Exhibit 10.13
CONFIDENTIAL TREATMENT (1)
AMENDED AND RESTATED AGREEMENT
FOR THE PROVISION OF A FIBER OPTIC TRANSMISSION NETWORK
This AMENDED AND RESTATED AGREEMENT FOR THE PROVISION OF A FIBER
OPTIC TRANSMISSION NETWORK (this "Agreement") is made and entered into
effective as of the Effective Date (as hereinafter defined), by and between
National Fiber Network, Inc., a Delaware corporation ("NFN"), and US ONE
Communications of New York, Inc., a Delaware corporation ("US ONE").
RECITALS:
A. US ONE and NFN entered into that certain Agreement for the
Provision of a Fiber Optic Transmission Network, dated as of April 16, 1996
(the "Original Agreement"), whereby NFN agreed to, among other things,
provide US ONE exclusive long-term use, as described below, of certain
dedicated capacity on NFN's fiber optic cable network and certain extensions
thereof, as more particularly described below;
B. US ONE and NFN have agreed to amend and restate the Original
Agreement pursuant to the terms hereof;
C. US ONE desires to use such dedicated capacity on such fiber
optic cable network upon the terms and subject to the conditions set forth in
this Agreement;
D. NFN is the holder of a franchise (the "Franchise") granted
pursuant to that certain Franchise Agreement between the City of New York
(the "City") and National Fiber Network, Inc., dated as of December 20, 1993,
as amended (the "Franchise Agreement"), pursuant to which NFN has the right
to install, operate, repair, maintain, remove and replace cable, wire, fiber
or other transmission medium in order to provide telecommunications services
and high capacity fiber optic transmission facilities in the City;
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(1)Redacted portions have been marked with an asterisk (*).
E. NFN, through its wholly-owned subsidiary, National Fiber
Network of New Jersey, Inc., is the holder of a license granted by the City
of Jersey City to construct a fiber optic system within the City of Jersey
City; and
F. Pursuant to the terms of the Franchise Agreement, NFN has
constructed a fiber optic cable transmission network consisting of * route
miles of fiber optic cable in and around the City (as set forth on the map
attached hereto as Exhibit A, the "Existing Network") and plans the
construction of additional route miles of fiber optic cable and other
construction constituting the Extended Network (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
"Additional Fiber" shall have the meaning set forth in Section 3.2
of this Agreement.
"Affected Party" shall have the meaning set forth in Section 14 of
this Agreement.
"Affiliate" shall mean, with respect to any Person, any other Person
who, directly or indirectly, controls, is controlled by, or is under common
control with that Person. As used in this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether by way of
equity ownership, contract or otherwise.
"Colocation Point" shall mean a point designated by US ONE that is
physically in, or virtually colocated in, a particular NYNEX serving wire
center or central office and at which US ONE will interconnect the portion of
the US ONE network to be provided over the facilities leased hereunder from
NFN to the NYNEX local loops or other NYNEX communications network facilities.
"Colocation Agreements" shall mean colocation agreements between
NYNEX and US ONE allowing US ONE to establish Colocation Points for the
purposes of this Agreement.
"Common Stock Equivalents" shall have the meaning assigned to such
term in the Warrant.
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"Consumer Price Index" as used herein shall mean the Consumer Price
Index published by the bureau of Labor Statistics of the United States
Department of Labor for Urban Wage Earners and Clerical Workers for All Items
for the New York/Metropolitan area, or shall mean the successor thereto.
"CLEC" shall mean a certified local exchange company other than a LEC.
"Current Market Value" shall mean, with respect to a share of common
stock, par value $.01 per share (the "Common Stock"), of NFN as of any date
(i) the fair market value per share of Common Stock, as reasonably determined
in good faith by the Board of Directors of NFN, using an appropriate
valuation method, assuming an arms' length sale to an independent party of
all of the Common Stock of NFN, without giving regard to the lack of
liquidity of the Common Stock or any discount for minority interests and
assuming the conversion or exchange of all Common Stock Equivalents,
including the Warrants, then outstanding and exercisable (whether at the time
of determination or with the passage of time), or (ii) if there shall be a
public market for the Common Stock, the average of the daily market prices
for each day during the 30 consecutive trading days commencing 45 business
days before such date as of which such a price can be established in the
manner set forth below. The market price for each such business day shall be
the last sale price on such day as reported in the Consolidated List Sale
Reporting System or as quoted in the National Association of Securities
Dealers Automated Quotation System, or if such last sale price is not
available, the average of the closing bid and asked prices as reported in
either such system, or in any other case the higher bid price quoted for such
day as reported by The Wall Street Journal (or any successor publication) and
the National Quotation Bureau pink sheets.
"Effective Date" shall mean the date on which NFN shall complete the
sale of common stock and/or other securities convertible into common stock
for an aggregate purchase price of $30,000,000 or more.
"Existing Central Offices" shall mean the Colocation Points located
at * (which have been completed as of the date hereof).
"Existing Network" shall have the meaning set forth in the recitals
hereto.
"Expiration Date" shall have the meaning set forth in Section 3.1 of
this Agreement.
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"Extended Network" shall mean collectively the Existing Network,
plus the fiber loops to the Existing Central Offices that have been extended
off of the Network, and the Network Buildout.
"Extended Term" shall mean an extension of the Initial Term for an
additional term of 13 years, commencing on December 21, 2008 and ending on
December 20, 2021.
"Fiber Mile" shall mean one fiber strand transversing one linear mile.
"Force Majeure" shall have the meaning set forth in Section 14 of
this Agreement.
"Initial Term" shall mean the term of this Agreement, commencing
on April 16, 1996 and ending on December 20, 2008.
"LEC" shall mean an incumbent local exchange carrier or operating
telephone company.
"Lump Sum Payment Option" shall have the meaning set forth in
Section 4.2 of this Agreement.
"Lump Sum Price" shall have the meaning set forth in Section 4.2 of
this Agreement.
"More Favorable Terms" shall have the meaning set forth in Section
16.18 of this Agreement.
"Most Favored Nations" shall mean the most favorable terms and
lowest price offered to any customer on the relevant system at the time of
determination.
"Network Affiliate" shall mean any Person who, directly or
indirectly, controls, is controlled by, or is under common control with NFN.
As used in this definition, "control" means (i) the possession, directly or
indirectly, of the power to elect at a majority of the board of directors or
other similar governing body of such Person or (ii) the beneficial ownership
of at least a majority of the voting capital stock or other beneficial
interests with voting rights of such Person; provided, that notwithstanding
the foregoing, a Network Affiliate shall be deemed to include any Person as
to which NFN and/or Xxxxxxx Xxxxxxxx have the effective ability, directly or
indirectly, to cause such Person to lease or otherwise grant the right to use
such Person's fiber optic cable network to another Person.
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"Network Buildout" shall mean such expansion of the Existing Network
as NFN may in its sole discretion build through the counties of Westchester,
New York, Nassau, New York, and Suffolk, New York.
"Note" shall have the meaning set forth in Section 4.1(b)(i) of this
Agreement.
"NYNEX Cages" (sometimes referred to as "Cage") shall mean
Colocation Points.
"Other Party" shall have the meaning set forth in Section 14 of this
Agreement.
"Outage" shall have the meaning set forth in Section 12 of this
Agreement.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, corporation, trust, unincorporated organization,
association, institution, public benefit corporation, entity, or government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or department
thereof) and shall for all purposes include Xxxxxxx X. Xxxxxxxx and members
of his immediate family, including his parents, siblings, spouse and
children.
"Term" shall mean the Initial Term and, if this Agreement is
extended, the Extended Term.
"Termination Point" shall mean any location where US ONE facilities
begin and NFN facilities end.
"US ONE POP" shall mean a specific geographical location designated
by US ONE at which customers of US ONE may, through the related entrance
facility, connect to the portion of the US ONE network to be provided over
the facilities leased hereunder from NFN.
"US ONE 12 Fiber Network" shall have the meaning set forth in
Section 4.1(a) of this Agreement.
"Warrant" shall mean a warrant to be dated April 16, 1996
substantially in the form of Exhibit A attached to that certain Amended and
Restated Letter Agreement regarding Purchase and Sale of Warrant dated as of
the date hereof by and between NFN and US ONE Communications Corp., a
Delaware corporation.
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2. LEASE
2.1 NFN shall lease to US ONE, for the exclusive use of US ONE and
its customers, an aggregate of * Fiber Miles, of which (i) * Fiber Miles
represent current availability of * strands of dark fiber per linear mile on
the Existing Network and (ii) * additional Fiber Miles may be designated by
US ONE at any time during the Initial Term, either within the Existing
Network or in any part of the Extended Network, in each case pursuant to
technical specifications which will meet or exceed those attached hereto as
Exhibit B.
2.2 The lateral extension policy attached hereto as Exhibit C shall
be utilized to afford US ONE Most Favored Nations treatment with respect to
fiber loops off of the Extended Network to commercial sites and to Colocation
Points in addition to the Existing Central Offices requested by US ONE during
the Term. US ONE shall be entitled to the benefits of any subsequent lateral
extension policy so that it will always be afforded Most Favored Nations
treatment with respect to such fiber loops. Notwithstanding the foregoing,
in the event US ONE elects to install any additional Colocation Points which
are designated in Section C of Schedule I attached hereto, NFN shall complete
construction of such Colocation Points at the prices set forth on such
schedule. Linear mileage comprising such fiber loops shall be counted for
purposes of calculating the * Fiber Miles provided for in Section 2.1 and the
* Fiber Miles provided for in Section 5.1.
2.3 NFN shall cause the buildout, if any, of the Extended Network
to be performed in compliance with technical specifications that meet or
exceed the technical specifications set forth on Exhibit B attached hereto.
3. TERM
3.1 Initial Term. Subject to Section 4, NFN leases, grants and
conveys to US ONE the exclusive use of (i) * Fiber Miles (that is, the *
Fiber Miles on the Existing Network as currently constituted plus * Fiber
Miles that may be designated by US ONE from time to time pursuant to Section
2.1 hereof) plus any Option Fiber (as hereinafter defined) as to which the
Option (as hereinafter defined may be exercised (as determined pursuant to
Section 5.1), plus (ii) the fiber loops that have been extended off of the
Existing Network to the Existing Central Offices on the Extended Network for
a term commencing as of April 16, 1996 and terminating on December 20, 2008
(the "Expiration Date"), unless extended as provided in this Agreement. All
rights and privileges granted to US ONE under this Agreement shall be
irrevocable until the Expiration Date (unless extended).
3.2 Extended Term. US ONE shall have the option to extend the
Initial Term for an additional term of up to 13 years, which option shall be
exercised
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by notice to NFN at least six months, but not more than 12 months, prior to
the end of the Initial Term. In the event the Franchise is not extended for
the entire Extended Term and US ONE has exercised its option to extend the
Initial Term for the entire Extended Term, NFN shall, for such portion of the
Extended Term as the Franchise shall not be in effect, provide US ONE, with
an equivalent number of strands of additional fiber (Fiber Mile for Fiber
Mile) ("Additional Fiber") on such portion of the Extended Network (or, at
the option of US ONE, on any other NFN networks (including networks belonging
to or controlled by Network Affiliates) which have been developed as of that
point in time) outside the Franchise territory as shall be designated by US
ONE for the Extended Term to compensate US ONE for the loss of its * strands
of fiber in the Franchise territory.
4. LEASE PAYMENTS
4.1 Payment for Initial Term. In consideration of the exclusive
right to the long term use of * Fiber Miles on the Extended Network (as
determined pursuant to Section 2.1 hereof), plus the fiber loops to the
Existing Central Offices, US ONE shall prepay its lease payments for the
Initial Term to NFN in accordance with the following:
(a) As of April 16, 1996, US ONE has paid an advance lease
payment to NFN in the sum of *.
(b) Upon written notification from NFN that the conditions
precedent for the determination of the Effective Date have taken place, such
written notification to be delivered to US ONE at least one business day
prior to the Effective Date, on the date which shall be two business days
after the Effective Date, US ONE shall (A) prepay additional lease payments
aggregating * and (B) pay * for the cost of installation of fiber loops to
Colocation Points at *. Such payments shall be made and satisfied by the
simultaneous delivery and exchange of the following:
(i) US ONE shall deliver to NFN (A) that certain
promissory note (the "Note") dated April 16, 1996 from NFN to US ONE in the
principal amount of *, marked "Canceled," together with delivery and release
of all security instruments pledged or filed with respect thereto and (B)
that certain stock subscription warrant (the "Subscription Warrant") dated
December 13, 1996 from NFN to US ONE for the purchase of up to * Warrant
Shares (as defined in the Subscription Warrant); and
(ii) NFN shall return to US ONE the balance of * in cash
by wire transfer of immediately available funds to an account designated in
writing by US ONE.
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(c) Payments to be made by US ONE pursuant to Section 4.l(b)
above shall be applied as a prepayment of this Agreement entitling US ONE to
the full and unfettered use, pursuant to this Agreement for the Initial Term
(and the Extended Term to the extent US ONE exercises its right to so
extend), of * Fiber Miles on the Extended Network, plus the fiber loops to
the Existing Central Offices as set forth in Section 2.1 hereto, without any
further obligation by US ONE in respect of such portion of the network
whatsoever, whether under the terms of this Agreement or otherwise.
4.2 Payments for Extended Term. Lease payments for the Extended
Term shall be payable, at the option of US ONE, either (i) monthly at a rate
per fiber mile equal to the lowest rate per fiber mile charged by NFN to any
lessee of "dark" fiber optic capacity on the Extended Network at the time US
ONE exercises its option to extend for the Extended Term, or, alternatively,
if US ONE shall opt to lease fiber on other NFN networks (including networks
owned or controlled by Network Affiliates) in the Extended Term pursuant to
Section 3.2 hereof, the lowest lease rate per fiber mile then charged to any
lessee of dark fiber optic capacity on such network, or (ii) in a lump sum
payment (the "Lump Sum Payment Option") equal to the present value of the
lease payments described in Section 4.2(i) (which present shall be based upon
discounting in accordance with standard financial procedures at an implied
interest rate of 15% per annum, calculated monthly) (the "Lump Sum Price");
provided, that such present value payment shall not exceed an amount equal to
* plus the percentage by which the Consumer Price Index as of December 2008
shall have increased over the Consumer Price Index as of April 1996 (the
"Lump Sum Cap"); provided, further, that in the event NFN has not completed a
minimum of * route miles of the Network Buildout at such time as US ONE
elects to pay the Lump Sum Price, then the Lump Sum Cap shall be reduced to
an amount equal to * times a fraction, the numerator of which is the number
of Fiber Miles which are leased by US ONE as of the end of the Initial Term
and the denominator of which is *. In the event US ONE elects to make
payments pursuant to Section 4.2(i) hereof, the Extended Term shall continue
for the entire Extended Term unless terminated by US ONE upon 30 days written
notice to NFN. In the event US ONE elects the Lump Sum Payment Option, US
ONE shall have the option, within 30 days after the exercise of such Lump Sum
Payment Option, to put the Warrant or the securities issuable thereunder to
NFN (assuming the Warrant has been issued) for a price equal to the greater
of the Lump Sum Price or the Current Market Value of the securities
underlying such Warrant. In the event US ONE elects to exercise the put
option and the Current Market Value of the securities underlying the Warrant
exceeds the Lump Sum Price, US ONE shall be entitled to receive from NFN in
cash any excess of the Current Market Value over the Lump Sum Price. In the
event the Consumer Price Index is converted to a different standard reference
base or otherwise revised, the determination of the Lump Sum Price shall be
made with the use of such conversion factor, formula or table for converting
the Consumer Price Index as may be published by the Bureau of Labor
Statistics, or if
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the Bureau of Labor Statistics should fail to publish same, then with the use
of such conversion factor, formula or table for converting the Consumer Price
Index as may be published by Prentice Hall, Inc., or any other nationally
recognized publisher of similar statistical information. If the Consumer
Price Index ceases to be published and there is no successor thereto, such
other index as NFN and US ONE may agree upon shall be substituted for the
Consumer Price Index. If the parties hereto are unable to agree, then such
matter shall be submitted to arbitration.
4.3 Maintenance and Repair. NFN shall be responsible for, and
shall provide directly, all maintenance and repair on the Existing Network
and the Extended Network in a diligent, expeditious, good and workmanlike
manner, using first class workmanship and materials, and NFN shall use its
best efforts to cause the Extended Network to remain in good working order
and condition at all times. US ONE shall always be entitled to the benefit
of the highest standard of redundancy, surveillance, maintenance and repair,
including, without limitation, in regard to response time, alarm and
monitoring and other surveillance systems, network redundancy and technical
innovation, then provided to any customer of NFN. Notwithstanding the prior
sentence, US ONE shall at a minimum be entitled to the surveillance,
maintenance and repair standards set forth on Exhibit D hereto. No charge
shall be made by NFN for maintenance, surveillance, general system redundancy
or repair on the NFN fiber optic network. NFN agrees that it shall at all
times maintain remote monitoring of the fiber cable for surveillance purposes
in substantial compliance with the specifications set forth on Exhibit D
hereto and to ensure the integrity of such cable. The monitoring shall be
accomplished through a remote optical test system connected to the fiber
strands. Any fiber strands necessary for such fiber monitoring program shall
be in addition to, and not deducted from, the fiber strands leased by US ONE
hereunder.
5. ADDITIONAL FIBER CAPACITY
5.1 In addition to the * Fiber Miles described in Section 2.1, US
ONE shall have the option (the "Option") to lease from NFN, at any time
during the Initial Term, up to * Fiber Miles (the "Option Fiber") on the
Extended Network (pursuant to technical specifications which will meet or
exceed those attached hereto as Exhibit B) for a term which will commence
upon the date the Option is exercised and terminate on the last day of the
Initial Term. US ONE shall exercise the Option by delivery of (i) a written
notice to NFN and (ii) a prepayment of the lease for any such additional
Fiber Miles as to which the Option is being exercised at the rate of * per
Fiber Mile for each Option Fiber Mile that has been constructed and is
operational. Notwithstanding the prior sentence, US ONE may exercise the
Option for Option Fiber Miles that have not yet been constructed but as to
which NFN offers, in its discretion, to US ONE as a result of a planned
build-out (the "Offer"), but shall not be required to prepay for any such
Fiber Mile until it has been constructed and is operational. US ONE may
rescind an exercised Option for any unconstructed Option Fiber Mile unless
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construction has begun in respect of such Option Fiber Mile or is irrevocably
scheduled to begin within 90 days of the date of rescission, as certified by
an executive officer of NFN. Notwithstanding anything to the contrary herein
contained, in the event that (i) NFN notifies US ONE that construction on any
such Option Fiber Miles subject to the Offer has been halted or terminated or
(ii) construction on any such Option Fiber Miles subject to the Offer is not
substantially completed on the date which is 180 days after US ONE elects to
purchase such Option Fiber Miles from NFN (each, a "Triggering Event"), then
such number of Option Fiber Miles shall be subject to the Option for a period
of 120 days after the occurrence of any such Triggering Event. Any Fiber
Miles as to which the Option may be exercised pursuant to this Section 5.1
shall consist of a minimum of * fibers and a maximum of 48 fibers per route
mile, which number of fibers and location on the Extended Network of such
Fiber Miles shall be designated by US ONE upon its exercise of the Option.
The Option shall expire on November 1, 1998. Notwithstanding the foregoing,
in the event that NFN has not completed a minimum of * route miles of the
Network Buildout (the "Minimum Condition") by November 1, 1998, the term of
the Option shall be extended until such time as US ONE receives written
notice from NFN that NFN has satisfied the Minimum Condition and for a period
of 30 days thereafter.
5.2 Commencing on the earlier of (i) the date on which US ONE
exercises the Option in full pursuant to Section 5.1 hereof or (ii) November
1, 1998 if NFN has not completed the Minimum Condition and continuing for a
period of 18 months thereafter, US ONE may, at its option, acquire additional
fiber optic capacity on any NFN network (including networks belonging to or
controlled by Network Affiliates), and NFN shall provide US ONE with such
additional fiber optic capacity on a Most Favored Nations basis on such NFN
network. Upon commencement of the installation by NFN of other fiber optic
networks (including networks belonging to or controlled by Network
Affiliates) during the Term, NFN shall, upon the request of US ONE, negotiate
in good faith a lease to US ONE for a portion of such network, such lease to
be provided for on a basis substantially the same as the lease provided under
this Agreement. NFN agrees that it will not, nor will any of its Affiliates,
take any action the purpose or effect of which would be to contravene the
benefits which would otherwise accrue to US ONE from this Section 5.
6. TERMINATION OF FRANCHISE
NFN shall use its best efforts to enter into an agreement with the
City whereby, in the event of the termination of the Franchise for any
reason, the City will agree to honor, and will cause (i) any subsequent
holder or holders of the Franchise, or (ii) any entity that purchases
substantially all of NFN's hard assets to honor, this Agreement. NFN agrees
to use its best efforts to enter into such an agreement with the City within
six months after commencement of the Initial Term.
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7. PROHIBITION ON RESALE
During the Term, US ONE shall not, directly or indirectly, sublease,
condo, sublicense or wholesale to any third party fiber optic capacity on
NFN's network unless such fiber such fiber optic capacity is distributed
through US ONE's transmission system.
8. REMEDIES ON DEFAULT
In the event (i) NFN defaults materially under this Agreement
including, without limitation, any representations or warranties set forth in
Section 15 hereof, and (ii) such default or defaults results in the loss or
substantial diminution of effective use of the Extended Network to US ONE as
contemplated by this Agreement, then after notice from US ONE and the
expiration of any applicable grace periods, NFN shall provide US ONE with
additional fiber optic capacity on NFN's then existing Extended Network
(and/or, at US ONE's option, other NFN networks, including networks belonging
to or controlled by Network Affiliates) equivalent to the aggregate number of
fiber miles US ONE would have been entitled to receive had no default
occurred. In addition to the relief specified in the preceding sentence, NFN
shall provide US ONE with two dedicated fiber strands to each commercial or
residential property then accessed by any of NFN's networks. Attached hereto
as Exhibit E is a list of ten office complexes into which NFN currently has
spur connections.
Notwithstanding anything contained in the first paragraph of this
Section 8, NFN shall not be deemed to be in default under this Agreement if
such default is the result of an event of Force Majeure (as hereinafter
defined), provided, however, that NFN shall use its best efforts to resume
and/or provide service to US ONE as soon as reasonably practicable after the
occurrence of an event of Force Majeure.
9. TAXES
US ONE agrees to pay any customer sales, use, gross receipts,
excise, excess, bypass, or any other local, state, or federal taxes or
charges to the extent such charges are imposed upon or based upon US ONE's
purchase and use of the services and products provided herein. US ONE shall
not pay any amounts to the extent such amounts are related to (i) NFN or the
Extended Network, (ii) employees, contractors, subcontractors, agents, or
representatives of NFN, or (iii) the Franchise Agreement, all of which shall
remain the sole responsibility of NFN.
10. INSURANCE
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Each of NFN, any contractor and any subcontractor shall procure and
maintain, at its own cost and expense, the following types of insurance and
coverage during the Term of this Agreement:
Type of Insurance Minimum Amount
(1) Worker's compensation and all As required by State law
occupational disease
(2) Employer's liability including all * per occurrence
occupational disease when not
so covered by Worker's compensation
above
(3) Commercial General Liability * per occurrence
(comprehensive) including contractual and annual aggregate
liability, product and completed
operations, business interruption,
bodily injury and property damage
combined
Type Of Insurance Minimum Amount
(4) Automobile liability (comprehensive), * per occurrence
bodily injury and property damage
combined
(5) Umbrella liability * per occurrence and
annual aggregate
NFN shall issue US ONE an insurance certificate and a copy of such policies,
naming US ONE as an additional insured as to (3) and (5) above. All such
insurance policies shall be issued by an insurer duly licensed and authorized
to conduct insurance business in New York and having a policyholder's and
financial rating of "AIX" or better. At least thirty (30) days prior to the
expiration of any policy, NFN shall furnish paid receipts and other evidence
satisfactory to US ONE that such policy has been renewed or replaced. In
addition, all policies shall be written so as to require ten (10) days' prior
written notice delivered to US ONE for any cancellation or termination.
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US ONE shall maintain Commercial General Liability Insurance
(comprehensive) of at least * per occurrence and annual aggregate, which
shall name NFN as an additional insured.
11. INSTALLATION OF DARK FIBER OPTIC CABLE NETWORK
If NFN's use of the Existing Network and the Extended Network
results in the necessity of additional construction, installation,
maintenance or repair in order to comply with NFN's obligations hereunder,
NFN at all times shall remain responsible for all costs and expenses of same
and shall proceed with such additional construction promptly and in a
diligent and workmanlike manner consistent with the technical and engineering
standards contemplated herein.
NFN shall terminate the fiber at an identified fiber termination
panel at each Termination Point and shall not be responsible in any manner
whatsoever, including for maintenance, repair or replacement for any
extensions into US ONE facilities from any Termination Point. NFN shall in
no way be responsible for any damages or losses caused by its fiber cable
except as a result of the negligent act or omission or deliberate misconduct
of NFN or NFN's employees, agents, contractors or subcontractors.
12. MAINTENANCE OF FIBER OPTIC CABLE NETWORK
As used in this Agreement, in supplement to the standard of care
described in Section 4.3 hereof, NFN's obligation to maintain fiber cable and
transmission equipment in good working order and condition shall mean in
accordance with best industry practices but in any event the fiber optic
cable splice loss shall not exceed * dB. Projected dB losses for each route
are presented on Exhibit F attached hereto.
In the event of physical damage or severance to, or a break in, any
Fiber Span, NFN shall respond directly, promptly, diligently and as
expeditiously as practicable, not to exceed two (2) hours, and shall restore
such Fiber Span within four (4) hours. Service will be provided seven (7)
days a week, twenty-four (24) hours a day. "Fiber Span" as used herein shall
mean the fiber optic cable originating from a fiber patch panel and
terminating at another fiber patch panel. "Outage" as used herein means
Complete Interruption of Service for one (1) or more particular circuits. A
"Complete Interruption of Service" as used herein shall mean an interruption
of US ONE's traffic over any circuit resulting from the interruption of US
ONE's traffic over any Fiber Span, whether or not due to the physical damage
or severance of, or breaks in, such Fiber Span, which is not prevented within
50 milliseconds by means of physical or electronic protection that reroutes
such traffic over another Fiber Span. NFN shall pay to US ONE the sum of (i)
* per hour for each Outage of greater than
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four (4) but less than or equal to 12 hours; (ii) * per hour for each Outage
of greater than 12 but less than or equal to 24 hours; and (iii) * per hour
for each Outage of greater than 24 hours. *
If NFN is required to relocate any section of the Existing Network
or the Extended Network, NFN will be solely responsible for the cost and
implementation of such relocation. NFN will give US ONE a minimum of six
months written notice of any such relocation. Any such relocation will not
cause any change in the performance of the network to US ONE. Any US ONE
Outages caused by such relocation will not exceed one hour.
NFN will maintain a reasonable and customary inventory of spare
cable in the event cable repair is needed.
Upon prior written request a reasonable time in advance, NFN shall
have the right to inspect US ONE's use of the fiber cable during normal
business hours (9 a.m. to 5 p.m.) on business days. Such inspection shall be
conducted only to comply with applicable regulatory requirements or as part
of maintenance or repair related to this Agreement, and NFN shall use its
best efforts to effectuate inspection urgently, expeditiously and with no
interruption of US ONE's operations and security.
It is expressly understood, acknowledged and agreed that NFN is
and remains the owner of the Extended Network, except in the event that
NYNEX policies toward CLEFs or regulatory authorities require ownership of
cable inside the NYNEX wire centers, the parties hereto agree that US ONE
shall obtain ownership of such cable from NFN as joined at a theoretical
splice point to be determined in accordance with the applicable policy or
regulation. It shall be the responsibility of US ONE to maintain all cable
that it shall be required to own as provided in immediately preceding
sentence; provided, that NFN shall incorporate such US ONE owned portions of
the Extended Network into its full network control fault isolation and
diagnostic system and shall cooperate fully with US ONE in detection, fault
isolation and diagnosis of cable within the US ONE owned portions of the
Extended Network. Except as set forth in the immediately preceding sentence,
nothing in this Agreement shall be construed as conveying to US ONE any
ownership right, title or ownership interest in the fiber.
14
13. TERMINATION OF AGREEMENT
If one or more of the following events of default shall occur, US ONE
shall have the right to immediately terminate this Agreement:
(a) NFN materially breaches its obligations under the second
paragraph of Section 12 of this Agreement dealing with Outages; or
(b) NFN breaches any other material term or condition of this
Agreement in any material respect with the exception of a breach for which a
remedy is available under Section 8 hereof, and such breach remains uncured (i)
as to maintenance and repair obligations, three (3) days, and (ii) otherwise
twenty (20) days after NFN has received notice of such uncured breach; provided,
however, that if the breach is of a nature or involves circumstances reasonably
taking more than three (3) days or twenty (20) days, respectively, to cure, the
time period shall be extended for so long as may be required, as long as NFN
shall proceed urgently and expeditiously to cure same; or
(c) NFN becomes insolvent or applies for or consents to the
appointment of a receiver, trustee or similar officer for it or any substantial
part of its property or assets, or any such appointment is made without such
consent by NFN and remains undischarged for a period of sixty (60) days; or
(d) NFN consents to the institution of a petition, application,
answer, consent, default or otherwise of any bankruptcy, insolvency or
reorganization, or any such proceeding is involuntarily instituted against NFN
and remains undischarged for a period of sixty (60) days.
Notwithstanding any other remedies available to US ONE upon the
occurrence of an event of default by NFN, US ONE, its officers, attorneys,
accountants and other authorized representatives, upon reasonable notice to NFN,
shall be afforded reasonable access during normal business hours to the
employees, assets, facilities and the books and records of NFN so as to afford
US ONE full opportunity to make such review, examination and investigation of
the business as US ONE may desire to make in verifying that it has been afforded
Most Favored Nations treatment in accordance herewith. US ONE will be permitted
to make extracts from or to make copies of such books and records as may be
reasonably necessary in connection therewith.
14. FORCE MAJEURE
Neither NFN nor US ONE shall be considered in breach of this Agreement
or liable for any expense, loss or damage resulting from delay or prevention
15
of performance caused by any act attributable to an occurrence of an event of
Force Majeure. Neither party shall, however, be relieved of liability for
failure of performance due to a claimed Force Majeure hereunder if such failure
is due to causes arising out of its own negligence or to removable or remediable
causes that it fails to remove or remedy with reasonable dispatch.
The term "Force Majeure" shall mean any cause beyond the control of
the party affected which by exercise of due foresight such party could not
reasonably have been expected to avoid and, which by exercise of due diligence,
such party shall be unable to overcome during the period while such party shall
continue to exercise such due diligence, including, but not limited to, failures
of facilities, changes in laws except tax laws, rules, regulations, etc., flood,
earthquake, storm except for weather conditions normal to the area, fire,
lightning, epidemic, war, riot, civil disturbance, sabotage, inability due to
the previously mentioned conditions to obtain material, fuel or supplies in
adequate quantities, or restraint by court order or public authority. Nothing
contained herein, however, shall be construed to require either party to prevent
or settle a strike (other than a strike by employees of a contractor) against
its will.
Any party affected by an event of Force Majeure (the "Affected Party")
shall notify such other party (the "Other Party") promptly of any occurrence or
condition which in the Affected Party's opinion warrants an extension of time.
Such notice must be submitted in writing to the Other Party within five days or
such sooner date as is practicable after such delay is known to the Affected
Party, or shall, in the exercise of reasonable diligence, become known. Such
notice shall specify in detail the anticipated length of delay, the cause of the
delay, and a timetable by which any remedial measures shall be implemented.
Failure to provide such notice within such period shall constitute a waiver by
the Affected Party of any request for extension applicable to any period prior
to the date such notice is actually received by the Other Party. The Other
Party shall acknowledge receipt of the Affected Party's notice within ten (10)
days of its receipt advising of its acceptance or rejection or further
consideration. If the Other Party reasonably requires further information in
order to consider the request, the Affected Party shall supply such information
within ten (10) days and, if the Affected Party fails to provide such
information, the Affected Party's original notice shall be deemed not to have
been given.
15. WARRANTIES AND INDEMNITIES
NFN represents and warrants to US ONE that
(a) NFN has obtained or will obtain, when and if required by any
regulatory agency or court of law, all regulatory approvals, permits, orders or
consents
16
necessary to be obtained by NFN to timely effectuate the terms and provisions of
this Agreement, including the timely completion of the Network Buildout; and
(b) NFN shall comply with all applicable laws, rules and regulations
related to the performance of its obligations under this Agreement; and
(c) NFN is bound hereunder through its duly authorized signatory
below and is duly formed, validly existing and in good standing under the laws
of the State of Delaware; and
(d) this Agreement is not prohibited or in violation of or
inconsistent with the charter or bylaws of NFN or any other agreement signed by
NFN or which binds NFN and no such agreement will adversely affect US ONE's use
and enjoyment of the fiber for US ONE's purposes; and
(e) a default by NFN under this Agreement will cause trouble harm and
loss to US ONE for which US ONE may lack an adequate remedy at law (e.g., money
damages). Consequently, NFN agrees that US ONE may seek, and be entitled to
obtain, restraints and/or injunctions against NFN from any court of competent
jurisdiction to protect US ONE's business operations without same constituting
an election of remedies available hereunder or otherwise at law or in equity.
In addition, NFN acknowledges and agrees that in the event of a default by NFN
hereunder, US ONE shall be entitled to specific performance; and
(f) NFN acknowledges and agrees that this Agreement, to the extent
it is subject to regulation by the Federal Communications Commission, is an
agreement that is not subject to the filing requirements of Section 211 (a) of
the Local Telephone Network Act of 1934 (47 U.S.C. Section 211 (a)) as
implemented in 47 C.F.R. Section 43.51, and NFN is not a carrier as such term is
used in such Act;
(g) no representation or warranty by NFN contained in this
Agreement, and no statement in any document (included, without limitation, all
documents executed in connection with any other transaction or transactions
consummated substantially concurrently with this Agreement), list, certificate
or other instrument or to be furnished by or on behalf of NFN or any Affiliate
thereof to US ONE or any of its representatives in connection with the
transactions contemplated hereby, contains or will contain any untrue statement
of a material fact, or omits or will omit to state any material fact necessary,
in light of the circumstances under which it was or will be made, in order to
make the statements herein or therein not misleading or necessary in order fully
and fairly to provide the information required to be provided in any such
document, list, certificate or other instrument. NFN has not failed to disclose
to US ONE any fact which would reasonably be determined to have a
17
material adverse effect on the business, financial condition, results of
operations or prospects of the business, or which is otherwise material to the
business; and
(h) there are no presently existing federal, state or local
regulatory fees or penalties, including fees under the Franchise, to which US
ONE will be subjected as a result of the execution and delivery of this
Agreement and the related transactions.
US ONE shall indemnify, defend and hold NFN, its directors, officers,
agents, representatives and employees ("NFN Parties") harmless from and against
any claims, demands, losses, costs, damages, expenses and foes of any kind or
nature whatsoever arising from or related to death, personal injury or property
damage, and for reasonable legal fees to the extent asserted by persons other
than the NFN Parties arising from or out of US ONE's performance of or failure
to perform any term, condition or obligation of US ONE under this Agreement.
NFN hereby agrees to indemnify, defend and hold harmless US ONE and US
ONE's partners, directors, officers, agents, representatives and employees from
and against any and all claims, demands, losses, costs, damages, expenses and
fees of any kind or nature whatsoever arising from or related to death, personal
injury or property damage, and for reasonable legal fees arising from or out of
NFN's obligations or NFN's performance of or failure to perform any term,
condition or obligation of NFN under this Agreement or any related act or
omission of NFN. This Indemnity includes, without limitation, acts or omissions
of NFN's officers, agents, contractors, subcontractors, licensees, invitees,
representatives and employees.
The above indemnities shall survive the expiration or earlier
termination of this Agreement.
16. MISCELLANEOUS
16.1 Status of Parties. The parties to this Agreement expressly
state, and understand, that the obligations and rights hereunder in no way
constitute them as partners, joint venturers or otherwise related in any way,
and that neither has any power under this Agreement to bind or commit the
other in any way to any third party or parties.
16.2 Amendments, Alterations and Modifications. Agreement shall
not be amended, altered or modified except by an instrument in writing duly
executed by both parties.
16.3 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and
18
permitted assigns. It is the explicit intention of the parties hereto that
no person or entity, other than the parties hereto, is or shall be entitled
to bring any action to enforce any provision of this Agreement against either
of the parties hereto, and that the covenants, undertakings, and agreements
set forth in this Agreement shall be solely for the benefit of, and shall be
enforceable only by, the parties hereto or their respective successors or
permitted assigns.
16.4 Special and Consequential Damages. In no event shall either
party be liable to the other for special or consequential damages as a result
of its performance or nonperformance of this Agreement, and each party hereby
waives and releases the other from those specific types of damages.
16.5 Confidentiality. Each of NFN and US ONE reaffirms and
rememorializes its respective confidentiality obligations related to this
Agreement as set forth on Exhibit G attached hereto.
16.6 Subsidiaries. NFN consents to the exercise by any subsidiary
of US ONE of the rights, and the performance by any such subsidiary of the
obligations, of US ONE hereunder.
16.7 Leasing other Facilities. This Agreement shall not prevent
US ONE from leasing the facilities of any other network provider, whatever
the location and whatever the terms thereof.
16.8 Notices. All demands, reports, approvals or other
communications which may be or are required to be given, served or sent
pursuant to this Agreement shall be in writing and shall be hand delivered or
sent by recognized overnight carrier or mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to NFN, to:
National Fiber Network, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
19
Attn: Xxxx Xxxxxxxxx
If to US ONE, to:
US ONE Communications of New York, Inc.
One Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxx
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxx
Notices shall be effective when properly sent and received, refused or
returned undeliverable. Either party can notify the other of an address
change pursuant to this notice provision.
16.9 Severability. If any provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under any applicable law, same
shall be ineffective to the extent of such invalidity only, without in any
way affecting the remaining parts of said provision or the remaining
provisions of said Agreement. In such event, the parties shall negotiate in
good faith to amend this Agreement to comply with applicable law while
preserving, to the maximum extent feasible, the mutual benefits of this
Agreement.
16.10 Further Assurances. To the extent that any statute,
regulation or policy passed or adopted after the date hereof materially
alters in a negative manner the practical realization of the value of this
Agreement to US ONE, NFN agrees to modify this Agreement so as to preserve
the practical realization by US ONE of the value of this Agreement.
16.11 Exhibits. Exhibits are an integral part of this Agreement.
"Will" and "shall" have the same meaning in this Agreement. "Including" or
"include" shall mean "including without limitation."
16.12 Waiver. No failure or delay on the part of either party
hereto in exercising any right, power or privilege hereunder and no course of
dealing between the parties shall operate as a waiver thereof, nor shall any
single or partial exercise of
20
any right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
16.13 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the transactions contemplated
herein, and it supersedes all prior oral or written agreements, commitments
or understandings with respect to the matters provided herein.
16.14 Titles and Headings. Section headings contained in this
Agreement are inserted for convenience of reference only. Such headings
shall not be deemed to be a part of this Agreement for any purpose and shall
not in any way define or affect the meaning, construction, or scope of any of
the provisions hereof.
16.15 Governing Law. This Agreement shall be governed by the laws
of the State of New York without regard to any other state's choice of law
principles.
16.16 Execution in Counterparts. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required.
16.17 Publication. Neither NFN nor US ONE shall publicize or
disclose any aspect or contents of this Agreement or its relationship with
the other party to this Agreement, in any way, without the other party's
prior written consent and specific approval, in such party's sole discretion,
except as required by law, rule or regulation or to a lender or prospective
lender or bona fide investment banker. Such consent shall not be
unreasonably withheld as to a bona fide investor, partner or joint venturer.
16.18 Most Favored Nations. Notwithstanding anything in this
Agreement, NFN agrees to treat US ONE to Most Favored Nations status for the
Term of this Agreement. NFN warrants that all financial terms, warranties
and provisions regarding termination or expiration provided in this Agreement
are equivalent to or better, as a whole, than the terms and provisions
offered by NFN to its current customers. In addition, if during the Term of
this Agreement NFN enters into any other agreement(s) with any other
customer(s) providing such customer(s) with more favorable financial terms,
warranties or provisions regarding termination or expiration, taken as a
whole, then this Agreement shall be deemed appropriately amended to provide
such better terms ("More Favorable Terms") to US ONE, unless US ONE elects,
in writing, to reject such new term(s) or provision(s). NFN shall promptly
provide US ONE with any refund or credits thereby created.
16.19 Assignment. Neither NFN nor US ONE may assign this
Agreement, in whole or in part except by operation of law, without the prior
written
21
consent of the other party, which consent shall not be unreasonably withheld
or delayed, and except as consistent with regulatory authorizations.
Notwithstanding the immediately preceding paragraph, US ONE may
assign this Agreement to any Affiliate or as a security interest to a lender
without NFN's consent. In addition, NFN shall be permitted to assign this
Agreement without US ONE's consent to a corporation of which it owns at least
a majority of the voting stock and controlling interest or any Affiliate.
Upon any assignment under this Section 16.19, the assignor shall remain
responsible for performance under this Agreement and shall guaranty any and
all continuing financial obligations hereunder. This guaranty shall be
primary, joint and several. Any assignee shall expressly assume all
liabilities hereunder prior to the effectiveness of such assignment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
22
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the Effective Date.
NATIONAL FIBER NETWORK, INC. US ONE COMMUNICATIONS OF NEW YORK, INC.
By:__________________________ By:____________________________________
Xxxxxxx X. Xxxxxxxx, Xxxxx X. Stugres,
President President
23
Exhibit A
Map of Manhattan, Brooklyn, Queens and New Jersey
EXHIBIT B
Optical Fiber Properties
Fiber Type: *
Manufacturer: *
Construction
*
Optical Characteristics
*
DRAFT
Mechanical Characteristics
*
System Constituents and Designations
*
It is important to note that NFN's Fiber Monitoring Program will
consider the attached fiber trace with its associated attenuation, length,
etc., as the reference for surveillance purposes, thereby reacting to
variations from this reference for alarming and restoration notification.
The degree of variation from the reference trace necessary to generate an
alarm will be specified in this report. Fiber monitoring is conducted via
maintenance fiber(s) that emulate customer systems completely from one
Customer Fiber Distribution Panel (CFDP) to the next.
It is critical that the customer only utilize the ports on the CFDP
that are specified in this report as other ports may be under use by NFN's
monitoring program and for future provisioning. The use of these ports by the
customer would jeopardize NFN's ability to conduct surveillance on the system
under use and possibly other systems in the surrounding area.
NFN has provided patchcords for connection from the CFDP to the end
equipment as per the customer's request. These jumpers are of a length and with
specific end connector-types as specified in this report. While these
connectors have been supplied in the original packaging in which they were
received from the manufacturer, shipping and handling may cause dust and dirt to
accumulate on the connector endface, adversely affecting optical performance.
Therefore, prior to using any fiber connector, NFN recommends cleaning with
isopropyl alcohol of purity 95% or higher, via the following procedure: wipe
the ferrule sides and endface of the connector with an alcohol-dampened
lint-free cloth; wipe again with a dry lint-free cloth and finally, blow across
the ferrule with compressed air.
This report contains the following pertinent information:
- properties of the optical fiber.
- geographical map detailing each fiber system pictorially.
- routing and footages of each fiber system.
- OTDR trace of each fiber system with a table of optical events en
route.
- End-to-end attenuation for each fiber at both 1310nm and 1550nm
wavelengths.
- Loss thresholds that would generate alarming and notification
procedures.
- Specification of ports to be utilized by the customer at the
CFDP.
- Patchcord lengths provided with type of end connectors.
DRAFT
System 1 - Span 1 - Fiber 1
*
DRAFT
*
GRAPH
*
*
GRAPH
*
System 1 - Span 1 - Fiber 1
*
GRAPH
*
*
GRAPH
*
Loss Thresholds
This table represents the attenuation values that would generate an alarm on
each fiber as per NFN's Fiber Monitoring Program.
*
EXHIBIT C TO LEASE AGREEMENT
BETWEEN
NATIONAL FIBER NETWORK, INC.
AND
US ONE COMMUNICATIONS CORP.
LATERAL EXTENSION POLICY OF NATIONAL FIBER NETWORK, INC.
The policy of NFN with respect to construction cost reimbursement and
monthly charges for extension from its Network Backbone to locations requested
by a customer is as follows
(i) The NFN customer requesting a fiber connection from the NFN
Network Backbone to a specific location shall pay to NFN the cost
which it incurs for such construction plus * thereof measured
from the Splice Point off of the Network Backbone to the point at
which the connection terminates (the "Termination Point") at the
subject premises (the "Lateral Extension"). The cost paid by the
customer for such construction is referred to herein as the
"Lateral Extension Cost";
(ii) Upon lease of fiber in the Lateral Extension to additional NFN
customers, each such additional customer shall pay to NFN a
portion of the Lateral Extension Cost equal to its pro rata
portion thereof (based upon the total number of customers leasing
fiber in the Lateral Extension). Such payments shall be
distributed equally by NFN to each prior NFN customer which has
already contributed to the construction of the Lateral Extension;
(iii) Customers utilizing the Lateral Extension shall pay to NFN a
monthly lease per fiber mile at the rate of * per fiber mile with
a minimum of two fibers measured from the Splice Point on the
Network Backbone to the Termination Point at the subject
premises;
(iv) All customers leasing fiber on the Lateral Extension shall pay
their respective pro rata cost of any easement, right of way, or
other similar charge incurred by NFN for the right to maintain
the Lateral Extension, as and when such charges are incurred.
EXHIBIT D
ADMINISTRATION
NFN's Monitoring Program will provide standard procedures, such as the
cable and specific fiber IDs within each sheath and origin and destination of
each fiber, and OTDR traces of each fiber path (at both * wavelengths) will be
recorded along with the locations of all optical events (splices, connection
points, etc...) en route. The database will maintain a manhole progression for
each route which correlates optical distances obtained via the OTDR to physical
landmarks such as manholes, buildings, bridges, etc. Locations of slack coils
and ring cuts will also be indicated which facilitates expeditious response to
maintenance requirements.
CABLE MONITORING SYSTEM
NFN's monitoring system will at all times be based on state-of-the-art
OTDR technology with the capability of actively examining multiple fibers, each
with its own set of test parameters. The resultant traces will be linked to
physical landmarks in their path via a geographical graphical user interface
which facilitates a visual depiction of fiber routings.
NFN will monitor the complete routing of each customer system by
emulating its path in a maintenance fiber in the same sheath as the active
fiber. The full complement of maintenance fibers will be set in surveillance
mode at the OTDR, as described below, which entails continuous monitoring.
Testing of fibers will be conducted in three modes:
1. On-Demand Testing - This test will be used by a particular user
(Maintenance Center Analyzer) to exercise a test of a select fiber ID and
will return an OTDR trace and summary report of all pertinent information
in regard to the select fiber. The test results will be then be referenced
to an "as-built" trace. The On-Demand test will be performed in either
Fault Locate or Maintenance mode. The fault locate mode will be used to
locate "gross" problems (cable cuts) while Maintenance mode will be used to
perform a detailed analysis of selected fibers referenced to established
NFN thresholds.
2. Auto-Routining - This function will be used to execute a test of select
fibers at programmable times and dates. The scheduling time frames will be
hours, days or weeks with a multitude of scheduling parameters. This
function will be used to observe any degradation in the fiber under test
and will issue alarms if analysis indicates differences from threshold
settings.
3. Local Surveillance - Will execute repetitive tests of selected fibers
(Maintenance fibers) continuously, comparing the resultant trace to the
stored reference trace, thereby establishing "full-time surveillance".
FAULT ISOLATION AND RESTORATION
NFN's Cable Monitoring System will immediately identify the location and
nature of a fault. This information will be automatically depicted on the
geographical interface of the system along with the nearest physical landmarks
surrounding the problem. NFN's restoration parameters will require a response
time of 2-4 hours. Within the 2-4 hour corridor, analysis, restoration
requirements and internal and external escalation notification procedures will
be completed. The following details the procedures:
1. Analysis - Once an alarm is received at the Maintenance Center, the
Analyzer will review the fiber in alarm and determine the nature of the
problem. The determination will either reflect a degradation or
catastrophic (cable cut) event. Degradation Alarm - the Analyzer will
determine the cause and the service affecting potential. If the trouble is
deemed service affecting, the Analyzer will contact his immediate
Supervisor and Maintenance personnel of the alarm and direct the
maintenance personnel to the fault location. Maintenance personnel will
ascertain the nature of the trouble and the Analyzer/Supervisor will be
notified of repair requirements and time required by the Field Supervisor.
The Maintenance Center Supervisor will apprise the Customer
Telecommunications Operations Supervisor of the nature of the trouble and
the proposed time frame for restoration. The NFN Maintenance Supervisor
will maintain continual communications with the Customer Telecommunications
Operations Supervisor until completion of final repair and acceptance to
the Customer. In the event the Degradation Alarm is not service affecting,
full time surveillance will be maintained for a period of 4 hours to
ascertain the conditions of the deterioration. Following the full time
surveillance period if degradation continues to exist, the Analyzer will
contact Maintenance personnel for dispatch to clear alarm generation.
Catastrophic Alarm - the Analyzer will retrieve the fiber under alarm and
determine trouble and location. The system at this juncture has initiated
multiple notification alarms (internally) to various levels of Supervision
within NFN. The Analyzer will be additionally responsible to ensure alarms
have been received by contacting the various designated personnel. The
Analyzer will inform the designated individuals of location, size and
number of Customers affected. Maintenance personnel will be dispatched
immediately to the location in order to determine cause and restoration
time frames. Maintenance Center Supervisor will contact all affected
Customers to apprise them of our efforts and determination of anticipated
time for restoration.
NOTE: ALL RESTORED FIBERS WILL CONFORM TO SPECIFICATION OF THE ORIGINAL
DESIGN.
EXHIBIT E
NATIONAL FIBER NETWORK, INC.
POINT OF PRESENCE (POP)
NFN BLDG.
NFN BUILDING ADDRESS ID# STATUS
*
EXHIBIT F
Network Properties and Statistics
Great care has been taken in selecting fiber & cable types so as to provide high
flexibility in cable deployment while allowing for rapid restorative ability.
Fusion splicing is the sole method of fiber connection used in the network with
strategically located slack loops for future provisioning and maintenance
purposes. Every attempt has been made to locate the cable in the lowest and
most central possible duct bank position in order to minimize the effect of any
disruptive activity from street work.
The technical parameters of customer systems that are currently on-line reflect
the impressive results that are attainable using the topology employed by NFN.
The average consumer system loss is * dB/km which includes cable loss, splice
loss and cross-connection insertion loss. It should be kept in mind that the
cable loss itself is rated at * dB/km with each system averaging over * km in
end-to-end length. The splice loss of these systems through their total lengths
reveal an average of * dB/splice with * dB being specified as the maximum
absolute splice loss with our contractors.
Customer systems may have either point-to-point or a ring-type configuration
depending on the specific requirements identified. NFN provides and encourages
complete route diversity if requested by a customer. This entails not only
identifying two separate street routings to link the customer locations, but
also providing two separate building entrances with independent risers so as to
achieve true redundancy in the fiber system. Thus, the only point of
commonality between the two routings would be at the termination, not at the
customer site.
EXHIBIT G
CONFIDENTIALITY
Definitions
Parties: National Fiber Network, Inc. ("NFN")
US ONE Communications of New York, Inc. ("US ONE New York")
US ONE Communications Corp. ("US ONE")
Disclosing Party: The party providing Confidential Material to another party.
Receiving Party: The party receiving Confidential Material from a Disclosing
Party.
Loan
Documents: The "Loan Documents" as defined in a certain Amended and Restated
Master Agreement dated as of April 15, 1996 between NFN and US
ONE.
Confidential
Material: Information and documents exchanged between Parties in
connection with the performance of their respective
obligations pursuant to the Loan Documents with the
exception of information which (i) is or becomes generally
available to the public other than as the result of a
disclosure by the Receiving Party or its directors,
officers, employees, agents or representatives in violation
of this agreement, (ii) was available to the Receiving Party
prior to its disclosure to that party by the Disclosing
Party, or (iii) becomes available to the Receiving Party
from a source other than the Disclosing Party providing such
information, provided that such source is not bound by a
confidentiality agreement with respect to such confidential
material.
A Receiving Party will not use Confidential Material received for any
purpose except as shall be necessary to fulfill its respective obligations and
exercise its rights in accordance wit the terms of the Loan Documents. A
Receiving Party will not disclose (except as expressly provided herein) any
portion of the Confidential Material to any person without the prior written
consent of the Disclosing Party; provided, however, that any Receiving Party may
disclose any Confidential Material to its directors, officers, employees, agents
or representatives, it being understood that they shall be informed by the
Receiving Party of the confidential nature of such information
and that by receiving such information they shall agree with the Receiving Party
to treat the Confidential Material accordance with this agreement.
In the event that a Party is requested or required by law, judicial or
governmental order, discovery request or other legal process or pronouncement to
disclose any Confidential Material which it has received from a Disclosing
Party, it will give the Disclosing Party prompt notice of such request so that
either Party may seek an appropriate protective order. If in the absence of a
protective order a Party is nonetheless required to disclose Confidential
Material, it may disclose such information without liability hereunder;
provided, however, that it gives the Disclosing Party written notice of the
information to be disclosed as far in advance of its disclosure as is
practicable and, upon request and at the Disclosing Party's expense, reasonably
cooperate with the Disclosing Party's efforts to obtain assurances that
confidential treatment will be accorded to such information.
The Parties agree that money damages would not be sufficient remedy
for any breach of this agreement, and that in addition to all such remedies, the
Parties shall be entitled (upon proof of all other necessary elements for such
relief) to specific performance and injunctive or other equitable relief as a
remedy for any such breach.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the Effective Date.
NATIONAL FIBER NETWORK, INC. US ONE COMMUNICATIONS OF NEW
YORK, INC.
By: By:
Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxx,
President President
SCHEDULE I
US ONE CONTRACT AMENDMENT
(PREPAYMENT REDUCED TO $3,530,000)
A. CURRENT * MILE NETWORK US ONE COST
1. * - Fiber Miles (FM) PREPAID
2. Credit for additional * Fiber Miles (FM) PREPAID
i. existing network = no minimum # strands
ii. future network = minimum of * strands
B. CENTRAL OFFICES ALREADY BUILT
1. (2)* PREPAID
2. * PREPAID
C. CO'S TO BE BUILT @ US ONE'S SOLE OPTION
CENTRAL OFFICE AVAILABLE
*
D. CO's TO BUILD UPON US ONE'S REQUEST, BUT AT NFN'S SOLE OPTION
CENTRAL OFFICE
*
E. OPTION FOR ADDITIONAL * FIBER MILES * PER STRAND PER FM
(* STRAND MINIMUM
PREPAID 10 YEAR
TERM
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(2)Single point of entry and non diverse path.
