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EXHIBIT 10.19
FIBER OPTIC PRIVATE NETWORK AGREEMENT
PRODUCT ORDER
This product Order ("Product Order") together with Exhibit A and the General
Terms and Conditions and all addenda attached hereto constitute the Fiber Optic
Private Network Agreement ("Agreement") which is effective as of October 1,
1999 by and between Metromedia Fiber Network Services, Inc. ("MFN"), ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and Advanced Telcom
Group, Inc. ("Carrier") whose address is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Definitions of terms used in this Agreement
appear in this Product Order and in the General Terms and Conditions.
1. Carrier will order and MFN will provide Leased Fiber as follows:
1.1 Fiber Lease Term: Twenty (20) years
1.2 Number of Leased Fibers: [*] fibers in a ring configuration
1.3 Carrier locations ("Location(s)"):
Ring 1:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ (HRNDVAHE)
▇▇▇▇▇ ▇▇ & ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ (CNVIVACT)
Potomac View Drive, Sterling, VA (HRNDVAST)
Ring 2:
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ (FRFXVAFF)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ (MNSSVAXA)
Ring #:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ (RKVLMDRV)
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ (RKVLMDMR)
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ (CHCHMDBE)
1.4 Leased Fiber specifications: See Exhibit A.
1.5 Installation Charge and Lease Payments:
One Time Installation Charge: There will be a one-time charge of [*]
per central office location listed in Section 1.3 above, which will
cover delivery of Leased Fiber from the MFN-negative one manhole
through the assigned zero manhole to the Competitive Alternative
Transport Terminal (CATT) located in the ASA room or fiber vault
within each such central office location. MFN will provide dual
entrances to each Central Office when possible. Consequently, the
total one time installation charge shall be [*].
Prepaid Lease Payment: [*] due and payable as follows:
(i) 40% upon execution of this Product Order and (ii) 20% upon the
Turnover Date for Ring 1, 20% upon the Turnover Date for Ring 2 and 20%
upon the Turnover Date for Ring 3.
1.6 Carrier will pay all Applicable Taxes (as defined in the General Terms
and Conditions) on the Installation Charge and all Leased Payments as
and when due.
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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2. Estimated Backbone Network Installation Completion Date:
Ring 1: January 3, 2000
Ring 2: June 30, 2000
Ring 3: January 3, 2000
3. Installation Requirements:
3.1 Carrier will arrange for its own cage space within each of the ILEC
Central Offices, and other Locations. Carrier shall also be
responsible for extending the fiber from the Competitive Alternate
Transport Terminal room to its collocation space.
3.2 The estimated time required for completion of connectivity from the
MFN CATT to the Carrier collocation space will be 30-60 days after
Carrier gives MFN written notice of completion of ILEC approval and
an executed copy of the ILEC MOP for each ILEC Central Office.
3.3 The Prepaid Lease Payment includes fiber termination into existing
MFN splice points.
3.4 Collocation in MFN POPs is not included in the Prepaid Lease Payment.
4. MFN address (and contact person) is as follows:
Metromedia Fiber Network Services, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Floor
White Plains, New York 10601
Attn: Vice President -- Marketing
If declaring a default or termination, a copy of the notice must be
sent to:
Metromedia Fiber Network Services, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Floor
White Plains, New York 10601
Attn: Vice President -- Legal Affairs
5. Carrier address (and contact person) is as follows:
Advanced Telcom Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Operating Officer
6. Special Requirements:
6.1 If during the Lease Term Customer wishes to add a new location in the
same MFN market to either ring described in Section 1.3 above, Customer
will so notify MFN in writing specifying the new location. MFN will
complete engineering for the new location within forty-five (45) days after
receipt of Customer's request and will thereupon deliver to Customer a
Product Order which will include an Estimated Installation Completion Date
and an estimated One Time Installation Charge, which will be based upon the
estimated cost of all additional engineering and construction, installation
and related work, permitting and other directly associated costs required
for the additional location plus [*]. If such location is
one which is already part of the MFN Network, there shall be no One Time
Installation Charge. The Monthly Lease Payment or Prepaid Lease Payment
shall be mutually agreed upon by the parties. Customer will have thirty
--------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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(30) days after receipt of the proposed Product Order to accept the Product
Order by signing and returning the Product Order to MFN, failing which such
Product Order shall be deemed rejected.
6.2 Customer may lease additional fiber strands, at any time and from time
to time, in a ring configuration among the same Locations and on the same
Rings as set forth in Section 1.3 above. Such additional fiber strands
shall consist of no less than two (2) and no more than twelve (12)
additional fiber strands in the aggregate for all such additional Product
Orders. The price for each such additional fiber strand, which fiber strand
must be taken on all three rings set forth in Section 1.3 above, shall be
[*] on a prepaid lease basis. If Customer desires to lease such
additional fiber strands, Customer shall send a written notice to MFN at
least sixty (60) days prior to Customer's desired Service Date for such
additional fiber strands. Such notice shall indicate the number of fiber
strands and Service Date desired. Within forty-five (45) days after receipt
of such notice, MFN shall confirm the availability of the fiber strands and
provide a Product Order, including an Estimated Installation Completion
Date and a lease term coterminous with the Lease Term. The exercise of this
option shall in all events be subject to the availability of the fiber
strands on MFN's Network. Customer shall sign and return such Product Order
within five (5) business days of receipt thereof, failing which such
Product Order shall be deemed rejected.
The persons signing this Agreement are authorized by the respective parties to
do so. Signature constitutes acceptance of all terms and conditions in this
Product Order, the Exhibits and the General Terms and Conditions.
ADVANCED TELCOM GROUP, INC. METROMEDIA FIBER NETWORK SERVICES, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------- --------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
Title: President VP, Chief Financial Officer
-------------------- ---------------------------
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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FIBER OPTIC PRIVATE NETWORK AGREEMENT
EXHIBIT A
FIBER TESTING & PERFORMANCE CRITERIA
MFN will perform fiber testing as described below on each Leased Fiber and will
provide the documentation (hard copy and/or diskette) of results to the Carrier
at the Turnover Date. Each "span" will be defined in documentation included in
the Carrier's Turnover Date package. Acceptance of a span by Carrier will be an
acknowledgement by the Carrier that all Leased Fiber complies with all
performance criteria contained herein.
1) POWER TESTING: This end-to-end loss measurement will be conducted for each
Leased Fiber in the span and from both directions using an
industry-accepted laser source and power meter. The bi-directional average
will be used to determine the end-to-end loss of the span at each
appropriate wavelength. This test will be conducted at both 1310 nm and
1550 nm for Standard Single Mode Fiber; Dispersion Shifted Fiber (True
Wave(TM), LEAF(TM), etc.) will be tested at 1550 nm only. In the event that
a span consists of both Standard Single Mode and Dispersion Shifted fiber
types, only 1550 nm testing will be conducted. This power testing will
ensure fiber continuity and the absence of crossed fibers in the span.
Power testing will only be conducted where the Leased Fiber is terminated
by MFN in fiber distribution panels at both ends of the span.
2) OTDR TESTING: All traces will be provided in hard copy and diskette form
using GR 196 format. This testing will be conducted at both 1310 nm and
1550 nm wavelengths when the Leased Fiber consists of Standard Single Mode
Fiber, but will be done at 1550 nm only if the Leased Fiber consists of
either Dispersion Shifted Fiber (True-Wave(TM), LEAF(TM), etc.) or a
combination of Single Mode and Dispersion Shifted fiber types.
OTDR testing will be conducted on a bi-directional basis for each Leased
Fiber in each span at the appropriate wavelengths for the Leased Fiber
described above. However, if due to length or attenuation reasons that the
Leased Fiber span exceeds the dynamic range of an OTDR, a portion or all of
the span may be tested on a unidirectional basis only. Alternatively, the
Leased Fiber span may be divided into shorter testing spans, to the extent
reasonably possible, in order to obtain bi-directional analysis. Also, in
instances where a Carrier intends to accept Leased Fiber that is not
terminated at one end by MFN in a fiber distribution panel (such as in a
manhole or handhole) only unidirectional testing will be performed.
The Turnover documentation package delivered at the Turnover Date will
contain the actual traces that detail the testing parameters (including
pulse width, averaging and range). The average bi-directional splice loss
for all splices within each span will be of 0.15 dB or less while each
connector pair (such as at a FDP) will have an average bi-directional
connector loss for all splices within each span of 0.5 dB or less for all
connectors within each span. (Note that the front and end connector of the
span can only be measured uni-directionally and will also have a loss equal
to or less than 0.5 dB). In the event that OTDR acceptance testing must be
done on a unidirectional basis (for reasons described above), an average
per span splice loss will be 0.30 dB.
All traces will be provided in hard copy and diskette form using GR 196
format. If the average bi-directional splice loss of each span exceeds 0.15
dB (or 0.30 dB uni-directionally), MFN will provide upon the Carrier's
request documentation of at least three attempts to reduce this value to
below 0.15 dB (0.30 dB uni-directionally). The only exception to this will
be in the instance of a splice between two different fiber types (Standard
Single-mode to Dispersion Shifted, Depressed-Clad to Matched Clad, fibers
with different mode-field diameters).
Carrier should also note that the loss and/or reflectance of the front-end
connector (as measured using a launch cord) is only an indicator of a problem
such as a defective port, bulkhead, or the like. Since a
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different patch cord will be used by Carrier (that connects to their equipment,
for example) to mate to this connector, a different loss and/or reflectance may
occur.
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FIBER OPTIC PRIVATE NETWORK AGREEMENT
GENERAL TERMS AND CONDITIONS
1. TERM AND LEASE
1.1 MFN hereby leases to Carrier optical fiber ("Leased Fiber") on MFN's fiber
optic cable network ("Network") and/or constructed and installed
specifically for Carrier and the equipment and interfaces described in the
Product Order ("Equipment") , as provided in the Product Order. The Leased
Fiber and Equipment leased by Carrier will be referred to as the
"Product". The lease term ("Lease Term") and other specific terms
pertaining to the Product are set forth in the Product Order. The term
"Party" will refer, individually, to either MFN or Carrier and the term
"Parties" will refer to both of them. The term "Agreement" will mean and
include the Product Order and all Exhibits thereto and these General Terms
and Conditions.
1.2 MFN will use commercially reasonable efforts to complete installation of
and provide Carrier with access to the Product on or about the Estimated
Installation Completion Date specified in the Product Order at the
Locations specified in the Product Order ("Turnover Date"). For a period
of time not to exceed ten (10) business days after the Turnover Date (the
"Acceptance Test Period"), Carrier will conduct such testing as it
reasonably deems necessary to ensure that the Product conforms in all
material respects to the material technical specifications set forth in
the relevant Exhibits ("Specifications"), Carrier will complete such
acceptance testing and notify MFN in writing within the Acceptance Test
Period of any "Deficiencies" (as defined herein) in the Product, otherwise
the Product shall be deemed to be accepted by Carrier, Deficiencies exist
if the Product does not conform in all material respects to the relevant
Specifications. Upon receipt of such notification from Carrier, MFN will
promptly undertake correction of such Deficiencies and restore access to
and use of the Product to Carrier. The "Service Date," whereupon the Lease
Term commences, will be the earlier of (i) completion of testing and
acceptance of Product by Carrier or (ii) expiration of the Acceptance Test
Period. MFN shall test the Leased Fibers in accordance with the procedures
specified in the Exhibits to verify that the Lased Fibers are installed
and operational in accordance with the specifications described in the
Exhibits. Fiber testing shall progress span by span along each portion of
the Product as cable splicing progresses, so that test results may be
reviewed in a timely manner. MFN shall provide Carrier reasonable advance
notice of the date and time of each fiber test such that Carrier shall
have the opportunity to have a person or persons present to observe MFN's
fiber testing. When MFN has determined that the results of the fiber
testing with respect to a particular span show that the Leased Fibers so
tested are installed and operating in conformity with the applicable
specifications set forth in the Exhibits, MFN shall promptly provide
Carrier with a copy of such test results.
1.3 Carrier will obtain all necessary approvals for access into the Location
buildings and for the use of any required building riser conduit or other
required building facilities at all Locations. Unless otherwise provided
for in the Product Order, if there is no existing and available riser
conduit or other required facilities within such buildings then MFN will
perform all construction and installation of such riser conduit and
Carrier will reimburse MFN for the entire cost to construct and install
such riser conduit plus [*] plus applicable sales or
other taxes.
1.4 Upon the expiration of the Lease Term, or any earlier termination of this
Agreement, Carrier will promptly remove from any property owned, leased or
licensed by MFN all Carrier property, equipment and other materials used
in connection with the Product within forty five (45) days from such
expiration or termination. Carrier will complete such removal in a manner
that does not interfere with or damage the Product or the Network. If
Carrier fails to
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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remove its property within such period, such property will be deemed abandoned,
and MFN will make such disposition of the property as it deems necessary at
Carrier's sole expense.
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2. TERMS OF PAYMENT
2.1 Unless otherwise provided for in the Product Order, Carrier agrees to pay
the One Time Installation Charge upon the execution of this Agreement and
the Prepaid Lease Payment as provided in the Product Order. Carrier will
also pay to MFN all applicable sales or other taxes other than taxes on or
measured by MFN's income or capital, ("Applicable Taxes"), unless Carrier
is eligible for an exemption and Carrier provides to MFN an exemption
certificate or other documentation. Commencing on the earlier of (i) the
Service Date for the first Location of each Ring or (ii) 180 days after
the effective date of the product Order (unless all such delays are caused
by or result from the act or omission of MFN), Carrier will pay the
Prepaid Lease Payment (and the Monthly Maintenance Payment for the
Equipment, if applicable) plus Applicable Taxes. The Prepaid Lease
Payment, if any, will be paid as provided in the Product Order.
2.2 The Monthly Lease Payment for the Leased Fiber and, if applicable, the
Monthly Maintenance Payment for the Equipment and any payment pursuant to
a collocation agreement, if any, (together, the "Payment") will be
increased (but not decreased) each year during the Lease Term by the
percentage increase, if any, in the Consumer Price Index -- Urban Wage
Earners and Clerical Workers (U.S. City Average, All Items, Base
1982-1984 equals 100) (the "Index"), as published by the United States
Department of Labor, Bureau of Labor Statistics (the "Bureau"). The Index
for the calendar month which is four (4) months prior to the Service Date
will be compared with the Index for the calendar month which is four (4)
months prior to each anniversary of the Service Date during the Lease Term
and the Payment will be increased in accordance with the percentage
increase, if any, between such Indexes.
2.3 If Carrier fails to pay any sum when due pursuant to this Agreement, then,
in addition to such sum, Carrier will pay interest on such unpaid sum at
the lower of the highest legal rate of interest permitted in the State of
New York or one and [*] per month.
3. MAINTENANCE, RESTORATION AND REPAIR OF THE NETWORK AND PRODUCT MONITORING
3.1 MFN will provide remote monitoring of the Network and the Product to the
extent that the Product is incorporated into the Network. MFN will use
commercially reasonable efforts to maintain the Product in accordance
with the Specifications (subject to reasonable wear and tear) and the
Network in good operating condition at all times during the Lease Term.
The foregoing maintenance will be at no additional charge to Carrier,
except as set forth in Section 3.4 hereof.
3.2 An "Outage" will mean the complete interruption of communications on one
or more of Carrier's Leased Fibers resulting from physical damage to, or
severance of, or a break in, or other failure for any Product. If an Outage
or any other material degradation of service on any Leased Fibers occurs
Carrier will immediately notify MFN by telephone at (▇▇▇) ▇▇▇-▇▇▇▇ or
through such other notification procedure as Parties may establish.
Provided that MFN personnel or contractors have access to affected Carrier
facilities immediately upon notification, MFN will respond and commence
work within two (2) hours after the time of notification by Carrier and
restore effective use of the Product as expeditiously as practicable, but
in no event more than four (4) hours after receipt by MFN of Carrier's
notification, subject to "Force Majeure" as provided in Section 11 hereof.
3.3 Except for any Outage caused by or resulting from (i) Force Majeure as set
forth in Section 11 hereof; (ii) the act or omission of Carrier, its
employees, agents or contractors; (iii) any of Carrier's equipment or
facilities used in connection with the Product; or (iv) planned Outages by
reason of Services which have been scheduled and approved in advance by
Carrier ("Excepted Outages") in the event of an Outage, Carrier will
receive from MFN a
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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credit ("Outage Credit") calculated at [*] of the Leased Fiber Monthly
Lease Payment for the affected Leased Fiber strands for each [*] of Outage,
up to a maximum of the Leased Fiber Monthly Lease Payment for [*]. Except
in the case of a Prepaid Lease Payment or termination as provided in this
Section 3.3, the Outage Credit will be applied against future payments
which may become due and payable by Carrier to MFN. The Outage Credit will
be determined by dividing the total Leased Fiber Monthly Lease Payment by
the number of Locations and dividing this result by the number of Leased
Fiber strands to determine the Leased Fiber Monthly Lease Payment per
Leased Fiber Strand. This result is then multiplied by [*] and by the
number of [*] Outage periods. For example, if the Leased Fiber Monthly
Lease Payment for six (6) Locations is [*], the Leased Fiber Monthly Lease
Payment for each Location would be [*], and if there were four (4) Leased
Fiber strands for each Location, the result would be [*] per Fiber Strand.
If the Outage affected two (2) strands at one Location for [*], the Outage
Credit would be [*]. For purposes of determining the Outage Credit pursuant
to this Section 3.3, if the Product Order provides for a Prepaid Lease
Payment, then the Monthly lease payment will be determined by dividing the
Prepaid Lease Payment by the total number of months of the Lease Term. The
Outage Credit will be in the form of a cash payment to Carrier by MFN if
Carrier has paid the Prepaid Lease Payment in full or if this Agreement is
terminated by either Party as provided in Section 3.4 hereof. Outage
Credits will not be credited or payable for any period of time during which
MFN personnel or contractors are denied access to Carrier Locations or
other facilities to remedy an Outage.
3.4 If an Outage occurs and continues for a period longer than fifteen (15)
days for any reason other than "Force Majeure" as defined in this
Agreement, then at any a time thereafter, unless and until such Outage is
corrected, either Party can terminate this Agreement and the Product Order
with respect to the Product subject to the Outage by written notice of
such termination delivered to the other Party. Notwithstanding the
foregoing, if such Outage occurs and continues by reason of a breach by a
Party of its obligations under this Agreement, such breaching Party will
not have any right to terminate this Agreement. The Outage Credit and
right to terminate will be the sole and exclusive remedy of Carrier and
liability of MFN for any Outage regardless of the cause of such Outage.
3.5 If all or part of the Product requires restoration, replacement or repair
by reason of an act or omission of Carrier, its employees, agents or
contractors or any of Carrier's equipment or facilities used in connection
with the Product, such repair, replacement and/or restoration will be made
by MFN, at Carrier's sole expense, in accordance with MFN's then current
time and materials rates plus Applicable Taxes. In addition, Carrier will
not receive any Outage Credit by reason of the foregoing.
3.6 MFN may assign or subcontract to any third party any or all of its
performance obligations (including limitation maintenance) under this
Agreement and Product Order at any time, without the consent of Carrier,
provided that MFN will remain obligated for such performance in accordance
with the terms of this Agreement.
3.7 MFN will have the right to inspect Carrier's use of the Product at any
time and from time to time during normal business hours upon at least
"twenty-four (24) hours" prior notice by MFN.
4. USE AND OWNERSHIP OF THE PRODUCT
4.1 Carrier will not, by itself or through any agent or contractor, make any
repair to or replacement of the Product or the Network or any other
equipment or facilities provided by MFN in connection with the Product or
otherwise. Carrier will not install any equipment to be used with the
Product or use the Product in any manner which damages or interferes with
the Product or the Network. Subject to the provisions of this Agreement,
Carrier shall
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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have full and complete control and responsibility for determining the
equipment to be used in conjunction with the Product.
4.2 Carrier will use the Product in full compliance with all applicable
federal, state and local laws, rules and regulations and all applicable
franchises, rights of way, leases, licenses, contracts and other
obligations to third parties with respect to the Network or Product.
Carrier will obtain and maintain in effect during the Lease term all
rights, leases, licenses, permits and governmental or non-governmental
approvals necessary for use of the Product by Carrier and its customers.
4.3 Carrier acknowledges and agrees that the Product is provided for use (1)
exclusively by Carrier and/or affiliated entities which control or are
controlled by or commonly controlled with Carrier ("Affiliates") which are
named in the Product Order (if so named, then the term "Carrier" as used in
this Agreement will include any such Affiliates of Carrier), (2) customers
of Carrier and (3) in either case only in the ordinary course of business
of Carrier. For purposes of this Agreement, the ordinary course of
Carrier's business shall not include the sale, leasing or granting of any
rights of use in "dark fiber", as such term is commonly understood in the
telecommunications industry. Carrier will not under any circumstances (a)
permit or provide access to or use of the Product, in whole or part, to any
third party (other than a customer of Carrier in the ordinary course of
business of Carrier), pursuant to (by way of example and not in limitation)
sublease, license, sublicense or resale, or any other right to use, or (b)
share or otherwise utilize in conjunction with a third party (including
without limitation in any joint venture or as part of any outsourcing
activity) any of the Product. Any breach of this Section 4.3 will be deemed
to be a material breach of this Agreement and in the event of such material
breach MFN will have the right to immediately terminate this Agreement, any
applicable Product Orders and Carrier's access to the Network, in addition
to any and all rights and remedies.
4.4 MFN retains all right, title and interest in and to the Product and the
Network to the points within the locations specified in the Product Order
at which MFN's facilities end and Carrier's facilities begin, subject only
to the grant of access and use provided to Carrier pursuant to this
Agreement. MFN agrees to use commercially reasonable efforts to obtain a
non-disturbance agreement from any third party in favor of which MFN in its
discretion shall have granted after the date hereof a security interest or
lien on all or part of the Product.
4.5 MFN reserves the right to utilize unused external building access and space
within the building conduit(s) occupied by the Product at the locations and
otherwise, provided that such use does not interfere with or hinder
Carrier's use of its Product as permitted hereunder.
5. AUTHORIZATIONS; RELOCATION; CONDEMNATION
5.1 "Authorization(s)" will mean all material and applicable governmental or
non-governmental licenses, easements, rights of way, conduit, pole
attachment and any other facilities or property rights, licenses,
contracts, franchises, approvals, permits, orders, consents, and all other
rights required for MFN to operate and maintain the Network or provide the
Product to Carrier pursuant to this Agreement.
5.2 MFN will use commercially reasonable efforts to have or obtain by the
Service Date, all Authorizations and to maintain or renew all such
Authorizations through the Initial Term and to replace such Authorizations
with reasonably suitable replacement Authorizations if any expire or are
terminated or discontinued during the Initial Term. If any Authorizations
are modified, terminated or discontinued and not replaced, and the loss of
such Authorizations threatens to cause or does cause material financial
harm to MFN, or prevents or materially interferes with MFN's control,
possession and/or use of the Network or ability to lease the Product or
materially and adversely affects the use by Carrier of the Product, then
MFN will
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at its option either (i) provide Carrier with comparable Product or fiber
optic capacity on portions of MFN's then existing Network (and/or other
MFN Networks, including networks belonging to or controlled by MFN
Affiliates) or on networks of third parties, or (ii) terminate this
Agreement with respect to the effected Product and rebate to Carrier the
pro rata portion of all Prepaid Lease Payments allocable to the terminated
Product and amortized over the remainder of the Lease Term. The foregoing
will be MFN's sole and exclusive liability and Carrier's sole and
exclusive remedy with respect to the foregoing.
5.3 If MFN receives notice of any request, intent or plan by any governmental
or non-governmental third party, to relocate any material part of the
Product or any material segment of MFN's Network used in the provision of
the Product, MFN will notify Carrier of such request, intent or plan. If
MFN is required by any such third party to relocate any segment of MFN's
network used in providing the Product, MFN will give Carrier at least
sixty (60) days (or such lesser period of notice that MFN may have
received) prior written notice of any such relocation ("Relocation
Notice"). Together with the Relocation Notice, MFN will provide an
estimate of the cost of such relocation. MFN will relocate the Leased
Fibers, and, to the extent MFN is not reimbursed for the cost of such
relocation by a third party, governmental entity or otherwise, Carrier
will pay its pro rata share of the costs associated with the relocation of
the Product; except, however, to the extent that such relocation is the
direct result of any negligent or willful act or omission of MFN, MFN will
use its commercially reasonable efforts to secure an agreement for
reimbursement from any third party, governmental entity or otherwise,
requiring any relocation of the Network and the Product.
5.4 If any portion of the Network or the Product and/or the Authorizations in
or upon which the Product has been installed, become the subject of a
condemnation proceeding which is not dismissed within one hundred eighty
(180) days after 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 having the power of eminent domain for public purpose or use,
both Parties will be entitled, to the extent permitted under applicable
law, to participate in any condemnation proceedings for compensation by
either joint or separate awards for the economic value of their respective
interests in the Leased Fibers that are subject to such condemnation
proceeding.
5.5 MFN shall be responsible for and shall timely pay any and all fees, taxes,
levies, charges or withholdings of any nature, together with any
penalties, fines, or interest thereon relating to the Authorizations.
6. WARRANTIES
6.1 MFN warrants to Carrier that upon the Service Date the Product will
operate in accordance with the specifications related thereto.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, MFN
DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING ANY
AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE (i) NETWORK OR PRODUCT, (ii) THE LEASE
GRANTED PURSUANT HERETO, (iii) MAINTENANCE SERVICES (iv)
CONSTRUCTION AND INSTALLATION SERVICES, IF ANY, AND (v) ANY OTHER
SERVICES(S) (HEREINAFTER (iii) THROUGH (v) WILL COLLECTIVELY BE
REFERRED TO AS "SERVICES") PROVIDED BY OR ON BEHALF OF MFN
HEREUNDER.
7. LIABILITY/INDEMNIFICATION
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7.1 Except for the gross negligence or willful misconduct of a Party
hereto and except where a specific remedy is provided in this Agreement,
the liability of each Party to the other Party for damages will be
limited to [*]. In no event will either Party be liable to the other
Party for any incidental, indirect, special, consequential, exemplary, or
punitive damages arising out of or relating to this Agreement, the lease
granted hereunder, the Network, Product or Services provided hereunder,
including damages based on loss of revenues, profits or lost business
opportunities, regardless of whether the respective Party had been
advised of or could have foreseen the possibility of such damages.
7.2 Each Party agrees to indemnify, defend and hold the other, its officers,
directors, employees, agents and contractors harmless from and against
all loss, damage, liability, cost and expense (including reasonable
attorney's fees and expenses) by reason of any claims or actions by third
parties for (i) bodily injury, including death, (ii) damage, loss or
destruction of any real or tangible personal property (including without
limitation the Network and Product) which third party claims arise out of
or relate or (a) any Product or Services provided by or on behalf of MFN
hereunder, (b) a Party's performance of or failure to perform any term,
condition or obligation under this Agreement, (c) any act or omission of
a Party's directors, agents, employees, contractors, representatives or
invitees, or (d) Carrier's or its customer's use of the Product and
conduct of their respective businesses including without limitation the
content of any video, voice or data carried by Carrier or its customers
on the Product or Network.
7.3 Except as otherwise set forth in this Agreement, nothing contained herein
will operate as a limitation on the right of either Party to bring an
action for damages against any third party based on any act or omission
of such third party as such act or omission may affect the construction,
operation, or use of the Product. Each Party agrees to execute such
documents and provide such commercially reasonable assistance, at the
claiming Party's sole expense, as may be reasonably necessary to enable
the claiming Party to pursue any such action against such third party.
8. CONFIDENTIALITY
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8.1 The Parties acknowledge and agree that this Agreement and the information
each Party has provided or will provide in connection with this
Agreement or that the other Party learns or obtains from a source other
than public domain or from a source (including a Party) not in violation
of any obligation of confidentiality, are and will be confidential
and proprietary to the Party providing such information (the "Providing
Party"). The Party in receipt of or learning or obtaining the
confidential information (the "Receiving Party") agrees not to
distribute, use or disclose to any third party the confidential
information of the Providing Party.
8.2 Except as may be required by applicable legal requirements in the
course of defending or prosecuting a legal, insurance or other claim
or as required by applicable law, rule or regulation, Receiving Party
will restrict dissemination of confidential information to only those
persons who must have access to such confidential information in order
to perform their respective rights or obligations hereunder. The
Receiving Party will promptly notify the Disclosing Party of any such
required disclosure to enable the Disclosing Party to seek protective
relief therefrom and shall cooperate as the Disclosing Party may
request in connection therewith.
8.3 Carrier may disclose the identity of MFN as a supplier of Carrier, and
MFN may disclose the identity of Carrier as customer of MFN, each with
the prior written consent from the others which consent will not be
unreasonably withheld or delayed; provided; that no such disclosure
shall imply any endorsement of the disclosed Party or contain any
misleading reference to the nature of the relationship between the
Parties.
--------------------
[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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8.4 Each Party acknowledges and agrees that the information of the Disclosing
Party described in this Section 8 constitutes valuable property of the
Disclosing Party and that Disclosing Party will suffer irreparable injury
not compensable by money damages for which the Disclosing Party will not
have an adequate remedy at law in the event of a breach by the Receiving
Party of the provisions for this Section 8 and therefore the Disclosing
Party shall be entitled to injunctive relief to prevent or curtail any such
breach, threatened or actual. The foregoing shall be without prejudice to
or limitation on any other rights a Party may have under this Agreement, at
law or in equity.
9. NOTICES
Unless otherwise provided herein, all notices and communications concerning
this Agreement will be in writing and sent to the address (and contact person)
specified in the Product Order, or at such other address as may be designated
in writing by a Party. Unless otherwise provided herein, notices will be sent
by certified US Postal Service, return receipt requested, or by commercial
overnight delivery service, or by facsimile, and will be deemed delivered, if
sent by US Postal Service, five (5) days after deposit, if sent by facsimile,
upon verification or receipt or, if sent by commercial overnight delivery
service, one (1) business day after deposit therewith.
10. RENEWAL TERM
Provided that Carrier is not in breach of any of its material obligations under
this Agreement and subject to the conditions of this Agreement, Carrier may
renew the term of this Agreement for the Product for one (1) additional renewal
term upon the terms and conditions of this Agreement, except for the length of
such renewal term and the Installation and Lease Fee payments, which the Parties
will negotiate in good fifth following Carrier's written request for renewal
delivered to MFN no earlier than one year before the scheduled expiration date
of the initial term and no later that ninety (90) days before such expiration
date.
11. TERMINATION/FORCE MAJEURE
11.1 If any of the following events of default occur, the non-breaching
Party (if MFN) will have the right to deny access by Carrier to the
Product or Network and (if either Party) to terminate this Agreement
by written notice following the expiration of any periods of time
included in the following, such termination to be effective in the on
the date set forth in the written notice of termination:
11.1 (a) If Carrier terminates any Product Order at any time before
the expiration of the Lease Term (whether before or after
the Turnover Date) or falls to make any payment hereunder
within five (5) days or receipt of written notice of late
payment from MFN, MFN will have the right to terminate this
Agreement and deny access by Carrier to the Product or
Network immediately without further notice to Carrier.
11.1 (b) If a Party breaches any material term or condition of this
Agreement and such breach remains uncured thirty (30) days
after delivery to the breaching Party of written notice of
such breach, unless the breach is of a nature or involves
circumstances requiring more than thirty (30) days to cure,
or if MFN's failure is failure to complete construction,
installation, and successful fiber acceptance and testing by
the Estimated Installation Completion Date, the time period
may be extended for such time as will be reasonably
required, provided the defaulting party proceeds diligently
to cure the breach.
11.1 (c) A Party 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 application or consent by
such Party and remains undischarged for a period of sixty
(60) days; or
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11.1 (d) A Party consents to the institution of a petition,
application, answer, consent, default of otherwise of any
bankruptcy, insolvency or reorganization and any such
proceeding as instituted against such Party remains
undischarged for a period of sixty (60) days.
11.2 In the event of termination of the Product Order by MFN pursuant to
Section 11.1 hereof or by Carrier after execution of the Product Order
or before the end of the Lease Term (other than by Carrier for cause
as provided in this Section 11), MFN will be entitled to receive, and
Carrier will immediately pay, the early termination charge ("Early
Termination Charge") set forth in the Product Order, and to offset any
remaining portion of the Prepaid Lease Payment against any sums
otherwise due and payable by Carrier to MFN pursuant to this
Agreement.
11.3 If any Authorization is modified, terminated or discontinued and not
replaced as provided in Section 5.2 of these General Terms and
Conditions, and MFN has not notified Carrier in writing within sixty
(60) days after the occurrence of such modification, termination or
discontinuance that MFN will provide additional or substitute Product
or capacity as provided in Section 5.2, then and thereafter either
party has the right, exercisable in its sole discretion, to terminate
the Product Order with respect to the affected Product upon thirty
(30) days prior written notice (or such other notice as is
practicable under the circumstances) without liability whatsoever by
either Party to the other Party or any party claiming by, through or
under such other Party other than the return to Carrier, of the
unamortized portion of any Prepaid Lease Payment as of the date of
such termination as provided in Section 5.2.
11.4 Neither Party will be in breach of this Agreement resulting from delay
or prevention of performance of such Party which is caused by any act
attributable to an occurrence or an event of "Fore Majeure" as defined
herein. Neither party will, 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 remedial causes that it fails to remove or remedy using
commercially reasonable efforts and within a reasonable period of
time.
11.5 The term "Force Majeure" will mean any cause beyond the control of
Carrier (or MFN, as applicable) which, by the exercise of due
foresight, Carrier (or MFN) could not reasonably have been expected to
avoid, and which by the exercise of reasonable diligence, Carrier (or
MFN) will be unable to overcome, including but not limited to action
by governmental authority including without limitation moratorium on
any activities related to the Agreement, third party labor dispute,
flood, earthquake, fire, lightning, epidemic, war, riot, civil
disturbance, sabotage and the like. The party affected by an event of
Force Majeure (the "Affected Party") will notify the other party (the
"Other Party") promptly of any occurrence or condition which, in the
Affected Party's reasonable opinion, warrants an extension of time.
Such notice will specify in detail the anticipated length of delay,
the cause of the delay and a timetable by which any remedial measures
will be implemented.
12. ASSIGNMENT; SUCCESSION
12.1 Carrier will not assign any right nor delegate any duty under this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of MFN, such consent not to be unreasonably
withheld or delayed. Carrier shall have the right, without MFN' consent, to
assign this Agreement to (i) any entity which controls, is controlled by or is
under common control with Carrier or (ii) any entity into which Carrier may be
merged or consolidated or which purchases all or substantially all of the stock
or assets of Carrier; provided that the assignee or transferee in any such
circumstance shall continue to be subject to all of the provisions of this
Agreement, including, without limitation, the provisions of this section; and
provided further that in any of the circumstances
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described in clauses (i) and (ii) all of the payment obligations of
Carrier hereunder for the remainder of the Lease Term shall be paid in
full as a condition to such transfer or assignment; and provided further
that Carrier shall give MFN written notice identifying the assignee or
transferee. Upon any permitted assignment (or delegation) hereunder,
Carrier will remain jointly and severally responsible for the performance
under this Agreement unless released in writing by MFN. Any permitted
assignee will expressly assume all liabilities hereunder prior to the
effectiveness of such assignment. Any attempted assignment or delegation
without such consent will be null and void and may be deemed by MFN, in
its sole discretion, to constitute a material breach of this Agreement.
12.2 The Agreement and Product Order will be binding upon and inure to the
benefit of the Parties hereto and their respective successors and
permitted assigns.
13. GOVERNING LAW
13.1 THIS AGREEMENT WILL 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.
14. SURVIVAL
The Parties' respective representation, warranties, and covenants, together
with obligations of indemnification, confidentiality and limitations on
liability will survive the expiration, termination or rescission of this
Agreement and continue in full force and effect.
15. ENTIRE AGREEMENT
This Agreement, Product Order, Exhibits and all addenda attached hereto
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and supersede any and all prior negotiations,
understandings, and agreement with respect hereto, whether oral or written.
16. REMEDIES CUMULATIVE
Except as otherwise expressly provided, the rights and remedies set forth in
this Agreement will be in addition to, and cumulative of, all other rights and
remedies at law or in equity.
17. REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Party represents, warrants and covenants to the other that (a) it is a
corporation, limited liability company, partnership, or other legal entity,
duly organized, validly existing and in good standing under the laws of the
state of its organization, (b) it has all requisite power and authority to
enter into, and perform its obligations under this Agreement and Product Order
and (c) this Agreement, when executed, will become the legal, valid and binding
obligation of such Party.
18. CONSTRUCTION OF NETWORK
18.1 MFN shall, at MFN's sole cost and expense, be responsible for and shall
effect the design, engineering, installation and construction of those portions
of the Network nor already constructed as of the date hereof in accordance with
the Specifications set forth in the Exhibits. All Leased Fiber shall meet or
exceed the applicable fiber specifications set forth in the Exhibits.
▇▇▇▇▇▇ shall have the right, upon written request, to inspect the construction,
installation, splicing and testing of the Product during the course and at the
time of the relevant design, construction and installation period as may be
reasonably permitted by MFN for the purpose of verifying conformity with the
Specifications set forth in the Exhibits.
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19. DOCUMENTATION
Not later than ninety (90) days after the Service Date for the Leased Fibers,
MFN shall provide Carrier with as-built drawings for such Leased Fibers.
20. NETWORK ACCESS
20.1 MFN shall provide Carrier with access to, and Carrier shall have the
right to connect, at Carrier's sole cost and expense, its telecommunications
Network with the Product at various network access points on the Network as may
be requested by Carrier and agreed to by MFN. The specific locations of each
such connections shall be as mutually reasonably agreed upon by the parties.
Any such connection will be performed by MFN, at Carrier's sole cost and
expense, in accordance with MFN's applicable specifications and operating
procedures.
20.2 Carrier shall pay MFN's cost for each such connection within thirty (30)
days of the date of Carrier's receipt of MFN's invoice therefor. In order to
schedule a connection of this type, Carrier shall request and coordinate such
work not less than ninety (90) days in advance of the date the connection is
requested to be completed.
21. INSURANCE
21.1 During the construction period with respect to any portion of the
Product, and until the Acceptance Date with respect thereto, MFN shall procure
and maintain in force the following insurance coverage from companies lawfully
approved to do business in the state where the construction will be performed:
(a) not less than $5,000,000 combined single-limit liability insurance,
on an occurrence basis, for personal injury and property damage,
including, without limitation, injury or damage arising from the
operation of vehicles or equipment and liability for completed
operations;
(b) workers' compensation insurance in amounts required by applicable
law and employers' liability insurance with a limit of at least
$1,000,000 per occurrence;
(c) automobile liability insurance covering death or injury to any
person or persons, or damage to property arising from the operation
of vehicles or equipment, with limits of not less than $2,000,000
per occurrence; and
(d) any other insurance coverage required pursuant to MFN's right-of-way
agreements with railroads or other third parties.
21.2 MFN shall require its subcontractors who are engaged in connection with
the construction of the Network to maintain insurance in the types and amounts
as would be obtained by a prudent person to provide adequate protection against
loss. In all circumstances, MFN shall require its subcontractors to carry a
minimum of $1,000,000 in commercial general liability.
22. DISPUTE RESOLUTION
22.1 Except as provided in Article 11, if the parties are unable to resolve
any disagreement or dispute arising under or related to this Agreement,
including without limitation, the failure to agree upon any item requiring a
mutual agreement of the parties hereunder, they shall resolve the disagreement
or dispute by arbitration as prescribed in this Section. The Federal
Arbitration Act, 9 U.S.C. Sections 1-15, not state law, shall govern the
arbitrability of all claims.
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22.2 Three arbitrators engaged in the practice of law who are knowledgeable
about the subject matter of this Agreement shall conduct the arbitration
under the then current rules of the American Arbitration Association (the
"AAA"). The arbitrator shall be selected in accordance with AAA procedures
from a list of qualified people maintained by the AAA.
22.3 The arbitration shall be conducted in the AAA office in Washington, D.C.,
and all expedited procedures prescribed by the AAA rules shall apply.
22.4 There shall be no discovery other than the exchange of information which is
provided to the arbitrator by the parties. The arbitrator shall have
authority only to award compensatory damages and shall not have authority
to award punitive damages, other noncompensatory damages or any other form
of relief; the parties hereby waive all rights to any claims for relief
other than compensatory damages. The arbitrators' fees and other costs of
the arbitration shall be borne by the party against whom the award is
rendered, except as the arbitration panel may otherwise provide in its
written opinion.
22.5 If any party files a judicial or administrative action asserting claims
subject to arbitration as prescribed herein, and another party successfully
stays such action or compels arbitration of said claims, the party filing
said action shall pay the other party's costs and expenses incurred in
seeking such stay or compelling arbitration, including reasonable
attorneys' fees.
23 MISCELLANEOUS
23.1 The covenants, undertakings, and agreements set forth in this Agreement
will be solely for the benefit of and will be enforceable only by the
Parties hereto or their respective successors or permitted assigns.
23.2 The headings of the Sections of this Agreement are strictly for convenience
and will not in any way be construed as amplifying or limiting any of the
terms, provisions or conditions thereof.
23.3 In the event any term of this Agreement will 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
will be in any way affected thereby.
23.4 This Agreement may be amended only by a written instrument executed by the
Parties.
23.5 No failure to exercise and no delay in exercising, on the part of either
Party hereunder, any right, power or privilege hereunder will operate as a
waiver hereof, except as expressly provided herein.
23.6 This Agreement may be executed in multiple counterparts, each of which will
constitute one and the same instrument.
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