum of [**]
from the monthly payment described in Article VI for each day beyond April 1,
1997, that the MCI Fibers are not ready for testing. This deduction will be
taken as a credit on the front end of the contract. In the event the MCI Fibers
are not made available for testing by June 1, 1997, MCI may choose to continue
the [**] deduction or to terminate this agreement.
ARTICLE III ACCEPTANCE
3.1 Upon installation of the MCI Fibers, FiveCom shall conduct
acceptance tests in accordance with the Acceptance Test Plan ("ATP") described
in Exhibit C attached hereto and incorporated herein. FiveCom shall provide MCI
with written notice of the commencement of the acceptance testing at least seven
(7) days prior to said commencement date. MCI shall have the right, at its sole
expense, to have a person or persons present to observe any tests conducted by
FiveCom as a part of the ATP. Within ten (10) days of the conclusion of the
acceptance testing, FiveCom shall provide MCI with certified test results in
accordance with the ATP. In the event MCI does not have observers present at the
time FiveCom conducts the acceptance tests, the results of the tests conducted
thereunder as certified by FiveCom to MCI shall be deemed valid and binding upon
MCI and the MCI Fibers shall be deemed unconditionally accepted by MCI upon
receipt of the certified test results and MCI shall provide a written Acceptance
Notice within ten (10) days of receipt of such certified test results, provided
such certified test results are within the parameters of the Specifications.
3.2 In the event MCI has observers present to witness the acceptance
tests, MCI and FiveCom shall then jointly evaluate the measured results of the
tests section by section. If the measured test results are within the parameters
of the
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Specifications, then and in such event, MCI shall unconditionally accept the
test results and the MCI Fibers and provide a written Acceptance Notice.
3.3 In the event the measured test results are not within the
parameters of the Specifications, then within ten (10) days of its receipt of
the certified results from FiveCom, MCI shall notify FiveCom in writing that
such results are unacceptable and shall specify in reasonable detail the
portions of the MCI Fibers that are not within the parameters of the
Specifications. Thereupon, FiveCom shall use its best efforts to take such
action as shall be necessary to bring the operating standards of the
unacceptable portions of the MCI Fibers within the parameters of the
Specifications. If FiveCom shall not have completed corrective action and
brought the operating standards of such portions of the MCI Fibers within the
parameters of the Specifications within thirty (30) days of said written notice
from MCI that such measured test results are unacceptable, MCI shall have the
right to undertake, on its own behalf, any corrective action necessary to bring
the operating standards of the MCI Fibers within the parameters of the
Specifications, in which event FiveCom shall reimburse MCI for any and all
reasonable direct costs expended by MCI therefor. Upon completion of corrective
action by MCI or FiveCom, MCI shall provide FiveCom with an Acceptance Notice
within ten (10) days of completion of such corrective action.
3.4 Upon acceptance by MCI of all the optical fiber strands comprising
the MCI Fibers, the MCI Fibers shall be deemed to be installed by FiveCom in
accordance with the Specifications, and FiveCom shall have no further liability
therefor, except as provided for under the provisions of Articles VII and VIII,
herein.
3.5 Upon successful completion of the ATP and acceptance of the MCI
Fibers by MCI, MCI shall provide FiveCom with an "Acceptance Notice" within any
applicable period specified by this Article III in the form attached hereto as
Exhibit D. The date of acceptance set forth in the Acceptance Notice shall be
hereinafter referred to as the "Acceptance Date." In no event will MCI be
required to supply such Acceptance Notice sooner than sixty (60) days after the
beginning of acceptance testing by MCI. In the event MCI fails to provide the
Acceptance Notice or fails to specify the Acceptance Date, the Acceptance Date
shall be deemed to be the date of acceptance as determined pursuant to this
Article III or, in the event a date of acceptance is not specified, the
Acceptance Date shall be deemed to be the last day of any Acceptance Notice
period required by this Article III. Upon execution, the Acceptance Notice shall
be attached to this Agreement as Exhibit D and shall be incorporated herein by
reference.
ARTICLE IV DELIVERABLES
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4.1 In accordance with the time frame set forth in Subarticle 4.2,
herein, FiveCom shall deliver to MCI complete documentation regarding the
as-built condition of the MCI Fibers. This documentation (hereinafter referred
to as the "Deliverables") shall consist of the following:
(a) As-Built Drawings prepared in accordance with the
specifications set forth in Exhibit E, attached
hereto and incorporated herein.
(b) Names of all manufacturers whose optical fiber cable,
associated splices and other equipment are used in
installing and providing the MCI Fibers.
(c) Technical specifications of the optical fiber cable;
associated splices and other equipment used in
installing and providing the MCI Fibers.
(d) List of names and 7 X 24 telephone numbers for
FiveCom personnel responsible for maintaining and
repairing the MCI Fibers.
(e) For purposes of tracking the progress of the
construction activities associated with the MCI
fiber, FiveCom shall develop a milestone schedule,
which shall be attached hereto as Exhibit "F".
4.2 The Deliverables shall be supplied within thirty (30) days after
the Acceptance Date, provided, however, 4.1(d) & (e) shall be supplied upon
execution of the Agreement. FiveCom shall provide five (5) copies of the
Deliverables to MCI.
ARTICLE V TERM AND INDEFEASIBLE RIGHT OF USE
5.1 Unless sooner terminated in accordance with the terms of this
Agreement, FiveCom hereby grants to MCI an Indefeasible Right of Use ("IRU") in
the MCI Fibers for an initial term of twenty (20) years (hereinafter referred to
as the "Initial Term"), commencing on the Acceptance Date.
5.2 MCI shall have the option to renew this Agreement for one (1) ten
(10) year period (the Extension term) commencing at the expiration of the
Initial Term, the lease rate for the extension term shall be negotiated by the
parties, but will in no event be more than the then prevailing market rate on
the system for dark fibers excluding any amortization for system construction
costs.
5.3 Notwithstanding any provision contained in this Agreement to the
contrary, at any time after the Acceptance Date, and after having satisfied the
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
provisions of ARTICLE VI, MCI shall have the option, in its sole discretion and
for any reason, to terminate this Agreement upon one hundred eighty (180) days'
prior written notice to FiveCom.
ARTICLE VI TERMS OF PAYMENT
6.1 The lease rate for the MCI Fibers will be [**] per month. The first
payment will be due forty-five (45) days after the Acceptance Date.
6.2 FiveCom agrees that the monthly lease rate for the MCI Fibers [**].
Should FiveCom contract to [**]. FiveCom and MCI shall promptly thereafter
execute an appropriate amendment to this Agreement [**].
ARTICLE VII MAINTENANCE AND REPAIR OF THE MCI FIBERS
7.1 All routine maintenance and repair functions and emergency
maintenance and repair functions, including "one-call" responses and cable
locate services, for the MCI Fibers shall be performed by or under the direction
of FiveCom, at FiveCom's sole cost and expense. MCI shall have the right to have
an employee or representative available, at MCI's sole cost and expense, to
assist FiveCom in any maintenance or repair of the MCI Fibers. FiveCom shall use
best efforts to provide MCI with forty-eight (48) hours advance notice for all
routine maintenance and repair functions by notifying MCI's national
transmission surveillance center at 0-000-000-0000. In the event of an
emergency, similar notice shall be given to MCI as soon as the emergency is
discovered.
7.2 (a) Emergency Maintenance. FiveCom shall use best efforts to
respond to any failure, interruption or impairment in the operation of the MCI
Fibers within two (2) hours after receiving a report from MCI of any such
failure, interruption or impairment and MCI reserves the right to have a
representative present to assist in any maintenance or repair. FiveCom
recognizes that MCI company objective is to have all fibers restored within six
(6) hours of any failure, interruption or impairment and FiveCom will use its
best efforts to accomplish this objective. When trouble is encountered on the
MCI Fibers, MCI, to assist FiveCom in its maintenance activities, will diagnose
the trouble through OTDR testing, if possible, and ascertain and notify FiveCom
of the location address to the nearest cross street. FiveCom shall use its best
efforts to perform maintenance and repair to correct any failure, interruption
or impairment in the operation of the MCI Fibers in accordance
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
with the procedures set forth in Exhibit G attached hereto and incorporated
herein. In the event FiveCom fails to perform any necessary Emergency
Maintenance in accordance with the procedures set forth in Exhibit G, MCI shall
have the right, with notice to FiveCom, but not the obligation, to immediately
undertake such Emergency Maintenance of the MCI Fibers, at FiveCom's sole cost
and expense.
(b) Routine Maintenance. FiveCom will schedule and perform
specific periodic maintenance and repair checks and services, as set forth in
FiveCom's Routine Maintenance Standards, attached hereto as part of Exhibit H,
from time to time on the MCI Fibers, at FiveCom's reasonable discretion, upon
adequate advance notice to MCI, or at MCI's reasonable request. MCI may request
reasonable Routine Maintenance by delivering to FiveCom, not more than twice per
agreement year, for FiveCom's approval, a statement detailing the maintenance
checks and services MCI desires to be performed on the MCI Fibers. In the event
FiveCom fails to perform any Routine Maintenance in accordance with FiveCom's
Routine Maintenance Standards, after written notice by MCI, MCI shall have the
right, but not the obligation, to undertake such Routine Maintenance of the MCI
Fibers, at FiveCom's sole cost and expense, using contractors pre-approved by
FiveCom.
(c) MCI shall receive a credit ("Outage Credit") against the
fiber lease rate owed FiveCom hereunder in the event that the MCI Fibers do not
operate within the parameters of the Specifications. The Outage Credit shall be
equal to the proportionate amount of lease fee, for the fibers out of
compliance, paid by MCI for the duration of the noncompliance, as measured from
the time MCI notifies FiveCom of the problem until the time FiveCom, or MCI in
the event of self help, has corrected the problem. The Outage Credit shall be
[**] for each hour or portion thereof of noncompliance.
7.3 In the event FiveCom, or others acting in FiveCom's behalf, after
written notice to MCI, at any time during the term of this Agreement
discontinues maintenance and/or repair of the MCI Fibers, MCI, or others acting
in MCI's behalf, shall have the right, but not the obligation, to thereafter
provide for the maintenance and repair of the MCI Fibers, at FiveCom's sole cost
and expense. Any such discontinuance shall be upon no less than six (6) months'
prior written notice to MCI. In the event of such discontinuance, FiveCom shall
obtain for MCI, or others acting in MCI's behalf, adequate access to the
Rights-of-Way (as hereinafter defined) on or within which the MCI Fibers are
located, for the purpose of permitting MCI, or others acting in MCI's behalf, to
undertake such maintenance and repair of the MCI Fibers.
7.4 In the event all or any part of the MCI Fibers shall require
replacement during the Initial Term of this Agreement, such replacement shall be
made as soon as reasonably practical, at FiveCom's sole cost and expense. If
replacement of the MCI Fibers is required in accordance with the preceding
sentence, FiveCom shall give MCI
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
written notice of such replacement as soon as reasonably practical before the
replacement optical fiber cable is ordered from the manufacturer. MCI shall have
the option, in its sole discretion, to be exercised by written notice to FiveCom
within twenty (20) days of MCI's receipt of notice from FiveCom to: (a) accept
the proposed replacement optical fiber cable per Specifications or; (b) increase
the number of optical fiber strands to be installed in such new cable for MCI's
use at MCI's incremental cost.
ARTICLE VIII WARRANTIES
8.1 FiveCom warrants for the Initial Term of this Agreement, that the
FiveCom System shall: (a) be in full compliance with and operate within the
parameters of the Specifications, and (b) be fit to perform as an optical fiber
cable system; provided, however, that such warranties shall in no way be deemed
to be a limitation on or in derogation of FiveCom's obligations under Article
VII, herein. Any maintenance or repairs to the FiveCom System required as a
result of a breach of the foregoing warranties shall be performed at FiveCom's
sole cost and expense.
8.2 FiveCom represents and warrants to MCI that it has full Corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by FiveCom have
been duly and validly authorized by all necessary Corporate action on the part
of FiveCom
8.3 MCI represents and warrants to FiveCom that it has full corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by MCI have been
duly and validly authorized by all necessary corporate action on the part of
MCI.
ARTICLE IX TAXES
9.1 [**] taxes and franchise, license and permit [**] and/or [**]
and/or the physical location and construction thereof in, on, across, along or
through public or private roads, highways or rights-of-way.
9.2 If at any time during the Initial Term a federal, state or local
government authority seeks to impose any new taxes, franchise, license or permit
fees on FiveCom because of FiveCom's provision of the MCI Fibers pursuant to
this Agreement, FiveCom shall be responsible, at its sole expense, for paying
such charges
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either with or without a protest to the appropriate administrative jurisdiction
or administrative forum.
ARTICLE X LIABILITY
10.1 Neither MCI nor FiveCom shall be liable to the other for any
indirect, special, punitive or consequential damages (including, but not limited
to, any claim from any customer for loss of services) arising under this
Agreement or from any breach or partial breach of the provisions of this
Agreement or arising out of any act or omission of either party hereto, its
employees, servants, contractors and/or agents. Both FiveCom and MCI shall use
their best efforts to include in any agreement with any third party relating to
the use of the FiveCom System or the MCI Fibers a waiver by such third party of
any claim for indirect, special, punitive or consequential damages (including,
but not limited to, any claim from any client or customer for loss of services)
arising out of or as a result of any act or omission by either party hereto, its
employees, servants, contractors and/or agents.
10.2 Each party hereto agrees to indemnify, defend, protect and save
the other harmless from and against any claim, damage, loss, liability, cost and
expense (including reasonable attorney's fees) in connection with any personal
injury, including death, loss or damage to any property, or facilities of any
party (including FiveCom, MCI or any other party operating or using any part of
the FiveCom System or the MCI Fibers) arising out of or resulting in any way
from the acts or omissions to act, negligent or otherwise, of such party, its
employees, servants, contractors and/or agents in connection with the exercise
of its rights and obligations under the terms of this Agreement or any breach by
such party of any obligation contained herein.
10.3 Nothing contained herein shall operate as a limitation on the
right of either party hereto to bring an action for damages, including
consequential damages, against any third party based on any acts or omissions of
such third party as such acts or omissions may affect the construction,
operation or use of the MCI System or the MCI Fibers; provided, however, that
each party hereto shall assign such rights or claims, execute such documents and
do whatever else may be reasonably necessary to enable the injured party to
pursue any such action against such third party.
ARTICLE XI FORCE MAJEURE
11.1 The obligations of the parties hereto are subject to force majeure
and neither party shall be in default under this Agreement if any failure or
delay in performance is caused by strike or other labor problems; accidents;
acts of God; fire; flood; adverse weather conditions; material or facility
shortages or unavailability not
-8-
resulting from such party's failure to timely place orders therefore; lack of
transportation; the imposition of any governmental codes, ordinances, laws,
rules, regulations or restrictions; condemnation or the exercise of rights of
eminent domain; war or civil disorder; or any other cause beyond the reasonable
control of either party hereto; provided, however, that the incidence of strikes
or other labor unrest shall not delay commencement of the running of time
periods which must expire before MCI shall be entitled to itself take corrective
action under the terms of this Agreement; provided, further, however, that
delays in FiveCom securing the necessary Rights-of-Way for installation of the
MCI Fibers shall not be deemed to be a force majeure, such delays being
otherwise provided for in Article XII, herein.
ARTICLE XII PERMITS AND REQUIRED RIGHTS-OF-WAY
12.1 FiveCom represents that, to the best of its knowledge and belief,
FiveCom owns, has obtained or can and will obtain all rights, licenses,
franchises, governmental regulatory approvals, authorizations, rights-of-way,
permits and other agreements necessary for the use of poles, conduit, cable,
wire or other physical plant facilities, as well as any other such rights,
licenses, authorizations, rights-of-way and other agreements necessary for the
installation and use of the MCI Fibers (all of which are herein collectively
referred to as the "Rights-of-Way"). It is expressly understood that FiveCom's
obligations under this Agreement are conditioned upon and shall in all respects
be subject to the continuation or acquisition of such Rights- of-Way. FiveCom
shall use its best efforts to obtain or to cause such Rights-of-Way to remain
effective through the Initial Term of this Agreement. MCI will be notified in
writing by FiveCom concerning any delays in obtaining any approval described in
12.1.
ARTICLE XIII RELOCATION OF THE FlVECOM SYSTEM AND THE
MCI FIBERS
13.1 If, for any reason, FiveCom is required by any third party,
including, but not limited to, a governmental entity, to relocate any of the
facilities used or required in providing the FiveCom System and the MCI Fibers,
FiveCom shall give MCI at least sixty (60) days' (or such lesser period of
notice that FiveCom may have received) prior written notice of any such
relocation and MCI shall be entitled to terminate this Agreement, in accordance
with the provisions, excluding the notification period, of Subarticle 5.3,
herein, by giving at least thirty (30) days' prior written notice to FiveCom. In
the event this Agreement is not terminated, FiveCom shall relocate the MCI
Fibers and, to the extent FiveCom is not reimbursed for the cost of such
relocation by a third party, governmental entity or otherwise, FiveCom shall be
responsible for all the costs associated with the relocation of the MCI Fibers.
If FiveCom desires, for any other reason, to relocate any of the facilities used
or
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required in providing the MCI Fibers, such relocation shall be undertaken at
FiveCom's sole cost and expense.
ARTICLE XIV CONDEMNATION
14.1 In the event any portion of the FiveCom System and/or the MCI
Fibers, or the Rights-of-Way in or upon which they shall have been installed,
become the subject of a condemnation proceeding which is not dismissed within
one hundred eighty (180) days of the date of filing of such proceeding and which
could reasonably be expected to result in a taking, by any governmental agency
or other party cloaked with the power of eminent domain for public purpose or
use, then and in such event, it is agreed that MCI shall be entitled to
terminate this Agreement by giving at least thirty (30) days' prior written
notice to FiveCom and, in that event, both parties shall be entitled, to the
extent permitted under applicable law, to participate in any condemnation
proceedings to seek to obtain compensation by either joint or separate awards
for the economic value of their respective interests.
14.2 Upon its receipt of a formal notice of condemnation or taking,
FiveCom shall notify MCI immediately of any condemnation proceeding filed
against the MCI System, including the MCI Fibers, or the Rights-of-Way in or
upon which the MCI Fibers shall have been installed. FiveCom shall also notify
MCI of any similar threatened condemnation proceeding and agrees not to sell the
MCI Fibers or Rights-of-Way to such acquiring agency, authority or other party
in lieu of condemnation without prior written notice to MCI.
14.3 If the taking or condemnation requires relocation of the MCI
Fibers, FiveCom shall use its best efforts to obtain an alternative route over
which the MCI Fibers may be relocated, at no cost to MCI.
ARTICLE XV USE OF THE MCI FIBERS
15.1 MCI shall not use the MCI Fibers in any way which fails to comply
with any applicable federal, state or local code, ordinance, law, rule,
regulation or restriction or any policy of insurance.
ARTICLE XVI OWNERSHIP OF THE MCI FIBERS
16.1 MCI shall have an undivided right of use of the MCI Fibers.
FiveCom shall have an undivided, absolute and legal title to ownership in the
MCI Fibers.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
16.2 Except as otherwise provided in this Agreement, MCI shall not
represent to any third party that any party other than FiveCom is the legal
owner of the MCI Fibers. FiveCom acknowledges that XXX has contracted for the
purchase of an IRU in the MCI Xxxxxx and agrees that it will not take any action
which is inconsistent with XXX's said position.
ARTICLE XVII [**]OPTION TO LEASE ADDITIONAL DARK FIBERS
FiveCom hereby grants [**] an Option to License additional dark fibers
to MCI upon the following terms and conditions:
17.1 [**] on the MCI route detailed in Exhibit A, FiveCom shall provide
[**] received by FiveCom, at any time [**]. In the event MCI [**] during that
period, [**].
In the event FiveCom [**].
17.2 In addition [**], MCI shall also have the option to use an
additional four (4) fibers along the MCI route detailed in Exhibit A, at any
time throughout the term of this agreement, including any extension terms, by
paying consideration equal to the prevailing market rate for dark fiber licenses
on the FiveCom System.
ARTICLE XVIII REGENERATORS
18.1 FiveCom shall provide MCI with secure separate caged shelter space
for placement of its electronics equipment at the two (2) regenerator sites
located at Manchester and Dover with 7/24 unescorted access. The Shelter
Equipment Layout is as identified in Exhibit I. MCI shall pay FiveCom for all
incremental actual costs associated with providing MCI with secure separate
shelter space and access. Such cost shall not exceed [**].
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18.2 FiveCom will provide MCI with a minimum of twelve (12) hour
battery backup and generator power at each regenerator site.
ARTICLE XIX CONFIDENTIALITY
18.1 The Parties executed a Confidentiality Agreement on
________________, attached hereto as Exhibit J. Both parties acknowledge and
agree that the terms of that Confidentiality Agreement apply to and are binding
as to this Agreement in all respects.
ARTICLE XX DEFAULT
20.1 MCI shall not be in default under this Agreement, or in breach of
any provision hereof unless and until FiveCom shall have given MCI written
notice of such breach and MCI shall have failed to cure the same within thirty
(30) days after receipt of such notice; provided, however, that where such
breach cannot reasonably be cured within such thirty (30) day period, if MCI
shall proceed promptly to cure the same and prosecute such curing with due
diligence, the time for curing such breach shall be extended for such period of
time as may be necessary to complete such curing. Upon the failure by MCI to
timely cure any such breach after notice thereof from FiveCom, FiveCom shall
have the right, in its sole discretion, to take such action as it may determine,
to be necessary to cure the breach or to terminate this Agreement upon written
notice to MCI.
20.2 FiveCom shall not be in default under this Agreement or in breach
of any provision hereof unless and until MCI shall have given FiveCom written
notice of such breach and FiveCom shall have failed to cure the same within
thirty (30) days after receipt of such notice; provided, however, that where
such breach cannot reasonably be cured within such thirty (30) day period, if
FiveCom shall proceed promptly to cure the same and prosecute such curing with
due diligence, the time for curing such breach shall be extended for such period
of time as may be necessary to complete such curing. Upon the failure by FiveCom
to timely cure any such breach after notice thereof from MCI, MCI shall have the
right in its sole discretion to take such action as it may determine, to be
necessary to cure the breach or to terminate this Agreement.
20.3 No remedy provided for herein is intended to be exclusive, but
each remedy shall be cumulative and in addition to and may be exercised
concurrently with any other remedy available to FiveCom or MCI at law or in
equity.
ARTICLE XXI NOTICES
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21.1 Unless otherwise provided herein, all notices and communications
concerning this Agreement shall be in writing and addressed as follows:
If to FIVECOM:
FiveCom, Inc,
000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000-2014
Attention: Xxxxxxx X. Xxxxx
Facsimile Number: (000) 000-0000
If to MCI: (One copy each to)
MCI Telecommunications Corporation
0000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx 00000
Attention: Law and Public Policy
Network and Facilities
Facsimile Number: (000) 000-0000
and
MCI Telecommunications Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Director, Systems Development
Facsimile Number: (000) 000-0000
or at such other address as may be designated in writing to the other party.
21.2 Unless otherwise provided herein, notices shall be sent by
certified U.S. Mail, return receipt requested, or by commercial overnight
delivery service, or by facsimile, and shall be deemed delivered: if sent by
U.S. Mail, five (5) days after deposit; if sent by facsimile, upon verification
of receipt; or, if sent by commercial overnight delivery service, one (1)
business day after deposit.
ARTICLE XXII ASSIGNMENT; SUCCESSION
22.1 Except as provided in this Subarticle 22.1, MCI shall not assign
or otherwise transfer this Agreement, in whole or in part, to any other party
without the prior written consent of FiveCom, which consent shall not be
unreasonably withheld or delayed; provided, however, that without such consent,
MCI shall have the right
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to assign, sublet or otherwise transfer this Agreement, in whole or in part, to
any parent, subsidiary or affiliate of MCI which shall control, be under the
control of or be under common control with MCI, or any corporation which
purchases all or substantially all of the assets of MCI. Any assignee or
transferee shall continue to perform the MCI obligations to FiveCom under this
Agreement. It will be reasonable for FiveCom to take into consideration the
financial stability and ability to pay of any assignee.
22.2 Except as provided in this Subarticle 22.2, FiveCom shall not
assign or otherwise transfer this Agreement, in whole or in part, to any other
party without the prior written consent of MCI, which consent shall not be
unreasonably withheld or delayed. It is expressly understood that MCI shall not
consent to any such assignment if MCI has reasonably determined that the
proposed assignee lacks appropriate financial viability and technical
capabilities suitable for providing maintenance and repair of the MCI Fibers and
is incapable of performing FiveCom's obligations under this Agreement to MCI'S
satisfaction. Notwithstanding the foregoing provisions of this Subarticle 22.2,
FiveCom shall have the right, without MCI's consent, to assign or otherwise
transfer this Agreement to any parent, subsidiary or affiliate of FiveCom which
shall control, be under the control of or be under common control with FiveCom,
or any corporation which purchases all or substantially all of the assets of
FiveCom. Any assignee or transferee shall continue to perform the FiveCom
obligations to MCI under the terms of this Agreement.
22.3 Subject to the provisions of this Article XXII, this Agreement,
and each of the parties' respective rights and obligations hereunder, shall be
binding upon and shall inure to the benefit of the parties hereto and each of
their respective permitted successors and assigns.
ARTICLE XXIII VENDORS
23.1 MCI shall have the right to review FiveCom's list of proposed
vendors/suppliers/manufacturers of materials to be used in the installation and
construction of the MCI Fibers.
ARTICLE XXIV GOVERNING LAW
24.1 This Agreement shall be interpreted and construed in accordance
with the internal laws of the State of New York without giving effect to its
principles of conflicts of laws.
ARTICLE XXV DISPUTE RESOLUTION
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25.1 It is the intent of MCI and FiveCom that any disputes which may
arise between them, or between the employees of each of them, be resolved as
quickly as possible. Quick resolution may, in certain circumstances, involve
immediate decisions made by the parties' representatives. When such resolution
is not possible, and depending upon the nature of the dispute, the parties
hereto agree to resolve such disputes in accordance with the provisions of this
Article XXV.
25.2 FiveCom and MCI shall each designate, by separate letter,
representatives as points of contacts and decision making for the design,
construction, installation and testing phases of the MCI Fibers, said letters to
be furnished by each party to the other within thirty (30) days from the date of
this Agreement. Any disputed issues arising during the design, construction,
installation and testing phases of the MCI Fibers shall in all instances be
initially referred to the parties' designated representatives. The parties'
designated representatives shall render a mutually agreeable resolution of the
disputed issue, in writing, within seventy-two (72) hours of such referral.
25.3 Any claims or disputes arising under the terms and provisions of
this Agreement or any claims or disputes which the parties' representatives are
unable to resolve within the seventy-two (72) hour time period specified in
Subarticle 25.2, herein, shall be presented by the claimant in writing to the
other party within five (5) business days alter the circumstances which gave
rise to the claim or dispute took place or become known to the claimant,
whichever is later. The written notice shall contain a concise statement of the
claim or issue in dispute, together with relevant facts and data to support the
claim.
25.4 Any dispute arising out of or related to this Agreement, which
cannot be resolved by negotiation, shall be settled by binding arbitration in
accordance with the J.A.M.S./ENDISPUTE Arbitration Rules and Procedures
("Endispute Rules"). The costs of arbitration, including the fees and expenses
of the arbitrator, shall be shared equally by the parties unless the arbitration
award provides otherwise. Each party shall bear the cost of preparing and
presenting its case. The parties agree that this provision and the Arbitrator's
authority to grant relief shall be subject to the United States Arbitration Act,
9 U.S.C. 1-16 et seq. ("USAA"), the provisions of this Agreement, and the
ABA-AAA Code of Ethics for Arbitrators in Commercial Disputes. The parties agree
that the arbitrator shall have no power or authority to make awards or issue
orders of any kind except as expressly permitted by this Article 25.4, and in no
event shall the arbitrator have the authority to make any award that provides
for punitive or exemplary damages. The Arbitrator's decision shall follow the
plain meaning of the relevant documents, and shall be final and binding. The
award may be confirmed and enforced in any court of competent jurisdiction. All
post-award proceedings shall be governed by the USAA.
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25.5 FiveCom shall continue to provide the MCI Fibers pursuant to this
Agreement during the proceedings and litigation described in 25.4 and MCI shall
continue to make payments in accordance with this Agreement.
ARTICLE XXVI LIENS
26.1 In the event the MCI Fibers become subject to any mechanics',
artisans' or materialmen's lien, or other encumbrance chargeable to or through
FiveCom which interfere with the MCI Fibers or MCI's use of and IRU in the MCI
Fibers, FiveCom shall promptly cause such lien or encumbrance to be discharged
and released of record (by payment, posting of bond, court deposit or other
means) without cost to MCI and shall indemnify MCI against all costs and
expenses (including reasonable attorney's fees) incurred in discharging and
releasing such lien or encumbrance; provided, however, that if any such lien or
encumbrance is not so discharged and released within thirty (30) days after
written notice by MCI to FiveCom, then MCI may pay or secure the release or
discharge thereof at the expense of FiveCom.
26.2 In the event the FiveCom System becomes subject to any mechanics',
artisans' or materialmen's lien, or other encumbrances chargeable to or through
MCI which interfere with the MCI Fibers or the FiveCom System, MCI shall
promptly cause such lien or encumbrance to be discharged and released of record
(by payment, posting of bond, court deposit or other means) without cost to
FiveCom and shall indemnify FiveCom against all costs and expenses (including
reasonable attorney's fees) incurred in discharging and releasing such lien or
encumbrance; provided, however, that if any such lien or encumbrance is not so
discharged and released within thirty (30) days after written notice by FiveCom
to MCI, then FiveCom may pay or secure the release or discharge thereof at the
expense of MCI.
ARTICLE XXVII MISCELLANEOUS
27.1 The headings of the Articles in this Agreement are strictly for
convenience and shall not in any way be construed as amplifying or limiting any
of the terms, provisions or conditions of this Agreement.
27.2 In construction of this Agreement, words used in the singular
shall include the plural and the plural the singular, and "or" is used in the
inclusive sense, in all cases where such meanings would be appropriate.
27.3 In the event any term of this Agreement shall be held invalid,
illegal or unenforceable in whole or in part, neither the validity of the
remaining part of such term nor the validity of the remaining terms of this
Agreement shall in any way be affected thereby.
-16-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
27.4 This Agreement may be amended only by a written instrument
executed by the party against whom enforcement of the modification is sought.
27.5 No failure to exercise and no delay in exercising, on the part of
either party hereto, any right, power or privilege hereunder shall operate as a
waiver hereof, except as expressly provided herein.
ARTICLE XXVIII INSURANCE
28.1 Each party or its affiliates shall, at its own expense, secure and
maintain in force, throughout the term of this Agreement, General Liability
Insurance, with competent and qualified issuing insurance companies, including
the following coverages: Product Liability, Hazard of Premises/Operations
(including explosion, collapse and underground coverages); Independent
Contractors; Products and Completed Operations; Blanket Contractual Liability
(covering the liability assumed in this Agreement); Personal Injury (including
death); and Broad Form Property Damage in policy or policies of insurance such
that the total available limits to all insured will not be less than [**]
Combined Single Limit for each occurrence and [**] aggregated for each annual
period. Such insurance may be provided in policy or policies, primary and
excess, including the so-called Umbrella or Catastrophe forms. All policies
required by this Subarticle 28.1 shall, to the extent possible, be endorsed to
show the other party, as additional insured, as their interests may appear;
require the insurance companies to notify the other party at least thirty (30)
days prior to the effective date of any cancellation or material modification of
such policies; and shall specify that the policy shall apply without
consideration for other policies separately carried and shall state that each
insured is provided coverage as though a separate policy had been issued to
each, except the insurer's liability shall not be increased beyond the amount
for which the insurer would have been liable had only one insured been covered
and only one deductible shall apply regardless of the number of insured covered.
The parties shall also carry such insurance as will protect it from all claims
under any Worker's Compensation laws in effect that may be applicable to it. The
undertaking with respect to insurance shall not relieve either party of its
obligation in Article X.
ARTICLE XXIX ENTIRE AGREEMENT
29.1 This Agreement, and any Exhibits attached hereto or to be attached
hereto, constitute the entire agreement between the parties hereto with respect
to the
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subject matter hereof and supersede any and all prior negotiations,
understandings and agreements with respect hereto, whether oral or written.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the day and year first above written.
ATTEST: MCI TELECOMMUNICATIONS
CORPORATION
By:_______________________________ By: /s/__________________________
Name: Xxxxxxx Xxxxx Name:
Title: Assistant Secretary Title:
(Corporate Seal)
ATTEST: FIVECOM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxx Xxxxxxxxxx
Title: Corp. Controller/CFO Title: President
(Corporate Seal)
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EXHIBIT A
MAP OF LOCATION OF MCI FIBERS
EXHIBIT B
Technical Specifications
1. The maximum bi-directional average splice loss shall not exceed 0.1 dB.
2. At each spice point, sheathing shall be bonded to a ground of not
greater than 20 Ohms.
3. All splices shall be sealed in water proof splice enclosures.
4. Between the wavelengths of 1300 nm and 1320 nm, fiber attenuation shall
not exceed 0.4 dB/km for standard single-mode fiber and shall not
exceed 0.5dB/km for True Wave, for temperatures between -40 and +65C.
5. Between the wavelengths of 1540 nm and 1560 nm, fiber attenuation shall
not exceed 0.3 dB/nm for temperatures between -40 and +65C and shall
not exceed 0.25 dB/nm for True Wave.
6. The wavelength of zero fiber dispersion shall be between 1300 nm and
1320 nm for unshifted single-mode fiber. The wavelength of zero fiber
dispersion shall be between 1535 nm and 1565 nm for True Wave. The
slope of the dispersion curve at the wavelength of zero dispersion
shall not exceed .10ps/nm/km.
7. The fiber dispersion at a wavelength of 1500 nm shall not exceed 5
ps/(nm*km).
8. The fiber cut-off wavelength shall be less than 1330 nm and greater
than 1130 nm.
9. Fiber attenuation shall be uniform along its entire cable length.
Attenuation discontinuities shall not exceed .1dB at either 1300 nm or
1550 nm as measured at any point along the fiber.
EXHIBIT C
Acceptance Test Plan
FiveCom and MCI will conduct the following tests as part of its Acceptance Test
Plan:
1. Non-destructive Attenuation Tests (End-to-End)
2. Optical Time Reflectometer Tests (OTDR)
Fiber acceptance testing will be performed to ensure that the MCI fibers will
operate within the parameters of the Specifications set forth in Exhibit B to
this Agreement.
More specifically, fiber acceptance testing will include the following:
1) Continuity/Uniformity Tests:
All fibers shall be tested bi-directionally at 1310 nm or 1550 nm, as
applicable, with an OTDR; the subsequent traces shall be inspected for
end-to-end continuity and for uniform attenuation. These traces will be stored
on diskette and will be compatible with laser precision PC-OTDR software.
2) Optical Length
The OTDR will be used to determine the end-to-end optical length of the cable.
3) Splice Loss:
Splice loss will be measured bi-directionally with an OTDR using the Splice Loss
average method. The average splice loss shall be the measurement for splice loss
set forth in Exhibit B to this Agreement.
4) End-to-End Loss
Using a light source and a power meter, the bi-directional,
connector-to-connector attenuation will be measured for each fiber at 1310 nm
and 1550 nm, as applicable. The acceptance average attenuation per kilometer on
a per span basis shall be the attenuation set forth in Exhibit B to this
Agreement.
EXHIBIT D
Acceptance Notice
Reference: That certain Fiber Optic Use Agreement between MCI
Telecommunications Corporation and FiveCom, LLC dated _______________.
This notice is provided in connection with Article III of the above referenced
agreement.
The MCI System has been accepted as of _____________________________.
MCI TELECOMMUNICATIONS CORPORATION
By:_________________________________________
(Signature)
Name:______________________________________
(Type or Print Name)
EXHIBIT E
As-Built Drawing Specifications
FiveCom shall deliver As-built drawings in Microstation 5.0, or current release,
in either Autocadd or DXF format in addition to five (5) 11" by 17" hard copies.
At a minimum, FiveCom's As-built drawings will include:
1. A route diagram that illustrates the location of the:
End Locations
Splice Locations
Repeater Locations
2. Manufacturer, type of cable, fiber count, and reel numbers.
3. A summary of distances between the locations listed above and offset of
cable in relation to fixed objects.
4. The type of cable construction between locations (buried, aerial,
conduit) and any typicals or details needed for the specified type of
construction.
5. Any geographical information deemed necessary to further clarify the route.
6. Detailed route information that includes:
Street, road and highway names
Railroad and major highway crossings
Bridge Crossings
Manhole and pole identification
Pole-to-pole distances in feet
Manhole-to-manhole distances in feet
Distances along or between any other attachment points on the route
New conduit, manhole, and pole installations
Building riser and lateral conduit locations, if any
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT F
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Task Duration Start Finish Predecessor
--------------------------------------------------------------------------------------------------------------------
1 [**] 46 10/28/96 12/30/96
--------------------------------------------------------------------------------------------------------------------
2 OPGW Construction 15 10/28/96 11/15/96
--------------------------------------------------------------------------------------------------------------------
3 ADSS Construction 15 11/25/96 12/13/96
--------------------------------------------------------------------------------------------------------------------
4 SPLICING 15 12/09/96 12/27/96 3SS+10d
--------------------------------------------------------------------------------------------------------------------
5 Optronics 5 12/13/96 12/19/96
--------------------------------------------------------------------------------------------------------------------
6 Segment Completion Complete 1 12/30/96 12/20/96 5,4
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
8 [**] 62 11/15/96 02/10/97
--------------------------------------------------------------------------------------------------------------------
9 OPGW Construction 35 11/18/96 01/03/97 2
--------------------------------------------------------------------------------------------------------------------
10 ADSS Construction 15 12/16/96 01/03/97 3
--------------------------------------------------------------------------------------------------------------------
11 SPLICING 20 12/30/96 01/24/97 4,9SS+3w
--------------------------------------------------------------------------------------------------------------------
12 Equipment Shelters 61 11/15/96 02/07/97
--------------------------------------------------------------------------------------------------------------------
13 Complete Specification 1 11/15/96 11/15/96
--------------------------------------------------------------------------------------------------------------------
14 Order Shelter 50 11/18/96 01/24/97 13
--------------------------------------------------------------------------------------------------------------------
15 Complete Shelter Installation 10 01/27/97 02/07/97 14
--------------------------------------------------------------------------------------------------------------------
16 Segment Completion Complete 1 02/10/97 02/10/97 11,15
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
18 [**] 86 11/13/96 03/12/97
--------------------------------------------------------------------------------------------------------------------
19 Final PUC Approval 1 11/13/96 11/13/96
--------------------------------------------------------------------------------------------------------------------
20 Complete Engineering Spec 20 11/13/96 12/10/96
--------------------------------------------------------------------------------------------------------------------
21 Cable Vendor Selection 10 11/13/96 11/26/96
--------------------------------------------------------------------------------------------------------------------
22 Order Cable & Hardware 30 11/27/96 01/07/97 21
--------------------------------------------------------------------------------------------------------------------
23 Cable Deliver 30 01/08/97 02/18/97 22
--------------------------------------------------------------------------------------------------------------------
24 Select Construction Contractor 20 11/29/96 12/26/96
--------------------------------------------------------------------------------------------------------------------
25 Cable Placement (Transmission) 40 01/15/97 03/11/97 24FS+10d, 23SS+1w
--------------------------------------------------------------------------------------------------------------------
26 Cable Placement (Urban Area) 20 01/15/97 02/11/97 23SS+2w
--------------------------------------------------------------------------------------------------------------------
27 Portland Collocation 30 11/13/96 12/24/96
--------------------------------------------------------------------------------------------------------------------
28 Splicing 30 01/29/97 03/11/97 25SS+2w
--------------------------------------------------------------------------------------------------------------------
29 Project Completion 1 03/12/97 03/12/97 28
--------------------------------------------------------------------------------------------------------------------
EXHIBIT G
EMERGENCY MAINTENANCE PROCEDURES
A1. Notification
MCI shall notify FiveCom of interruption to service (signal loss,
service degradation, out of specification performance or other
conditions) to the fiber optic cable transmission system. FiveCom will
dispatch technicians, vehicles and equipment to initiate the repair of
such conditions and the restoration of service.
A2. FiveCom Contacts
In the event of a service interruption contact FiveCom by calling the
following numbers in the sequence listed below. If the first option is
not successful proceed to the second and so on.
a. Normal Hours
0-000-000-0000
b. After Hours
Digital Pager (000) 000-0000
c. Xxxxxx X. Xxxxxx
(000) 000-0000
weekends (Friday evening to Monday Morning)
(000) 000-0000
d. Xxxxxxx X. Xxxxx
(000) 000-0000
e. Xxxxxx Xxxxxxxxxx
(000) 000-0000
This listing is subject to change.
A3. Dispatch
FiveCom shall respond to the notification immediately upon taking the
call. For required emergency restoration Technicians and appropriate
equipment will report to the location controlling signals designated by
Customer. FiveCom will log in at the location and pick up needed
restoration materials.
A4. Restoration Activities
Troubleshooting will continue until the problem is found.
The restoration sequence will be:
[bullet] Report of Damage
[bullet] Estimated time to repair
[bullet] Notification of Utilities if needed (i.e. down pole).
[bullet] Verbal report of tasks to repair given to the representative
of Customer and to MCI.
A5. Repair
a. Channel or Equipment Problems
FiveCom technicians will isolate the signal problem by
reviewing the following:
1. visible alarms on bay or terminal equipment.
2. computer generated equipment logs.
3. review of performance statistics for common and customer
equipment.
4. application of DS1 & DS3 test equipment, fiber optic
signal level meter and OTDR as required.
Testing and diagnostics will be coordinated with MCI
technicians. FiveCom technicians will remain on the
call until all alarm or signal problems have been
corrected.
b. Outside Plan Repairs
Commencing immediately FiveCom will restore service to the
link by fusion splice methods, as a first priority, or with
mechanical connectors as a second choice. FiveCom will use its
fusion splicer and OTDR, power meter and all other equipment
required, excluding only the parts in the restoration kit.
The link will be brought into service, tested and protected
until the cable can be placed on a permanent pole attachment
or in conduit. Restoration test reports will be furnished to
Customer after testing. The testing report includes end to end
attenuation and photos along with a text describing the outage
suitable for insurance purposes.
A6. End of Outage
Upon the satisfactory completion and acceptance of the testing by
Customer, the service will be declared restored.
FIVECOM, INC. OUTAGE REPORT
CUSTOMER: DATE: / / TIME REPORTED:
LOCATION:
STREET: POLE/MANHOLE:
CAUSE OF OUTAGE:
ARRIVAL AT DESIGNATED LOCATION AM/PM
FIRST REPORT TO CUSTOMER AM/PM
ESTIMATED TIME TO REPAIR
UTILITIES NOTIFIED:
ELECTRIC: CONTACT:
TELEPHONE: CONTACT:
CATV: CONTACT:
OTHER: CONTACT:
ANTICIPATED ACTIVITIES PRIOR TO RESTORATION:
TIME OF RESTORATION: AM/PM
REPAIRS MADE:
CUSTOMER MATERIAL USED
DESCRIPTION QUANTITY
-------------------------------------------
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| | |
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| | |
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| | |
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| | |
-------------------------------------------
TESTS COMPLETED
DATE: TIME: AM/PM
TECHNICIAN IN CHARGE:
SIGNED:
EXHIBIT H
ROUTINE MAINTENANCE STANDARDS
RIDEOUTS
Rideouts of the fiber plan will be done on the following schedule:
Transmission Lines Annual end to end surveillance
Splice Locations Quarterly inspections
Distribution Lines Semi Annual inspection
Should MCI require more frequent rideouts, they will be done at MCI's cost
unless technical performance data indicate cable deterioration or failure. These
rideouts will be documented and will contain notes concerning general condition
of right-of-way and plant. Items such as excavation activities, construction
work, broken lashing wire, tree trimming, and so on will be noted and dealt with
immediately. Follow up verification of corrective actions taken will be
documented.
FIBER TESTS
OTDR measurements will be performed at a minimum semi-annually on all inactive
fiber and compared against original installation readings to insure integrity.
Tests will be performed more frequently if tests and performance data warrant
additional measurements.
EXHIBIT I
SHELTER EQUIPMENT LAYOUT
Diagram of Layout
EXHIBIT J
NONDISCLOSURE AGREEMENT
-----------------------
(Standard Two-Way)
Agreement between MCI TELECOMMUNICATIONS CORPORATION, a Delaware
corporation having offices at 000 Xxxxxxxxxxxxx Xxxx, Xxxxxxxxxx, XX ("MCI"),
and FiveCom, Inc., a corporation having offices at 000 Xxxxxx Xxxx Xx.,
Xxxxxxx, XX (the "Company").
WHEREAS, for the purpose of furthering a potential business relationship
between them, MCI and the Company (collectively referred to as the "Parties,"
and individually referred to as a "Party") have determined to establish terms
governing the use and protection of certain information one Party ("Owner") may
disclose to the other Party ("Recipient"), which information, in the case of
MCI, relates generally to leased fiber capacity, and in the case of the Company,
relates generally to leased fiber capacity.
NOW, THEREFORE, the Parties agree as follows:
1. "Confidential Information" means information of an Owner which relates,
respectively, to the above-identified subject matter, including business and
technical information and data, or which, although not related to such subject
matter, is nevertheless disclosed as a result of the Parties' discussions in
that regard, and which, in any case, is disclosed by Owner or its Affiliate(s)
to Recipient or its Affiliate(s) in document or other tangible form bearing an
appropriate legend indicating its confidential or proprietary nature, or which,
if initially disclosed orally or visually is identified as confidential at the
time of disclosure and a written summary thereof, also marked with such a
legend, is provided to Recipient within fourteen (14) days of the initial
disclosure. The term "Affiliate" means any person or entity controlling,
controlled by, or under common control with a Party.
2. [For a period of five (5) years from the date of this Agreement,] Recipient
may use Confidential Information of Owner only for the purpose of this Agreement
and shall protect such Confidential Information from disclosure to others, using
the same degree of care used to protect its own confidential or proprietary
information of like importance, but in any case using no less than a reasonable
degree of care. Recipient may disclose Confidential Information received
hereunder to (i) its Affiliates who agree, in advance, in writing, to be bound
by this Agreement, and (ii) to its employees, and its Affiliates' employees, who
have a need to know, for the purpose of this Agreement, and who are bound to
protect the received Confidential Information from unauthorized use and
disclosure. Confidential Information shall not otherwise be disclosed to any
third party without the prior written consent of the Owner.
3. The restrictions of this Agreement on use and disclosure of Confidential
Information shall not apply to information that:
(a) Was publicly known at the time of Owner's communications thereof to
Recipient;
(b) Becomes publicly known through no fault of Recipient subsequent to the
time of Owner's communication thereof to Recipient;
(c) Was in Recipient's possession free of any obligation of confidence at
the time of Owner's communication thereof to Recipient;
(d) Is developed by Recipient independently of and without reference to
any of Owner's Confidential Information or other information that
Owner disclosed in confidence to any third party;
(e) Is rightfully obtained by Recipient from third parties authorized to
make such disclosure without restriction; or
(f) Is identified by Owner as no longer proprietary or confidential.
4. In the event Recipient is required by law, regulation or court order to
disclose any of Owner's Confidential Information, Recipient will promptly notify
Owner in writing prior to making any such disclosure in order to facilitate
Owner seeking a protective order or other appropriate remedy from the proper
authority. Recipient agrees to cooperate with Owner in seeking such order or
other remedy. Recipient further agrees that if Owner is not successful in
precluding the requesting legal body from requiring the disclosure of the
Confidential Information, it will furnish only that portion of the Confidential
Information which is legally required and will exercise all reasonable efforts
to obtain reliable assurances that confidential treatment will be accorded the
Confidential Information.
5. All Confidential Information disclosed under this Agreement (including
information in computer software or held in electronic storage media) shall be
and remain the property of Owner. All such information in tangible form shall be
returned to Owner promptly upon written request and shall not thereafter be
retained in any form by Recipient.
6. No licenses or rights under any patent, copyright, trademark, or trade secret
are granted or are to be implied by this Agreement. Neither Party is obligated
under this Agreement to purchase from or provide to the other Party any service
or product.
7. Owner shall not have any liability or responsibility for errors or omissions
in, or any decisions made by Recipient in reliance on, any Confidential
Information disclosed under this Agreement.
8. This Agreement shall become effective as of the date it is signed by both
Parties and shall automatically expire one (1) year thereafter, provided,
however, that prior to such expiration, either Party may terminate this
Agreement at any time by written notice to the other. Notwithstanding such
expiration or termination, all obligations hereunder shall survive with respect
to the disclosed Confidential Information.
9. Except upon mutual written agreement, or as may be required by law, neither
Party shall in any way or in any form disclose the discussions that gave rise to
this Agreement or the fact that there have been, or will be, discussions or
negotiations covered by this Agreement.
10. The Parties acknowledge that Confidential Information is unique and
valuable, and that disclosure in breach of this Agreement will result in
irreparable injury to Owner for which monetary damages alone would not be an
adequate remedy. Therefore, the Parties agree that in the event of a breach or
threatened breach of confidentiality, the Owner shall be entitled to specific
performance and injunctive or other equitable relief as a remedy for any such
breach or anticipated breach without the necessity of posting a bond. Any such
relief shall be in addition to and not in lieu of any appropriate relief in the
way of monetary damages.
11. Neither Party shall assign any of its rights or obligations hereunder,
except to an Affiliate or successor in interest, without the prior, written
consent to the other Party, which consent shall not be unreasonably withheld.
12. No failure or delay in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
right, power or privilege hereunder.
13. This Agreement: (a) is the complete agreement of the Parties concerning the
subject matter hereof and supersedes any prior such agreements with respect to
further disclosures concerning such subject matter; (b) may not be amended or in
any manner modified except by a written instrument signed by both Parties; and
(c) shall be governed and construed in accordance with the laws of New York
without regard to its choice of law provisions.
14. If any provision of this Agreement is found to be unenforceable, the
remainder shall be enforced as fully as possible and the unenforceable provision
shall be deemed modified to the limited extent required to permit its
enforcement in a manner most closely representing the intention of the Parties
as expressed herein.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to
be executed by its duly authorized representative.
MCI TELECOMMUNICATIONS CORPORATION
/s/ Xxxxx Xxxxxxx
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Signature
XXXXX XXXXXXX
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Typed or Printed Name
Vice President, Network Engineering
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Title
-------------------------------------------
Date
[COMPANY] FIVECOM, INC.
/s/ Xxxxxxx X. Xxxxx
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Signature
XXXXXXX X. XXXXX
-------------------------------------------
Typed or Printed Name
Vice President
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Title
8/8/96
-------------------------------------------
Date
EXHIBIT H
Routine Maintenance Standards
RIDEOUTS
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Rideouts of the fiber plan will be done on the following schedule:
Transmission Lines Annual end to end surveillance
Splice Locations Quarterly inspections
Distribution Lines Semi Annual inspection
Should MCI require more frequent rideouts, they will be done at MCI's cost
unless technical performance data indicate cable deterioration or failure. These
rideouts will be documented and will contain notes concerning general condition
of right-of-way and plant. Items such as excavation activities, construction
work, broken lashing wire, tree trimming, and so on will be noted and dealt with
immediately. Follow up verification of corrective actions taken will be
documented.
FIBER TESTS
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OTDR measurements will be performed at a minimum semi-annually on all inactive
fiber and compared against original installation readings to insure integrity.
Tests will be performed more frequently if tests and performance data warrant
additional measurements.
