Confidential - WinStar/Xxxxxxxx
IRU AGREEMENT
BETWEEN
WINSTAR WIRELESS, INC.
AND
XXXXXXXX COMMUNICATIONS, INC.
Dated December 17, 1998
(Long-Haul)
TABLE OF CONTENTS
1. DEFINITIONS...........................................................1
2. CONVEYANCE OF DARK FIBER IRUS AND GRANT OF OPTION.....................7
2.1. Grant of Network IRU................................................7
2.2. Option..............................................................8
2.3. Financing Arrangements..............................................8
2.4. Preferred Provider Status...........................................8
2.5. Most Favored Customer Provision.....................................9
2.6. No Title to Realty or Personalty....................................9
3. CONSIDERATION FOR IRUS................................................10
3.1. Contract Price......................................................10
3.2. Exercise Price......................................................10
4. CONSTRUCTION..........................................................10
4.1. Construction Representations, Warranties and Covenants..............10
4.2. Delivery of System Segments.........................................10
4.3. Renewal of Required Rights..........................................11
4.4. As-Built Drawings...................................................11
4.5. Third-Party Consents................................................11
5. ORDERING AND PROVISIONING.............................................12
5.1. Provision of Interim Service........................................12
5.2. Service Orders for Interim Services.................................12
5.3. Changes in Service Parameters.......................................14
5.4. Assignment and Assumption of Backbone Agreements....................15
6. CONNECTION TO THE SYSTEM AND COLLOCATION..............................17
6.1. Collocation.........................................................17
6.2. Interconnection.....................................................17
6.3. Ancillary Services..................................................18
7. ACCEPTANCE AND TESTING OF FIBERS......................................18
7.1. Overview............................................................18
7.2. SSPFAT by Xxxxxxxx..................................................19
7.3. SSPFAT by WinStar...................................................19
7.4. Failure Notice......................................................20
7.5. Correction..........................................................20
7.6. Testing by Third Party..............................................20
7.7. System Segment Fiber Acceptance Testing and Acceptance Date.........21
7.8. Testing of Option Fibers............................................21
8. USE OF THE SYSTEM.....................................................21
8.1. Use of WinStar Fibers...............................................21
8.2. Notice of Damage....................................................21
8.3. Precautions.........................................................21
8.4. Use of Equipment....................................................22
8.5. Liens...............................................................22
9. TERM..................................................................22
9.1. Agreement Term......................................................22
9.2. IRU Terms...........................................................22
9.3. Effect of Termination...............................................22
10. OPERATION, MAINTENANCE, AND REPAIR OF THE SYSTEM......................23
10.1. Routine Maintenance.................................................23
10.2. Non-Routine Maintenance.............................................23
10.3. Subcontractors......................................................23
10.4. Continued Breach of Routine Maintenance Obligations................23
10.5. WinStar Equipment...................................................23
10.6 Access to Systems...................................................23
11. RELOCATION............................................................24
11.1. Relocation..........................................................24
11.2. Cost of Relocation..................................................24
11.3. Updated As-Built Drawings...........................................24
12. INVOICING AND PAYMENT.................................................25
12.1. Due Date and Invoice................................................25
12.2. Form of Payment.....................................................25
12.3. Disputed Charges....................................................25
12.4. Late Interest.......................................................26
12.5. Adjustments.........................................................26
13. DISCLAIMER OF WARRANTIES..............................................26
13.1. Parties.............................................................26
13.2. Facility Owners/Lenders.............................................26
14. AUDIT RIGHTS..........................................................26
15. INDEMNIFICATION.......................................................27
15.1. Indemnification.....................................................27
15.2. Third Party Claims..................................................27
15.3. Indemnification of Providers........................................28
15.4. WinStar Customers...................................................28
16. LIMITATION OF LIABILITY...............................................28
16.1. General Intent......................................................28
16.2. Liability Restrictions..............................................28
16.3. Released Parties....................................................29
17. INSURANCE.............................................................29
17.1. Insurance...........................................................29
17.2. Documentation.......................................................30
17.3. Certificates........................................................30
17.4. Blanket Policies....................................................30
18. TAXES AND GOVERNMENTAL FEES...........................................30
18.1. Payment by WinStar..................................................30
18.2. Payment by Xxxxxxxx.................................................31
18.3. Reimbursement.......................................................31
18.4. Cooperation.........................................................31
18.5. Services............................................................31
19. NOTICE................................................................31
20. CONFIDENTIALITY.......................................................32
20.1. Confidential Information............................................32
20.2. Obligations.........................................................32
20.3. Exclusions..........................................................33
20.4. No Implied Rights...................................................34
21. DEFAULT...............................................................34
22. FORCE MAJEURE.........................................................34
22.1. Excusable Delay.....................................................34
22.2. Notice and Remedy...................................................35
23. REMEDIES AND DISPUTE RESOLUTION.......................................35
23.1. Dispute Resolution..................................................35
23.2. Cumulative Remedies.................................................35
23.3. Informal Dispute Resolution.........................................35
23.4. Arbitration.........................................................36
23.5. Continued Performance...............................................38
23.6. Immediate Injunctive Relief.........................................38
24. GENERAL...............................................................38
24.1. Rules of Construction...............................................38
24.2. Assignment..........................................................40
24.3. Relationship of the Parties.........................................42
24.4. Prohibition on Improper Payments....................................42
24.5. Entire Agreement; Amendment; Execution..............................42
25. REPRESENTATIONS, WARRANTIES AND COVENANTS.............................43
25.1. Representations and Warranties......................................43
25.2. Additional Xxxxxxxx Covenants.......................................43
25.3. Infringement of Intellectual Property Rights........................44
26. USE OF TELECOMMUNICATIONS AND OTHER SERVICES..........................44
26.1. Condition to Provision of Services..................................44
26.2. Intrastate Interexchange Services...................................44
26.3. WinStar Responsibilities............................................45
26.4. Consents............................................................45
26.5. Restriction of Transmissions........................................45
26.6. Reasonableness, Consents and Approval...............................45
EXHIBITS
Exhibit A Xxxxxxxx System
Part 1 -- Route Map
Part 2 -- System Segments
Exhibit B Xxxxxxxx Network Pricing Schedules and Technical Specifications
Exhibit C Collocation Provisions
Part 1 - Transmission Sites
Part 2 - POPs
Exhibit D Fiber Splicing, Testing, and Acceptance Standards
Exhibit E Fiber Specifications
Exhibit F Cable Installation Specifications
Exhibit G Transmission Site Specifications
Exhibit H As-Built Drawing Specifications
Exhibit I Operations Specifications
Exhibit J Intentionally omitted
Exhibit K Payment Terms
Exhibit L Intentionally Omitted
Exhibit M Intentionally Omitted
Exhibit N Intentionally Omitted
Exhibit X Xxxxxxxx Cities and Location of POPs
IRU AGREEMENT
(Long-Haul)
THIS IRU AGREEMENT (including the Exhibits and Schedules attached
hereto, this "Agreement") is made as of the Effective Date (hereafter defined)
by and between WINSTAR WIRELESS, INC. ("WinStar"), a Delaware corporation having
its principal office at 000 Xxxx Xxxxxx, Xxx Xxxx Xxxx, Xxx Xxxx, and XXXXXXXX
COMMUNICATIONS, INC. ("Xxxxxxxx"), a Delaware corporation, having its principal
office at Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Xxxxxxxx has constructed or will construct or obtain rights of
use in a fiber optic communication system (the "System") located approximately
along the routes depicted in Exhibit A, Part 1 (the "Route") and consisting of
the System Segments, as defined below; and
WHEREAS, WinStar desires to acquire from Xxxxxxxx, and Xxxxxxxx desires
to provide to WinStar, the Network IRU as defined below upon the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the mutual promises set forth below
and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS
Capitalized terms and phrases used in this Agreement shall have the
following meanings:
(a) "Acceptance Date" means the date defined in Section 7.7 below.
(b) "Acceptance Standards" means the standards set forth in Exhibit D
with respect to the testing of the WinStar Fibers.
(c) "Additional Services" means telecommunications services in excess
of the Minimum Commitment, such excess is not included in the
Contract Price.
(d) "Affiliate" means, with respect to any entity, any other entity
Controlling, Controlled by or under common Control with such
entity, whether directly or indirectly through one or more
intermediaries.
(e) "Agreement" has the meaning set forth in the preamble to this
document.
(f) "Ancillary Collocation Services" has the meaning set forth in
Exhibit C, Part 1, Section 1(d).
(g) "Ancillary Services" has the meaning set forth in Section 6.3.
(h) "Assignment Agreement Effective Date" has the meaning set forth
in Section 5.4(a).
(i) "Assumed Backbone Agreement" means a Backbone Agreement that
WinStar assigns to Xxxxxxxx in accordance with Section 5.4.
2
(j) "Backbone Agreements" means the agreements designated by WinStar
that WinStar is a party to as of the Effective Date and which
WinStar intends to assign to Xxxxxxxx or have Xxxxxxxx act as a
payment agent.
(k) "Backbone Agreement Service Provider" means each provider of
telecommunications services (other than WinStar) who is a party
to a Backbone Agreement.
(l) "Cable" means fiber optic cable installed pursuant to this
Agreement as part of the System (including any replacement cable)
and fibers contained therein, including the WinStar Fibers, and
associated splicing connections, splice boxes and vaults, and
conduit.
(m) "Circuit" means a communications path with a specified bandwidth.
(n) "Claim" means any claim, action, dispute, or proceeding of any
kind between WinStar (or any of its Affiliates, successors or
assigns) and Xxxxxxxx (or any of its Affiliates, successors, or
assigns) and any other claim, transaction, occurrence, loss,
liability, expense or other matter arising out of, in connection
with, or in any way related to, the Network IRU, the System, this
Agreement or any other instrument, arrangement or understanding
related to the Network IRU.
(o) "Claimant" has the meaning set forth in Section 15.1.
(p) "Collocation Service" has the meaning set forth in Exhibit C,
Part 2.
(q) "Connecting Point" means a point where the network or facilities
of WinStar will connect to the System.
(r) "Contract Price" has the meaning set forth in Section 3.1.
(s) "Control" and its derivatives mean legal, beneficial or equitable
ownership, directly or indirectly, of more than fifty percent
(50%) of the outstanding voting capital stock (or other ownership
interest, if not a corporation) of an entity or management or
operational control over such entity.
(t) "Costs" means actual, direct costs incurred and computed in
accordance with the established accounting procedures used by
Xxxxxxxx to xxxx third parties for reimbursable projects. All
Costs shall be computed in accordance with generally accepted
accounting principles. Such actual, direct costs include the
following:
(i) Labor costs, including wages and salaries, and benefits,
plus the overhead allocable to such labor costs (overhead
allocation percentage shall not exceed the lesser of: (i)
the percentage Xxxxxxxx allocates to its internal projects;
or (ii) thirty percent (30%)); and
(ii) Other direct costs and out-of-pocket expenses on a
pass-through basis (such as equipment, materials, supplies,
contract services, costs of capital, Required Rights, sales,
use or similar taxes, etc.) plus ten percent (10%) of such
expenses; but,
(iii) Less any cost or expense reimbursed by a third party.
(u) "CPNIP" has the meaning set forth in Part I, Section 2.1 of
Schedule B, Xxxxxxxx Network Technical Specifications.
(v) "Deadline Date" has the meaning set forth in Section 4.2.
(w) "Deduction Sections" has the meaning set forth in Section
24.1(l).
(x) "Dispute Notice" has the meaning set forth in Section 23.4(a).
(y) "Disputing Party" has the meaning set forth in Section 23.4.
(z) "Due Date" has the meaning set forth in Section 12.1.
(aa) "Effective Date" means December 17, 1998.
(bb) "Equipment" has the meaning set forth in Section 1.1 of Schedule
C, Part 2.
(cc) "Exercise Date" means the date on which WinStar exercises its
Option in accordance with Section 2.2.
(dd) "Exercise Price" has the meaning set forth in Section 3.2.
(ee) "Facility Owners/Lenders" means any entity (other than Xxxxxxxx)
that: (a) owns any portion of the System or any property or
security interest therein, (b) leases to Xxxxxxxx, or provides an
IRU to Xxxxxxxx in, any portion of the System, or (c) is a Lender
with respect to Xxxxxxxx or any Affiliates of Xxxxxxxx.
(ff) "FCC" means the Federal Communications Commission.
(gg) "Fiber Acceptance Testing" means the fiber acceptance testing
described in Exhibit D and in Article 7.
(hh) "Fiber Collocation Provisions" means the provisions set forth in
Exhibit C, Part 1.
(ii) "Fibers" means any optical fibers contained in the System
including the WinStar Fibers, the fibers of Xxxxxxxx and the
fibers of any third party in the System excluding, however, any
fibers granted (whether through ownership, IRU, lease, or
otherwise) to governmental entities in exchange for the use of
streets, rights of way, or other property under the jurisdiction
of such entity.
(jj) "Force Majeure Events" has the meaning set forth in Article 22.
(kk) "Indefeasible Right of Use" or "IRU" means an exclusive,
indefeasible right to use the specified property or capacity in
the manner contemplated by this Agreement; provided, however,
that the grant of an IRU shall not convey title, ownership, or
rights of possession in the System, the WinStar Fibers, the
Cable, the Right-of-Way Agreements, or any other real or personal
property.
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(ll) "Indemnitor" has the meaning set forth in Section 15.1.
(mm) "Initial WinStar Fibers" has the meaning set forth in Section
2.1.
(nn) "Intellectual Property Rights" means patent, copyright,
trademark, trade secret or other proprietary rights with respect
to any work product in which such rights could inure.
(oo) "Interconnect/Collocation Notice" has the meaning set forth in
Exhibit C, Part 1, Section 3.
(pp) "Interconnect Facility" has the meaning set forth in Exhibit C,
Part 1, Section 2(a).
(qq) "Interconnection" has the meaning set forth in Section 6.2.
(rr) "Interim IRU" has the meaning set forth in Section 2.1(b).
(ss) "IRU Term" has the meaning set forth in Section 9.2.
(tt) "LEC" means a local exchange carrier.
(uu) "Lender" has the meaning set forth in Section 2.3.
(vv) "Losses" means all liabilities, damages and related costs and
expenses (including fines, levies, assessments, reasonable legal
fees and disbursements and costs of investigation, litigation,
settlement, judgment, interest and penalties) directly incurred
by a party.
(ww) "Material Improvements" has the meaning set forth in Section 10
of Exhibit C, Part 2.
(xx) "Mean Time to Restore" has the meaning set forth in Exhibit B.
(yy) "Minimum Commitment" means One Hundred Twenty Million Dollars
($120,000,000), which is the minimum amount of On-Net
Telecommunications Services in United States dollars to be
purchased by WinStar pursuant to the terms hereof prior to the
expiration of the fifth anniversary of the Effective Date. Such
amount is included in the Contract Price.
(zz) "Minimum Term Liability" has the meaning set forth in Section
5.3(b).
(aaa)"NCC" means Network Control Center, as set forth in Exhibit I,
Section 1(A).
(bbb) "Network IRU" has the meaning set forth in Section 2.1.
(ccc)"Notice of Election" has the meaning set forth in Section
15.2(a).
(ddd)"OOS" means Out-of-Spec, as set forth in Exhibit D, Section
1(B).
(eee) "Off Net" means a Circuit that is not On Net.
4
(fff)"On Net" means a Circuit traversing the Xxxxxxxx Network between
two Xxxxxxxx points of presence.
(ggg) "Option Fibers" has the meaning set forth in Section 2.1.
(hhh) "Option" has the meaning set forth in Section 2.2.
(iii)"OTDR" means optical time domain reflectometer, as set forth in
Exhibit D, Section 1(A).
(jjj)"Other Services" means local access, Interconnection, Ancillary
Services and Collocation Services.
(kkk)"Payment Deductions" has the meaning set forth in Section
24.1(l).
(lll) "Payment Terms" has the meaning set forth in Section 3.1.
(mmm)"Point of Presence" means a specified location at which Xxxxxxxx
originates or terminates services.
(nnn) "Premises" has the meaning set forth in Exhibit C, Part 2.
(ooo)"Prime Rate" means, with respect of any period, the rate
published as Chase Manhattan's prime rate in the Wall Street
Journal, or any successor publication thereto, from time to time
during such period.
(ppp)"Pro-Rata Share" means a proportion equal to a fraction, the
numerator of which is the number of WinStar Fibers and the
denominator of which is all Fibers in the relevant System Segment
Portion(s). If this fraction varies over different System Segment
Portions, then the Pro Rata Share shall be equal to the weighted
average (weighted by length as set forth in Xxxxxxxx' as-built
drawings) of the relevant System Segment Portions. For example,
if the fraction for 100 feet of the relevant System Segment
Portion is 0.1 and the fraction for the remaining 50 feet of the
relevant System Segment Portion is 0.07, the weighted average for
the entire System Segment Portion would be 0.09.
(qqq)"Released Party" means each of the following (but excludes
Xxxxxxxx and WinStar):
(i) Any Affiliates or Lenders of the other party and any
Facility Owners/Lenders;
(ii) Any employee, officer, director, stockholder, partner,
member, or trustee of the other party or of its Affiliates,
Lenders, or Facility Owners/Lenders; or
(iii)Assignees of the entities included in the above
subparagraphs (a) or (b) and any employee, officer,
director, stockholder, partner, member, or trustee of such
assignees.
(rrr)"Renegotiated Backbone Agreement" means an Assumed Backbone
Agreement that Xxxxxxxx has renegotiated as set forth in Section
5.4(b).
5
(sss) "Representatives" has the meaning set forth in Section 20.2.
(ttt)"Requested Start Date" has the meaning set forth in Section
5.2(b).
(uuu) "Required Rights" has the meaning set forth in Section 4.1.
(vvv) "Restricted Fiber" has the meaning set forth in Section 26.1.
(www)"Right-of-Way Agreements" means rights, licenses,
authorizations, easements, leases, fee interests, or agreements
that provide for the occupancy by the System of real property or
fixtures (such as conduit, bridges, river crossings, or
transmission towers).
(xxx) "Route" has the meaning set forth in the Recitals above.
(yyy) "Routine Maintenance" has the meaning set forth in Section 10.1.
(zzz)"Service Orders" has the meaning set forth in Section 5.2(a).
(aaaa) "Service Term" means with respect to the provision of
Telecommunications Services, Additional Services or Other
Services, the length of time specified in the applicable Service
Order during which Xxxxxxxx will provide such Telecommunications
Services, Additional Services or Other Services.
(bbbb) "Space" has the meaning set forth in Section 1.1 of Schedule C,
Part 2.
(cccc) "Start Date" means, with respect to any Telecommunications
Services or Other Services WinStar requests Xxxxxxxx to provide
hereunder, the first day on which such services are provided.
(dddd) "Start of Service Notice" or "SOSN" has the meaning set forth
in Section 5.2(e) .
(eeee) "System" shall have the meaning set forth in the Recitals
above.
(ffff) "System Segment" means one of the System Segment Portions
identified as a System Segment in Exhibit A, Part 2.
(gggg) "System Segment Portion" means a discrete portion of the System
and may refer to a span (a portion of the System between two
Transmission Sites or between a Transmission Site and a point of
presence or System end point), a portion between two points of
presence or a point of presence and a System end point, or a
portion of the System affected by a relocation or other
circumstance.
(hhhh) "Telecommunications Services" means interexchange
telecommunications capacity on Xxxxxxxx' Network (or third
parties' telecommunications facilities) at the DS-3, OC-3, OC-12
and OC-48 levels but excluding Other Service.
(iiii) "Term" has the meaning set forth in Section 9.1.
(jjjj) "Third Party Service Provider" means any third party provider,
operator or maintenance repair contractor of facilities employed
by Xxxxxxxx in connection with the provision of the Network IRU,
Telecommunications Services or Other Services.
6
(kkkk) "Transmission Sites" means the optical amplifier, regenerator,
and junction sites along each System Segment.
(llll) "Xxxxxxxx" means Xxxxxxxx Communications, Inc., a Delaware
corporation, formerly known as Vyvx, Inc.
(mmmm) "Xxxxxxxx Network" means the telecommunications facilities
owned or operated by Xxxxxxxx and used to provide services
between the cities listed on Exhibit O, as such may be added to
as Xxxxxxxx grows its network during the Term.
(nnnn) "WinStar" has the meaning set forth in the first paragraph of
this document.
(oooo) "WinStar Equipment" means optronic (opto-electrical),
electronic, or optical equipment, or materials, facilities, or
other equipment (other than the System) owned, possessed, or
utilized by WinStar.
(pppp) "WinStar Facilities" has the meaning set forth in Section 26.3.
(qqqq) "WinStar Fibers" means the Initial WinStar Fibers and, upon
WinStar's exercise of the Option in accordance with Section 2.2,
the Option Fibers.
(rrrr) "WinStar IRU" has the meaning set forth in Section 2.1.
2. CONVEYANCE OF DARK FIBER IRUS AND GRANT OF OPTION
2.1. Grant of Network IRU.
Xxxxxxxx hereby grants the "Network IRU" to WinStar for the purposes
described herein and on the terms and subject to the conditions set forth
herein. The Network IRU comprises:
(a) An exclusive Indefeasible Right of Use (the "WinStar IRU"), effective
as of the Acceptance Date for each System Segment, in:
(i) Four (4) strands of optical fiber (the "Initial WinStar Fibers"),
as identified by Xxxxxxxx in each System Segment, throughout the
length of the Route; and
(ii) If the Exercise Date occurs, two (2) additional strands of
optical fiber (the "Option Fibers"), as identified by Xxxxxxxx in
each System Segment, throughout the length of the Route; and
(b) An exclusive Indefeasible Right of Use in On-Net Telecommunications
Services (the "Interim IRU"), effective as of the Effective Date,
which is further defined in Article 5.
2.2. Option.
(a) WinStar is hereby granted an option (the "Option") to an exclusive
Indefeasible Right of Use in the Option Fibers in all System Segments.
The Option is not divisible (i.e. it may not be exercised in part) by
System Segment or strand of Option Fiber. If not exercised, the Option
shall expire on the seventh (7th) anniversary of the Effective Date.
(b) WinStar may exercise the Option only by delivery of an irrevocable
written notice to that effect by an authorized representative. If
WinStar so exercises the Option:
(i) The Option Fibers will be deemed to be WinStar Fibers (except for
purposes of Article 7, for which separate treatment is indicated
in Section 7.8) and will be deemed to be subject to the WinStar
IRU; and
(ii) WinStar's rights to use the Option Fibers shall begin upon the
initial payment of the Exercise Price (or, if later, the
Acceptance Date for each System Segment) and shall continue until
the last day of the IRU Term of the corresponding System Segment.
2.3. Financing Arrangements.
Each party may, directly or through an Affiliate, enter into financing
arrangements (including secured loans, leases, sales with lease-back,
leases with lease-back arrangements, purchase-money or vendor financing,
conditional sales transactions or other arrangements) with one or more
financial institutions, vendors, suppliers or other financing sources (each
a "Lender"), that, with respect to Xxxxxxxx, relate to the System and, with
respect to WinStar, relate to the Network IRU (and not to any physical
property right in the System), subject to Xxxxxxxx' rights pursuant to the
Payment Terms.
2.4. Preferred Provider Status.
(a) During the Term, WinStar shall first seek to obtain its domestic
interexchange telecommunications requirements (including dark fiber,
data, voice and video circuits) from Xxxxxxxx. WinStar will fulfill
such requirements with Xxxxxxxx' telecommunications products if
Xxxxxxxx is responsive to WinStar's requests and those products, when
compared to similar offerings in the marketplace, are of equivalent or
better quality, availability and price.
(b) Within 180 days after the Effective Date, the parties will jointly
establish a benchmarking measurement and comparison process (the
"Benchmarking Process") designed to objectively evaluate whether the
Xxxxxxxx Telecommunications Services, Additional Services or Other
Services, as applicable, are of equivalent or better quality,
availability and price as compared to similar services generally
available in the market for similar size and scope requirements
("Market Level Charges"). The Benchmarking Process will take into
consideration relevant factors such as quality and delivery terms.
2.5. Most Favored Customer Provision.
During the Term, if Xxxxxxxx sells On-Net Telecommunications Services,
On-Net Additional Services, and/or Other Services (but not including any
local access or dark/dim fiber) to a third party on Financial Terms (as
hereinafter defined) that are not Comparable (as hereinafter defined) to
those provided hereunder, WinStar shall be entitled to an adjustment of the
amounts paid with regard to the On-Net Telecommunications Services, On-Net
Additional Services, and/or Other Services in question. Xxxxxxxx shall
promptly notify WinStar in writing of such more favorable Financial Terms.
Xxxxxxxx shall be under no obligation to disclose to WinStar the identity
of any such third party or any other provisions of such a contract that are
not more favorable than those provided to WinStar. Such adjustment shall be
equal to the aggregate amount necessary to make the Financial Terms
Comparable (pro rated to follow the cash timing of this Agreement). Upon
payment or credit of such adjustment to WinStar, the Financial Terms of
this Agreement shall be deemed to be those more favorable Financial Terms
for the purpose of future applications of this Section. Nothing in this
Section shall be deemed to require Xxxxxxxx to sell more than the Minimum
Commitment contained herein. "Comparable" means not less than the price,
after adjustments to take into account all differences attributable to
volume, terms and conditions, advances in technology, passage of time,
market conditions or strategic relationship value. "Financial Terms" means
the overall pricing of services to the third-party.
2.6 No Title to Realty or Personalty.
Neither this Agreement nor the grant of the Network IRU effected hereby
conveys any form or type of title in any real or personal property,
including the System or any portion thereof or in any transmission or other
facilities and equipment related to the provision of Telecommunications
Services, Other Services, or Additional Services. Xxxxxxxx and WinStar
intend that this Agreement constitutes a true lease of the WinStar Fibers
and not a sale of the WinStar Fibers. Notwithstanding such express intent
of the parties, if a court of competent jurisdiction determines that this
Agreement is not a true lease, but a security interest in the WinStar
Fibers, then solely in that event and solely for the limited purpose
thereof, WinStar shall be deemed to have granted Xxxxxxxx a security
interest as described in Section 7 of Exhibit K hereto. WinStar shall
provide an inventory of any equipment to be located on Xxxxxxxx' sites.
9
3. CONSIDERATION FOR IRUS
3.1. Contract Price.
As consideration for the Network IRU, WinStar shall pay Xxxxxxxx Five
Hundred and Fifty Million Dollars ($550,000,000) (the "Contract Price") in
accordance with the payment and other terms set forth in Exhibit K hereto
(the "Payment Terms"), plus the Exercise Price if the Option is exercised.
3.2. Exercise Price.
The price payable if WinStar exercises the Option (the "Exercise Price")
shall be Fifty-One Million Eight Hundred Thirty-Four Thousand One Hundred
Dollars ($51,834,100), allocated to each System Segment as set forth in
Exhibit A, Part 2. The Exercise Price for each System Segment shall be
chargeable upon the later of (a) the date WinStar exercises the Option or
(b) the Acceptance Date of that System Segment.
4. CONSTRUCTION
4.1. Construction Representations, Warranties and Covenants.
(a) Xxxxxxxx represents, warrants and covenants that, as of the Acceptance
Date for each System Segment, it (or the underlying facility owner on
Xxxxxxxx' behalf) shall have obtained the following rights
(collectively, the "Required Rights"):
(i) All Right-of-Way Agreements necessary for the installation and
use of that System Segment;
(ii) The rights to use those System Segment Portions it does not own
and the right to grant the Network IRU with respect to such
System Segment Portions;
(b) Xxxxxxxx represents, warrants and covenants that, for each System
Segment,
(i) That System Segment has been designed, engineered, installed, and
constructed in accordance with the specifications set forth in
Exhibits D, E, F and G; and
(ii) Throughout the relevant IRU Term, the exercise of rights by or on
behalf of Xxxxxxxx' Facilities Owners/Lenders shall not deprive
WinStar of the peaceful and quiet enjoyment of the WinStar IRU in
that System Segment.
4.2. Delivery of System Segments.
(a) Deadline Date. The planned Acceptance Date for each System Segment
shall be the date sixty (60) days after the Planned Construction Date
set forth as such in Exhibit A, Part 2. The "Deadline Date" shall be
sixty (60) days after the later of (a) such planned Acceptance Date or
(b) the planned Acceptance Date as extended due to unforseen events
not in the reasonable control of Xxxxxxxx (other than as due to
Xxxxxxxx' negligence), Force Majeure Events or as expressly permitted
by this Agreement. Xxxxxxxx shall implement each System Segment so
that it achieves its Acceptance Date by the Deadline Date. Xxxxxxxx
shall give WinStar as much prior notice as reasonably possible if , to
the best of Xxxxxxxx' knowledge, there is a forseeable risk that it
may miss a Deadline Date for any System Segment.
10
(b) Failure to Meet Deadline Date. If Xxxxxxxx does not meet the Deadline
Date for any System Segment, and the parties are unable, in good
faith, to agree to an alternative Deadline Date, WinStar's sole and
exclusive monetary remedy for such failure shall be to obtain Cover
(as hereinafter defined) beginning on the Deadline Date for the System
Segments not made available. Such "Cover" shall be satisfied by
Xxxxxxxx' providing, at Xxxxxxxx' expense: (a) such capacity as is
required for WinStar to carry those Circuits it would have migrated to
the WinStar Fibers, and (b) such other capacity as is needed to
fulfill WinStar's increase in usage (based on actual orders of its
customers), until Xxxxxxxx delivers the WinStar Fibers. In any event,
Xxxxxxxx will provide such Cover capacity in ATM, private line, or
frame relay formats, at WinStar's option.
4.3. Renewal of Required Rights.
Xxxxxxxx shall renew or replace existing Required Rights for each
System Segment through at least the applicable IRU Term.
4.4. As-Built Drawings.
Within six (6) months after the Acceptance Date for any System
Segment, Xxxxxxxx shall provide WinStar with as-built drawings for
that System Segment, in compliance with the specifications for
as-built drawings set forth in Exhibit H.
4.5. Third-Party Consents.
WinStar acknowledges that Xxxxxxxx requires the consent of a third
party in order to grant WinStar an IRU with respect to the
Washington-Houston and Houston-Dallas System Segments. WinStar shall
not unreasonably withhold consent to changes to this Agreement
required by such third party that do not adversely affect WinStar's
rights and obligations under this Agreement and do not require payment
of additional consideration by WinStar. If WinStar consents to such
changes, the parties shall execute an appropriate amendment. If
WinStar does not consent to such changes, or the Required Consents
cannot be obtained for other reasons, then the Contract Price and
Exercise Price shall each be reduced by the corresponding amount
allocated to the affected System Segment(s) in Exhibit A, Part 2.
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5. ORDERING AND PROVISIONING
5.1. Provision of Interim Service.
(a) Inasmuch as the deployment of the System does not currently reach all
locations set forth in Part 1 of Exhibit A, Xxxxxxxx shall provide,
subject to availability and on a non-discriminatory basis,
Telecommunications Services on the Xxxxxxxx Network in accordance with
the terms of this Agreement. Such Telecommunications Services may be
part of the Minimum Commitment or may be Additional Services.
(b) At the request of Xxxxxxxx, WinStar shall pay for Other Services or
Additional Services requested by WinStar in accordance with the terms
of this Agreement.
(c) Within ninety (90) days after each of the first five (5) anniversaries
of the Effective Date, Xxxxxxxx shall determine WinStar's actual use
of Minimum Commitment for the year ending on such anniversary and
shall send such information to WinStar for review. Irrespective of any
shortfall in Minimum Commitment actually used by WinStar during any
period, in no event shall any refund, rebate or reduction in the
Contract Price be granted or paid to WinStar as a result of any such
shortfall. Xxxxxxxx shall be obligated to accept any conforming
Service Orders issued by WinStar for On-Net Telecommunications
Services up to the Minimum Commitment during the first five
anniversaries of the Effective Date. Xxxxxxxx shall permit WinStar to
take up to two (2) months beyond the fifth anniversary beyond the
Effective Date to use Telecommunications Services requested and paid
for under a Service Order for On-Net Telecommunications Services
issued prior to the end of the fifth anniversary of the Effective Date
to enable WinStar to meet the Minimum Commitment. Notwithstanding the
foregoing, WinStar shall have additional time beyond the foregoing
five year period to meet the Minimum Commitment to the extent
WinStar's failure to meet the Minimum Commitment is due to delays by
Xxxxxxxx' in providing any of the On-Net Telecommunications Services
by the firm order commitment date issued by Xxxxxxxx during such five
year period.
5.2. Service Orders for Interim Services.
(a) Telecommunications Services, Additional Services, and Other Services
requested by WinStar hereunder shall be requested on Xxxxxxxx Service
Order forms in effect from time to time ("Service Orders"). Each
Service Order shall reference this Agreement. Xxxxxxxx reserves the
right not to accept a Service Order that does not conform with the
terms and conditions of this Agreement and such non-conforming Service
Order shall have no force or effect hereunder.
12
(b) Each Service Order will indicate a requested due date (the "Requested
Start Date") for the Circuit, the desired term of the Circuit,
specific city pairs, applicable bandwidth, whether the Circuit(s) are
to be expedited or provided in normal intervals and any other
parameters required. Xxxxxxxx shall acknowledge receipt of the Service
Order, on average, within forty-eight (48) hours (an
"Acknowledgement"). Within four (4) business days of the
Acknowledgement, Xxxxxxxx will advise WinStar as to network
availability. With respect to On-Net Circuits, when WinStar requests
to order its own local loops Xxxxxxxx will provide a Letter of Agency
within seven to ten business days after Xxxxxxxx' receipt of the
Service Order. Within twenty-four (24) hours after Xxxxxxxx' receipt
of the Design Layout Record (as provided by the applicable local
access provider), Xxxxxxxx will provide a firm order commitment for
On-Net Circuits. All Service Order intervals for Off-net Circuits or
Backbone Agreement Circuits are on an individual case basis. Xxxxxxxx
will use reasonable efforts to assist WinStar in obtaining a Letter of
Agency and delivering service from a Third-Party Provider. All On-Net
DS-3/OC-3 Circuits ordered by WinStar pursuant to Service Orders under
this Agreement will be provisioned by Xxxxxxxx within a target
timeframe of forty-five (45) days from the date of the Service Order
for POP to POP service.
(c) Once a Service Order is placed, WinStar may cancel it only by notice
of cancellation not less then ten days prior to delivery of the
corresponding Circuit, and payment of any specified cancellation fee.
WinStar agrees that the actual damages in the event of such
cancellation would be difficult or impossible to ascertain, and that
the cancellation charge set forth in herein is consequently intended
to establish liquidated damages and not a penalty.
(d) Any conflicting, different or additional terms and conditions
contained in WinStar's acknowledgment or Service Order or elsewhere
are deemed objected to by Xxxxxxxx and shall not constitute part of
this Agreement. No action by Xxxxxxxx (including fulfillment of such
Service Order) shall be construed as binding or estopping Xxxxxxxx
with respect to such conflicting, different or additional term or
condition, unless the Service Order containing said term or condition
has been signed by an authorized representative of Xxxxxxxx.
(e) Xxxxxxxx shall make reasonable efforts to provide Telecommunications
Services, Other Services and Additional Services within its standard
service implementation interval, as set forth herein or on WinStar's
Requested Start Date. Telecommunications Services, Other Services or
Additional Services, as applicable, shall begin on the date Xxxxxxxx
issues a notice that service is available (the "Start of Service
Notice" or "SOSN"), indicating the service has been tested by Xxxxxxxx
in accordance with Xxxxxxxx' standard specifications and that the
service meets or exceeds those specifications.
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(f) WinStar may reasonably request one or more delays in the Requested
Start Date of a Service Order, a move, or rearrangement if Xxxxxxxx
receives the delay request at least fifteen (15) days prior to the
Requested Start Date and the requested delay does not extend the
Requested Start Date more than thirty (30) days from the original date
thereof. If WinStar delays the Requested Start Date (or as gauged by
the SOSN, if issued for a date after the Requested Start Date) by more
than thirty (30) days, WinStar has the option to (a) accept the
billing for the Service Order, (b) in the case of On-Net
Telecommunications Services, Other Services, or Additional Services,
cancel the Service Order and pay the applicable cancellation charges
for the facilities ordered, or (c) in the case of Off-Net
Telecommunications Services, Other Services, or Additional Services,
cancel the Service Order and pay any charges or other costs Xxxxxxxx
incurs as a result of such cancellation. The billing or cancellation
will be effective thirty (30) days after the Requested Start Date. If
WinStar elects to accept billing, the installation will be completed
as soon as reasonably practical after WinStar advises Xxxxxxxx that
the installation can be completed.
(g) Subject to the terms of Section 24.1(l), if, after the relevant Start
Date, Xxxxxxxx is in material breach of its obligation to issue a SOSN
for On-Net Telecommunications Services (excluding any breach arising
from delays in obtaining or failures to obtain or maintain service
such as local access or Off-Net service, but excluding POP-to-POP
On-Net service) for a period of more than one hundred twenty (120)
consecutive days after WinStar provides written notice of such breach,
WinStar may deduct from each succeeding monthly invoice, so long as
that breach continues, the amount by which such Telecommunications
Services would otherwise have contributed toward the Minimum
Commitment during any month following such one hundred twenty (120)
day period. Upon Xxxxxxxx' issuance of the corresponding SOSN, no
further deductions shall be available to WinStar for such
Telecommunications Services.
5.3. Changes in Service Parameters.
(a) WinStar may disconnect Off-Net Telecommunications Service, Other
Services, or Additional Services provided by a Third-Party Service
Provider pursuant to a Service Order by providing sixty (60) days'
prior written notice and paying any and all amounts properly due that
Provider for the affected Service Order.
(b) Following the relevant Start Date for any On-Net service, WinStar may
disconnect or reconfigure that service upon sixty (60) days' prior
written notice. If that action relates to a Circuit that has not been
in place for at least one (1) year from its Start Date, (i) WinStar
shall pay Xxxxxxxx an amount equal to the total of the monthly charges
for one year of service of such Circuit, less the amount of monthly
charges actually paid at the time of service disconnection (the
"Minimum Term Liability") and (ii), WinStar shall also pay Xxxxxxxx
the additional charges set forth in this Agreement that are associated
with that disconnection or reconfiguration. Subsection (ii) shall also
apply in the event of a cancellation in accordance with Section
5.2(c).
14
5.4. Assignment and Assumption of Backbone Agreements.
(a) Assumption. Subject to subsection (i) below and WinStar obtaining any
necessary required consents, WinStar will assign to Xxxxxxxx pursuant
to a mutually acceptable assignment and assumption agreement, all
Backbone Agreements that can be assigned, to the extent that Xxxxxxxx
has the requisite intrastate or international authority to provide the
services encompassed by such Backbone Agreements. The date of the
assignment shall be the "Assignment Agreement Effective Date". After
such assumption, the terms and conditions of such Assumed Backbone
Agreements or such Renegotiated Backbone Agreement, as applicable,
(including all technical standards and service provisioning intervals)
shall prevail solely with regard to services provided by Xxxxxxxx to
WinStar thereunder, except as to any Circuit which has been migrated
on Xxxxxxxx Network as provided below.
(b) Renegotiation. Xxxxxxxx shall renegotiate the Assumed Backbone
Agreements, as it is reasonably able, to improve on the terms and
pricing thereof. Any such renegotiated terms shall only be applicable
to WinStar to the extent it improves the terms and pricing of the
Backbone Agreement as assigned to Xxxxxxxx. Once an Assumed Backbone
Agreement is renegotiated, it shall be considered a Renegotiated
Backbone Agreement for all purposes herein. Xxxxxxxx will only pass
through to WinStar, and WinStar shall be entitled to, its pro-rata
share of such cost savings achieved in any Renegotiated Backbone
Agreement. WinStar's pro-rata share will be determined by dividing the
then current WinStar Circuit or billing volumes by the total new
Circuit or billing volume under the Renegotiated Backbone Agreement.
(c) Payment Agent. WinStar shall designate Xxxxxxxx as its payment agent
with respect to all Backbone Agreements that cannot be assigned to
Xxxxxxxx pursuant to subsection (a) above.
(d) Payment and Minimum Commitments. WinStar shall pay Xxxxxxxx for
services rendered under the Assumed Backbone Agreements and
Renegotiated Backbone Agreements at the rates therein and shall also
remain responsible for meeting the associated minimum revenue or
volume commitments, if any (the "Minimums"). With respect to any
Renegotiated Backbone Agreement, WinStar shall abide by the
renegotiated terms and conditions, including paying the reduced price
as set forth in subsection (b) above. WinStar shall, in all instances
and to the extent such amounts are pre-calculated, pay the
non-recurring and monthly recurring charges to Xxxxxxxx in immediately
available funds at least one billing cycle prior to the date that
payment is due from Xxxxxxxx to the Backbone Agreement Service
Provider under an Assumed Backbone Agreement or a Renegotiated
Backbone Agreement.
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(e) Administration. The parties will work together to identify the
Circuits related to each Backbone Agreement and, after assignment,
minimum revenue or volume commitments of WinStar, if any, associated
with the Assumed Backbone Agreements and Renegotiated Backbone
Agreements. In no event shall WinStar be responsible for any minimum
revenue or volume commitments under a Renegotiated Backbone Agreement
beyond such commitments agreed to by WinStar prior the Effective Date.
Subject to WinStar's confidentiality obligations, WinStar will provide
Xxxxxxxx reasonable access to its records, books and other documents
and data related to each Backbone Agreement, Assumed Backbone
Agreement and Renegotiated Backbone Agreement. WinStar will also
cooperate with Xxxxxxxx in the administration of such agreements.
Xxxxxxxx is not obligated to assume any Circuit until such Circuit is
identified by the parties.
(f) WinStar Disputes. Xxxxxxxx will endeavor to resolve, on behalf of
WinStar and at WinStar's expense, any back-billing dispute which
accrued prior to the applicable Assignment Agreement Effective Date
(provided that notice of any such dispute is received by Xxxxxxxx
before any such Assignment Agreement Effective Date) and WinStar will
cooperate fully in any such effort.
(g) Orders Under Assumed and Renegotiated Backbone Agreements. Unless
otherwise permitted by Xxxxxxxx, WinStar will place orders under
Assumed Backbone Agreements and Renegotiated Backbone Agreements
through Xxxxxxxx. Xxxxxxxx will not be obligated to accept any Circuit
arranged by WinStar in contravention of this provision and such
Circuit will not become subject to the Assignment and Assumption
Agreement unless otherwise agreed to by Xxxxxxxx, such agreement not
to be unreasonably withheld.
(h) Relationship to the Minimum Commitment and Migration. Provision of
service under any Backbone Agreement (including the Assumed Backbone
Agreements and Renegotiated Backbone Agreements) will not count toward
satisfaction of the Minimum Commitment until such time as such
Circuits are migrated onto the Xxxxxxxx Network. Subject to WinStar's
prior approval in each instance, Xxxxxxxx shall migrate Circuits
provided under any Assumed Backbone Agreements or Renegotiated
Backbone Agreements as soon as reasonably possible, taking into
account any Circuit terms, early termination fees or Minimums.
(i) Assumption Proviso. Xxxxxxxx shall not be obligated to assume any
Backbone Agreement that would materially conflict with another
Xxxxxxxx contract, have a materially adverse effect on Xxxxxxxx, or
that contains any material usage commitment based upon a percentage of
WinStar's telecommunications needs. In the event Xxxxxxxx does not
assume such Backbone Agreement, Xxxxxxxx will act as a payment agent
as provided in Section 5.4(c).
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6. CONNECTION TO THE SYSTEM AND COLLOCATION
6.1. Collocation.
(a) WinStar shall have the right to use Transmission Sites along the Route
pursuant to the Fiber Collocation Provisions. Such Transmission Sites
shall meet or exceed the power and building requirements specified in
Exhibit G. WinStar shall provide, maintain, and for all purposes be
solely responsible for all WinStar Equipment at Transmission Sites or
other locations.
(b) Collocations in Xxxxxxxx Points of Presence will be provided in
accordance with the terms contained in Exhibit C, Part 2.
(c) Subject to the terms of Section 24.1(l), if, after the Acceptance Date
for any System Segment, Xxxxxxxx is in material breach of its
obligation to provide the rack space or square footage specified by
the Collocation Provisions at any Transmission Site (excluding
Transmission Sites on the Dallas-Houston System Segment) for a period
of more than one hundred twenty (120) consecutive days after WinStar
provides written notice of such breach, WinStar may deduct the
following amount from its monthly invoice, pro-rated for partial
months, so long as that material breach continues beyond such one
hundred twenty (120) day period: (i) Five Thousand Dollars ($5,000)
per month prior to the eighth anniversary of the relevant Acceptance
Date, (ii) one thousand dollars ($1,000) per month from the the eighth
anniversary of the relevant Acceptance Date up to but not including
the tenth anniversary of the relevant Acceptance Date, and (iii) five
hundred dollars ($500) per month thereafter. The preceding provision
shall apply on a per-Transmission Site basis for each relevant
Transmission Site.
6.2. Interconnection.
(a) With respect to each of the cities served by the WinStar Fibers, the
parties shall mutually determine the most efficient manner of
providing the required connectivity ("Interconnection") between the
WinStar and Xxxxxxxx points of presence, whether through then-existing
installed capacity, implementation of new capacity or third party
arrangements. In addition, the parties shall set and periodically
review the schedule (timing and priority) of implementation of those
Interconnection facilities and shall adhere to that schedule in
implementing such facilities.
17
(b) The parties shall allocate the costs of each Interconnection facility
as follows:
(i) The parties shall mutually agree upon a forecast of each party's
usage of that Interconnection facility during the first year
after implementation (the "Forecast"). The non-recurring costs
associated with the implementation of that facility and the
recurring cost thereof in the first month of operation (in
aggregate, the "Start-up Costs") will be allocated pro rata
between the parties based upon the Forecast. One year thereafter
the parties shall re-calculate the allocation of the Start-up
Costs by substituting actual usage during the preceding year in
place of the Forecast. Based upon that recalculation, Xxxxxxxx
shall pay or receive a refund, in either case equal to the
difference between the initial allocation of the Start-up Costs
and the recalculated amount, plus interest at the Prime Rate for
the applicable period.
(ii) On a quarterly basis, the parties shall allocate the periodic
recurring costs of that Interconnection facility pro rata between
the parties based upon actual usage during the preceding quarter.
(iii)Following the Effective Date, the parties will mutually develop
appropriate procedures to implement the foregoing.
6.3. Ancillary Services.
Xxxxxxxx may also provide other services to WinStar for reasons
including, but not limited to: (a) WinStar's request to expedite
Telecommunications Services availability to a date earlier than
Xxxxxxxx' published installation interval or a previously accepted
Start Date; (b) Telecommunications Services redesign or other activity
occasioned by receipt of inaccurate information from WinStar; (c)
WinStar's request for use of routes or facilities other than those
selected by Xxxxxxxx for provision of the Telecommunications Services;
and (d) other circumstances in which extraordinary costs and expenses
are generated at the written request of WinStar and incurred by
Xxxxxxxx (collectively, "Ancillary Services").
7. ACCEPTANCE AND TESTING OF FIBERS
7.1. Overview.
Fiber Acceptance Testing of the WinStar Fibers shall be conducted for
each System Segment Portion ("System Segment Portion Fiber Acceptance
Testing" or "SSPFAT"). The provisions set forth below address the
acceptance procedures and provisions regarding failure notices,
corrections, third party testing and testing of the Option Fibers.
18
7.2. SSPFAT by Xxxxxxxx.
Xxxxxxxx shall perform SSPFAT of the WinStar Fibers in accordance with
Exhibit D. SSPFAT shall progress System Segment Portion by System
Segment Portion along the Route of each System Segment as cable
splicing progresses, so that test results may be reviewed in a timely
manner. WinStar shall have the right, but not the obligation, to have
an individual present to observe Xxxxxxxx' SSPFAT or to conduct its
own SSPFAT in accordance with Section 7.3 below (except, in either
case, to the extent Xxxxxxxx' System Segment Portion Fiber Acceptance
Testing takes place prior to the period ending twenty (20) days after
the Effective Date). Xxxxxxxx shall provide WinStar at least ten (10)
days prior notice of Xxxxxxxx' testing schedule or any change thereto.
Within twenty (20) days after the conclusion of any SSPFAT of the
WinStar Fibers conducted by Xxxxxxxx in any given System Segment
Portion, Xxxxxxxx shall provide WinStar with a copy of the test
results provided that in no case shall Xxxxxxxx be obligated to
provide copies of such test results before January 11, 1999.
7.3. SSPFAT by WinStar.
WinStar shall have the right, but not the obligation, at its sole
expense, to conduct its own SSPFAT of the WinStar Fibers to verify
that they meet the Acceptance Standards. If WinStar elects to conduct
its own SSPFAT of the WinStar Fibers, it shall notify Xxxxxxxx of its
intent to do so (including dates and locations) at least three (3)
days prior to the date of Xxxxxxxx' scheduled commencement of the
SSPFAT of a particular System Segment Portion as specified in
Xxxxxxxx' ten day prior written notice to WinStar as provided in
Section 7.2. WinStar may elect to perform such testing (i) itself
subsequent to the Xxxxxxxx testing or (ii) concurrently with Xxxxxxxx'
testing (except to the extent Xxxxxxxx' testing take place prior to
the period ending twenty (20) days after the Effective Date), in which
case both parties shall reasonably cooperate with the other to
facilitate such concurrent testing. If WinStar elects to perform the
testing itself subsequent to Xxxxxxxx' testing, WinStar will complete
such testing within ten (10) days after Xxxxxxxx completes its SSPFAT
of the relevant System Segment Portion (except to the extent such
Xxxxxxxx testing takes place prior to the period ending twenty (20)
days after the Effective Date in which case WinStar shall complete
such SSPFAT by January 25, 1999). Xxxxxxxx shall have the right, but
not the obligation, to have an individual present to observe WinStar's
SSPFAT. Within twenty (20) days after the conclusion of WinStar's
SSPFAT of the WinStar Fibers, WinStar shall provide Xxxxxxxx with a
copy of the test results. WinStar's exercise or non-exercise of its
right to conduct SSPFAT shall not extend or shorten the time periods
for WinStar to determine, pursuant to Section 7.4, if the System
Segment Portion meets the Acceptance Standards. Xxxxxxxx shall
reasonably cooperate with WinStar to facilitate SSPFAT. Changes in
testing schedules may be mutually agreed upon by the Parties.
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7.4. Failure Notice.
If, within fourteen (14) days after the later of (i) receipt by
WinStar from Xxxxxxxx of the test results referred to in Section 7.2
or of the results of re-testing as set forth below and (ii) WinStar
conclusion of its own testing as provided in Section 7.3, WinStar
reasonably determines that Xxxxxxxx' or WinStar's test results show
that the System Segment Portion of the WinStar Fibers do not meet the
Acceptance Standards, WinStar shall, within such fourteen (14) day
period, notify Xxxxxxxx of such determination and shall identify in
writing the specific data that indicate such failure to meet the
Acceptance Standards. Notwithstanding the foregoing, if the fourteen
(14) day period ends prior to January 25, 1999 for any System Segment
Portion, WinStar will have until January 25, 1999 to give Xxxxxxxx
notice of failures of the System Segment Portion to meet the
Acceptance Standard.
7.5. Correction.
(a) Upon receiving notice pursuant to Section 7.4 that a System Segment
Portion of the WinStar Fibers do not meet the Acceptance Standards,
Xxxxxxxx shall either:
(i) Expeditiously take such action as reasonably necessary to cause
such System Segment Portion to meet the Acceptance Standards and
then re-test in accordance with the provisions of this Article;
or
(ii) Notify WinStar that Xxxxxxxx disputes WinStar's determination
that the System Segment Portion of the WinStar Fibers do not meet
the Acceptance Standards.
(b) After taking corrective actions and re-testing the WinStar Fibers (if
appropriate), Xxxxxxxx shall provide WinStar with a copy of the new
test results and WinStar shall again have all rights provided in this
Article with respect to such new test results. The cycle described
above of testing, taking corrective action and re-testing shall take
place until the WinStar Fibers meet the Acceptance Standards;
provided, however, repeating this cycle shall not in any manner
whatsoever limit any other right or remedy WinStar may have under this
Agreement.
7.6. Testing by Third Party.
If Xxxxxxxx provides notice to WinStar pursuant to Subsection
7.5(a)(ii), and the parties are unable to otherwise mutually agree,
the parties shall appoint a mutually acceptable fiber optic testing
company and such company shall re-test the applicable System Segment
Portion of the WinStar Fibers. If that test demonstrates that the
tested System Segment Portion of the WinStar Fibers meet the
Acceptance Standards without any changes to such portion by Xxxxxxxx
as tested by WinStar, then WinStar shall pay the testing company's
charges and shall be deemed to have accepted the relevant System
Segment Portion of the WinStar Fibers. If that test demonstrates that
the relevant System Segment Portion of the WinStar Fibers do not meet
the Acceptance Standards or that they do meet the Acceptance Standards
due to changes made by Xxxxxxxx following WinStar's acceptance
testing, then Xxxxxxxx shall pay the testing company's charges for
performing the testing and shall perform the corrective action and
re-testing set forth in Subsection 7.5(a)(i).
20
7.7. System Segment Fiber Acceptance Testing and Acceptance Date.
If the Fiber Acceptance Testing for all System Segment Portions of a
System Segment shows that the WinStar Fibers meet the Acceptance
Standards and WinStar does not object to the results of any SSPFAT by
written notice within the time periods specified in Section 7.4,
WinStar shall be deemed to have accepted the particular System
Segment. The date of WinStar's notice accepting the System Segment of
the WinStar Fibers or the date of deemed acceptance under this Article
for the last of all of the System Segment Portions for a System
Segment to be accepted shall be the "Acceptance Date" of the WinStar
Fibers for that System Segment. The provisions of this Section shall
not be deemed to relieve Xxxxxxxx of its obligation to provide Routine
Maintenance or non-Routine Maintenance as set forth in this Agreement.
7.8. Testing of Option Fibers.
Xxxxxxxx shall include the Option Fibers in the SSPFAT of each System
Segment. Upon WinStar's exercise of the Option, Xxxxxxxx shall provide
copies of the results of all SSPFAT of the Option Fibers. The
provisions above shall be applicable to the Option Fibers if WinStar
exercises its Option.
8. USE OF THE SYSTEM
8.1. Use of WinStar Fibers.
WinStar may use the WinStar Fibers for any lawful purpose.
8.2. Notice of Damage.
WinStar shall promptly notify Xxxxxxxx of any matters pertaining to
any damage or impending damage to or loss of System that are actually
known to it and that could reasonably be expected to adversely affect
the System.
8.3. Precautions.
WinStar shall take all reasonable precautions against any damage
proximately caused by WinStar to the System or to fibers used or owned
by Xxxxxxxx or third parties.
8.4. Use of Equipment.
Neither party shall use, or allow others to use, equipment,
technologies, or methods of operation that adversely affect the
Xxxxxxxx Network or the System or the permitted use of the Xxxxxxxx
Network or the System by Xxxxxxxx or third parties or their respective
Fibers, equipment, or facilities associated therewith. If WinStar uses
equipment, technologies, and methods of operation that are
collectively either in accord with Xxxxxxxx' practices or generally
accepted industry standards, Xxxxxxxx shall have the burden of
demonstrating that WinStar has breached the requirements of the
preceding sentence.
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8.5. Liens.
WinStar shall not, directly or indirectly, cause any part of the
System to become subject to any mechanic's lien, materialman's lien,
vendor's lien, or any similar lien whether by operation of law or
otherwise. If WinStar becomes aware that it has breached its
obligations under this Section, it shall promptly: notify Xxxxxxxx in
writing, cause such lien to be discharged and released of record
without cost to Xxxxxxxx and indemnify Xxxxxxxx against all costs and
expenses (including reasonable attorneys' fees and court costs at
trial and on appeal) incurred in discharging and releasing such lien.
9. TERM
9.1. Agreement Term.
The term of this Agreement (the "Term") shall begin on the Effective
Date and shall end upon expiration of the last IRU Term to expire,
provided that, with respect to the Interim IRU, the Term shall extend
twenty-five years from the Effective Date.
9.2. IRU Terms.
The term of this Agreement in respect of each System Segment (the "IRU
Term") shall begin on the applicable Acceptance Date and shall end on
the twenty-fifth (25th) anniversary of such Acceptance Date.
9.3. Effect of Termination.
No termination of this Agreement, an IRU Term, or of the Interim IRU
shall affect the rights or obligations of any party hereto:
(a) With respect to any payment hereunder for services rendered during the
Term; or
(b) Pursuant to Articles 14, 15, 16, 17, 18, 20, 23 and 24.1 entitled
Audit Rights; Indemnification; Limitation of Liability; Insurance;
Taxes and Governmental Fees; Confidentiality; Remedies and Dispute
Resolution; and Rules of Construction, respectively.
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10. OPERATION, MAINTENANCE, AND REPAIR OF THE SYSTEM
10.1. Routine Maintenance.
During the IRU Term, Xxxxxxxx shall perform all required Routine
Maintenance at no additional cost to WinStar. "Routine Maintenance"
means the work specifically identified as Routine Maintenance in
Exhibit I, provided that Routine Maintenance excludes work for which
WinStar is obligated to reimburse Xxxxxxxx for all or a portion of the
Costs incurred pursuant to other Articles of this Agreement (including
the Fiber Collocation Provisions).
10.2. Non-Routine Maintenance.
WinStar shall pay its Pro-Rata Share of Xxxxxxxx' direct Costs of
non-Routine Maintenance of the System, if the Cost of such work
relating to any single event or multiple related events is greater
than five thousand dollars ($5,000.00).
10.3. Subcontractors.
Xxxxxxxx may subcontract provisioning, testing, maintenance, repair,
restoration, relocation, or other operational and technical services
it is obligated to provide hereunder or may have the underlying
facility owner or its contractor perform such obligations. Such
subcontracting shall not relieve Xxxxxxxx of any obligations under
this Agreement.
10.4. Continued Breach of Routine Maintenance Obligations.
Subject to the terms of Section 24.1(l), if, after the Acceptance Date
for any System Segment, Xxxxxxxx is in material breach of its
obligation to provide Routine Maintenance for a period of more than
one hundred twenty (120) consecutive days after WinStar provides
written notice of such breach, WinStar may deduct the following amount
per month, pro-rated for partial months, per each relevant Route mile
from its monthly invoice so long as that material breach continues
beyond such one hundred twenty (120) day period: (i) seventy dollars
($70) per month prior to the eighth anniversary of the relevant
Acceptance Date, (ii) ten dollars ($10) per month from the eighth
anniversary of the relevant Acceptance Date up to but not including
the tenth anniversary of the relevant Acceptance Date, and (iii) five
dollars ($5) per month thereafter.
10.5. WinStar Equipment.
Xxxxxxxx' maintenance and repair obligations under this Agreement
shall not include maintenance, repair or replacement of WinStar
Equipment.
10.6 Access to Systems.
WinStar shall not access any physical part of any System Segment
(other than pursuant to the Fiber Collocation Provisions) without the
prior written consent of Xxxxxxxx, and then only upon the terms and
conditions specified by Xxxxxxxx.
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11. RELOCATION
11.1. Relocation.
If, following the Acceptance Date for any System Segment, Xxxxxxxx
determines for bona fide operational reasons, or is required by a
third party acting pursuant to condemnation or similar authority or by
a governmental entity, to relocate all or any portion of such System
Segment or any of the facilities used or required in providing WinStar
with the WinStar IRU, Xxxxxxxx shall, to the extent practicable,
provide WinStar sixty (60) days' prior notice of any such relocation
and shall proceed with such relocation. Xxxxxxxx shall have the right
to direct such relocation, including the right to determine the extent
of, the timing of, and methods to be used for such relocation,
provided that any such relocation:
(a) Shall be constructed and tested in accordance with the
specifications and requirements set forth in this Agreement and
applicable Exhibits;
(b) Shall not result in a materially adverse change to the
operations, performance, Connecting Points with the network of
WinStar, or end points of the System Segment; and
(c) Shall not unreasonably interrupt service on the System Segment.
For purposes of this Section, a Xxxxxxxx' relocation shall be for bona
fide operational reasons if it is undertaken in good faith (i) to
settle or avoid a bona fide threatened or filed condemnation action or
order by a governmental authority to relocate, (ii) to reduce the
likelihood of physical damage to the System, (iii) as the result of a
Force Majeure Event, or (iv) for other operational reasons to which
WinStar has consented, provided that WinStar shall not unreasonably
withhold such consent. Xxxxxxxx shall use reasonable efforts to
contest any exercise of condemnation authority that would require a
relocation that would require WinStar to reimburse Xxxxxxxx pursuant
to this Article 11.
11.2. Cost of Relocation.
Unless such relocation is necessitated by a breach of Xxxxxxxx'
obligations under this Agreement, any Costs Xxxxxxxx incurs shall not
be Routine Maintenance Costs, and WinStar shall reimburse Xxxxxxxx for
the Costs incurred in the same manner and to the same extent as is set
forth for reimbursement of non-Routine Maintenance Costs in Section
10.2.
11.3. Updated As-Built Drawings.
At WinStar's written request, Xxxxxxxx shall deliver to WinStar
updated as-built drawings with respect to a relocated portion of the
System Segment within the later of one-hundred eighty (180) days
following the completion of such relocation or thirty (30) days after
receipt of WinStar's request.
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12. INVOICING AND PAYMENT
12.1. Due Date and Invoice.
(a) Payments of the Contract Price and Exercise Price shall be made
in accordance with the Payment Terms.
(b) All amounts stated on each monthly invoice are due and payable
thirty (30) days from WinStar's receipt of the invoice ("Due
Date"). WinStar agrees to remit payment to Xxxxxxxx at the
remittance address set forth in the applicable invoice.
12.2. Form of Payment.
WinStar shall pay the Contract Price and Exercise Price by wire
transfer of immediately available funds to the United States account
or accounts designated by Xxxxxxxx. All other payments to be made
pursuant to this Agreement may be made by check or draft of
immediately available funds delivered to the address designated in
writing by the other party (e.g., in a statement or invoice) or,
failing such designation, to the address for notice to such other
party provided pursuant to Article 19.
12.3. Disputed Charges.
(a) WinStar shall pay undisputed charges when such payments are due
under this Agreement. WinStar may withhold payment of particular
charges that WinStar disputes in good faith and for which it
promptly gives written notice to Xxxxxxxx, stating the details of
such dispute. The parties shall promptly refer such matter to
dispute resolution in accordance with Section 23. If WinStar
withholds any disputed charges and such charges are ultimately
determined to be proper and payable to Xxxxxxxx, WinStar shall
pay such charges to Xxxxxxxx plus interest at the Prime Rate from
the date such charges were originally due until the date such
charges are paid. No payment dispute shall be grounds for
Xxxxxxxx to withhold or diminish the quality or quantity of any
of the connectivity and services provided hereunder.
(b) If WinStar fails to pay undisputed charges provided for under
this Agreement when such charges are due, Xxxxxxxx may, in
addition to any other remedies that it may have under this
Agreement or by law, terminate this Agreement only as it applies
to the System Segment(s) or Telecommunications Services to which
such failure applies, upon at least thirty (30) days' notice, if
such payment (together with applicable interest) is not made
within such thirty (30) day notice period subject to WinStar's
thirty-day right to cure, provided however, that this remedy of
termination shall be available to Xxxxxxxx only with respect to
System Segments for which the unpaid amount exceeds two hundred
thousand dollars ($200,000) at the time of such notice.
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12.4. Late Interest.
If either Xxxxxxxx or WinStar fails to make any payment under this
Agreement when due, such amounts shall accrue interest, from the date
such payment is due until paid, including accrued interest, at the
Prime Rate.
12.5. Adjustments.
Xxxxxxxx may make corrections to its invoices to reflect undercharges
only for the period of two (2) years following the Due Date of each
invoice, or two (2) years following the date the corresponding service
is rendered, whichever is later.
13. DISCLAIMER OF WARRANTIES
13.1. Parties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PARTIES MAKE
NO WARRANTY TO EACH OTHER OR ANY OTHER ENTITY, WHETHER EXPRESS,
IMPLIED OR STATUTORY, AS TO THE MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OF ANY FIBERS, THE SYSTEM, THE TELECOMMUNICATIONS
SERVICES, ANY OTHER SERVICES OR ANY ADDITIONAL SERVICES PROVIDED
HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH
WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
13.2. Facility Owners/Lenders.
NO FACILITY OWNERS/LENDERS HAVE MADE ANY REPRESENTATION OR WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED, TO WINSTAR CONCERNING XXXXXXXX, THE
WINSTAR FIBERS, THE CABLE, OR THE SYSTEM OR AS TO ANY OF THE MATTERS
SET FORTH IN SECTIONS 12.1 OR 24.2(a).
14. AUDIT RIGHTS
Each party shall keep such books and records (which shall be maintained on
a consistent basis and substantially in accordance with generally accepted
accounting principles) as shall readily disclose the basis for any charges
(except charges fixed in advance by this Agreement or by separate written
agreement of the parties) or credits, ordinary or extraordinary, billed or
due to the other party under this Agreement and shall make them available,
upon reasonable notice and during normal working hours, for examination,
audit, and reproduction by the other party and its agents for a period of
one (1) year after such charge or credit is billed or due.
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15. INDEMNIFICATION
15.1. Indemnification.
Each party ("Indemnitor") shall indemnify, defend, protect, and hold
harmless the other party, its employees, members, managers, officers,
agents, contractors, Facility Owners/Lenders, and Affiliates
(collectively and individually, "Claimant"), from and against any and
all Losses resulting or arising from, relating to or incurred in
connection with:
(a) The Indemnitor's failure to observe or perform its duties or
obligations to third parties (e.g., duties or obligations to its
customers);
(b) The Indemnitor's infringement or misappropriation of Intellectual
Property Rights of any third party;
(c) The death or bodily injury of any agent, employee, customer,
business invitee or any other person to the extent caused by the
tortious conduct of the Indemnitor;
(d) The damage, loss or destruction of any real or tangible personal
property to the extent caused by the tortious conduct of the
Indemnitor;
(e) Fines, penalties or other amounts payable due to the Indemnitor's
violation of applicable laws or regulation; and
(f) Any claim, demand, charge, action, cause of action, or other
proceeding asserted against the Claimant but resulting from an
act or omission of the Indemnitor in its capacity as an employer
of a person.
15.2. Third Party Claims.
With respect to third-party claims, the following procedures shall
apply:
(a) Promptly after receipt of notice of the commencement or
threatened commencement of any civil, criminal, administrative,
or investigative action or proceeding involving a claim in
respect of which the Claimant will seek indemnification pursuant
to this Article 15, the Claimant will notify the Indemnitor of
such claim in writing. No failure to so notify the Indemnitor
will relieve the Indemnitor of its obligations under this
Agreement except to the extent that its ability to defend such
claim is materially prejudiced by such failure. Within fifteen
(15) calendar days following receipt of written notice from the
Claimant relating to any claim, but no later than ten (10)
calendar days before the date on which any response to a
complaint or summons is due, the Indemnitor will notify the
Claimant in writing if the Indemnitor elects to assume control of
the defense and settlement of that claim (a "Notice of
Election").
(b) If the Indemnitor delivers a Notice of Election relating to any
claim within the required notice period, the Indemnitor shall be
entitled to have sole control over the defense and settlement of
such claim; provided that (i) the Claimant shall be entitled to
observe the defense of such claim and to employ counsel at its
own expense to observe the defense of such claim, and (ii) the
Indemnitor shall obtain the prior written approval, not to be
unreasonably withheld or delayed, of the Claimant before ceasing
to defend against such claim or entering into any settlement of
such claim. After the Indemnitor has delivered a Notice of
Election relating to any claim in accordance with the preceding
paragraph, the Indemnitor shall not be liable to the Claimant for
any legal expenses incurred by the Claimant in connection with
the defense of that claim. In addition, the Indemnitor shall not
be required to indemnify the Claimant for any amount paid or
payable by the Claimant in the settlement of any claim for which
the Indemnitor has delivered a timely Notice of Election if such
amount was agreed to without the written consent of the
Indemnitor.
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(c) If the Indemnitor does not deliver a Notice of Election relating
to any claim within the required notice period or after
delivering a Notice of Election fails to defend the claim, the
Claimant shall have the right to defend the claim in such manner
as it may deem appropriate. The Indemnitor shall promptly
reimburse the Claimant for all reasonable costs and expenses of
such defense.
15.3. Indemnification of Providers.
WinStar shall indemnify and hold harmless Xxxxxxxx and any Third Party
Service Providers from and against all Losses arising out of or
relating to the content of any transmission by WinStar, including
claims relating to any violation or alleged violation of export
control laws or other laws or failure to comply with WinStar's
obligations as set forth in Sections 26.4 and 26.5.
15.4. WinStar Customers.
WinStar shall indemnify and hold Xxxxxxxx harmless from and against
all Losses arising out of or relating to the use of the WinStar Fibers
by any WinStar customer.
16. LIMITATION OF LIABILITY
16.1. General Intent.
Subject to the specific provisions of this Article 16, it is the
intent of the Parties that each party shall be liable to the other
party for any actual damages incurred by the non-breaching party as a
result of the breaching party's failure to perform its obligations in
the manner required by this Agreement.
16.2. Liability Restrictions.
(a) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF
WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY
BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR
SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
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(b) Subject to Subsection (c), below, each party's total liability to
the other, whether in contract or in tort (including breach of
warranty, negligence and strict liability in tort) shall be
limited to two hundred million dollars ($200,000,000).
(c) The limitation set forth in Subsections (b), above, shall not
apply with respect to: (i) third-party claims subject to
indemnification pursuant to the Agreement; (ii) fees due and
owing under this Agreement at the time of the claim; and (iii)
amounts subject of Cover as provided in Section 4.2(b).
(d) For the purposes of this Section 16.2, all amounts payable or
paid to third parties in connection with claims that are eligible
for indemnification pursuant to this Agreement shall be deemed
direct damages.
16.3. Released Parties.
Neither party shall have any recourse of any kind against any Released
Party or any assets of a Released Party in respect of any Claim that
is not directly or indirectly caused by the Released Party, it being
expressly agreed and understood that no liability whatsoever shall
attach to or be incurred by any Released Party in respect of any Claim
under or by reason of this Agreement or any other instrument,
arrangement or understanding relating to the Network IRU, the System,
the Interim IRU, the Telecommunications Services, the Other Services
or Additional Services, except to the extent such Claim is directly or
indirectly caused by the Released Party. Each party waives all such
recourse to the extent set forth in this Section on behalf of its
successors, assigns, and any entity claiming by, through, or under
such party.
17. INSURANCE
17.1. Insurance.
During the Term, the parties shall each obtain and maintain not less
than the following insurance:
(a) Commercial General Liability Insurance, including coverage for
sudden and accidental pollution legal liability, with a combined
single limit of $10,000,000 for bodily injury and property damage
per occurrence and in the aggregate.
(b) Worker's Compensation Insurance in amounts required by applicable
law and Employers Liability Insurance with limits not less than
$1,000,000 each accident. If work is to be performed in Nevada,
North Dakota, Ohio, Washington, Wyoming or West Virginia, the
party shall participate in the appropriate state fund(s) to cover
all eligible employees and provide a stop gap endorsement.
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(c) Automobile Liability Insurance with a combined single limit of
$2,000,000 for bodily injury and property damage per occurrence,
to include coverage for all owned, non-owned, and hired vehicles.
The limits set forth above are minimum limits and shall not be construed to
limit the liability of either party.
17.2. Documentation.
(a) Each party shall obtain and maintain the insurance policies
required above with companies rated A- or better by Best's Key
Rating Guide or with a similar rating by another generally
recognized rating agency. The other party, its Affiliates,
officers, directors, and employees, and any other party entitled
to indemnification hereunder shall be named as additional
insureds to the extent of such indemnification. Each party shall
provide the other party with an insurance certificate confirming
compliance with the insurance requirements of this Article. The
insurance certificate shall indicate that the other party shall
be notified not less than thirty (30) days prior to any
cancellation or material change in coverage.
(b) If either party provides any of the foregoing coverages through a
claims made policy basis, that party shall cause such policy or
policies to be maintained for at least three (3) years beyond the
expiration of this Agreement.
17.3. Certificates.
The parties shall each obtain from the insurance companies providing
the coverages required by this Agreement a waiver of all rights of
subrogation or recovery in favor of the other party and, as
applicable, its members, managers, shareholders, Affiliates,
assignees, officers, directors, and employees or any other party
entitled to indemnity under this Agreement to the extent of such
indemnity.
17.4. Blanket Policies.
Nothing in this Agreement shall be construed to prevent either party
from satisfying its insurance obligations pursuant to this Agreement
under a blanket policy or policies of insurance that meet or exceed
the requirements of this Article.
18. TAXES AND GOVERNMENTAL FEES
18.1. Payment by WinStar.
WinStar shall timely report and pay any and all sales, use, income,
gross receipts, excise, transfer, ad valorem, or other taxes, and any
and all franchise fees or similar fees, if any, assessed against it
due to its ownership of the Network IRU, its use of the WinStar
Fibers, including the provision of services over the WinStar Fibers,
its use of any other part of the System, or its ownership or use of
facilities connected to the WinStar Fibers.
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18.2. Payment by Xxxxxxxx.
Subject to Section 18.1 above, Xxxxxxxx shall timely report and pay
any and all sales, use, income, gross receipts, excise, transfer, ad
valorem or other taxes, and any and all franchise fees or similar fees
assessed against it due to its construction, ownership or use of the
System, provided that WinStar shall reimburse Xxxxxxxx for its
Pro-Rata Share of property taxes (including ad valorem, use, property,
or similar taxes, franchise fees, or assessments that are based on the
value of property or of a property right) attributable to the System,
including taxes based on the value, operation, or existence of the
System.
18.3. Reimbursement.
If Xxxxxxxx is assessed for any taxes or fees (a) related to WinStar's
ownership of the Network IRU, WinStar's use of or rights in the
WinStar Fibers, or (b) that WinStar is obligated to pay pursuant to
Sections 18.1 or 18.2, WinStar shall reimburse Xxxxxxxx for any
payment of such taxes or fees within thirty (30) days of receipt of
Xxxxxxxx' invoice.
18.4. Cooperation.
The parties shall cooperate in any contest of any taxes or fees so as
to avoid, to the extent reasonably possible, prejudicing the interests
of the other party.
18.5. Services.
If any sales taxes, valued added taxes or similar charges or
impositions are assessed against Xxxxxxxx after, or as a result of,
WinStar's use of Telecommunications Services, any Other Services or
the Additional Services by any local, state, national, international,
public or quasi-public governmental entity or foreign government or
its political subdivision, including any tax or charge levied to
support the Universal Service Fund contemplated by the
Telecommunications Act of 1996, WinStar shall be solely responsible
for and shall pay such taxes, charges or impositions and hold Xxxxxxxx
harmless from any liability or expense associated with such taxes,
charges or impositions.
19. NOTICE
Unless otherwise provided in this Agreement, all notices and communications
concerning this Agreement shall be in writing and addressed to the other
party as follows, or at such other address as may be designated in writing
to the other party:
If to WinStar: If to Xxxxxxxx:
WinStar Wireless, Inc. Xxxxxxxx Communications, Inc.
000 Xxxx Xxxxxx Xxx Xxxxxxxx Xxxxxx, Xxxxx 00-0
Xxx Xxxx, XX 00000 Xxxxx, Xxxxxxxx 00000
Attn: EVP, General Counsel Attn: Contract Administration
Facsimile: 212/922-1637 Facsimile: 918/573-6578
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With a copy to: With a copy to:
WinStar Wireless, Inc. Xxxxxxxx Communications, Inc.
0000 Xxxxxxxx Xxxx Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000
Attn: VP, Commercial and Attn: General Counsel
Legal Operations
Facsimile: 703/288-6647 Facsimile: 918/573-3005
Unless otherwise provided herein, notices shall be hand delivered,
sent by registered or certified U.S. Mail, postage prepaid, or by
commercial overnight delivery service, or transmitted by facsimile,
and shall be deemed served or delivered to the addressee or its office
when received at the address for notice specified above when hand
delivered, upon confirmation of sending when sent by facsimile, on the
day after being sent when sent by overnight delivery service, three
(3) days after deposit in the mail when sent by U.S. mail or, in the
case of invoices, upon the Due Date (as defined in the
Telecommunications Services Purchase Provision).
20. CONFIDENTIALITY
20.1. Confidential Information.
Xxxxxxxx and WinStar each acknowledge that they may be furnished with,
receive, or otherwise have access to information of or concerning the
other party that such party considers to be confidential, proprietary,
a trade secret or otherwise restricted. As used in this Agreement and
subject to Section 20.3, "Confidential Information" means all
information, in any form, furnished or made available directly or
indirectly by one party (the "Disclosing Party") to the other (the
"Receiving Party") that (i) concerns the operations, facilities,
plans, affairs and businesses of the Disclosing Party, the financial
affairs of the Disclosing Party, and the relations of the Disclosing
Party with its customers, employees and service providers, or (ii) is
marked confidential, restricted, proprietary, or with a similar
designation. The terms and conditions of this Agreement shall be
deemed Confidential Information, but may be disclosed as provided
below and Section 24.6.
20.2. Obligations.
(a) Each party's Confidential Information shall remain the property
of that party except as expressly provided otherwise by the other
provisions of this Agreement. Each party shall each use at least
the same degree of care, but in any event no less than a
reasonable degree of care, to prevent unauthorized disclosure of
Confidential Information as it employs to avoid unauthorized
disclosure of its own information of a similar nature. Except as
otherwise permitted hereunder, the parties may disclose such
information (A) to their respective directors, officers,
managers, employees, agents, contractors and consultants
(collectively, "Representatives") and (B) entities performing
services required hereunder only where: (i) use of such entity is
authorized under this Agreement, (ii) such disclosure is
necessary or otherwise naturally occurs in that entity's scope of
responsibility, and (iii) the entity agrees in writing to assume
the obligations described in this Section 20.2. Any disclosure to
such entity shall be under substantially the same confidentiality
terms and conditions as provided herein.
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(b) Each party shall take reasonable steps to ensure that its (and
its Affiliates') Representatives comply with this Section 20.2.
In the event of any disclosure or loss of, or inability to
account for, any Confidential Information of the Disclosing
Party, the Receiving Party shall promptly, at its own expense:
(i) notify the Disclosing Party in writing; (ii) take such
actions as may be necessary and cooperate in all reasonable
respects with the Disclosing Party to minimize the violation and
any damage resulting therefrom.
(c) Either party may disclose the terms and conditions of this
Agreement to any third party that (i) has expressed a bona fide
interest in consummating a significant financing, merger or
acquisition transaction or other corporate transaction between
the third party and such party, (ii) has a reasonable ability
(financial or otherwise) to consummate such transaction, and
(iii) has executed a nondisclosure agreement that includes within
its scope the terms and conditions of this Agreement and also
includes a procedure to limit the extent of copying and
distribution thereof. Each party shall endeavor to delay the
disclosure of the terms and conditions of this Agreement until
the status of discussions concerning such transaction warrants
such disclosure. In addition, either party (or either party's
Affiliates) may disclose the terms and conditions of this
Agreement as such party deems appropriate to prepare for IPOs or
major corporate transactions. Any disclosure to such entity shall
be substantially under the same confidentiality terms and
conditions as provided herein.
20.3. Exclusions.
"Confidential Information" shall exclude any particular information
that the Receiving Party can demonstrate:
(a) At the time of disclosure, was in the public domain or in the
rightful possession of the Receiving Party;
(b) After disclosure, is published or otherwise becomes part of the
public domain through no fault of the Receiving Party;
(c) Was received after disclosure from a third party who had a lawful
right to disclose such information to the Receiving Party without
any obligation to restrict its further use or disclosure;
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(d) Was independently developed by the Receiving Party without
reference to Confidential Information of the Disclosing Party; or
(e) Was required to be disclosed to satisfy a legal requirement of a
competent government body; provided that, immediately upon
receiving such request and to the extent that it may legally do
so, the Receiving Party advises the Disclosing Party promptly and
prior to making such disclosure in order that the Disclosing
Party may interpose an objection to such disclosure, take action
to assure confidential handling of the Confidential Information,
or take such other action as it deems appropriate to protect the
Confidential Information.
20.4. No Implied Rights.
Nothing contained in this Section shall be construed as obligating a
party to disclose its Confidential Information to the other party, or
as granting to or conferring on a party, expressly or impliedly, any
rights or license to the Confidential Information of the other party.
20.5 Communication With FCC.
Communications by either party with the FCC regarding the subject
matter of this Agreement shall require the other's prior written
approval.
21 . DEFAULT
A party shall not be in material breach of this Agreement unless and until
the other party provides it written notice of default and the
non-performing party has failed to cure within thirty (30) days after
receipt of such notice. Any event of default may be waived in writing at
the non-defaulting party's option. Upon the failure of a party to timely
cure its material breach hereunder within the applicable cure period, the
non-defaulting party shall have the right to (i) terminate this Agreement
or (ii) subject to the terms of Article 23, pursue any legal remedies it
may have under applicable law or principles of equity relating to such
breach.
22. FORCE MAJEURE
22.1. Excusable Delay.
Neither Xxxxxxxx nor WinStar shall be in default under this Agreement
as a result of any delay in its performance (other than a failure to
make payments when due) caused by any elements of nature or acts of
God, fire, explosion, vandalism, power outage, earthquake, flood or
lightning; any civil or military authority; by national emergency,
insurrection, rebellion, revolution, riot, civil disorders, war or act
of terrorism; by cable cuts; or any other cause beyond the reasonable
control of such party (collectively, "Force Majeure Events");
provided, however, that (i) the non-performing party is without fault
in causing such default or delay, and (ii) such default or delay could
not have been prevented by reasonable precautions and cannot
reasonably be circumvented by the non-performing party through the use
of alternate sources (e.g., other suppliers of telecommunications
services or capacity), workaround plans or other means, including
means contemplated by applicable disaster recovery processes or
procedures).
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22.2. Notice and Remedy.
In such event the non-performing party shall be excused from further
performance or observance of the obligation(s) so affected for as long
as such circumstances prevail and such party continues to use
commercially reasonable efforts to recommence performance or
observance whenever and to whatever extent possible without delay. The
non-performing party shall immediately notify the other party by
telephone (to be confirmed in writing within two (2) business days of
the inception of such delay) and describe at a reasonable level of
detail the Force Majeure Event causing such delay and the expected
duration of the Force Majeure Event. The non-performing party will
provide the other party prompt written notice of the cessation or
termination of the Force Majeure Event.
23. REMEDIES AND DISPUTE RESOLUTION
23.1. Dispute Resolution.
Any dispute between the Parties arising out of or relating to this
Agreement, the interpretation of any provision hereof or the
performance or failure to perform of Xxxxxxxx or WinStar shall be
resolved as provided in this Article 23.
23.2. Cumulative Remedies.
Except as otherwise expressly provided herein, all remedies provided
for in this Agreement shall be cumulative and in addition to and not
in lieu of any other remedies available to either party at law, in
equity or otherwise.
23.3. Informal Dispute Resolution.
(a) Prior to the initiation of formal dispute resolution procedures
(i.e., arbitration), the parties shall first attempt to resolve
their dispute at the senior manager level. If that level of
dispute resolution is not successful, the parties shall proceed
informally, as follows:
(i) Upon the written request of either party, each party shall
appoint a designated representative who does not otherwise
devote substantially full time to performance under this
Agreement, whose task it will be to meet for the purpose of
endeavoring to resolve such dispute.
(ii) The designated representatives shall meet as often as the
parties reasonably deem necessary in order to gather and
furnish to the other all information with respect to the
matter in issue that the parties believe to be appropriate
and germane in connection with its resolution. The
representatives shall discuss the problem and attempt to
resolve the dispute without the necessity of any formal
proceeding.
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(iii)During the course of discussion, all reasonable requests
made by one party to another for non-privileged
non-confidential information reasonably related to this
Agreement shall be honored so that each of the parties may
be fully advised of the other's position.
(iv) The specific format for the discussions shall be left to the
discretion of the designated representatives.
(b) Prior to instituting formal proceedings, the parties will first
have their chief executive officers meet to discuss the dispute.
This requirement shall not delay the institution of formal
proceedings past any statute of limitations expiration or for
more than fifteen (15) days.
(c) Subject to Subsection (b), formal proceedings for the resolution
of a dispute may not be commenced until the earlier of:
(i) The designated representatives concluding in good faith that
amicable resolution through continued negotiation of the
matter does not appear likely; or
(ii) Thirty (30) days after the initial written request to
appoint a designated representative pursuant to Subsection
(a), above, (this period shall be deemed to run
notwithstanding any claim that the process described in this
Section 23.3 was not followed or completed).
(d) This Section 23.3 shall not be construed to prevent a party from
instituting, and a party is authorized to institute, formal
proceedings earlier to avoid the expiration of any applicable
limitations period, or to preserve a superior position with
respect to other creditors or as provided in Section 23.6.
23.4. Arbitration.
If the Parties are unable to resolve a dispute as contemplated by
Section 23.3, then except as provided by Section 23.6, such dispute
shall be submitted to mandatory and binding arbitration at the
election of either WinStar or Xxxxxxxx (the "Disputing Party")
pursuant to the following conditions:
(a) The Disputing Party shall notify the American Arbitration
Association ("AAA") and the other party, describing in reasonable
detail the nature of the dispute (the "Dispute Notice"); and
shall request that the AAA furnish a list of five (5) possible
arbitrators who have substantial experience in the
telecommunications industry. Each party shall have fifteen (15)
days to reject two (2) of the proposed arbitrators. If only one
individual has not been so rejected, that person shall serve as
arbitrator; if two (2) or more individuals have not been so
rejected, the AAA shall select the arbitrator from those
individuals.
36
(b) The arbitration shall take place in Chicago, Illinois, in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association in effect on the date that such notice is
provided. The arbitration shall be commenced promptly and
conducted expeditiously. The parties shall be entitled to submit
expert testimony and/or written documentation on such arbitration
proceeding. The decision of the arbitrator shall be final and
binding upon Xxxxxxxx and WinStar and shall include written
findings of law and fact, and judgment may be obtained thereon by
either Xxxxxxxx or WinStar in a court of competent jurisdiction.
Xxxxxxxx and WinStar shall each bear the cost of preparing and
presenting its own case. The cost of the arbitration, including
the fees and expenses of the arbitrator, shall be shared equally
by Xxxxxxxx and WinStar unless the award otherwise provides. The
arbitrator shall be instructed to establish procedures such that
a decision can be rendered within sixty (60) days of the
appointment of the arbitrator.
(c) The obligation to arbitrate shall not be binding upon any party
with respect to requests for preliminary injunctions, temporary
restraining orders, specific performance, or other procedures in
a court of competent jurisdiction to obtain interim relief when
deemed necessary by such court to preserve the status quo or
prevent irreparable injury pending resolution by arbitration of
the actual dispute.
(d) Any arbitrator appointed to act under this Article must agree to
be bound by the provisions of this Agreement and any information
obtained during the course of the arbitration proceedings. In
particular, the arbitrator shall not have the authority to
exclude the right of a Party to terminate this Agreement when a
Party would otherwise have such right. The arbitration hearing
shall be commenced promptly and conducted expeditiously.
(e) Should the arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Section, such
arbitrator shall be replaced and a rehearing shall take place in
accordance with the provisions of this Section. In such case, the
replacement for the arbitrator shall be either selected by the
AAA from the original group of potential arbitrators that were
not rejected by the parties or, if there are no such arbitrators
available, selected by repeating the process of selection
described in 23.4(a).
(f) The arbitrator is instructed that time is of the essence in the
arbitration proceeding, and that the arbitrator shall have the
right and authority to issue monetary sanctions against either of
the parties if, upon a showing of good cause, that party is
unreasonably delaying the proceeding. Recognizing the express
desire of the parties for an expeditious means of dispute
resolution, the arbitrator shall limit or allow the parties to
expand the scope of discovery as may be reasonable under the
circumstances.
37
23.5. Continued Performance.
Each party agrees to continue performing its obligations under this
Agreement while any dispute is being resolved except to the extent the
issue in dispute precludes performance.
23.6. Immediate Injunctive Relief.
The only circumstance in which disputes between the parties shall not
be subject to the provisions of Section 23.3 and 23.4 is where a
party, in good faith, determines that a temporary restraining order or
other injunctive relief is its only appropriate and adequate remedy.
If a party seeks immediate injunctive relief and does not prevail in
substantial part, that party shall pay the other party's costs and
attorneys' fees to the extent incurred in responding to or challenging
the request for immediate injunctive relief.
24. GENERAL
24.1. Rules of Construction.
(a) The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this
Agreement or as amplifying or limiting any of its content. Words
in this Agreement that import the singular connotation shall be
interpreted as plural, and words that import the plural
connotation shall be interpreted as singular, as the identity of
the parties or objects referred to may require. References to
"person" or "entity" each include natural persons and legal
entities, including corporations, limited liability companies,
partnerships, sole proprietorships, business divisions,
unincorporated associations, governmental entities, and any
entities entitled to bring an action in, or that are subject to
suit in an action before, any state or federal court of the
United States.
(b) Unless expressly defined herein, words having well-known
technical or trade meanings shall be so construed.
(c) Except as set forth to the contrary herein, any right or remedy
of Xxxxxxxx or WinStar shall be cumulative and without prejudice
to any other right or remedy, whether contained herein or not.
(d) Nothing in this Agreement is intended to provide any legal rights
to anyone not an executing party of this Agreement except under
the indemnification and insurance provisions and except that (i)
the Released Parties shall have the benefit of Sections 16.3,
24.2(a) and 24.5(a) and (ii) the Facility Owners/Lenders shall be
entitled to rely on and have the benefit of Sections 13.2 and
24.5(b).
38
(e) This Agreement has been fully negotiated between Xxxxxxxx and
WinStar.
(f) In the event of a conflict between the provisions of this
Agreement and those of any Exhibit, the provisions of this
Agreement shall prevail and such Exhibit shall be corrected
accordingly, provided that the provisions of Exhibit K shall
prevail over conflicting provisions in the Agreement or in any
Exhibit. Notwithstanding the above, terms defined in Section 7 of
Exhibit K shall not supersede terms defined in the Agreement or
in other Exhibits except as used in Exhibit K.
(g) Except as otherwise set forth herein, for the purpose of this
Agreement the normal standards of performance within the
telecommunications industry in the relevant market shall be the
measure of whether a party's performance is reasonable and
timely.
(h) Except as the context otherwise indicates, all references to
Exhibits, Articles, Sections, Subsections, Clauses, and
Paragraphs refer to provisions of this Agreement.
(i) The failure of either Xxxxxxxx or WinStar to enforce any of the
provisions of this Agreement, or the waiver thereof in any
instance, shall not be construed as a general waiver or
relinquishment on its part of any such provision, but the same
shall nevertheless be and remain in full force and effect.
(j) This Agreement shall be governed by and construed in accordance
with the domestic laws of the State of New York without reference
to its choice of law principles. All disputes referred to
arbitration and the statute of limitations and the remedies for
any wrongs that may be found shall be governed by the laws of
such state. If a proceeding is brought for the enforcement of
this Agreement or because of any alleged or actual dispute,
breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs
and expenses incurred in such action or proceeding in addition to
any other relief to which such party may be entitled.
(k) If any term, covenant or condition in this Agreement shall, to
any extent, be invalid or unenforceable in any respect under the
laws governing this Agreement, the remainder of this Agreement
shall not be affected thereby, and each term, covenant or
condition of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(l) The parties acknowledge and agree that: (i) the payment
deductions ("Payment Deductions") set forth in Sections 5.2(g),
6.1(c) and 10.4 (collectively, the "Deduction Sections") shall
not limit Xxxxxxxx' liability or serve as a sole or exclusive
remedy for Xxxxxxxx' default under any portion of this Agreement;
(ii) WinStar may seek any other rights or remedies it may have
against Xxxxxxxx for any default hereunder; (iii) none of the
Deduction Sections modify or otherwise limit any other term or
condition of this Agreement; (iv) the one hundred and twenty
(120) day periods specified in the Deduction Sections shall only
39
be applicable with respect to the Deduction Sections and such
periods shall in no manner whatsoever be construed or interpreted
to extend Xxxxxxxx' cure periods or other timing of any other
obligation set forth in any other provision of this Agreement;
and (v) WinStar's compliance with the Deduction Sections shall
not constitute a breach of the Payment Terms. Xxxxxxxx hereby
waives any rights it may have to use the Deduction Sections as a
claim or defense against any other provision in this Agreement.
24.2. Assignment.
(a) Except to the extent permitted by Section 24.2(d), neither party
may, or shall have the power to, assign this Agreement or
delegate such party's obligations hereunder without the prior
written consent of the other except to:
(i) An entity that acquires all or substantially all of the
assets of such party,
(ii) Any Affiliate,
(iii) A successor in a merger or acquisition of such party, or
(iv) In connection with any financing.
(b) Notwithstanding the foregoing, no assignment or other transfer of
this Agreement shall be effective without the written agreement
of the assignee to be bound by the terms and conditions of this
Agreement including the indemnification provisions and
limitations on liability and recourse set forth in this Agreement
(including those benefiting the Released Parties).
(c) Except with respect to the assignment of less than all of a
party's rights or obligations under this Agreement and except as
set forth in Section 24.2(e), the non-assigning party shall not
unreasonably withhold its consent to an assignment if neither the
assigning party nor the proposed assignee is in material default
under this Agreement or any other agreement with the
non-assigning party.
(d) The provisions of Section 24.2(a) notwithstanding, Xxxxxxxx may
assign some or all of its rights and obligations hereunder to
State Street Bank and Trust Company of Connecticut, National
Association, in connection with a financing by Xxxxxxxx of
construction of its fiber optic network; in addition, State
Street Bank and Trust Company of Connecticut, National
Association, may further assign this Agreement as collateral for
such financing. If Xxxxxxxx makes an assignment pursuant to this
Subsection 24.2(d), Xxxxxxxx (or its assignee pursuant to an
assignment made under the other provisions of this Section 24.2)
shall guarantee performance of the assignee's obligations.
40
(e) Except in connection with an assignment of this Agreement as
provided herein, until the third (3rd) anniversary of the
Acceptance Date of any System Segment, WinStar shall not sell the
dark fiber, raw frequency (commonly known as "windows") but may
place optronics in such System Segment and resell capacity in any
increment. After such three (3) year period, WinStar may convey
such an interest provided that WinStar shall serve as the sole
point of contact with Xxxxxxxx and no party receiving such
interest shall have any contract rights against or be in privity
of contract with Xxxxxxxx as a result of such conveyance.
(f) This Agreement and the rights and obligations under this
Agreement (including the limitations on liability and recourse
set forth in this Agreement benefiting the other party and the
Released Parties) shall be binding upon and shall inure to the
benefit of Xxxxxxxx and WinStar and their respective permitted
successors and assigns.
(g) Neither the provisions of this Article nor any other provisions
of this Agreement shall limit the ability of any Facility
Owners/Lenders or of any Released Parties to assign their rights
under this Agreement and such Facility Owners/Lenders and
Released Parties may assign their rights hereunder at any time
and from time to time without the consent of, notice to, or any
other action by any other entity. The provisions of this
Agreement benefiting the Facility Owners/Lenders and Released
Parties shall inure to the benefit of such entities and their
respective Affiliates, successors, and assigns.
(h) Notwithstanding any presumptions under applicable state law that
a change in control of a party constitutes an assignment of an
agreement, a change in control of a party, not made for purposes
of circumventing restrictions on assignment or of depriving the
other party of rights under this Agreement, shall not be deemed
an assignment for purposes of this Agreement.
24.3. Relationship of the Parties.
The relationship between Xxxxxxxx and WinStar shall not be that of
partners, agents, or joint venturers for one another, and nothing
contained in this Agreement shall be deemed to constitute a
partnership or agency agreement between them for any purposes,
including federal income tax purposes. Xxxxxxxx and WinStar, in
performing any of their obligations hereunder, shall be independent
contractors or independent parties and shall discharge their
contractual obligations at their own risk.
24.4. Prohibition on Improper Payments.
Neither party shall use any funds received under this Agreement for
illegal or otherwise "improper" purposes. Neither party shall pay any
commission, fees or rebates to any employee of the other party. If
either party has reasonable cause to believe that one of the
41
provisions in this Article has been violated, it, or its
representative, may audit the books and records of the other party for
the sole purpose of establishing compliance with such provisions.
24.5. Entire Agreement; Amendment; Execution.
(a) This Agreement constitutes the entire and final agreement and
understanding between Xxxxxxxx and WinStar with respect to the
subject matter hereof and supersedes all prior agreements (oral
or written) relating to the subject matter hereof, which are of
no further force or effect (including, in particular, the
Customer Services Agreement between Xxxxxxxx and WinStar GoodNet,
dated July 16, 1998, Contract Number 98R0675.00, provided that
any undisputed payment obligations accruing prior to the
Effective Date, shall be due and owing under the terms of this
Agreement). The Exhibits referred to herein are integral parts
hereof and are made a part of this Agreement by reference.
(b) This Agreement may only be amended, modified, or supplemented by
an instrument in a single writing executed by duly authorized
representatives of Xxxxxxxx and WinStar. No such amendment,
modification, or supplement shall result in any modification of
(i) any indemnity benefiting any Facility Owners/Lenders or their
respective Affiliates or (ii) any limitation of liability or
recourse benefiting any Released Parties that is adverse to such
Released Parties.
(c) This Agreement may be executed in one or more counterparts, all
of which taken together shall constitute one and the same
instrument.
(d) This Agreement may be duly executed and delivered by a party by
execution and facsimile delivery of the signature page of a
counterpart to the other party, provided that, if delivery is
made by facsimile, the executing party shall promptly deliver a
complete counterpart that it has executed to the other party.
(e) Unless otherwise expressly permitted in this Agreement, Xxxxxxxx
shall not make any changes to the Exhibits or Schedules attached
hereto that may have a material adverse impact on the performance
or usability of the Telecommunications Services, Additional
Services or Other Services without WinStar's prior written
consent.
24.6 Public Disclosures.
All media releases, public announcements, and public disclosures
relating to this Agreement or the subject matter of this Agreement,
including promotional or marketing material, but not including
announcements intended solely for internal distribution or disclosures
to the extent required to meet legal or regulatory requirements shall
be coordinated with and shall be subject to approval by both parties
prior to release.
42
25. REPRESENTATIONS, WARRANTIES AND COVENANTS
25.1. Representations and Warranties.
In addition to any other representations and warranties contained in
this Agreement, each party hereto represents and warrants to the other
that:
(a) It has the requisite corporate power to enter into, execute,
deliver, and perform its obligations under this Agreement;
(b) It has taken all requisite corporate action to approve the
execution, delivery, and performance of this Agreement;
(c) This Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms;
(d) Its execution of and performance under this Agreement shall not
violate any applicable existing regulations, rules, statutes, or
court orders of any local, state, or federal government agency,
court, or body;
(e) It is not subject to any contractual or other obligation that
would prevent it from entering into this relationship; and
(f) It has not offered or provided any inducements in violation of
law or the other party's policies, of which it has been given
notice, in connection with this Agreement.
25.2. Additional Xxxxxxxx Covenants.
Excluding services provided by third parties other than Xxxxxxxx'
subcontractors, Xxxxxxxx covenants that Telecommunications Services,
Additional Services, and Other Services shall be provided to WinStar
in accordance with the technical parameters set forth in the
applicable service schedule. Xxxxxxxx further covenants that it shall
use commercially reasonable efforts under the circumstances to remedy
any delays, interruptions, omissions, mistakes, accidents or errors in
the Telecommunications Services, Additional Services or Other Services
provided hereunder and to restore such Telecommunications Services or
Other Services to compliance with the terms hereof.
25.3. Infringement of Intellectual Property Rights.
Each party represents, warrants and covenants to the other that it
shall perform its responsibilities under this Agreement in a manner
that does not infringe, or constitute an infringement or
misappropriation of, any Intellectual Property Rights of any third
party.
26. USE OF TELECOMMUNICATIONS AND OTHER SERVICES
26.1. Condition to Provision of Services.
Telecommunications Services or Other Services shall not be used for
any unlawful purpose. More than ten percent (10%) of the transmissions
43
will be interstate transmissions. The parties represent to each other
that this Agreement, to the extent it is subject to FCC regulation, is
an inter-carrier agreement not subject to the filing requirements of
Section 211 (a) of the Communications Act of 1934, as amended. One
strand of the Xxxxxxxx Network is contractually limited to use for
multimedia transmission (i.e. internet traffic, video and radio
transmission services and/or related applications, including, graphic,
visual, imaging, interactive and multimedia transmissions) (the
"Restricted Fiber"). If the parties want to use such Restricted Fiber,
upon request from Xxxxxxxx, WinStar agrees within a reasonable period
of time to identify the nature of its proposed use of the Other
Service so as to permit Xxxxxxxx to determine whether the Other
Service may be carried over the Restricted Fiber. The fact that
Xxxxxxxx may not utilize the Restricted Fiber for such transmissions
shall not affect Xxxxxxxx' obligation to provide Telecommunications
Services or Other Services unless otherwise specifically set forth in
this Agreement.
26.2. Intrastate Interexchange Services.
WinStar may use any interexchange service provided under this
Agreement including any service provided by means of a Backbone
Agreement only if such interexchange service is used for carrying
inter-state (as defined by the FCC) telecommunications (i.e.,
telecommunications subject to the jurisdiction of the Federal
Communications Commission). Xxxxxxxx and its Affiliates shall not be
obligated to make available Telecommunications Services, Additional
Services, or other interexchange service on a Circuit with end points
within a single state or service on a Circuit which
originates/terminates at points both of which are situated within a
single state unless WinStar represents in writing that such
interexchange service or Circuits shall be used to carry inter-state
telecommunications (as defined by the FCC).
26.3. WinStar Responsibilities.
WinStar has sole responsibility for installation, testing and
operation of facilities, services and equipment ("WinStar Facilities")
other than those specifically provided by Xxxxxxxx as part of the
Telecommunications Services or Other Services as described in a
Service Order. In no event will the untimely installation or
non-operation of WinStar Facilities relieve WinStar of its obligation
to pay charges for the Service or Other Service after the Requested
Start Date as set forth in the Service Order.
26.4. Consents.
As between the parties, WinStar shall be responsible for all
arrangements with copyright holders, music licensing organizations,
performers' representatives or other parties for necessary
authorizations, clearances or consents with respect to transmission
contents.
44
26.5. Restriction of Transmissions.
WinStar will not transmit content, nor permit its customers to
transmit content that violates applicable law or carries an
unreasonable risk of leading to criminal, civil or administrative
proceedings or investigations against Xxxxxxxx or WinStar.
26.6 Compliance with Regulations.
If the FCC, any state regulatory body, or any court, in each case
having competent jurisdiction, determines that any provision of this
Agreement violates any applicable rules, policies, or regulations,
both parties shall reasonably cooperate to immediately bring this
Agreement into compliance, consistent with the intent of this
Agreement.
26.6. Reasonableness, Consents and Approval.
(a) Where this Agreement requires a party to assist or cooperate,
such requirement shall not be interpreted to require materially
more than a commercially reasonable level of effort (i.e. the
standard applicable will not be "best efforts" or "exhausting all
available means").
(b) Except where expressly provided as being in the sole discretion
of a party, where agreement, approval, acceptance, consent, or
similar action by either party is required under this Agreement,
such action shall not be unreasonably delayed or withheld. An
approval or consent given by a party under this Agreement shall
not relieve the other party from responsibility for complying
with the requirements of this Agreement, nor shall it be
construed as a waiver of any rights under this Agreement, except
as and to the extent otherwise expressly provided in such
approval or consent.
45
IN WITNESS WHEREOF and in confirmation of their consent to the terms
and conditions contained in this Agreement and intending to be legally bound
hereby, Xxxxxxxx and WinStar have executed and delivered this Agreement as of
the dates set forth below.
WINSTAR WIRELESS, INC. XXXXXXXX COMMUNICATIONS, INC.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx Xxxxxx
By: -------------------------------------------- By: ----------------------------------------
Xxxxxxx X. Xxxxxx Xxxxx Xxxxxx
Name: -------------------------------------------- Name: ----------------------------------------
Vice President President, Xxxxxxxx Network
Title -------------------------------------------- Title: ----------------------------------------
December 17, 1998 December 17, 1998
Date: -------------------------------------------- Date: ----------------------------------------
46
EXHIBIT A
PART 1
SYSTEMS SEGMENTS
MAP SHOWING PROPOSED XXXXXXXX NETWORK
EXHIBIT A
PART 2
SYSTEM SEGMENTS
------------------------------------------------------------------------------------------------------------------------
Planned Estimated Number Total
Fiber Construction Route of Fiber Option Percentage of
System Segment Type Date Miles Fibers Payment Price Route Miles
------------------------------------------------------------------------------------------------------------------------
Atlanta Washington, DC SMF-LS 12/31/98 827 4 $24,229,931 $ 4,135,000
Dallas Houston SMF-LS 12/31/98 250 4 $ 7,324,647 $ 1,250,000
Minneapolis Kansas City LEAF 12/31/98 445 4 $13,037,871 $ 1,112,500
------------------------------------------------------------------------------------------------------------------------
January 1999 Delivery 1,522 $44,592,449 $ 6,497,600 10.37%
------------------------------------------------------------------------------------------------------------------------
Las Vegas Los Angeles LEAF 03/31/99 386 4 $11,309,255 $ 2,161,600
Atlanta Jacksonville LEAF 03/31/99 346 4 $10,137,311 $ 865,000
Jacksonville Miami SMF-28 03/31/99 332 4 $ 9,727,131 $ 830,000
Daytona Tampa LEAF 03/31/99 159 4 $ 4,658,475 $ 397,500
------------------------------------------------------------------------------------------------------------------------
March 1999 Delivery 1,223 $35,832,172 $ 4,264,100 8.33%
------------------------------------------------------------------------------------------------------------------------
Houston Atlanta LEAF 06/30/99 993 4 $29,093,497 $ 2,482,500
Kansas City Denver LEAF 06/30/99 610 4 $17,872,138 $ 1,525,000
------------------------------------------------------------------------------------------------------------------------
June 1999 Delivery 1,603 $46,965,636 $ 4,007,500 10.92%
------------------------------------------------------------------------------------------------------------------------
Miami Tallahassee LEAF 09/30/99 580 4 $16,993,180 $ 1,450,000
------------------------------------------------------------------------------------------------------------------------
September 1999 Delivery 580 $16,993,180 $ 1,450,000 3.95%
------------------------------------------------------------------------------------------------------------------------
Tallahassee New Orleans LEAF 12/31/99 400 4 $11,719,435 $ 1,000,000
Denver Salt Lake City LEAF 12/31/99 397 4 $11,631,539 $ 992,500
Los Angeles San Diego LEAF 12/31/99 165 4 $ 4,834,267 $ 412,500
San Diego Phoenix LEAF 12/31/99 375 4 $10,986,970 $ 937,500
Cleveland New York LEAF 12/31/99 760 4 $22,266,926 $ 1,900,000
------------------------------------------------------------------------------------------------------------------------
December 1999 Delivery 2,097 $61,439,137 $ 5,242,500 14.23%
------------------------------------------------------------------------------------------------------------------------
Salt Lake City Sacramento LEAF 09/30/00 656 4 $19,219,873 $ 1,640,000
Sacramento Oakland LEAF 09/30/00 43 4 $ 1,259,839 $ 107,500
Oakland San Xxxxxxxx LEAF 09/30/00 70 4 $ 2,050,901 $ 175,000
Oakland Modesto LEAF 09/30/00 127 4 $ 3,720,921 $ 317,500
------------------------------------------------------------------------------------------------------------------------
September 1999 Delivery 896 $26,251,534 $ 2,224,000 6.10%
------------------------------------------------------------------------------------------------------------------------
Seattle Portland LEAF 12/31/00 200 4 $ 5,859,717 $ 500,000
Portland Sacramento LEAF 12/31/00 700 4 $20,509,011 $ 3,500,000
Sacramento Los Angeles LEAF 12/31/00 470 4 $13,770,336 $ 2,350,000
New York Boston LEAF 12/31/00 250 4 $ 7,324,647 $ 625,000
------------------------------------------------------------------------------------------------------------------------
December 2000 Delivery 1,620 $47,463,711 $ 6,975,000 11.03%
------------------------------------------------------------------------------------------------------------------------
Boston Albany LEAF 06/30/01 180 4 $ 5,273,746 $ 450,000
------------------------------------------------------------------------------------------------------------------------
June 2001 Delivery 180 $ 5,273,746 $ 450,000 1.23%
------------------------------------------------------------------------------------------------------------------------
Minneapolis Cleveland LEAF 09/30/01 1,124 4 $32,931,612 $ 5,620,000
Dallas Kansas City LEAF 09/30/01 661 4 $19,366,366 $ 3,305,000
Cleveland Washington, DC LEAF 09/30/01 400 4 $11,719,435 $ 1,000,000
Atlanta Nashville LEAF 09/30/01 220 4 $ 6,445,689 $ 550,000
Nashville Chicago LEAF 09/30/01 630 4 $18,458,110 $ 1,575,000
------------------------------------------------------------------------------------------------------------------------
September 2001 Delivery 3,035 $88,921,211 $12,050,000 20.67%
------------------------------------------------------------------------------------------------------------------------
Kansas City Chicago LEAF 12/31/01 389 4 $11,397,150 $ 972,500
Phoenix Houston LEAF 12/31/01 1,539 4 $45,090,525 $ 7,695,000
------------------------------------------------------------------------------------------------------------------------
December 2001 Delivery 1,928 $56,487,676 $ 8,667,500 13.13%
========================================================================================================================
Totals 14,684 $430,220,451 $51,834,100 100.00%
========================================================================================================================
============================================================================
WinStar Payment for 4 Dark Fibers, Collocation,
and Maintenance Charges $ 430,220,451
WinStar Option Price for 2 Additional Dark Fibers
(no charge for Collocation and Maintenance) $ 51,834,100
============================================================================
Exhibit B
Xxxxxxxx Network Pricing Schedule
This Pricing Schedule is made as of this _____ day of ________________, 199__,
and is subject to that Carrier Services Agreement No. __________________ (the
"CSA") by and between Xxxxxxxx Communications, Inc. d/b/a Xxxxxxxx Network, a
Delaware corporation ("Xxxxxxxx"), and
____________________________________________, a _____________________
corporation ("WinStar").
I. ATM SERVICES
1. Rates & Charges: Xxxxxxxx Network ATM service has three basic rate
elements; Access, Port Connections, and either Committed Bit Rate
(CBR), or Variable Bit Rate (VBR) Permanent Virtual Circuits (PVCs)
and Virtual Paths (VPs).
1.1 Permanent virtual circuit (PVC) and Virtual Path (VP) bandwidth
charges. PVC and VP charges are based on the class of service (CoS)
and bandwidth selected. Bandwidth charges are stated in Committed
Information Rates (CIR) or Megabit per second (Mbps) increments for
one-way, or Simplex PVCs. CIR increments are available in 1Meg
increments up to 40Mbps for DS3 ports, 5 Meg increments up to 150 Mpbs
for OC3 ports and 25 Meg increments up to 600 Mbps for OC12 ports. Two
Classes of Service are offered; Constant Bit Rate (CBR) and Variable
Bit Ratenon non real time (VBRnrt). Port charges are based on port
speed connections selected. Options currently are DS3, OC3 and OC12.
Monthly recurring charges for port, PVCs and VPs are as follows:
-------------------------------------------------------------------------------------------
Monthly Recurring Charges
Port CIR (Mbps) Port CoS Price Per Meg
------------------- ----------------- ----------------- ----------------- -----------------
DS3 1-9 $4,500 VBRnrt $151
------------------- ----------------- ----------------- ----------------- -----------------
10-19 $4,500 VBRnrt $147
------------------- ----------------- ----------------- ----------------- -----------------
20-29 $4,500 VBRnrt $144
------------------- ----------------- ----------------- ----------------- -----------------
30-40 $4,500 VBRnrt $140
------------------- ----------------- ----------------- ----------------- -----------------
OC3 5-20 $11000 VBRnrt $147
------------------- ----------------- ----------------- ----------------- -----------------
25-35 $11000 VBRnrt $144
------------------- ----------------- ----------------- ----------------- -----------------
40-55 $11000 VBRnrt $140
------------------- ----------------- ----------------- ----------------- -----------------
60-75 $11000 VBRnrt $137
------------------- ----------------- ----------------- ----------------- -----------------
80-95 $11000 VBRnrt $133
------------------- ----------------- ----------------- ----------------- -----------------
100-120 $11000 VBRnrt $130
------------------- ----------------- ----------------- ----------------- -----------------
125-150 $11000 VBRnrt $126
------------------- ----------------- ----------------- ----------------- -----------------
OC12 25-75 $37,000 VBRnrt $133
------------------- ----------------- ----------------- ----------------- -----------------
100-175 $37,000 VBRnrt $130
------------------- ----------------- ----------------- ----------------- -----------------
200-275 $37,000 VBRnrt $126
------------------- ----------------- ----------------- ----------------- -----------------
-------------------------------------------------------------------------------------------
Monthly Recurring Charges
Port CIR (Mbps) Port CoS Price Per Meg
------------------- ----------------- ----------------- ----------------- -----------------
300-350 $37,000 VBRnrt $123
------------------- ----------------- ----------------- ----------------- -----------------
375-475 $37,000 VBRnrt $119
------------------- ----------------- ----------------- ----------------- -----------------
500-600 $37,000 VBRnrt $116
------------------- ----------------- ----------------- ----------------- -----------------
DS3 1-9 $4,500 CBR $323
------------------- ----------------- ----------------- ----------------- -----------------
10-19 $4,500 CBR $315
------------------- ----------------- ----------------- ----------------- -----------------
20-29 $4,500 CBR $308
------------------- ----------------- ----------------- ----------------- -----------------
30-40 $4,500 CBR $300
------------------- ----------------- ----------------- ----------------- -----------------
OC3 5-20 $11000 CBR $315
------------------- ----------------- ----------------- ----------------- -----------------
25-35 $11000 CBR $308
------------------- ----------------- ----------------- ----------------- -----------------
40-55 $11000 CBR $300
------------------- ----------------- ----------------- ----------------- -----------------
60-75 $11000 CBR $293
------------------- ----------------- ----------------- ----------------- -----------------
80-95 $11000 CBR $285
------------------- ----------------- ----------------- ----------------- -----------------
100-120 $11000 CBR $278
------------------- ----------------- ----------------- ----------------- -----------------
125-150 $11000 CBR $270
------------------- ----------------- ----------------- ----------------- -----------------
OC12 25-75 $37,000 CBR $285
------------------- ----------------- ----------------- ----------------- -----------------
100-175 $37,000 CBR $278
------------------- ----------------- ----------------- ----------------- -----------------
200-275 $37,000 CBR $270
------------------- ----------------- ----------------- ----------------- -----------------
300-350 $37,000 CBR $263
------------------- ----------------- ----------------- ----------------- -----------------
375-475 $37,000 CBR $255
------------------- ----------------- ----------------- ----------------- -----------------
500-600 $37,000 CBR $248
------------------- ----------------- ----------------- ----------------- -----------------
2.1 Non-recurring Charges:
Non-recurring charges include installation, configuration changes,
order cancellations and order changes that may be incurred for the Port
or PVC.
2
---------------------------------------------------------------------------
Non Recurring Charges
Description of Charge Charges
--------------------------------------- -----------------------------------
Installation:
--------------------------------------- -----------------------------------
45Mb Port $1,500
--------------------------------------- -----------------------------------
155Mb Port $4,000
--------------------------------------- -----------------------------------
622Mb Port $15,000
--------------------------------------- -----------------------------------
per PVC $40
--------------------------------------- -----------------------------------
--------------------------------------- -----------------------------------
Ancillary Charges:
--------------------------------------- -----------------------------------
Configuration Changes $50
--------------------------------------- -----------------------------------
Order Cancellation $250
--------------------------------------- -----------------------------------
PVC Order Change $50
--------------------------------------- -----------------------------------
Port Order Change $100
--------------------------------------- -----------------------------------
Configuration change charges are applied when the parameters of
Virtual Channels (VCs) are changed. Order Cancellation Charges apply
when a PVC or Port has been ordered and needs to be canceled prior to
the Service having been installed and accepted.
PVC Order Change Charges apply when WinStar requests a change to the
PVC.
Port Order Change Charges apply when WinStar requests to change the
port size ordered. If the Port has been installed and accepted,
WinStar will be charged for a new port installation.
3.1 ATM Discount Structure
Contributing Xxxxxxxx Network ATM Service charges include recurring
port and PVC charges only. Contributing charges do not include any
credits to which WinStar may be entitled, late payment penalties,
taxes or other government surcharges, any one-time non-recurring fees
and charges or any charges related to Local Access Services. The
discount structure is based on the monthly revenue achieved by WinStar
(contributing charges) and the stated length of the Service Order
established. The discount WinStar will receive in any given month will
be determined by the level of revenue achieved by WinStar for that
month. WinStar will receive the stated discounts off of Xxxxxxxx?
standard rates as such rates may exist from time to time.
3
-------------------------------------------------------------------------------------------
Discount Structure
Monthly Revenue 1 Year 2 Year 3 Year 4 Year 5 Year
---------------- -------------- -------------- -------------- -------------- --------------
$0 0% 0% 0% 0% 0%
---------------- -------------- -------------- -------------- -------------- --------------
$25,000 12% 14% 18% 22% 27%
---------------- -------------- -------------- -------------- -------------- --------------
$50,000 14% 16% 20% 24% 29%
---------------- -------------- -------------- -------------- -------------- --------------
$100,000 16% 18% 22% 26% 31%
---------------- -------------- -------------- -------------- -------------- --------------
$150,000 18% 20% 24% 28% 33%
---------------- -------------- -------------- -------------- -------------- --------------
$200,000 20% 22% 26% 30% 35%
---------------- -------------- -------------- -------------- -------------- --------------
Private Line Services
1. Xxxxxxxx Network Private Line Service has three basic rate elements;
IXC charges, Local Access Charges and Non-recurring charges.
1.1 IXC rates are determined on an individual case basis and will
be set forth on WinStar's Service Order. The minimum monthly
charge for any IXC circuit ordered by WinStar shall be as
follows:
---------------------------------------------------------
Minimum Monthly Charges
---------------------------------------------------------
DS-3 $2,000
---------------------------------- ----------------------
OC-3 $5,000
---------------------------------- ----------------------
OC-12 $20,000
---------------------------------- ----------------------
OC-48 $80,000
---------------------------------- ----------------------
4
Non-recurring Charges:
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Non-Recurring Charges DS-1 DS-3 OC-3 OC-12 OC-48
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
New Order Installation $400 $2,000 $5,000 $18,000 $48,000
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Order Change (1st change free) $25 $50 $2,000 $3,000 $4,000
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Order Cancellation (prior to activation) $150 $250 $2,000 $3,000 $4,000
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
ASR (new or disconnect) Special Access $250 $250 $250 $250 $250
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
ASR Supplement $150 $150 $150 $150 $150
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Order Expedite $300 $300 $300 $300 $300
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Reconfiguration $500 $2,000 $6,000 $12,000 $24,000
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Additional Installation/Maintenance/Engineering $100.00/hr $100.00/hr $100.00/hr $100.00/hr $100.00/hr
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
After Hours $150.00/hr $150.00/hr $150.00/hr $150.00/hr $150.00/hr
------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
------------------------------------------------ ------------------------------------- ----------------------------------------
Cross-Connect Charge Monthly Recurring Non-Recurring
------------------------------------------------ ------------------------------------- ----------------------------------------
DS-3 $250 $500
------------------------------------------------ ------------------------------------- ----------------------------------------
OC-3 $800 $1,000
------------------------------------------------ ------------------------------------- ----------------------------------------
OC-12 $3,250 $10,000
------------------------------------------------ ------------------------------------- ----------------------------------------
OC-48 $12,000 $25,000
------------------------------------------------ ------------------------------------- ----------------------------------------
Installation charges shall apply to the normal installation of
equipment necessary to provide the requested service to the point of
demarcation at WinStar's premises. Additional Installation charges
shall apply when Xxxxxxxx is required to install equipment other than
that normally required to provide the service or when WinStar requests
special equipment.
3.1 Private Line Discount Structure
Contributing Xxxxxxxx Network Private Line Service charges include
monthly recurring IXC charges only. Contributing charges do not include
any credits to which WinStar may be entitled, late payment penalties,
taxes or other government surcharges, any one-time non-recurring fees
and charges or any charges related to Local Access Services. The
discount structure is based on the monthly revenue achieved by WinStar
(contributing charges) and the stated length of the Service Order
established. The discount WinStar will receive in any given month will
be determined by the level of revenue achieved by WinStar for that
month. WinStar will receive the stated discounts off of Xxxxxxxx'
standard rates as such rates may exist from time to time.
------------------------------------------------------------
Rates per VG&E V&H mile On Net.
------------------------------------------------------------
DS-3 $ 0.0230
-------------------------------- ---------------------------
OC-3 $0.0220
-------------------------------- ---------------------------
OC-12 $0.0185
-------------------------------- ---------------------------
OC-48 $0.0165
-------------------------------- ---------------------------
5
III. Frame Relay Services
1. Rates & Charges: Xxxxxxxx Network Frame Relay Service has four
principle rate elements: Access, Port Connections, Permanent Virtual
Circuits (PVCs), and Flex-CIR (Time-of-Day and/or Day-of-Week)
configuration charges.
Ports and PVCs are further categorized as being either a
User-to-Network Interface (UNI) type or Network-to-Network Interface
(NNI) type. An NNI port is defined as one end of a connection between
Xxxxxxxx' frame relay network and another carrier's network. The
connecting carrier could be either a customer or off-net service
provider. Similarly, an NNI PVC is defined as one which has each end of
the PVC residing in two different carrier's frame relay networks,
rather than the originating and terminating points being in the same
carrier's network.
1.1 Port Charges: Both UNI and NNI port charges are based solely on the
bandwidth selected by WinStar. Available port speeds range from 64
Kilobits per second (Kbps) to 1.536 Megabits per second (Mbps). See
rate table below for list of available speeds. Monthly recurring and
non-recurring charges for frame relay ports are provided in the rate
table below.
1.1.2 Permanent Virtual Circuit (PVC) bandwidth charges: UNI and NNI PVC
charges are both based solely on the bandwidth selected by WinStar.
Bandwidth charges are stated in Committed Information Rates (CIR) or
Kbps increments for one-way, or Simplex PVCs. Available PVC-CIR speeds
range from 4 Kbps to 1.024 Mbps. See rate table below for list of
available speeds. Monthly recurring and non-recurring charges for frame
relay PVCs are provided in the rate table below.
6
1.1.3 Frame Relay Rate Table
------------------------------- ---------------- ------------------- -------------------
Frame Relay Service Components Speed/CIR
(Kbps) MRC ($) Installation ($)
------------------------------- ---------------- ------------------- -------------------
NNI Port (Private NNI) 64 $ 224 $ 250
128 $ 418 $ 250
(Add: "NNITrunking Charge") 192 $ 455 $ 250
Charge")
256 $ 492 $ 250
320 $ 610 $ 250
384 $ 727 $ 250
448 $ 823 $ 250
512 $ 920 $ 250
576 $ 984 $ 250
640 $ 1,049 $ 250
704 $ 1,114 $ 250
768 $ 1,179 $ 250
1024 $ 1,471 $ 250
1536 $ 1,856 $ 000
XXXXXX 0 $ 8 $ 25
4 $ 8 $ 25
(SimplexPricing) 8 $ 10 $ 25
16 $ 12 $ 25
32 $ 20 $ 25
48 $ 30 $ 25
64 $ 40 $ 25
128 $ 80 $ 25
192 $ 119 $ 25
256 $ 159 $ 25
320 $ 199 $ 25
384 $ 239 $ 25
448 $ 278 $ 25
512 $ 318 $ 25
576 $ 358 $ 25
640 $ 398 $ 25
704 $ 437 $ 25
768 $ 477 $ 25
832 $ 517 $ 25
896 $ 557 $ 25
960 $ 596 $ 25
1024 $ 636 $ 25
UNIPorts 64 $ 224 $ 250
128 $ 418 $ 250
192 $ 455 $ 250
256 $ 492 $ 250
320 $ 610 $ 250
384 $ 727 $ 250
448 $ 823 $ 250
512 $ 920 $ 250
576 $ 984 $ 250
7
------------------------------- ---------------- ------------------- -------------------
Frame Relay Service Components Speed/CIR
(Kbps) MRC ($) Installation ($)
------------------------------- ---------------- ------------------- -------------------
640 $ 1,049 $ 250
704 $ 1,114 $ 250
768 $ 1,179 $ 250
1024 $ 1,471 $ 250
1536 $ 1,856 $ 250
UNIPVCs 0 $ 8 $ 25
4 $ 8 $ 25
(SimplexPricing) 8 $ 10 $ 25
16 $ 12 $ 25
32 $ 20 $ 25
48 $ 30 $ 25
64 $ 40 $ 25
128 $ 80 $ 25
192 $ 119 $ 25
256 $ 159 $ 25
320 $ 199 $ 25
384 $ 239 $ 25
448 $ 278 $ 25
512 $ 318 $ 25
576 $ 358 $ 25
640 $ 398 $ 25
704 $ 437 $ 25
768 $ 477 $ 25
832 $ 517 $ 25
896 $ 557 $ 25
960 $ 596 $ 25
1024 $ 636 $ 25
Local Access DS-0/DDS ICB ICB
ICB
FT-1 ICB ICB
ICB
DS-1 ICB ICB
NNI Trunking Charge DS-0/DDS ICB ICB
ICB
FT-1 ICB ICB
ICB
DS-1 ICB ICB
------------------------------- ---------------- ------------------- -------------------
8
1.2 Enhanced Services: The basic Frame Relay Service components described in
the previous sections can be bundled and molded into a wide variety of
different service offerings. The following descriptions outline how
Xxxxxxxx packages these service components to address the specialized
requirements of its wholesale customers.
1.2.1 Frame Relay/ATM Service Interworking:
------------------------------------- ------------------------ -------------------------------
Enhanced Wholesale Services Installation MRC
------------------------------------- ------------------------ -------------------------------
Frame Relay/ATM Interworking (No additional charge (No additional charge for
-------------------- --------------------
for locations locations requiring ATM
requiring ATM beyond beyond that for standard ATM
that for standard ATM service)
service)
------------------------------------- ------------------------ -------------------------------
1.3 Flex-CIR Services: Xxxxxxxx Flex-CIR Service is designed to help end-users
in two ways:
1. Reserve the exact amount of bandwidth needed by the end-user during
the hours it is most critical.
2. Minimize the end-user's network costs by "turning off" excess
bandwidth during the hours when it is least required.
Specifically, WinStar will be able to adjust its PVC speeds (or CIR) at
quarter-hour increments (e.g. 8:00, 8:15, 8:30, 8:45, etc.). Once
WinStar has made a speed change, WinStar will not be able to make
another change for at least two (2) hours. WinStar shall have the
option of establishing different speed schedules for the same PVC
depending on the day of the week (e.g. turning a Flex-CIR PVC down from
its "weekday speed" of 000 Xxxx XXX to 64 Kbps CIR on the weekend). The
configuration charges for this enhanced service are provided in the
table below
8
1.3.1
--------------------------------------------------------------------------------------
Time-of-Day/Day-of-Week Flex-CIR
PVC Charges
Description NRC (Per PVC) MRC (Per PVC)
------------------------------- ------------------------ -----------------------------
Basic PVC Charge (Standard NRC charge (Standard MRC charge for
(Based on weighted average of for average CIR level) average CIR level)
CIRs)
------------------------------- ------------------------ -----------------------------
XXX Configuration Charge (2 $40 $60
CIR adjustments per day)
------------------------------- ------------------------ -----------------------------
DOW Configuration Charge (2 $40 $60
CIR adjustments per wk.)
------------------------------- ------------------------ -----------------------------
Each additional CIR $20 $30
adjustment per period (Per
day or per week)
------------------------------- ------------------------ -----------------------------
2.1 Additional Non-recurring Charges: In addition to the non-recurring
charges set forth in the tables above, WinStar may incur the following
additional non-recurring charges.
----------------------------------------------------------------------------------
Additional Non-Recurring Charges
Description of Charge Charge
------------------------------------------ ---------------------------------------
Basic PVC Reconfiguration Changes $50
------------------------------------------ ---------------------------------------
Flex-CIR PVC Reconfiguration Changes Apply Standard Installation Charges
------------------------------------------ ---------------------------------------
PVC Order Cancellation Charge $40
------------------------------------------ ---------------------------------------
Port Order Change Charge $100
------------------------------------------ ---------------------------------------
Port Order Cancellation Charge $250
------------------------------------------ ---------------------------------------
Configuration charges are applied when the parameters of PVCs are
changed. PVC Order Cancellation Charges apply when WinStar cancels a
PVC order prior to its installation.
Port Order Change Charges apply when WinStar requests to change the
port size ordered. If the Port has been installed and accepted,
WinStar will be charged for a new port installation.
Port Cancellation Charges apply when WinStar cancels a port order
prior to installation.
10
3.1 Frame Relay Discount Schedule
Contributing Xxxxxxxx Network Frame Relay Service charges include
monthly recurring charges only. Contributing charges do not include any
credits to which WinStar may be entitled, late payment penalties, taxes
or other government surcharges, any one-time non-recurring fees and
charges or any charges related to Local Access Services. The discount
structure is based on the monthly revenue achieved by WinStar
(contributing charges) and the stated length of the Service Order
established. The discount WinStar will receive in any given month will
be determined by the level of revenue achieved by WinStar for that
month. WinStar will receive the stated discounts off of Xxxxxxxx'
standard rates as such rates may exist from time to time.
--------------------------------------------------------------------------------------
Frame Relay Discount Schedule
Monthly Revenue 1 Year 2 Year 3 Year 4 Year 5 Year
----------------------------- ----------- ---------- ---------- ---------- -----------
$0 0% 0% 0% 0% 0%
----------------------------- ----------- ---------- ---------- ---------- -----------
$25,000 12% 14% 18% 22% 27%
----------------------------- ----------- ---------- ---------- ---------- -----------
$50,000 14% 16% 20% 24% 29%
----------------------------- ----------- ---------- ---------- ---------- -----------
$100,000 16% 18% 22% 26% 31%
----------------------------- ----------- ---------- ---------- ---------- -----------
$150,000 18% 20% 24% 28% 33%
----------------------------- ----------- ---------- ---------- ---------- -----------
$200,000 20% 22% 26% 30% 35%
----------------------------- ----------- ---------- ---------- ---------- -----------
IV. Pricing General Conditions
1. All pricing set forth in Sections I, II and III above is Xxxxxxxx'
current pricing. Such pricing is subject to change upon thirty (30)
days written notice by Xxxxxxxx to WinStar. Price changes shall only be
effective on a going-forward basis and shall not apply to Service
Orders previously placed by WinStar and accepted by Xxxxxxxx.
11
Xxxxxxxx Network Technical Specifications
I. Technical Specifications for ATM and Frame Relay Services
1.0 Xxxxxxxx Network Technical Specifications are stated as an objective
that the ATM and Frame Relay Services will perform in accordance with
prevailing telecommunications industry standards. All Service provided
under Xxxxxxxx ATM and Frame Relay Services are measured using two
variables: Network Availability and Mean-time-to-restore.
2.0 Quality Standards
2.1 General. ATM and Frame Relay Service standards apply on a
one-way basis between the WinStar Premises Network Interface
Points ("CPNIP") which are connected to Local Access between
which ATM and Frame Relay Interexchange Service is provided
(CPNIP to CPNIP or End-to-End) and exclude nonperformance due
to force majeure or planned interruptions for necessary
maintenance purposes. The actual end-to-end availability and
performance of ATM and Frame Relay Service may be affected by
the WinStar provided equipment, dependent upon the type and
quality of WinStar equipment used. (WinStar provided Local
Access may not meet these specifications.)
2.2 Availability. Availability is a measurement of the percent of
total time that service is operative when measured over a 365
consecutive day (8760 hour) period. The Local Access
availability standards for ATM and Frame Relay Services are
established by the Local Access Provider. For ATM and Frame
Relay Services on the Xxxxxxxx network, availability shall be
99.95% from point-of-presence ("POP") to POP measured over a
one year period. For Services not on the Xxxxxxxx network, the
off-net provider will establish availability.
3.0 Maintenance
Repair efforts will be undertaken upon notification of trouble by
internal network surveillance and network surveillance and performance
systems or by notification of trouble and release of all or part of the
ATM or Frame Relay Service by WinStar for testing.
12
4.0 Mean Time to Restore
Mean Time to Restore (MTTR) is the average time required to restore
service and resume availability and is stated in terms of equipment and
cable outages. The time is measured from the moment the outage is
reported until the service is available and applies specifically to
equipment outages or failures.
4.1 MTTR Objective: 2 Hours (Equipment)
6 Hours (First Fibers on Cable)
5.0 Calculation. Xxxxxxxx Network calculates network availability on
WinStar action requests. WinStar must notify the Xxxxxxxx Network
Customer Care department and initiate an action request to determine if
Service variables stated above were met.
II. Technical Specifications for Private Line Service
1.0 Interconnection Specifications
1.1 DS-3. DS-3 service is provided in accordance with ANSI Standard
T1.102 (formerly AT&T Compatibility Bulletin 119) and Technical
Reference 54014 |_| 4. DS-3 Service operates at 44.736 Mbps.
1.2 Optical SONET Services (OC-N). Optical SONET Services are
provided in accordance with ANSI Standard T1.105. OC-3 Service
operates at 155.520 Mbps and is configured with 3 separate STS-1
signaling paths. OC-3C Service operates at 155.520 Mbps and is
configured with 1 STS-3C signaling path (or 3 concatenated STS-1
signaling paths). OC-12 Service operates at 622.080 Mbps with 12
separate STS-1 signaling paths. OC-12C Service operates at
622.080 Mbps with 1 STS-12C signaling path (or 4 separate STS-3C
signaling paths). OC-48 Service operates at 9953.280 Mbps and is
configured with 48 separate STS-1 signaling paths.
2.0 Quality Standards
2.1 General. DS-3 and Optical SONET Service standards apply on a
one-way basis between WinStar Premises Network Interface
Points ("CPNIP") which are connected to Local Access between
which DS-3 and Optical SONET Interexchange Service is provided
(CPNIP to CPNIP or End-to-End) and exclude nonperformance due
to force majeure or planned interruptions for necessary
maintenance purposes. The actual end-to-end availability and
performance of DS-3 and Optical SONET Service may be affected
by WinStar provided equipment, dependent upon the type and
quality of WinStar equipment used. (WinStar provided Local
Access may not meet these specifications.)
13
2.2 Availability. Availability is a measurement of the percent of
total time that service is operative when measured over a 365
consecutive day (8760 hour) period. DS-3 and Optical SONET
Service is considered inoperative when there has been a loss
of signal or when two consecutive 15 second loop-back tests
confirm the observation of any severely errored seconds or a
bit error rate equal to or worse than 1 x 10-3. The Local
Access availability standards for DS-3 and Optical SONET
Services are established by the Local Access Provider. For
Services on the Xxxxxxxx network, availability shall be 99.95%
from point-of-presence ("POP") to POP measured over a one year
period. For Services not on the Xxxxxxxx network, the off-net
provider will establish availability. For multi-media
services, availability will be the same as established by
WorldCom, Inc.
2.3 Performance (% Error Free Seconds, while Available).
Performance is noted in Error Free Seconds (EFS) which are a
measure of the percentage of total seconds when measured over
a consecutive 24 hour period that do not contain bit errors.
Performance shall be measured on a one-way basis using a
Pseudo Random Bit Sequence test pattern as defined in CCITT
Recommendation 0.151. The Error Free Seconds standards for the
Local Access for DS-3 and Optical SONET Service is established
by the Local Access Provider. For Services on the Xxxxxxxx
network, Error Free Seconds shall be 99.5% from POP to POP
measured over a monthly period. For Services not on the
Xxxxxxxx network, the off-net provider will establish Error
Free Seconds. For multi-media services, Error Free Seconds
will be as defined by WorldCom, Inc.
3.0 Maintenance
Repair efforts will be undertaken upon notification of trouble by
internal network surveillance and network surveillance and performance
systems or by notification of trouble and release of all or part of the
DS-3 or Optical SONET Service by WinStar for testing.
4.0 Mean Time to Restore
Mean Time to Restore (MTTR) is the average time required to restore
service and resume availability and is stated in terms of equipment and
cable outages. The time is measured from the moment the outage is
reported until the service is available and applies specifically to
equipment outages or failures.
4.1 MTTR Objective: 2 Hours (Equipment)
6 Hours (First Fibers on Cable)
5.0 Calculation. Xxxxxxxx Network calculates network availability on
WinStar action requests. WinStar must notify the Xxxxxxxx Network
Customer Care department and initiate an action request to determine if
Service variables stated above were met.
14
EXHIBIT C
PART 1
COLLOCATION PROVISIONS - TRANSMISSION SITES
1. Collocation Rights.
a. Collocation. WinStar shall have the right to locate, install,
maintain and operate WinStar Equipment at Transmission Sites included in each
System Segment during the relevant IRU Term. Xxxxxxxx will provide to WinStar
either seventy-five (75) square feet or six (6) racks* at each Transmission Site
except with respect to the Dallas-Houston System Segment, where Xxxxxxxx shall
make commercially reasonable efforts to secure six (6) racks at each
Transmission Site. No use of Transmission Sites required or permitted under
these Collocation Provisions shall create or vest in WinStar any easements or
other ownership or property rights of any nature in Xxxxxxxx' real or personal
property. Xxxxxxxx shall construct and operate such space, and WinStar shall
cause the WinStar Equipment to be installed and operated, in accordance with
telecommunications industry standards for similar collocation arrangements.
b. Basic Services. Xxxxxxxx shall designate each Transmission Site as
an optical amplifier site, a regenerator site, or a junction. At each
Transmission Site, Xxxxxxxx shall provide separate access, not located in its
backbone area, where available, space, HVAC, and DC power for the WinStar
Equipment as follows:
Sites Maximum Power
Optical Amplifier 90 amps of 48v DC
Regenerator 120 amps of 48v DC
Junctions 180 amps of 48v DC
* A rack space adequate to contain a rack (measuring 26 inches (width) x 24
inches (depth) x 78 or 84 inches (height)). WinStar shall supply its own
cabinets.
The total linear inches for WinStar Rack Space within each Transmission Site
shall not exceed the sum of the number of Rack Spaces for the specified
Transmission Site multiplied by 26 inches. The services provided pursuant to
this Subsection shall be referred to as the "Basic Services."
c. Charges for Basic Services. The Contract Price includes the charge
for Basic Services.
16
d. Ancillary Collocation Services. WinStar may request in writing
installation services, AC power or additional DC power, additional back-up
power, technical assistance, additional space or racks, assistance in
establishing an Interconnection Facility (as defined below), or additional HVAC
(collectively referred to as the "Ancillary Collocation Services") at any
Transmission Site. Within fifteen (15) business days after receiving such
written request, Xxxxxxxx shall notify WinStar whether the Ancillary Collocation
Services are available and, if they are, Xxxxxxxx' standard rates for the
Ancillary Collocation Services. WinStar shall provide written notice to Xxxxxxxx
confirming its request for such Ancillary Collocation Services at the quoted
rates prior to Xxxxxxxx providing such Ancillary Collocation Services. If
upgrades or expansions to Transmission Sites or its facilities are necessary to
accommodate WinStar's request, Xxxxxxxx may include the entire cost of such
upgrades or expansions in the cost to WinStar.
e. Charges for Ancillary Collocation Services. If WinStar chooses to
receive the Ancillary Collocation Services, WinStar shall pay any and all
(initial and continuing) costs reasonably incurred by Xxxxxxxx in providing such
Ancillary Collocation Services or Xxxxxxxx' standard prices for such Ancillary
Collocation Services at the relevant Transmission Site, provided that WinStar
has in either case agreed to such charges in advance in writing. WinStar shall
pay Xxxxxxxx the amounts due within thirty (30) days of receipt of an invoice
therefor from Xxxxxxxx. Following the fifth (5th) year after the Effective Date,
upon at least thirty (30) days' notice to WinStar, Xxxxxxxx may adjust recurring
charges for the Ancillary Collocation Services once each calendar year to equal
its then-current standard charges. Xxxxxxxx' current charges (as of the
Effective Date) for certain Ancillary Collocation Services are set forth in the
following tables:
---------------------------------------------------- ------------------- ------------------ -----------------
Recurring Monthly Charges for Specific Minimum One Year Three Year Five Year
Term Commitments Term Term Term
---------------------------------------------------- ------------------- ------------------ -----------------
Rack $700 $650 $500
---------------------------------------------------- ------------------- ------------------ -----------------
Each AC amp 0 0 0
---------------------------------------------------- ------------------- ------------------ -----------------
Each DC amp 0 0 0
---------------------------------------------------- ------------------- ------------------ -----------------
---------------------------------------------------- ------------------- ------------------ -----------------
Nonrecurring Charges for Specific Minimum Term One Year Three Year Five Year
Commitments (in addition to monthly charge)
---------------------------------------------------- ------------------- ------------------ -----------------
Rack $3,000 $1,500 0
---------------------------------------------------- ------------------- ------------------ -----------------
Each AC amp $75 $75 $75
---------------------------------------------------- ------------------- ------------------ -----------------
Each DC amp $250 $250 $250
---------------------------------------------------- ------------------- ------------------ -----------------
18
---------------------------------------------------------------- ------------------------- ------------------------
Ancillary Charges Nonrecurring Monthly Recurring
Charge ($) Charge ($)
---------------------------------------------------------------- ------------------------- ------------------------
Change of Installation Date (pre-work date) 100 0
---------------------------------------------------------------- ------------------------- ------------------------
Service Order Change (pre-work date) 100 0
---------------------------------------------------------------- ------------------------- ------------------------
Service Order Change (post-work date) 250 0
---------------------------------------------------------------- ------------------------- ------------------------
Order Cancellation (more than 30 days before scheduled work 250 0
date)
---------------------------------------------------------------- ------------------------- ------------------------
Order Cancellation (less than 30 days from scheduled work date) 500 0
---------------------------------------------------------------- ------------------------- ------------------------
AC Power Addition (after initial installation) 750 0
---------------------------------------------------------------- ------------------------- ------------------------
Cross-Connect (per DS-3) (subject to limitations set forth in 1,000 250
Section 2 of this Exhibit)
---------------------------------------------------------------- ------------------------- ------------------------
Early Termination (before one, three, or five year term 100% of remaining contract term
expires)
---------------------------------------------------------------- --------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Dispatch Labor Charges ($)
-------------------------------------------------------------------------------------------------------------------
Monday-Friday Business Hours 100 per hour
------------------------------------------------------------------------ ------------------------------------------
Monday-Friday Non-Business Hours 125 per hour
------------------------------------------------------------------------ ------------------------------------------
Saturday & Sunday 150 per hour
------------------------------------------------------------------------ ------------------------------------------
Holidays 150 per hour
------------------------------------------------------------------------ ------------------------------------------
f. Delivery and Installation. WinStar shall, at its expense, cause the
WinStar Equipment to be delivered, installed, and maintained in a safe condition
and meeting or exceeding the standards set forth in the Subsection entitled
Standards. Xxxxxxxx shall allow WinStar reasonable access to each Transmission
Site for purposes of installing WinStar Equipment beginning on or before the
Acceptance Date of the relevant System Segment, provided that, if a Transmission
Site is not ready for installation of equipment other than security, alarm,
HVAC, power, back-up power or other common systems on such date, Xxxxxxxx shall
allow such access within five (5) days of the first date such Transmission Site
is ready for such installation. Xxxxxxxx shall provide WinStar with at least
thirty (30) days notice prior to the date it estimates each Transmission Site
will be ready for installation of the WinStar Equipment.
g. Interface. Interface points for the WinStar fibers shall be at fiber
patch panels or digital cross-connect (DSX-N) panels located in the Transmission
Sites. Such panels shall be the demarcation to establish each party's
operational and maintenance responsibilities. All cables placed to interface
such panels shall conform to all applicable Xxxxxxxx' standards.
18
h. Alarms 24 x 7 Monitoring. Xxxxxxxx shall continuously monitor (i.e.,
24 x 7) Transmission Site security, environmental, and power alarms at one or
more manned monitoring centers. At WinStar's request, Xxxxxxxx shall establish
procedures to allow WinStar, at WinStar's expense, to share or receive alarm
information.
i. Compliance with Agreement. Each party shall comply with the
provisions of the Agreement relating to Transmission Sites, including, without
limitation, Xxxxxxxx' obligations to provide as-built drawings of Transmission
Sites showing WinStar rack placement and assignment and to comply with the
Operations Specifications set forth in Exhibit I thereto.
2. Interconnections
a. Right to Interconnect Off-Premises. WinStar shall have the right to
connect any of its premises to any Transmission Site (such connection or
entrance facility referred to herein as the "Interconnect Facility").
Transmission Sites are established and designed to support network transmission
equipment and, therefore, no interconnections may be made at such sites for
other purposes such as directly or indirectly connecting to local exchange
carrier facilities or other local access facilities or for purposes of providing
local exchange or local access services.
b. Construction and Installation. WinStar shall provide at its expense
all necessary rights of way, permits, equipment and Xxxxxxxx-approved materials
to construct and install each Interconnect Facility, including, but not limited
to, cables and conduit and any labor charges associated therewith. Xxxxxxxx
shall reasonably cooperate with WinStar to facilitate reasonable WinStar
requests for Interconnection Facilities. Specifically, if necessary, and where
applicable, Xxxxxxxx shall assist WinStar at WinStar's expense, in obtaining
from any third-party building owner or Xxxxxxxx lessor access to existing
building entrance facilities, if available, to access and exit Transmission
Sites. The demarcation point for WinStar's facilities shall be in Xxxxxxxx'
fiber patch panel or the DSX-N panel in the Transmission Sites, as appropriate.
c. Ownership. WinStar shall retain ownership of any portion of each
Interconnect Facility that is located on Transmission Sites during the IRU Term;
provided, however, that title to any part of the Interconnect Facility within a
Transmission Site shall be transferred to Xxxxxxxx upon expiration of the IRU
Term.
d. Prohibition on Interconnection with Other Collocation Customers.
WinStar shall not establish interconnections between WinStar's collocated
facilities or the WinStar Equipment and the collocated facilities of other
parties who are using a Transmission Site. WinStar shall not use any
Interconnect Facility to allow third parties collocated in any Transmission Site
to interconnect with each other at that Transmission Site.
19
e. Maintenance and Changes. WinStar shall provide all maintenance and
repair of the Interconnect Facility on WinStar's side of the point of
demarcation. Any improvement, modification, addition to, relocation, or removal
of, the Interconnect Facility by WinStar at Transmission Sites shall be subject
to Xxxxxxxx' prior review and written approval. WinStar shall pay the cost of
such improvement, modification, addition to, relocation, or removal of, the
Interconnect Facility. Xxxxxxxx' approval will not be unreasonably withheld and
if Xxxxxxxx fails to respond to WinStar's written request within thirty (30)
days of receiving WinStar's request for such changes, Xxxxxxxx shall be deemed
to have approved WinStar's request. Xxxxxxxx' maintenance responsibility shall
be limited to the demarcation point and the associated cross connect at that
point.
3. Notice to Interconnect or Collocate. No later than sixty (60) days
prior to WinStar's planned installation of its WinStar Equipment or Interconnect
Facilities at any Transmission Site, WinStar shall provide to Xxxxxxxx the
"Interconnect/Collocation Notice." The Interconnect/Collocation Notice shall
include notice of WinStar's desire to interconnect/collocate in a particular
Transmission Site, a copy of WinStar's construction design drawings and
installation schedule. The Interconnect/Collocation Notice shall also include:
(a) WinStar's requested installation date(s); (b) any excess cable storage
requirements; (c) identification of all Interconnect Facilities and WinStar
Equipment to be installed; (d) a diagram of the desired location of the
Interconnect Facilities and WinStar Equipment; (e) the space, power,
environmental and other requirements for the Interconnect Facilities and WinStar
Equipment; (f) the estimated commencement and termination dates for the
interconnection/collocation; (g) all other information reasonably required by
Xxxxxxxx. Within ten (10) business days of receiving the Interconnection/
Collocation Notice, Xxxxxxxx shall respond to WinStar's
Interconnection/Collocation Notice with its acceptance or objections to
WinStar's proposal in the Interconnect/Collocation Notice.
4. Use of Equipment and Interconnect Facilities
a. Power Use. WinStar shall not install any electrical or other
equipment that overloads any electrical paneling, circuitry, or wiring.
b. Standards. WinStar shall ensure that the WinStar Equipment and any
Interconnect Facilities are installed, operated, and maintained to meet or
exceed any reasonable requirements of Xxxxxxxx, any requirements of Xxxxxxxx'
building management or insurance underwriters, and any applicable local, state
and federal codes and public health and safety laws and regulations (including
fire regulations and the National Electric Code).
c. Intervention. If any part of WinStar's fiber, Interconnect
Facilities or WinStar Equipment is not placed and maintained in accordance with
the terms and conditions of these Collocation Provisions and WinStar fails to
correct the violation within thirty (30) days from receipt of written notice
thereof from Xxxxxxxx, then Xxxxxxxx may, at its option, without further notice
to WinStar, correct the deficiency at WinStar's expense without liability
(except to the extent the Agreement permits recovery for Xxxxxxxx' negligence)
for damages to the fiber,
20
Interconnect Facilities or WinStar Equipment or for any interruption of
WinStar's services. As soon as practicable thereafter, Xxxxxxxx shall advise
WinStar in writing of the work performed or the action taken. WinStar shall
reimburse Xxxxxxxx for all expenses reasonably incurred by Xxxxxxxx associated
with any work or action performed by Xxxxxxxx pursuant hereto. WinStar shall
remit payment to Xxxxxxxx within thirty (30) days from its receipt of Xxxxxxxx'
invoice therefor.
d. Threat to Persons or Property. If Xxxxxxxx reasonably determines
that WinStar's actions or failure to fulfill an obligation of these Collocation
Provisions, or its Interconnect Facilities or WinStar Equipment poses an
immediate threat to the safety of Xxxxxxxx' employees or the public, interferes
with the performance of Xxxxxxxx' service obligations, or poses an immediate
threat to the physical integrity of Xxxxxxxx' facilities, Xxxxxxxx may perform
such work and/or take such action that it deems necessary without notice to
WinStar and without subjecting itself to any liability (except to the extent the
Agreement permits recovery for Xxxxxxxx' negligence) for damage to the fiber,
Interconnect Facilities or the WinStar Equipment or for any interruption of
WinStar's services. As soon as practicable thereafter, Xxxxxxxx shall advise
WinStar in writing of the work performed or the action taken. WinStar shall
reimburse Xxxxxxxx for all expenses reasonably incurred by Xxxxxxxx associated
with any work or action performed by Xxxxxxxx pursuant hereto. WinStar shall
remit payment to Xxxxxxxx within thirty (30) days from its receipt of Xxxxxxxx'
invoice therefor.
e. Use by WinStar's Customers. WinStar may permit its customers holding
IRU interests in the WinStar Fibers to use the collocation rights granted by
these Collocation Provisions, but only as specifically set forth herein. Such
customers shall act as WinStar's subcontractors to the extent they or their
representatives are present at or on space adjoining the Transmission Sites.
WinStar shall be liable for the acts or omissions of such customers to the same
extent as for its own employees or representatives and shall either cause such
customers, their employees and representatives to be covered by WinStar's
insurance coverages as required by the Agreement or shall cause such customers
to independently obtain such insurance. WinStar shall act as the single point of
contact with respect to such customers and Xxxxxxxx. WinStar must provide all
power, space, and additional service to these IRU customers out of WinStar's own
allocation of Basic Services and Ancillary Collocation Services as provided in
these Collocation Provisions.
5. Access to Transmission Site.
a. Access. Xxxxxxxx shall provide WinStar with secure, separate,
unescorted twenty-four (24) hour access to WinStar's assigned space, where
available. Where such separate space is not available, WinStar shall not pay for
escorted access. If WinStar requires access to Xxxxxxxx' common space, it shall
provide Xxxxxxxx with reasonable advance notice and Xxxxxxxx shall provide
escorted access. WinStar shall pay Xxxxxxxx' charges for such access, which may
include minimum call out times, and night, weekend, and holiday differentials or
multipliers. In no case shall WinStar enter Xxxxxxxx common space without a
Xxxxxxxx escort.
21
b. Notice. WinStar shall notify the Xxxxxxxx Network Operations Center
prior to entering a Transmission Site.
c. Security. WinStar shall abide by Xxxxxxxx' reasonable security
requirements. When deemed appropriate by Xxxxxxxx, WinStar employees, customers,
or representatives shall be issued passes or visitor identification cards which
must be presented upon request before entry to Transmission Sites and
surrendered upon demand or upon expiration of the IRU Term. Such passes or other
identification shall be issued only to persons meeting any reasonable security
criteria applicable at the relevant Transmission Site for such purpose. Nothing
in this Subsection shall be construed as preventing WinStar from having
twenty-four hour unescorted access to Transmission Sites.
d. Right to Terminate Individual's Access. Notwithstanding any other
provision of these Collocation Provisions, Xxxxxxxx shall, without threat of
liability, have the right to immediately terminate the right of access of any
specific WinStar personnel or representative should it determine in its
reasonable discretion for any lawful reason that termination of such access is
necessary for the security of the facility or is required to prevent a violation
of law, landlord requirements, or applicable insurance requirements. Xxxxxxxx
shall promptly notify WinStar of any such termination, and WinStar shall have a
reasonable opportunity to demonstrate that the terminated rights of access
should be reinstated. Any termination of a specific individual's access shall
remain in effect pending Xxxxxxxx' final determination as to the advisability of
such reinstatement.
e. Removal of WinStar Equipment. Within sixty (60) days after the end
of the IRU Term or WinStar's abandonment of any collocation arrangement at a
Transmission Site, WinStar shall remove all WinStar Equipment from the System or
any other Xxxxxxxx facilities at WinStar's sole cost under Xxxxxxxx'
supervision. WinStar shall provide Xxxxxxxx with at least sixty (60) days'
notice prior to such removal. If WinStar fails to remove the same within said
sixty-day period, Xxxxxxxx shall either:
(a) remove WinStar's Equipment and issue an invoice to WinStar for
the cost of removal and storage, which WinStar shall pay
within thirty (30) days of receipt of such invoice; or
(b) notify WinStar that Xxxxxxxx elects to take ownership of such
abandoned WinStar Equipment, in which case WinStar shall
execute a xxxx of sale or other document evidencing Xxxxxxxx'
title to such WinStar Equipment.
22
6. Relocation. WinStar shall, at Xxxxxxxx' expense, relocate its fiber,
Interconnect Facilities and WinStar Equipment within Transmission Site upon
Xxxxxxxx' written request and in the reasonable (under the circumstances) time
frame required by Xxxxxxxx. If the entire Transmission Site is relocated,
Article X (Relocation) of the Agreement shall govern such relocation.
7. No Restrictions. Xxxxxxxx' right to maintain and operate its
facilities in such a manner as will best enable it to fulfill its own service
requirements is in no manner limited by these Collocation Provisions, except as
specifically set forth in these Collocation Provisions or the Agreement.
8. Inspections. Xxxxxxxx reserves the right to make periodic
inspections of any part of the Fiber, Interconnect Facilities, or WinStar
Equipment located within or physically attached to the Transmission Sites;
provided that WinStar shall have the right to have one or more of its employees
or representatives present during the time of any such inspection. Xxxxxxxx
shall give WinStar advance notice of such inspections, except in those instances
where Xxxxxxxx determines that safety considerations justify the need for such
an inspection without the delay of providing notice. The making of periodic
inspections or the failure to do so shall not operate to impose upon Xxxxxxxx
any liability of any kind whatsoever nor relieve WinStar of any responsibility,
obligation, or liability allocated to it in these Collocation Provisions.
9. Liens and Encumbrances. WinStar shall not have the power, authority
or right to create and shall not permit any lien or encumbrance, including,
without limitation, tax liens, mechanics' liens, or other liens or encumbrances
with respect to work performed, in connection with the installation, repair,
maintenance or operation of its WinStar Equipment, Interconnect Facilities or
other property installed within the Transmission Site.
10. Subordination. WinStar's rights under these Collocation Provisions
shall be totally subordinate to any bona fide mortgages, loans, deeds of trust,
or any other borrowing upon the real or personal property which may be incurred
by Xxxxxxxx. WinStar shall sign any such reasonable documents as are necessary
to satisfy any lender, private or institutional, to reflect said subordination.
11. Independent Parties. The presence of a Xxxxxxxx or WinStar employee
or representative (as an inspector or otherwise) while an employee or
representative of the other party is at the Transmission Site or performing work
pursuant to these Collocation Provisions shall not make either party liable for
the actions of the other party and shall not be deemed to waive the
responsibility of either party to perform its obligations in a safe and
workmanlike manner.
23
Exhibit C -- Part 2
POP Collocation Services
Services & Terms
1. Collocation Service:
1.1 Collocation Service Description ("Collocation Service").
WinStar shall have the right to occupy, access and locate
therein certain telecommunications transmission equipment and
cabling ("Equipment") for the purpose of interconnecting the
Equipment with Xxxxxxxx' telecommunications transmission
network within a portion of certain premises ("Premises")
which are currently owned or leased by Xxxxxxxx. WinStar shall
initiate request for Collocation Service by completion of the
form included as Attachment I to this Schedule. Collocation
Service is granted only by mutual execution of relevant
Collocation Service Order(s), identified as Attachment II to
this Schedule. The portion of collocation space ("Space")
allocated is accepted "as-is" by WinStar and Xxxxxxxx makes no
representation as to the fitness of the space for WinStar's
intended purpose. WinStar shall abide by the standard
specifications as set forth in the Technical Specifications as
attached hereto. No work related to Collocation Service shall
commence until the CSA, Collocation Schedule, the Collocation
Service Request, and the relevant Collocation Service Order(s)
are mutually executed.
Only upon the express written consent of Xxxxxxxx may WinStar
interconnect the Equipment with transmission service provided
to WinStar by third parties. If WinStar should interconnect
the Equipment with equipment or services of any entity other
than Xxxxxxxx without obtaining the written consent of
Xxxxxxxx, WinStar shall, subject to the cure provision in the
Agreement, be in breach of Agreement and Xxxxxxxx may pursue
any legal or equitable remedy, including but not limited to
the immediate termination of the license granted in this
Schedule.
All cross-connections relevant to interconnecting the
Equipment with Xxxxxxxx or any other party for which Xxxxxxxx
gives explicit written permission shall be established under
the control and direction of Xxxxxxxx.
1.2 Minimum Service Commitment.
Collocation Service shall be granted with a minimum network
service commitment as further described herein. A minimum
multimedia transmission service level of $25,000 per month per
rack is required. Transmission charges applied to this
commitment level include monthly recurring fees for Private
Line, ATM and Frame Relay services. WinStar's monthly
transmission billing will be reviewed against the quantity of
Collocation Service and WinStar shall be liable for any
deficiency. Charges for deficiency will be assessed one month
in arrears.
24
2. Effective Date: The Effective Date is defined as the date identified on
the relevant Collocation Service Order as the date of Collocation
Service delivery, or the date upon which Xxxxxxxx delivers Collocation
Service, whichever is later.
3. Term: The Collocation Service Term shall commence upon the Effective
Date and shall continue for the duration specified within the relevant
Collocation Service Order.
4. Rates & Charges: WinStar shall pay Xxxxxxxx for the Collocation
Services rendered pursuant to this Schedule the charges set forth in
each Collocation Service Order. Charges shall be payable in advance
commencing on the Effective Date of the Term relevant to the license
for the use of the Space and on the first day of each calendar month
thereafter during the said Term. Charges for partial months shall be
prorated.
4.1 Service Fee.
The Service Fee is the amount to be invoiced WinStar on a
monthly basis for Collocation Service rendered including, but
not limited to, space and power use. Service Fees are
identified on the relevant Collocation Service Order.
4.2 Installation Fee.
The Installation Fee is the amount to be invoiced WinStar as a
one time fee for Collocation Service consisting of charges
associated with the initial installation of the Collocation
Service. Installation Fees are identified on the relevant
Collocation Service Order.
4.3 Build-Out Fee.
Build-Out Fees are those one-time charges applicable to
Collocation Services rendered that are outside the standard
Collocation offering. Build-Out fees are individually quoted
based on Service Order. Build-out fees are payable in full to
Xxxxxxxx upon execution of a Collocation Service Order and no
work will be performed by Xxxxxxxx or WinStar to Build-Out
space prior to Xxxxxxxx' receipt of said payment. Alterations
to the form or amount of this payment must be requested by
WinStar in writing and approved by Xxxxxxxx Finance &
Administration prior to commencement of work.
4.4 Ancillary: Ancillary charges related to changes of Collocation
Service delivery are fully defined in Section 9 of this
Collocation Schedule.
25
-------------------------------------------------------------------- -----------------
Charge Per
Occurrence
-------------------------------------------------------------------- -----------------
Change of Effective Date (pre-install) $100.00
-------------------------------------------------------------------- -----------------
Change of Collocation Service Order (pre-Effective Date) $100.00
-------------------------------------------------------------------- -----------------
Change of Collocation Service (post-Effective Date) $250.00
-------------------------------------------------------------------- -----------------
Order Cancellation (greater than/=30 days from Effective Date) $250.00
-------------------------------------------------------------------- -----------------
Order Cancellation (less than 30 days from Effective Date) $500.00
-------------------------------------------------------------------- -----------------
AC power addition (post Effective Date) $750.00
-------------------------------------------------------------------- -----------------
4.5 Dispatch Labor Charges: are assessed for WinStar requested site labor.
Dispatch requires 10 days advance notice to Xxxxxxxx.
-------------------------------- ------------------------
Charge Per Hour
-------------------------------- ------------------------
M-F Business Hours $100.00
-------------------------------- ------------------------
M-F Off Business Hours $125.00
-------------------------------- ------------------------
Sat & Sun $150.00
-------------------------------- ------------------------
Holidays $150.00
-------------------------------- ------------------------
5. Collocation Service Delivery: Upon mutual acceptance of a Collocation
Service Order, Xxxxxxxx shall confirm Effective Date, or inform WinStar
of the estimated date for the delivery of such Collocation Service.
Xxxxxxxx shall use reasonable efforts to install each Collocation
Service on or before the Effective Date, but the inability of Xxxxxxxx
to deliver a facility by such date shall not be a default under this
Schedule.
In the event Xxxxxxxx fails to tender possession of the Space to
WinStar by the Effective Date, WinStar shall not be obligated to pay
the Service Fee or Installation Fee until such time as Xxxxxxxx tenders
possession of the Space to WinStar.
If Xxxxxxxx fails to make Collocation Services available within ninety
(90) days after the Effective Date (due to any reason other than the
acts or omissions of WinStar), winter's sole remedy shall be to cancel
the Collocation Service Order which pertains to such Collocation
Service by written notice to Xxxxxxxx. Xxxxxxxx shall not be liable to
WinStar in any way as a result of such delay or failure to tender
possession.
6. Contract Expiration: Following the expiration of the term or failure of
the parties to enter into any renewal periods, WinStar's license shall
continue in effect on a month-to month basis upon the same terms and
conditions specified within this Schedule and relevant Collocation
Service Order, unless terminated by either WinStar or Xxxxxxxx upon
thirty (30) days prior written notice.
26
WinStar's option to renew its license to occupy the Space shall be
contingent on the election by Xxxxxxxx to continue to own or lease the
premises in which the Space is located for the duration of the renewal
period(s), such election to be exercised at the sole discretion of
Xxxxxxxx.
7. Early Termination: WinStar may terminate Collocation Service upon 30
days written notice. Collocation Services will be terminated 30 days
from date of letter and WinStar will be liable for fifty percent (50%)
of the charges due under remaining term of contract should WinStar
terminate Collocation Service prior to contract expiration. Termination
Liability will be invoiced in lump sum in the billing period directly
following Collocation Service termination and shall be payable within
30 days of the invoice date.
8. [Intentionally Blank
9. Change of Collocation Services:
9.1 Change of Effective Date (pre-install). WinStar will be
assessed a Change of Effective Date Charge by Xxxxxxxx for any
changes of Effective Date requested within thirty (30) days
prior to original Effective Date. WinStar will also be charged
for any charges incurred by Xxxxxxxx from third party
providers as a result of a request by WinStar for a Change of
Effective Date, regardless of date of WinStar notification.
9.2 Change of Collocation Service Order (pre-Effective Date). All
modifications to the information contained in an executed
Collocation Service Order will be reviewed on an individual
case basis and the Collocation Service Order shall be amended
accordingly upon Xxxxxxxx' acceptance of the Collocation
Service modifications. Any modifications will permit Xxxxxxxx
to likewise amend Rates and Charges and Effective Date from
original Collocation Service Order. WinStar will be assessed a
one time fee for changes to a Collocation Service Order.
WinStar will also be charged for any charges incurred by
Xxxxxxxx from third party providers as a result of a request
by WinStar for a Change of Collocation Service Order,
regardless of date of WinStar notification.
9.3 Change of Collocation Service (post-Effective Date). If
WinStar requests a change to Collocation Services after such
Collocation Services have been installed, the request will be
reviewed by Xxxxxxxx on an individual case basis with no
guarantees granted by Xxxxxxxx as to the ability to provide
such enhanced Collocation Service. All Change of Collocation
Service requests shall be authorized by Xxxxxxxx via a change
Collocation Service Order. WinStar may incur an additional
Collocation Service and/or Installation Fee(s) for the amended
Collocation Service. WinStar will be assessed a one time fee
for Collocation Service changes. WinStar will also be charged
for any charges incurred by Xxxxxxxx from third party
providers as a result of a request by WinStar for a Change of
Collocation Service, regardless of date of WinStar
notification.
27
9.4 Order Cancellation (>/=30 days from Effective Date). WinStar may
cancel a Collocation Service Order by written notice to Xxxxxxxx.
WinStar will incur a one time cancellation fee for Collocation
Services cancelled where notice is received at least 30 days
prior to Effective Date.
9.5 Order Cancellation (less than 30 days from Effective Date).
WinStar may cancel a Collocation Service Order by written notice
to Xxxxxxxx. WinStar will incur a one time cancellation fee for
Collocation Services cancelled where notice is received less than
30 days prior to Effective Date.
10. Improvements to Space: In the event WinStar desires to make
improvements to the Space which improvements are deemed material and
substantial as reasonably determined by Xxxxxxxx ("Material
Improvements"), WinStar shall submit all plans and specifications for
such work to be performed in the Space to Xxxxxxxx for Xxxxxxxx' prior
written approval, which approval shall not be unreasonably withheld or
delayed. No construction for Material Improvements may commence until
the foregoing consent is obtained. WinStar agrees that its use or
construction of the Space shall not interfere with Xxxxxxxx' use of its
Premises or other tenants' use of their premises in the building in
which the Premises are located.
WinStar shall not employ any contractor to perform Material
Improvements unless previously approved in writing by Xxxxxxxx, which
approval shall not be unreasonably withheld (and approved in writing by
the Landlord if required by the lease). WinStar and each contractor and
subcontractor participating in performing material Improvements shall
warrant that such work shall be free from all mechanic's and/or
materialman's liens and free from any and all defects in workmanship
and materials for the period of time which customarily applies in good
contracting practice, but in no event for less than one (1) year after
the acceptance of the work by WinStar and Xxxxxxxx. The aforesaid
warrantees of each such contractor and subcontractor and WinStar shall
include the obligation to repair or replace in a workmanlike manner all
defects in workmanship and materials without any additional charge.
It shall be WinStar's responsibility to cause each of WinStar's
contractors and subcontracts to maintain continuous protection of the
premises adjacent to the Space in such manner as to prevent any damage
to such adjacent property by reason of the performance of WinStar's
work.
28
All of WinStar's work shall be coordinated with all work being
performed or to be performed by Xxxxxxxx and other tenants of the
building in which the Premises are located. The contractor or
subcontractor shall not at any time damage, injure, interfere with or
delay the completion of any other construction within the building; and
they and each of them shall comply with all procedures and regulations
prescribed by Xxxxxxxx and the Landlord of the Premises for integration
of winter's work with the work to be performed in connection with the
construction of the building, and all other construction within the
building which comprises or contains the Premises.
All fixtures, alterations, additions, repairs, improvements and/or
appurtenances attached to or built into, on or about the Space prior to
or during the Term of the license relevant thereto, whether by Xxxxxxxx
at its expense or at the expense of WinStar, or by WinStar at its
expense or by previous occupants of the Space, shall be and remain part
of the Space and shall not be removed by WinStar at the end of the Term
of the license relevant to the Space. Upon termination or expiration of
the Term relevant to the Space, Xxxxxxxx shall allow WinStar thirty
(30) days from the date of such termination or expiration, at WinStar's
sole cost and expense, to remove all trade fixtures (including, but not
limited to, rectifiers/chargers, batteries, AC power conditioning
equipment, telecommunication switching equipment, channel banks, etc.)
installed by WinStar provided that the Space is restored by WinStar to
its condition before the installation of such items and that all such
work (including restoration) is performed in accordance with the other
provisions of this Schedule. If WinStar shall fail to complete such
removal and restoration within the aforesaid thirty (30) day time
period, all such trade fixtures remaining within the Space or at the
Premises may, at Xxxxxxxx' option, become the sole property of
Xxxxxxxx, and Xxxxxxxx may dispose of such trade fixtures as it deems
appropriate. WinStar shall continue to pay the Service Fee specified in
the relevant Collocation Service Order until the earlier of: (i)
WinStar's removal of such trade fixtures and completion of such
restoral or (ii) Xxxxxxxx' taking possession of such trade fixtures as
set forth above.
All work affecting the Space shall be in compliance with all laws,
ordinances, rules, regulations, orders and directives of governmental
and quasi-governmental bodies and authorities having jurisdiction over
the Premises and the Space from time to time and WinStar shall obtain
and keep in effect all licenses, permits and other authorizations
required with respect to the business conducted by WinStar within the
Space.
11. Sole Use of Space by WinStar: WinStar acknowledges that it has been
granted only a license to occupy the Space and that it has not been
granted any real property interests in the Space and that neither this
Schedule nor any interest created herein shall be assigned, mortgaged,
subleased, encumbered or otherwise transferred, and that neither the
Space nor any part thereof shall be encumbered in any manner by reason
of any act or omission on the part of WinStar, or used or occupied, or
permitted to be used or occupied, by anyone other than WinStar. Any
attempt to allow the use or occupation of the Space by anyone other
than WinStar to assign, mortgage, sublease or encumber any rights
under this Schedule by WinStar shall, unless otherwise agreed to in
writing by Xxxxxxxx, be void and in such event, Xxxxxxxx shall have
the right to terminate this Schedule as to any or all Space occupied
by WinStar. Such written agreement by Xxxxxxxx shall be subject to the
sole discretion of Xxxxxxxx.
29
12. Eminent Domain: In the event of a taking by eminent domain (or a
conveyance by any Landlord of all or any portion of the Premises to an
entity having the power of eminent domain after receipt of actual
notice of the threat of such taking) of all or any portion of the
Premises so as to prevent, in Xxxxxxxx' sole discretion, the
utilization by WinStar of the Space in the Premises, relevant
Collocation Service Order(s) shall terminate as of the date of such
taking or conveyance with respect to the Space which is affected by
such taking or conveyance and the Service Fee paid or to be paid by
WinStar shall be reduced accordingly. Except as set forth below,
WinStar shall have no claim against Xxxxxxxx for the value of the
unexpired Term of the license affected thereby (or any portion
thereof) or any claim or right to any portion of the amount that might
be awarded to the Landlord of the Premises or Xxxxxxxx as a result of
any such payment for condemnation or damages. Nothing contained in
this Schedule should prohibit WinStar from seeking any relief or
remedy against the condemning authority in the event of an Eminent
Domain proceeding or condemnation which affects the Space.
13. Damage to Premises: If the building in which the Premises are located
is damaged by fire or other casualty, Xxxxxxxx shall give immediate
notice to WinStar of such damage. If a Landlord or Xxxxxxxx exercises
an option to terminate a particular Lease due to damage or destruction
of the Premises subject to such Lease, or if Xxxxxxxx decides not to
rebuild such building or portion thereof in which the Space is
located, relevant Collocation Service Order(s) shall terminate as of
the date of such exercise or decision as to the affected Space and the
Service Fee paid by WinStar shall be modified accordingly. If neither
the Landlord of the affected Premises nor Xxxxxxxx exercises the right
to terminate, Xxxxxxxx shall repair the particular Space to
substantially the same condition it was in prior to the damage,
completing the same with reasonable speed. In the event that Xxxxxxxx
shall fail to complete the repair within a reasonable time period,
WinStar shall thereupon have the option to terminate relevant
Collocation Service Order(s) with respect to the affected Space, which
option shall be the sole remedy available to WinStar against Xxxxxxxx
under this Schedule relating to such failure. If the Space or any
portion thereof shall be rendered untenable by reason of such damage,
the Service Fee for such Space shall proportionately xxxxx, based on
the amount of square footage which is rendered untenable, for the
period from the date of such damage to the date when such damage shall
have been repaired for the portion of the Space rendered untenable.
14. Conduct in Space & Premises: WinStar shall abide by Xxxxxxxx' and
applicable landlord's rules with regard to conduct in the Premises.
Such rules include, but are not limited to, a prohibition against
30
smoking in the Space or the Premises by WinStar's employees, agents,
representatives, contractors, subcontractors, invitees or licensees.
Further, WinStar shall maintain the Space in a safe condition,
including but not limited to the preclusion of storing combustible
materials in the Space.
31
Exhibit C -- Part 2 (Continued)
TECHNICAL SPECIFICATION FOR COLLOCATION SERVICE
Xxxxxxxx Network Standards, Descriptions & Tasks
1.0 DC Power
1.1 Backup electrical power, including batteries and shared use of
an emergency generator to the extent such generator exists and
is maintained to support the Premises.
1.2 DC power adequate for WinStar's consumption equated to power
specified in applicable Collocation Service Order. A
low-voltage and high-voltage battery alarm will be monitored
by Xxxxxxxx.
1.3 Nominal 50 +/- 6V DC battery and charger supply with a minimum
four (4) hour reserve will be provided by Xxxxxxxx.
1.4 Redundant chargers of adequate size will be provided by
Xxxxxxxx, so that in the event of a charger failure the full
load will be supplied to WinStar's equipment. A charger
failure alarm will be monitored by Xxxxxxxx.
2.0 AC Power
2.1 A 20-amp four-plex AC receptacle will be available within
reach of WinStar's Equipment. AC power and outlets for use
with test equipment only and is not provided to operate the
Equipment. This AC power is not provided over an
Uninterruptable Power Source (UPS).
2.2 AC power supply to WinStar equipment is backed by generator
where available, but is not UPS. This excludes utility outlets
described in the immediately preceding subsection 2.1.
3.0 Environmentals
3.1 Pre-reaction sprinkler protection, where available. Smoke and fire
alarms monitored by Xxxxxxxx.
3.2 Lighting.
3.3 Ground Xxxx and cable interconnect.
3.4 Grounding conductor will be supplied by Xxxxxxxx between the bus
bar and WinStar's Equipment.
32
3.5 Overhead cable ladder
3.6 Interconnect signal and power cabling between Xxxxxxxx and
WinStar.
3.7 Concrete floors will be covered with vinyl tile.
3.8 Ambient temperature will be maintained by Xxxxxxxx between
60-90(degree)F with an objective of 20-65% humidity.
3.9 General and administrative services directly relating to the
provision of the above listed Collocation Services.
WinStar Standards, Descriptions & Tasks
1.0 Equipment Specifications
1.1 The Equipment should be designed to operate satisfactorily
between 60-90(degree)F with 20-65% (non-condensing) humidity.
Low 60(degree) and high 90(degree) temperature alarms will be
monitored by Xxxxxxxx.
1.2 WinStar will ensure that their equipment and surrounding area
do not pose safety hazards to personnel. This includes exposed
AC electrical hazards, trip and slip hazards, hazardous
material storage deficiencies, improperly secured or
overloaded equipment racks or ladders, inadequate ingress and
egress space. OSHA and local codes will apply.
1.3 WinStar will notify Xxxxxxxx of any significant equipment
additions or deletions (i.e. shelf or rack). Installation and
removals will be coordinated with local Xxxxxxxx management.
2.0 Space Specifications
2.1 WinStar will not jeopardize Collocation Service or damage
property of other collocated customers, Xxxxxxxx, or landlord
in any manner.
2.2 WinStar will take precautions to protect Xxxxxxxx' and
landlord's common facility and nearby equipment belonging to
other customers. This includes floor, wall, and
telecommunication equipment protection while moving equipment
and notifying Xxxxxxxx of any major rearrangements of
equipment, drilling, power work, and etc.
2.3 WinStar will follow good housekeeping practices. All trash
must be disposed of daily at WinStar's expense. Any trash or
empty boxes not disposed of by WinStar is subject to removal
by Xxxxxxxx with any associated charges borne by WinStar.
33
2.4 Nothing may be stored outside of the assigned rack space. A
minimum of 2.5' of aisle space must be maintained at
front and rear of equipment.
2.5 No metal ladders, stools, or chairs may be used.
2.6 Combustible or hazardous material may not be stored in the
area.
2.7 All equipment must be installed within the assigned rack
footprint (i.e. UPS units, spare equipment).
2.8 All cabling will be terminated on DSX panels in the Xxxxxxxx
common area. Fiber will be terminated on an appropriate Fiber
Distribution Panel ("FDP"). Any panels for WinStar end will be
supplied at WinStar's expense.
2.9 WinStar is responsible for the termination of the A & B DC
power and signal cabling in its Equipment.
2.10 Maximum DC power provided to WinStar as A & B power shall be
rated for the rating of a single feed. WinStar is liable for
an outage caused by the DC power exceeding the single feed
rating. WinStar will be responsible for payment of consumed
power exceeding the single feed rating specified in the
Collocation Service Order.
2.11 WinStar will follow normal telecommunications industry
standards with regards to equipment installation and removal
in a central office environment. Xxxxxxxx standards are to be
followed for connection of cables that interface with
Xxxxxxxx. All installations are subject to approval by
Xxxxxxxx.
2.12 Permanent use of extension cords is not allowed.
2.13 WinStar will not jeopardize Xxxxxxxx' ability to conduct
business in any manner.
2.14 All local, state, and federal laws will be obeyed. Local
requirements for union labor, especially for AC electrical
work, will be observed. Building management guidelines will be
followed.
2.15 WinStar will follow Xxxxxxxx sign-in procedures at all times.
Subject to the requirements of this Schedule, WinStar shall
have access to their equipment 24 hours a day, 365 days a
year. WinStar must coordinate their first visit to a
particular Xxxxxxxx' site with Xxxxxxxx' operations
department, giving at least five (5) days notice of such
visit. For all subsequent entries, WinStar will follow the
procedure outlined below:
34
(a) At locations where WinStar's equipment is located in caged space
which is separate from Xxxxxxxx' equipment, before entry WinStar
will notify Xxxxxxxx' Network Control Center at (000) 000-0000
and follow Xxxxxxxx' sign-in procedures.
(b) At locations where WinStar's equipment is not located in caged
space which is separate from Xxxxxxxx' equipment, WinStar must be
escorted by a Xxxxxxxx technician. WinStar may gain such escort
by notifying Xxxxxxxx' Network Control Center at (000) 000-0000
at least forty-eight hours prior to WinStar's desired entry. In
the case of an emergency, WinStar shall give as much notice as is
reasonably possible by contacting Xxxxxxxx' Network Control
Center at the number listed above. Xxxxxxxx' Network Control
Center shall work with WinStar to allow WinStar to gain access as
soon as reasonably possible.
2.16 If Xxxxxxxx notifies WinStar in writing of a violation of the
above rules, or any other unsafe or unacceptable situation or
practice, WinStar must correct the problem within seven days or
provide a written plan for correction to Xxxxxxxx' satisfaction
and proposed completion date. Xxxxxxxx may agree to additional
time. If the problem is not resolved in seven days or within the
agreed upon time frame, which ever is longer, Xxxxxxxx may fix
the option of either (i) correcting the problem at WinStar's
expense or (ii) terminating the contract and diconnecting power
and signal connections from WinStar's equipment.
Extreme safety violations are subject to immediate correction by
Xxxxxxxx without prior notice to WinStar. Corrections made by
Xxxxxxxx are at WinStar's expense and will be billed to WinStar
on a time and material basis.
35
Exhibit C - Attachment I
Reference Number ________________________
new |_| disc |_|
sup |_| cancel |_|
change |_|
[XXXXXXXX COLLOCATION SERVICE REQUEST]
36
[XXXXXXXX COLLOCATION SERVICE ORDER]
[CONTINUED]
37
EXHIBIT D
Fiber Splicing, Testing and Acceptance Standards
1. Initial Construction Testing
A. During initial construction, Xxxxxxxx shall use an optical time
domain reflectometer ("OTDR") to test splices and shall use an OTDR and a 1-km
launch reel to test pigtail connectors. Such initial construction tests shall be
uni-directional and performed at 1550 nm.
B. If the loss value of two connectors and the associated pigtail
splice exceeds 1 dB, Xxxxxxxx shall break the splice and re-splice until the
loss value is 1.0 dB or less. If Xxxxxxxx is unable to achieve a loss value of
1.0 dB or less after five total splicing attempts, the splice shall be marked as
Out-of-Spec (OOS).
C. If the loss value for a splice, when measured in one direction with
an OTDR, exceeds 0.15 dB, Xxxxxxxx shall break the splice and re-splice until
the loss value is 0.15 dB or less, provided that, if Xxxxxxxx is not able to
achieve a loss value of 0.15 dB after three total splicing attempts, then the
maximum loss value shall be 0.3 dB. If, after two additional resplicing
attempts, Xxxxxxxx is not able to achieve a loss value of 0.3 dB or less, then
Xxxxxxxx shall xxxx the splice as Out-of-Spec (OOS).
2. End-to-End Testing
A. After Xxxxxxxx has established end-to-end connectivity on the fibers
during initial construction, it shall:
o perform bi-directional end-to-end tests,
o test continuity to confirm that no fibers have been "frogged" or crossed in
any of the splice points,
o record loss measurements using a light source and a power meter, and
o take OTDR traces and record splice loss measurements.
X. Xxxxxxxx shall perform the bi-directional end-to-end tests and
OTDR traces at both 1310 nm and 1550 nm. Xxxxxxxx shall measure and verify
losses for each splice point in both directions and average the loss values.
Xxxxxxxx shall xxxx any splice points as Out-of-Spec (OOS) that have an average
loss value, based on bi-directional OTDR testing at 1550 nm, in excess of 0.3
dB.
38
3. Post-Construction Testing
After performing permanent resplicing (in conjunction with repair of a cable
cut, replacement of a segment of cable, or other work after initial installation
and splicing of the cable), the test procedures set forth in section 2
(End-to-End Testing), shall apply to the relevant fibers and cable segments. The
provisions in sections 4 (OTDR Equipment and Settings) and 5 (Acceptance Test
Deliverables), that are relevant to such testing shall also apply. Xxxxxxxx may,
after completing construction of its System, adopt any alternative methods of
testing that are generally accepted in the industry and that provide sufficient
data to fulfill the objectives of the tests set forth in this exhibit.
4. Out-of-Spec Splices
Out-of-Spec splices shall be noted, but shall not preclude acceptance
of a fiber if the Out-of-Spec condition does not affect transmission capability
(based on use of then-prevailing telecommunications industry standards
applicable to equipment generally used with the relevant type of fiber) or
create a significant possibility of an outage.
5. OTDR Equipment and Settings
X. Xxxxxxxx shall use OTDR equipment and settings that are, in its
reasonable opinion, suitable for performing accurate measurements of the fiber
installed. Such equipment and settings shall include, without limitation, the
equipment and settings described below.
X. Xxxxxxxx has approved the following OTDRs and settings for
acceptance testing: the Laser Precision TD3000 and CMA4000 models and compatible
models.
X. Xxxxxxxx has approved the following settings for various OTDR tests:
i. Index of refraction settings:
1310 nm 1550 nm
---------------------------------- ---------------- -----------------
Lucent Truwave 1.4738 1.4732
Corning SMF-28 1.4675 1.4681
Corning SMF-LS 1.471 1.470
Corning LEAF 1.470 1.469
Sumitomo fiber 1.4670 1.4670
39
ii. Tests of a pigtail connector and its associated splice:
TD3000 CMA4000
-------------------------- ----------------------------
4 km Range 4 km Range
50 ns Pulse 50 ns Pulse
1 m Resolution 1 m Resolution
Medium Averaging Medium Averaging
iii. End to End Segment OTDR Testing:
TD3000 CMA4000
-------------------------- ----------------------------
64 km Range 100 km Range
500 ns Pulse 250 ns Pulse
4 m Resolution 4 m Resolution
Medium Averaging Medium Averaging
Note: If the end points are more than 64 kilometers apart, Xxxxxxxx
currently uses a TD3000 set at 128 km range setting and performs
bi-directional testing only at 1550 nm.
6. Acceptance Test Deliverables
Xxxxxxxx shall provide data sheets or computer media containing the
following information for the relevant fibers and cable segments:
A. Verification of end-to-end fiber continuity with power level
readings for each fiber taken with a light source and power meter.
B. Verification of loss at each splice point to be below 0.3 dB as
well as the final bi-directional OTDR test data, with distances.
C. Cable manufacturer, cable type (buffer/ribbon), fiber type,
cable reel number, number of fibers, number of fibers per tube, and
distance of each section of cable between splice points.
40
EXHIBIT E
FIBER SPECIFICATIONS
Exhibit A, Part 2 sets forth the types of fibers for each System
Segment. The corresponding attached manufacturer's specifications shall apply to
each System Segment as indicated therein.
Xxxxxxxx may, with WinStar's consent, which shall not be unreasonably
withheld, substitute a different type of fiber for a System Segment if such type
is equivalent or superior to the type set forth in Exhibit A, Part 2 for such
System Segment, by written notice provided at least one hundred twenty (120)
days before the planned Acceptance Date for such System Segment. Such written
notice shall include the relevant manufacturer's specifications for such fiber
type and such specifications shall, if WinStar consents to such substitution,
apply to such System Segment.
Specifications for SMF-28, SMF-LS, and SMF-LEAF fibers are attached.
41
EXHIBIT F
Cable Installation Specifications
1. Material
o Steel or PVC conduit shall be minimum schedule 40 wall thickness.
o Any exposed steel conduit, brackets or hardware (e.g., bridge attachments)
shall be hot-dipped galvanized after fabrication. o All split steel shall
be flanged.
o Handholes shall have a minimum H-15 loading rating.
o Manholes shall have a minimum H-20 loading rating.
o Warning signs shall display universal do not dig symbol, "Warning-Buried
Fiber-Optic Cable," company name and logo, local and emergency One Call
toll-free numbers.
2. Minimum Depths
Minimum cover required in the placement conduit/cable shall be forty-two inches
(42"), except in the following instances:
o The minimum cover in ditches adjacent to roads, highways, railroads and
interstates is forty-eight inches (48") below the clean out line or
existing grade, whichever is greater.
o The minimum cover across streams, river washes, and other waterways shall
be sixty inches (60") below the clean out line or existing grade, whichever
is greater.
o At locations where fiber-optic cable crosses other subsurface utilities or
other structures, the fiber-optic cable/conduit shall be installed to
provide a minimum of twelve inches (12") of vertical clearance from the
utility/obstacle. The fiber-optic cable/conduit can be placed above the
utility/obstacle, provided the minimum clearance and applicable minimum
depth can be maintained; otherwise the fiber optic cable/conduit shall be
installed under the existing utility or other structure.
o In rock, the cable/conduit shall be placed to provide a minimum of eighteen
inches (18") below the surface of the solid rock, or provide a minimum of
forty-two inches (42") of total cover, whichever requires the least rock
excavation.
o Where existing pipe is used, current depth is sufficient.
42
3. Buried Cable Warning Tape
o All cable/conduit shall be installed with buried cable warning tape. The
warning tape shall be laid a minimum of twelve inches (12") above the
cable/conduit. The warning tape shall generally be placed at a depth of
twenty-four inches (24") below grade and directly above the cable/conduit.
o Buried cable warning tape shall be a minimum of three inches (3") wide and
display "Warning-Buried Fiber-Optic Cable," a company name, logo and
emergency One Call toll-free number repeated every twenty-four inches
(24").
4. Conduit Construction
o Conduits may be placed by means of trenching, plowing, xxxx and bore,
multi-directional bore or directional bore. Conduits shall generally be
placed on a level grade parallel to the surface, with only gradual changes
in grade elevation.
o Steel conduit shall be joined with threaded collars, Zap-Lok or welding.
(Welding is the preferred method.)
o All crossings of paved city, county, state, federal, and interstate
highways, or railroad crossings shall be encased in steel conduit.
o All longitudinal cable runs under paved streets shall be placed in steel or
concrete encased PVC conduit.
o All cable placed in metropolitan areas shall be placed in steel or concrete
covered PVC conduit.
o Metropolitan areas shall be defined as areas where there is either
extensive development and improvement or rapid growth (new building
construction).
o All crossings of major streams, rivers, bays and navigable waterways shall
be placed in HDPE, PVC or steel conduit, or shall use specially armored
submarine cable.
o At all foreign utility/underground obstacle crossings, steel conduit shall
be placed and shall extend at least five feet (5') beyond the outer limits
of the obstacle in both directions.
o All xxxx and bores shall use steel conduit.
o All directional or mini-directional bores shall use HDPE or steel conduit.
o Any cable placed in swamp or wetland areas shall be placed in HDPE, PVC or
steel conduit.
5. Innerduct Installation
o Innerduct(s) shall be installed in all steel conduits. No cable shall be
placed directly in any split/solid steel conduit without innerduct
43
o Innerduct(s) shall extend beyond the end of all conduits a minimum of
eighteen inches (18").
6. Cable Installation in Conduit
The fiber-optic cable shall be installed using either a sealed pneumatic cable
blowing system or a powered pulling winch and hydraulic powered assist pulling
wheels. The maximum pulling force to be applied to the fiber-optic cable shall
be six hundred pounds (600 lbs.). Sufficient pulling assists shall be available
and used to insure the maximum pulling force is not exceeded at any point along
the pull.
o The cable shall be lubricated at the reel and all pulling assist locations.
o A pulling swivel breakaway rated at six hundred pounds (600 lbs.) shall be
used at all times.
o Splices shall only be allowed at planned junctions and reel ends.
o All splices shall be contained in a handhole or manhole.
o A minimum of twenty meters (20m) of slack cable shall be left in all
intermediate handholes and manholes.
o A minimum of thirty meters (30m) of slack cable shall be left in all splice
locations.
o A minimum of fifty meters (50m) of slack cable shall be left in
Transmission Sites and points of presence.
o PVC conduit or innerduct may be split, with the fiber-optic cable installed
inside the split duct and plowed in.
7. Manholes and Handholes
o Manholes shall be placed in traveled surface streets and shall have locking
lids.
o Handholes shall be placed in all other areas, and be installed with a
minimum of eighteen inches (18") of soil covering lid.
8. EMS Markers
EMS Markers shall be placed directly above the lid of all buried handholes. EMS
markers fabricated into the lids of the handholes are acceptable.
9. Cable Markers (Warning Signs)
Cable markers shall be installed at all changes in cable running line direction,
splices, pull boxes, assist-pulling locations, and at both sides of street,
highway or railroad crossings. Markers shall be spaced at intervals of no more
than five hundred feet (500') apart in metropolitan areas and within line of
sight (not to exceed one thousand feet (1,000')) in non-metropolitan areas.
Markers shall be positioned so that they can be seen from the location of the
cable and generally set facing perpendicular to the cable running line.
44
Splices and pull boxes shall be marked on the cable marker post.
10. Fiber Optic Groundwire
The Xxxxxxxx Communications, Inc. (Vyvx) Optical Groundwire Specifications
(Issue 1; October 15, 1996) shall apply to optical groundwire (aerial fibers
installed within power transmission groundwire cable). Sections 2 through 9 of
these Cable Specifications shall be inapplicable to optical groundwire. Upon
written request, Xxxxxxxx shall promptly provide a copy of its Optical
Groundwire Specifications.
11. Updating of Specifications
Xxxxxxxx may revise these Cable Installation Specifications to include new
procedures, materials, or processes so long as the changes achieve the
objectives of the specifications set forth above and are in accordance with, or
superior to, then-current telecommunications industry standards.
45
EXHIBIT G
Transmission Site Specifications
All Transmission Sites shall have redundant HVAC (heating, ventilation,
and air conditioning) units each capable of handling the site's full HVAC load.
All unattended (unmanned) Transmission Sites shall have a minimum of
eight (8) hours' battery reserve.
All attended Transmission Sites without an on-site generator shall have
a minimum of eight (8) hours' battery reserve. If there is no generator on site,
Xxxxxxxx shall have a portable generator at the Transmission Site within eight
(8) hours of a power failure.
All attended Transmission Sites with an on-site generator shall have a
minimum of four (4) hours' battery reserve.
All on-site generators shall be capable of powering the total site for
a minimum of twenty-four (24) hours. All generators shall have auto-start and
auto-load transfer capabilities. All generators shall be inspected, tested, and
refueled (to replace consumed fuel) once per month.
Xxxxxxxx shall use approximately forty-mile spacing between
Transmission Sites (or between a Transmission Site and a point of presence or
System end point), except where geographic factors dictate shorter spacing.
All Transmission Site buildings shall be grounded with a target
specification of 5 ohms or less. The Cable sheath will be exposed and grounded,
typically at least fifty (50) cable feet before the entrance to the building
transition of outside plant to inside plant cabling.
47
EXHIBIT H
As-Built Drawing Specifications
1. As-Built Alignment Sheets
Survey information (either from existing data or new information) shall
be put on drawings.
Drawings shall contain cable information, splice locations, assist
point locations with permanent structures, survey stations, conduit
information, Transmission Site locations, and optical distances to the
nearest Transmission Sites from each splice location.
Drawings shall be updated with actual field data during and after
construction.
Metropolitan area scales shall not exceed 1" = 200'.
Non-metropolitan area scales shall not exceed 1" = 500'.
Drawings shall be "blue lines", as such term is understood in the
industry or in Auto CAD format revision 13 or a later revision.
Xxxxxxxx may, after completing construction of its System, adopt any
replacement method of creating or providing drawings that is generally
accepted in the industry and that provides equivalent information.
2. Transmission Sites
Floor plans shall show rack placement and assignment for WinStar's
floor space.
47
EXHIBIT I
Operations Specifications
1. Routine Maintenance
Xxxxxxxx shall perform the work and provide the services set forth in the
following paragraphs A through E as Routine Maintenance:
A. NCC Functions. Xxxxxxxx shall operate a manned Network Control
Center ("NCC") twenty-four (24) hours a day, seven (7) days a week that monitors
the System by means of remote surveillance equipment and dispatches maintenance
and repair personnel to handle and repair problems detected through by the NCC
or reported by WinStar or other parties. Xxxxxxxx shall provide WinStar a
toll-free telephone number to report problems to the NCC.
B. Cable Maintenance. Xxxxxxxx shall perform appropriate routine
maintenance on the Cable in accordance with Xxxxxxxx' then current preventative
maintenance procedures. Xxxxxxxx' preventative maintenance procedures shall not
substantially deviate from industry practice.
C. Transmission Site Maintenance. Xxxxxxxx shall perform appropriate
routine maintenance on regenerator, optical amplifier, and junction buildings,
including the DC power plant, HVAC equipment, and basic building safety
equipment including alarms and emergency generators in accordance with Xxxxxxxx'
then current preventative maintenance procedures. Xxxxxxxx' preventative
maintenance procedures shall not substantially deviate from industry practice.
D. Route Patrol. Xxxxxxxx shall patrol the Route on a reasonable,
routine basis and shall perform all required Cable locates. Xxxxxxxx shall
belong to a state or regional one-call (call-before you dig) center when
available.
E. Spare Cable. Xxxxxxxx shall maintain an inventory of spare Cable at
strategic locations to facilitate timely restoration.
2. Planned Network Maintenance Activity
Xxxxxxxx shall avoid performing maintenance between 0600-2200 local time, Monday
through Friday, inclusive, that will have a disruptive impact on the continuity
or performance level of WinStar Property. However, the preceding sentence does
not apply to restoration of continuity to a severed or partially severed fiber
optic cable, restoration of dysfunctional power and ancillary support equipment,
or correction of any potential jeopardy conditions. Xxxxxxxx shall provide
WinStar with telephone, facsimile, or written notice of all non-emergency
planned network maintenance (a) no later than 3 working days prior to performing
maintenance that, in its reasonable opinion, has a substantial likelihood of
affecting WinStar's traffic for up to 50 milliseconds, and (b) no later than ten
(10) working days prior to performing maintenance that, in its reasonable
opinion, has a substantial likelihood of affecting WinStar's traffic for more
than 50 milliseconds. If Xxxxxxxx' planned activity is canceled or delayed,
Xxxxxxxx shall promptly notify WinStar and shall comply with the provisions of
the previous sentence to reschedule any delayed activity.
48
3. Fiber and Cable
Xxxxxxxx shall correct or repair Cable discontinuity or damage. Xxxxxxxx shall
use commercially reasonable efforts to repair Cable traffic discontinuity within
the following times:
Dispatch of personnel to problem area - immediately upon learning of
discontinuity
Maintenance employee's on site - within four (4) hours of learning of
discontinuity
Restoration of Cable continuity - continuity of at least one fiber
shall be established within six (6) hours of learning of discontinuity;
restoration shall continue until all in-service fibers are restored
Within twenty-four (24) hours after completion of an emergency repair, Xxxxxxxx
shall commence its planning for permanent repair, shall notify WinStar of such
plans, and shall implement such permanent repair within an appropriate time
thereafter.
Xxxxxxxx shall comply with the Cable splicing specifications as provided in
Exhibit C (entitled "Fiber Cable Splicing, Testing and Acceptance Standards").
Xxxxxxxx shall provide to WinStar any modifications to these specifications for
WinStar's approval, which shall not be unreasonably withheld, so long as the
modifications do not deviate from industry standards.
The demarcation point between the Cable and the facilities of WinStar or other
parties shall be at the Fiber distribution panel or (but only if Xxxxxxxx agrees
to establish such a connection) meet-me vault.
4. Addition of Drop/Splice Points
WinStar shall have no right to access any Fibers within the Cable or to enter
any splice or Xxxxxxxx vault.
WinStar may request that Xxxxxxxx connect WinStar's Fibers with other
telecommunications facilities at WinStar's sole expense, at the Cable end points
or at Transmission Sites (each, a "Connecting Point"). Such request shall set
forth the splice location (which shall be at a demarcation point as set forth
above) and the work required to be performed.
49
WinStar shall notify Xxxxxxxx at least thirty (30) days in advance of the date
that it requests that a connection be completed. Xxxxxxxx shall use commercially
reasonable efforts to accommodate the request, but may restrict such work to the
planned system work periods set forth above.
Xxxxxxxx may decline to make a requested connection if Xxxxxxxx determines, in
its reasonable discretion, that there is a significant likelihood that (a)
WinStar's use of a proposed Connecting Point would cause a material and adverse
effect on the System or the use thereof; (b) use of a particular splice
locations will cause a significant technical impediment; or (c) the making or
existence of the connection presents an unreasonable risk of creating an
interruption of transmission.
WinStar shall have no right to establish any connection to the System other than
at the fiber distribution panels located at the end points or Transmission
Sites.
WinStar shall, prior to the requested connection date, provide a spur cable
adequate to reach the splice location with an additional length (minimum 25
meters) sufficient for Xxxxxxxx to splice into any Fibers at the fiber
distribution panel or meet-me vault. WinStar shall obtain the necessary rights
of way (or other rights, if required) for the spur cable and shall install and
maintain the spur cable beyond the demarcation point.
Xxxxxxxx may require WinStar to pay the costs of maintaining any splice point
that presents unusual problems of access for Xxxxxxxx. If WinStar has a
connection at a splice point and Xxxxxxxx requires access to WinStar Fibers for
inspection, maintenance, or repair purposes and Xxxxxxxx does not have physical
access to the Fibers to verify splicing specifications from Xxxxxxxx' fiber
distribution panel, WinStar shall promptly upon Xxxxxxxx' request provide a
trained and qualified technician at WinStar's fiber distribution panel with an
OTDR to assist Xxxxxxxx in performing such inspection, maintenance, or repair.
5. Miscellaneous
Xxxxxxxx' maintenance employees shall be available for dispatch twenty-four (24)
hours a day, seven (7) days a week. Xxxxxxxx shall use commercially reasonable
efforts to have its first maintenance employee at the site requiring an
emergency maintenance activity within four (4) hours from the time of alarm
identification by Xxxxxxxx' NCC or notification by WinStar, whichever occurs
first. Emergency maintenance is defined as any service affecting situations
requiring an immediate response.
In performing its services hereunder, Xxxxxxxx shall take workmanlike care to
prevent impairment to the signal continuity and performance of the System. In
addition, Xxxxxxxx shall reasonably cooperate with WinStar in sharing
information and analyzing the disturbances regarding the cable and/or fiber
facilities.
50
Nothing contained herein shall make Xxxxxxxx responsible for WinStar's
equipment. If, however, Xxxxxxxx agrees to maintain WinStar electronic
equipment, WinStar shall provide equipment spares, vendor training and
documentation for each technician along the route when different vendor
equipment is used between Xxxxxxxx and WinStar.
Xxxxxxxx shall, at WinStar's request, provide WinStar an operations escalation
list for shall use in reporting and seeking redress of exceptions noted in
Xxxxxxxx' performance of Routine Maintenance and Non-Routine Maintenance.
51
Exhibit K
Payment Terms
1. Amount of Payment. WinStar shall pay Xxxxxxxx the Contract Price in
eighty-four (84) consecutive monthly installments of $7,656,577 each, due and
payable on the fifteenth (15th) day of each month, commencing February 15, 1999,
provided, however, that if any such date is not a day on which banks in New York
are open for business ("Business Day"), the payment due thereon shall be paid on
the next Business Day, and further provided, however that any such payment shall
be subject to adjustment as provided in Section 2 below.
2. Adjustment Events. Each monthly payment required by Section 1 above shall be
subject to adjustment pursuant to Sections 5.2(e), 6.4 and 10.4 of the
Agreement.
3. Further Representation and Warranties.
(a) Security Matters. WinStar hereby represents and warrants (with defined
terms having the meanings set forth in Section 7 below):
(i) Winstar has good and valid rights in and to the Collateral and
has full power and authority and legal right to grant to the
Secured Party the Security Interest in the Collateral pursuant
hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent
or approval of any other Person other than any consent or
approval which has been obtained;
(ii) The Security Interest (x) constitutes a legal and valid security
interest in and to all of WinStar's rights in the Collateral
securing the payment and performance of the Obligations and (y)
upon the filing of appropriate UCC or other forms, will
constitute a perfected security interest in and to all
Collateral. The Security Interest is and shall be prior to any
other Lien on any of the Collateral, except for Permitted
Encumbrances; and
(iii) WinStar has not filed or consented to the filing of any
financing statement or analogous document under the Uniform
Commercial Code or any other applicable laws covering any
Collateral.
(b) Other Matters. WinStar hereby represents and warrants to Xxxxxxxx that
(i) the representations and warranties of WinStar Network Expansion,
LLC ("Borrower") and WinStar Communications, Inc. ("Parent") set forth
in Article III of the Credit Agreement dated as of October 21, 1998
(the "Lucent Credit Agreement"), among Borrower, Parent, the lenders
party thereto, State Street Bank and Trust Company (as "Collateral
Agent"), and Lucent Technologies, Inc. (as "Administrative Agent") are
true and correct on the date of this Agreement with the same force and
effect as if made on such date (or in the case of any representation
and warranty that expressly relates to an earlier date, on and as of
the earlier date) and (ii) that it has delivered to Xxxxxxxx a
complete and correct copy of the Lucent Credit Agreement.
52
4. Events of Default. Until the Contract Price has been paid in full (except to
the extent the Payment Deductions have relieved WinStar of the obligation to pay
the Contract Price), notwithstanding the provisions of Article 21 of the
Agreement (except as to clause (h) below), each of the following shall
constitute an "Event of Default":
(a) WinStar shall fail to pay any portion of the Contract Price or
the Exercise Price on the due date thereof (except to the extent
the Payment Deductions have relieved WinStar of the obligation to
pay the Contract Price or the Exercise Price);
(b) WinStar shall fail to pay any other amount in excess of $100,000
due under the Agreement within 30 days after such amount has
become due or any lesser amount within fifteen (15) days after
receiving notice from Xxxxxxxx of such non-payment (except to the
extent the Payment Deductions have relieved WinStar of the
obligation to pay such amount);
(c) any representation or warranty made by WinStar in this Exhibit K
or otherwise in this Agreement shall prove to have been incorrect
when made in any respect which could reasonably be expected to
have a material adverse effect upon Xxxxxxxx' ability to realize
the benefits of the Agreement;
(d) there shall occur any breach (including without limitation any
breach of any representation and warranty) by Parent under the
Guarantee Agreement (as described below);
(e) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization
or other relief in respect of Parent or any of its Restricted
Subsidiaries (as such term is defined in the Lucent Credit
Agreement) or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii)
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Parent or any of its
Restricted Subsidiaries or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(f) Parent or any of its Restricted Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (e) of this Section 4,
(iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator, or similar
official for Parent or any of its Restricted Subsidiaries or for
a substantial part of its assets, (iv) file an answer admitting
the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting
any of the foregoing;
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(g) Parent or any of its Restricted Subsidiaries shall become unable,
admit in writing its inability or fail generally to pay its debts
as they become due;
(h) there shall occur any other event which entitles Xxxxxxxx to
terminate this Agreement; or
(i) this Agreement shall cease, for any other reason, to be in full
force and effect or WinStar shall so assert or the Lien (as
defined below) created by this Agreement shall cease to be
perfected or enforceable and of the same effect as to perfection
and priority purported to be created hereunder.
5. Remedies. Upon any Event of Default, and at any time thereafter during the
continuance of such event, Xxxxxxxx may take any or all of the following actions
at the same or different times:
(a) cease to perform any of its obligations under the Agreement;
(b) terminate the Agreement; or
(c) seek to enforce its right to collect damages for breach of
contract.
6. Conditions Precedent.
(a) Prior to the first Acceptance Date, as a condition precedent to
Xxxxxxxx obligations with respect to such Acceptance Date,
WinStar shall cause the following actions to be taken:
(i) cause the Guarantee Agreement in the form attached hereto as
Annex A ("Guarantee") to be executed and delivered by
Parent;
(ii) deliver to Xxxxxxxx an opinion of counsel reasonably
acceptable to Xxxxxxxx (which may be WinStar's General
Counsel), which opinion shall be satisfactory in form and
substance to Xxxxxxxx, to the effect set forth in Annex B
hereto; and
(iii) deliver to Xxxxxxxx a certified copy of an amendment to the
Lucent Credit Agreement which permits the transactions
contemplated by this Agreement.
54
(b) Prior to each Acceptance Date (including the first), as a
condition precedent to Xxxxxxxx' obligation on such Acceptance
Date, WinStar shall take all actions required to perfect the
security interests granted by this Agreement (whether or not the
collateral is characterized as fixtures, equipment, contract
rights, general intangibles or otherwise), using filings (when
necessary) that are satisfactory in form and substance to
Xxxxxxxx.
7. Security Interest
(a) Definition of Certain Terms Used Herein. As used herein, the
following terms shall have the following meanings:
"Collateral" shall mean all of the following, whether now owned or
existing or hereafter acquired or arising to the extent acquired by
WinStar from Xxxxxxxx pursuant to this Agreement and used in
connection with or arising out of the use of the Equipment: (i) all
Equipment, (ii) all General Intangibles to the extent that a grant
of a security interest therein to does not violate any agreement to
which WinStar is now or may hereafter be subject, and (iii) all
Proceeds.
"Equipment" shall mean the following, to the extent acquired by WinStar
from Xxxxxxxx pursuant to this Agreement: (i) all equipment, strands
of optical fiber, and cable, or interests therein (ii) all tangible
personal property similar to any of the foregoing, and (iii) all
improvements, accessions or appurtenances thereto. The term Equipment
shall include Fixtures.
"Fixtures" shall mean all items of Equipment, whether now owned or
hereafter acquired, of WinStar that become so related to particular
real estate that an interest in them arises under any real estate law
applicable thereto.
"General Intangibles" shall mean the following, to the extent acquired
by WinStar pursuant to this Agreement; (i) all "general intangibles"
as such term is defined in the Section 9-106 of the UCC and (ii) all
other intangible personal property of WinStar of every kind and nature
now owned or heereafter acquired by WinStar, including WinStar's
rights under this Agreement.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, and (b) the interest of a vendor or
a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the
same economic effect as any of the foregoing) relating to such asset.
"Obligations" means all present and future monetary obligations of
WinStar to Xxxxxxxx under this Agreement.
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"Permitted Encumbrances" shall have the meaning specified in the
Lucent Credit Agreement.
"Person" shall mean any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
governmental or regulatory authority or other entity.
"Proceeds" shall mean any consideration received from the sale,
exchange, license, lease or other disposition of any asset which
constitutes Collateral, including any payment received from any
insurer or other Person as a result of the destruction, loss, theft,
damage or other involuntary conversion of whatever nature of any asset
which constitutes Collateral.
"Security Interest" shall have the meaning assigned to such term in
paragraph (b) below.
"Transaction Documents" shall mean this Agreement and the Guarantee .
"Transactions" shall mean the execution, delivery, and performance by
WinStar of each Transaction Document.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York or any other applicable jurisdiction.
(b) Security Interest. In order to effectuate the provisions of Section
2.6 of the Agreement, as security for the payment or performance, as
the case may be, in full of the Obligations, WinStar hereby bargains,
sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to Xxxxxxxx, its successors and assigns, and hereby
grants to Xxxxxxxx, its successors and assigns, a security interest
in, all of WinStar's right, title and interest in, to and under the
Collateral (the "Security Interest"). Without limiting the foregoing,
Xxxxxxxx is hereby authorized to file one or more financing statements
(including fixture filings), continuation statements or other
documents for the purpose of perfecting, confirming, continuing,
enforcing or protecting the Security Interest granted by WinStar
without the signature of WinStar, and naming WinStar as debtor and
Xxxxxxxx as secured party.
(c) No Assumption of Liability. The Security Interest is granted as
security only and shall not subject Xxxxxxxx to, or in any way alter
or modify, any obligation or liability of WinStar with respect to or
arising out of any of the Collateral.
(d) Protection of Security. WinStar shall, at its own cost and expense,
take any and all actions necessary to defend title to the Collateral
against all Persons and to defend the Security Interest of Xxxxxxxx in
the Collateral and the priority thereof against any Lien.
56
(e) Further Assurances. WinStar shall, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further
instruments and documents (including Uniform Commercial Code financing
statements in Collateral in which WinStar acquires an interest after
the date hereof) and take all such actions as Xxxxxxxx may from time
to time request to better assure, preserve, protect and perfect the
Security Interest and the rights and remedies created hereby,
including the payment of any fees and taxes required in connection
with the execution and delivery of this Agreement, the granting of the
Security Interest and the filing of any financing statements
(including fixture filings) or other documents in connection herewith
or therewith. WinStar agrees to take such action as may be requested
by Xxxxxxxx to cause the Security Interest in Equipment to have
priority pursuant to Sections 9-312(4) and 9-313 of the UCC, as
applicable.
(f) Inspection and Verification. Xxxxxxxx and such Persons as Xxxxxxxx may
reasonably designate shall have the right, on reasonable advance
notice at WinStar's own cost and expense, to inspect the Collateral,
all records related thereto (and to make extracts and copies from such
records) and the premises upon which any of the Collateral is located,
to discuss WinStar's affairs with the officers of WinStar and its
independent accountants and to verify under reasonable procedures the
validity, amount, quality, quantity, value, condition and status of,
or any other matter relating to, the Collateral, including, in the
case of Collateral in the possession of any third Person, by
contacting the third Person possessing such Collateral for the purpose
of making such a verification. Xxxxxxxx shall have the absolute right
to share any information it gains from such inspection or verification
with its agents and representatives.
(g) Taxes; Encumbrances. At its option, Xxxxxxxx may discharge past due
taxes, assessments, charges, fees, Liens, security interests or other
encumbrances at any time levied or placed on the Collateral and not
permitted under the Transaction Documents and may pay for the
maintenance and preservation of the Collateral to the extent WinStar
fails to do so, and WinStar agrees to reimburse Xxxxxxxx on demand for
any payment made or any expense incurred by Xxxxxxxx pursuant to the
foregoing authorization; provided, however, that nothing in this
Section 7 shall be interpreted as excusing WinStar from the
performance of, or imposing any obligation on Xxxxxxxx to cure or
perform, any covenants or other promises of WinStar with respect to
taxes, assessments, charges, fees, Liens, security interests or other
encumbrances.
(h) Continuing Obligations of WinStar. WinStar shall remain liable to
observe and perform all the conditions and obligations to be observed
and performed by it under each contract, agreement or instrument
relating to the Collateral, all in accordance with the terms and
conditions thereof, and WinStar agrees to indemnify and hold harmless
Xxxxxxxx and Xxxxxxxx' Affiliates from and against any and all
liability for such performance.
(i) Use and Disposition of Collateral. Except as otherwise permitted by
this Agreement, WinStar shall not make or permit to be made an
assignment, pledge or hypothecation of the Collateral or grant any
other Lien in respect of the Collateral, and WinStar shall not sell,
convey, lease, assign, transfer or otherwise dispose of any
Collateral, except in any such case in the ordinary course of
business.
57
(j) Power of Attorney. Xxxxxxxx shall have the right, as the true and
lawful agent and attorney-in-fact of WinStar, with power of
substitution for WinStar and in WinStar's name or otherwise, for the
use and benefit of Xxxxxxxx, upon the occurrence and during the
continuance of an Event of Default (a) to receive, endorse, assign
and/or deliver any and all notes, acceptances, checks, drafts, money
orders or other evidences of payment relating to the Collateral or any
part thereof; (b) to demand, collect, receive payment of, give receipt
for and give discharges and releases of all or any of the Collateral;
(c) to commence and prosecute any and all suits, actions or
proceedings at law or in equity in any court of competent jurisdiction
to collect or otherwise realize on all or any of the Collateral or to
enforce any rights in respect of any Collateral; (d) to settle,
compromise, compound, adjust or defend any actions, suits or
proceedings relating to all or any of the Collateral; and (e) to use,
sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with all or any of the Collateral, and to do all other
acts and things necessary to carry out the purposes of this Agreement,
as fully and completely as though Xxxxxxxx were the absolute owner of
the Collateral for all purposes; provided, however, that nothing
herein contained shall be construed as requiring or obligating
Xxxxxxxx to make any commitment or to make any inquiry as to the
nature or sufficiency of any payment received by Xxxxxxxx, or to
present or file any claim or notice, or to take any action with
respect to the Collateral or any part thereof or the moneys due or to
become due in respect thereof or any property covered thereby, and no
action taken or omitted to be taken by Xxxxxxxx with respect to the
Collateral or any part thereof shall give rise to any defense,
counterclaim or offset in favor of WinStar or to any claim or action
against Xxxxxxxx. It is understood and agreed that the appointment of
Xxxxxxxx as the agent and attorney-in-fact of WinStar for the purposes
set forth above is coupled with an interest and is irrevocable. The
provisions of this Section shall in no event relieve WinStar of any of
its obligations hereunder with respect to the Collateral or any part
thereof or impose any obligation on Xxxxxxxx to proceed in any
particular manner with respect to the Collateral or any part thereof,
or in any way limit the exercise by Xxxxxxxx of any other or further
right which it may have on the date of this Agreement or hereafter,
whether hereunder, under any other Transaction Document, by law or
otherwise.
(k) Remedies upon Default.
(i) Upon the occurrence and during the continuance of an Event of
Default, Xxxxxxxx shall have the right with or without legal process
and with or without previous notice or demand for performance, to take
possession and/or control of the Collateral or any part thereof (at
the same or different times) and without liability for trespass to
enter any premises where the Collateral or any part thereof may be
located for the purpose of taking possession of or removing the
Collateral and, generally, to exercise any and all rights afforded to
a secured party under the UCC or other applicable law. Without
limiting the generality of the foregoing, WinStar agrees that Xxxxxxxx
shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral, at public or private sale for cash, upon credit or for
future delivery as Xxxxxxxx shall xxxx appropriate. Upon consummation
of any such sale Xxxxxxxx shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold.
Each such purchaser at any such sale shall hold the property sold
absolutely, free from any claim or right on the part of WinStar, and
WinStar hereby waives (to the extent permitted by law) all rights of
redemption, marshalling, stay and appraisal which WinStar now has or
may at any time in the future have under any rule of law or statute
now existing or hereafter enacted.
58
(ii) Xxxxxxxx shall give WinStar 10 days' written notice (which WinStar
agrees is reasonable notice within the meaning of Section 9-504(3) of
the UCC or its equivalent in other jurisdictions) of Xxxxxxxx'
intention to make any sale of Collateral. Such notice, in the case of
a public sale, shall state the time and place for such sale. Any such
public sale shall be held at such time or times within ordinary
business hours and at such place or places as Xxxxxxxx may fix and
state in the notice of such public sale. At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as
an entirety or in separate parcels, as Xxxxxxxx may (in its sole and
absolute discretion) determine. Xxxxxxxx shall not be obligated to
make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall
have been given. Xxxxxxxx may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such
sale may, without further notice, be made at the time and place to
which the same was so adjourned. In case any sale of all or any part
of the Collateral is made on credit or for future delivery, the
Collateral so sold may be retained by Xxxxxxxx until the sale price is
paid by the purchaser or purchasers thereof, but Xxxxxxxx shall not
incur any liability in case any such purchaser or purchasers shall
fail to take up and pay for the Collateral so sold and, in case of any
such failure, such Collateral may be sold again upon like notice. At
any public (or, to the extent permitted by law, private) sale made
pursuant to this Section, Xxxxxxxx may bid for or purchase, free (to
the extent permitted by law) from any right of redemption, stay,
valuation or appraisal on the part of WinStar (all said rights being
also hereby waived and released to the extent permitted by law), the
Collateral or any part thereof offered for sale and may make payment
on account thereof by using any Obligation then due and payable to
Xxxxxxxx from WinStar as a credit against the purchase price and
Xxxxxxxx may, upon compliance with the terms of sale, hold, retain and
dispose of such property without further accountability to WinStar
therefor. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof,
Xxxxxxxx shall be free to carry out such sale pursuant to such
agreement and WinStar shall not be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the
fact that after Xxxxxxxx shall have entered into such an agreement all
Events of Default shall have been remedied and the Obligations paid in
full. As an alternative to exercising the power of sale herein
conferred upon it, Xxxxxxxx may proceed by a suit or suits at law or
in equity to foreclose this Agreement and to sell the Collateral or
any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.
(l) Application of Proceeds. Xxxxxxxx shall apply the proceeds of any
collection or sale of the Collateral, as well as any Collateral
consisting of cash, as follows:
59
FIRST, to the payment of all costs and expenses incurred by Xxxxxxxx in
connection with such collection or sale or otherwise in connection
with this Agreement or any of the Obligations, including all court
costs and the fees and expenses of its agents and legal counsel, the
repayment of all advances made by Xxxxxxxx hereunder or under any
other Transaction Document on behalf of WinStar and any other costs or
expenses incurred in connection with the exercise of any right or
remedy hereunder or under any other Transaction Document;
SECOND, to the payment in full of the Obligations; and
THIRD, to WinStar, its successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
Xxxxxxxx shall have absolute discretion as to the time of application
of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by Xxxxxxxx (including
pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of Xxxxxxxx or of the officer making the sale
shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money
paid over to Xxxxxxxx or such officer or be answerable in any way for
the misapplication thereof.
(m) Xxxxxxxx' Fees and Expenses; Indemnification.
(i) WinStar agrees to pay upon demand to Xxxxxxxx the amount of any
and all reasonable expenses (other than those incurred in
connection with the negotiation and preparation of this
Agreement), including the reasonable fees and expenses of its
counsel and of any experts or agents, which Xxxxxxxx may incur in
connection with (a) the administration of this Section 7, (b) the
custody or preservation of, or the sale of, collection from or
other realization upon any of the Collateral, (c) the exercise,
enforcement or protection of any of the rights of Xxxxxxxx or
under Section 7 (d) the failure of WinStar to perform or observe
any of the provisions of this Section 7.
(ii) WinStar agrees to indemnify Xxxxxxxx against, and hold it
harmless from, all stamp, documentary and other taxes, levies or
charges payable in respect of the grant of the Security Interest.
(iii) The provisions of this Section shall remain operative and in
full force and effect regardless of the termination of this
Agreement or any other Transaction Document.
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Annex A To Exhibit K
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT (this "Agreement") dated as of December ___,
1998, among WINSTAR COMMUNICATIONS, INC., a Delaware corporation ("Guarantor"),
and XXXXXXXX COMMUNICATIONS, INC. ("Xxxxxxxx").
Reference is made to the IRU Agreement dated as of December 17, 1998
(as amended or modified from time to time, the "IRU Agreement"), between WinStar
Wireless, Inc., a Delaware corporation ("Wireless"), and Xxxxxxxx. Capitalized
terms used herein and not defined herein shall have the meanings assigned to
such terms in the IRU Agreement.
Wireless is a wholly-owned subsidiary of Guarantor. Guarantor
acknowledges that it will derive substantial direct and indirect benefit from
the IRU Agreement. The obligations of Xxxxxxxx under the IRU Agreement are
conditioned on, among other things, the execution and delivery by Guarantor of a
Guarantee Agreement in the form hereof. As consideration therefor and in order
to induce Xxxxxxxx to enter into and perform its obligations under the IRU
Agreement, Guarantor is willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Guarantee
SECTION 1.01 Guarantee. Guarantor unconditionally guarantees, as a
primary obligor and not merely as a surety, (a) the due and punctual payment of
all monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of Wireless under the IRU Agreement and (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of Wireless under or pursuant to the IRU Agreement (all the monetary
and other obligations referred to in the preceding clauses (a) and (b) being
collectively called the "Obligations"). Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation.
61
SECTION 1.02 Obligations Not Waived. To the fullest extent permitted by
applicable law, Guarantor waives presentment to, demand of payment from and
protest to Wireless of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of Guarantor hereunder shall
not be affected by (a) the failure of Xxxxxxxx to assert any claim or demand or
to enforce or exercise any right or remedy against Wireless or Guarantor under
the provisions of the IRU Agreement or otherwise, (b) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of this Agreement or any other agreement, or (c) the failure to perfect any
security interest in, or the release of, any of the security held by Xxxxxxxx.
SECTION 1.03 Security. Guarantor authorizes Xxxxxxxx to (a) take and
hold security given for the payment of the Obligations and exchange, enforce,
waive and release any such security, (b) apply such security and direct the
order or manner of sale thereof as they in their sole discretion may determine
and (c) release or substitute any one or more endorsees, other guarantors or
other obligors.
SECTION 1.04 Guarantee of Payment. Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by Xxxxxxxx to any of the
security held for payment of the Obligations.
SECTION 1.05 No Discharge or Diminishment of Guarantee. The obligations
of Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of Xxxxxxxx to assert any claim or demand or
to enforce any remedy under the IRU Agreement or any other agreement, by any
waiver or modification of any provision of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Obligations, or by any
other act or omission that may or might in any manner or to any extent vary the
risk of Guarantor or that would otherwise operate as a discharge of Guarantor as
a matter of law or equity (other than the indefeasible payment in full in cash
of all the Obligations).
SECTION 1.06 Other Matters. Xxxxxxxx may, at its election, foreclose on
any security held by it by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any
part of the Obligations, make any other accommodation with Wireless or any other
guarantor or exercise any other right or remedy available to them against
Wireless or any other guarantor, without affecting or impairing in any way the
liability of Guarantor hereunder except to the extent the Obligations have been
fully, finally and indefeasibly paid in cash. To the fullest extent permitted by
applicable law, Guarantor waives any defense arising out of any such election
even though such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy of
Guarantor against Wireless or any other guarantor, as the case may be, or any
security.
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SECTION 1.07 Limit of Liability. The obligations of Guarantor hereunder
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provisions of applicable
state law.
ARTICLE II
Subordination
SECTION 2.01 Subordination. Parent hereby agrees that all the
Subordinated Obligations of Wireless owed to Parent are hereby expressly
subordinated, to the extent and in the manner set forth in this Article II, to
the prior payment in full in cash of all Senior Obligations of Wireless in
accordance with the terms thereof.
As used herein:
"Senior Creditors" means Xxxxxxxx and its successors and assigns.
"Senior Obligations" of any means, the Obligations.
"Subordinated Obligations" of Wireless means all monetary obligations
and other liabilities of Wireless at any time owing to Parent (including any
such obligations or other liabilities owing to any other Person for the direct
or indirect benefit of Parent), including all rights of Parent against Wireless
arising by way of right of subrogation, contribution, reimbursement, indemnity
or otherwise.
SECTION 2.02 Dissolution or Insolvency. Parent agrees that upon any
distribution of the assets of Wireless or upon any dissolution, winding up,
liquidation or reorganization of Wireless, whether in bankruptcy, insolvency,
reorganization, arrangement or receivership proceedings or otherwise, or upon
any assignment for the benefit of creditors or any other marshaling of the
assets and liabilities of Wireless:
(a) the Senior Creditors of Wireless shall first be entitled to receive
payment in full in a cash of the Senior Obligations in accordance with
the terms of such Senior Obligations before Parent shall be entitled
to receive any payment on account of the Subordinated Obligations of
Wireless, whether as principal, interest or otherwise; and
(b) any payment by, or distribution of the assets of, Wireless of any kind
or character, whether in cash, property or securities, received by or
on behalf of Parent shall be held in trust for the benefit of, and
shall be paid over to, the Senior Creditors of Wireless to the extent
necessary to make payment in full in cash of all Senior Obligations
remaining unpaid, after giving effect to any concurrent payment or
distribution to the Senior Creditors in respect of the Senior
Obligations.
63
SECTION 2.03 Other Creditors. Nothing contained in this Agreement is
intended to or shall impair, as between and among Wireless, its creditors (other
than its Senior Creditors) and Parent, the Obligations of Wireless to pay to
Parent the Subordinated Obligations as and when the same shall become due and
payable in accordance with the terms thereof, or affect the relative rights of
Parent and the other creditors of Wireless (other than its Senior Creditors).
SECTION 2.04 Proofs of Claims. In the event of any dissolution, winding
up, liquidation or reorganization of Wireless, whether in bankruptcy,
insolvency, reorganization, arrangement or receivership proceedings or
otherwise, or any assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of Wireless, Parent agrees to file
proofs of claim for the Subordinated Obligations owed to it upon demand by
Xxxxxxxx, in default of which Xxxxxxxx is hereby irrevocably authorized so to
file in order to effectuate the provisions hereof. This Section shall not be
construed to permit Parent to retain any payment received by it in respect of a
Subordinated Obligation that Parent is not entitled to retain under any other
provision of the Agreement.
SECTION 2.05 No Waiver. No right of any Senior Creditor to enforce this
Agreement shall at any time or in any way be prejudiced or impaired by any act
or failure to act on the part of any Senior Creditor, Parent or Wireless, or by
any noncompliance by Parent or Wireless with the terms, provisions and covenants
contained herein, and the Senior Creditors are hereby expressly authorized to
extend, renew, increase, decrease, modify or amend the terms of the Senior
Obligations or any security therefor, and to release, sell or exchange any such
security and otherwise deal freely with Wireless, all without notice to or
consent of Parent and without affecting the liabilities and obligations of the
parties hereto.
SECTION 2.06. Transfer of Subordinated Obligations. Parent agrees that
it will not sell, assign, transfer or otherwise dispose of all or any part of
the Subordinated Obligations owed to it unless the Person to whom such sale,
assignment, transfer or disposition is made shall acknowledge in writing
(delivered to Xxxxxxxx) that it shall be bound by the terms of this Agreement,
including the terms of this Section 2.06, as though named herein as a
Subordinated Creditor.
SECTION 2.07. Obligations Hereunder Not Affected. (a) All rights
and interests of the Senior Creditors hereunder, and all agreements and
obligations of Parent hereunder, shall remain in full force and effect
irrespective of:
(i) any lack of validity or enforceability of the IRU Agreement;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Senior Obligations, or any other
amendment or waiver of or consent to departure from the IRU
Agreement;
(iii) any exchange, release or nonperfection of any security interest
in any collateral, or any release or amendment or waiver of or
consent to departure from any guarantee, in respect of all or any
of the Senior Obligations; or
64
(iv) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, Wireless in respect of its
Senior Obligations or of Parent in respect of this Agreement.
(b) Parent hereby authorizes the Senior Creditors, without notice or
demand and without affecting or impairing any of the obligations of Parent
hereunder, from time to time to (i) renew, compromise, extend, increase,
accelerate or otherwise change the time for payment of, or otherwise change the
terms of, the Senior Obligations or any part thereof and (ii) exercise or
refrain from exercising any rights against Parent or any other Person.
ARTICLE III
Miscellaneous
SECTION 3.01 Representations and Warranties. Guarantor represents and
warrants that:
(a) Organization; Powers. It is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite corporate power and authority to carry on its
business as now conducted and, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to have a material adverse
effect on its business, operations or condition (financial or otherwise), is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required.
(b) Authorization; Enforceability. The transactions contemplated hereby
are within its corporate power and have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by it and
constitutes a legal, valid and binding obligation of it, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
(c) Governmental Approvals; No Conflicts. The transactions contemplated
hereby (i) do not require any consent or approval of, registration or filing
with, or any other action by, any governmental or regulatory authority, (ii)
will not violate any applicable law or regulation or its charter, by-laws or
other organizational documents of it or any order of any governmental or
regulatory authority, (iii) will not violate or result in a default under any
indenture, agreement or other instrument binding upon it or its assets, or give
rise to a right thereunder to require any payment to be made by it, and (iv)
will not result in the creation or imposition of any lien on any of its assets.
65
SECTION 3.02 Information. Guarantor assumes all responsibility for
being and keeping itself informed of Wireless' financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that Guarantor assumes
and incurs hereunder, and agrees that Xxxxxxxx will not have any duty to advise
Guarantor of any information known to it or regarding such circumstances or
risks.
SECTION 3.03 Termination of this Agreement and the Guarantees. This
Agreement and the Guarantee made hereunder shall terminate when all the
Obligations have been indefeasibly paid in full and Xxxxxxxx has no further
commitments under the IRU Agreement and shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by Xxxxxxxx upon the
bankruptcy or reorganization of Wireless, Guarantor or otherwise.
SECTION 3.04 Binding Effect; Several Agreement; Assignments. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of each party hereto that are
contained in this Agreement shall bind and inure to the benefit of each party
hereto and their respective successors and assigns. This Agreement shall become
effective as to Xxxxxxxx and Guarantor when a counterpart hereof executed on
behalf of such party shall have been delivered to Xxxxxxxx, and a counterpart
hereof shall have been executed on behalf of Xxxxxxxx, and thereafter shall be
binding upon such party and Xxxxxxxx and their respective successors and
assigns, and shall inure to the benefit of such party and Xxxxxxxx, and their
respective successors and assigns, except that Guarantor shall not have the
right to assign its rights or obligations hereunder or any interest herein (and
any such attempted assignment shall be void).
SECTION 3.05 Waivers; Amendment. (a) No failure or delay of Xxxxxxxx in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of Xxxxxxxx hereunder and under the IRU
Agreement are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by Guarantor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on Guarantor in any case shall entitle
Guarantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the parties.
SECTION 3.06 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
66
SECTION 3.07 Notices. All communications and notices hereunder shall be
in writing and given as provided in Article XIII of the IRU Agreement, provided,
however, that all communications and notices hereunder to Guarantor shall be
given to it at:
WinStar Communications, Inc.
Attn: General Counsel
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (212) ______________
or at such other address as may be designated in writing to Xxxxxxxx.
SECTION 3.08 Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or the IRU Agreement shall be considered to have been
relied upon by Xxxxxxxx, regardless of any investigation made by Xxxxxxxx, and
shall continue in full force and effect as long as any of the Obligations is
outstanding and unpaid and as long as the IRU Agreement has not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in the IRU Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 3.09 Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 3.04. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 3.10 Rules of Interpretation. The rules of interpretation
specified in Article XXIII of the IRU Agreement shall be applicable to this
Agreement.
SECTION 3.11 Jurisdiction; Consent to Service of Process. (a) Guarantor
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
67
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that Xxxxxxxx may otherwise have to bring any action or
proceeding relating to this Agreement or the other Transaction Documents against
Guarantor or its properties in the courts of any jurisdiction.
(b) Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 3.07. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 3.12 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.12.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
XXXXXXXX COMMUNICATIONS, INC.
By ______________________________
Name:
Title:
68
WINSTAR COMMUNICATIONS, INC.,
By ___________________________________
Name:
Title:
69
Annex B to Exhibit K
Organization; Powers. WinStar and Parent is each a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all requisite corporate power and
authority to carry on its business as now conducted.
Authorization; Enforceability. (i) The obligations to be performed by
WinStar under the IRU Agreement are within WinStar's corporate power and have
been duly authorized by all necessary corporate action. This Agreement has been
duly executed and delivered by WinStar and constitutes a legal, valid and
binding obligation of WinStar, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
(ii) The obligations to be performed by Parent under the Guarantee
Agreement are within Parent's corporate power and have been duly authorized by
all necessary corporate action. Such Agreement has been duly executed and
delivered by Parent and constitutes a legal, valid and binding obligation of
Parent, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
Governmental Approvals; No Conflicts. The transactions contemplated by
this Agreement (a) will not violate the charter, by-laws or other organizational
documents of WinStar or Parent, (b) will not violate or result in a default
under any indenture, agreement or other instrument known to us (including all
agreements filed as exhibits to filings by Parent with the Securities and
Exchange Commission) binding upon WinStar or Parent or its assets, or give rise
to a right thereunder to require any payment to be made by WinStar or Parent,
and (c) will not result in the creation or imposition of any lien on any asset
of WinStar or Parent, except liens created under this Agreement.
70
Exhibit X
Xxxxxxxx Network POP List
================================================================================================================================
Xxxxxxxx Network Onnet City List X indicates InService
Horizontal
POP Sq. Vertical Coordin- NPA/ Local Access
City St Ft. Address LATA CLLI CODE Coordinate ate NXX Vendor
=================================================================================================================================
1 Albany NY 5,000 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000 134 ALBYNY1W 4640 1630 518/436 NYNEX MFS BS
--------------------------------------------------------------------------------------------------------------------------
2 x Atlanta GA 10,000 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 438 ATLNGA1W 7259 2084 404/688 MFS BST
--------------------------------------------------------------------------------------------------------------------------
3 Baltimore MD 10,000 000 Xxxxx Xxxxxx Xxxxxx XXXXXXXXXXXX
Xxxxxxxxx, XX 00000 228 BLTMMD1W 5511 1574 410/962 ESPIRE
--------------------------------------------------------------------------------------------------------------------------
4 x Baton Rouge LA 3,000 000 X Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000 492 BTRGLA1W 5475 2874 504/343 BST ACSI
--------------------------------------------------------------------------------------------------------------------------
5 x Birmingham AL 3,408 0000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000 476 BRHMAL1W 7518 2446 205/322 BST ACSI
--------------------------------------------------------------------------------------------------------------------------
6 Buffalo NY 5,000 000 Xxxxxxxx Xxxxxx
0xx Xx. XXXXXXXXXXXX
Xxxxxxx, XX 00000 140 BFLONY1W 5076 2327 716/854 HYPERION
--------------------------------------------------------------------------------------------------------------------------
7 x Charlotte NC 9,000 000 X Xxxxxx Xx.
Xxxxxxxxx, XX 00000 422 CHRLNC2W 5657 1598 704/347 BST PW
--------------------------------------------------------------------------------------------------------------------------
8 x Chicago IL 5,000 000 Xxxxx Xxxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000 358 CHCGIL1W 5987 2424 312/986 MFS AMERITECH
--------------------------------------------------------------------------------------------------------------------------
9 Cleveland OH 2,362 The Xxxxx Building
0000 Xxxxxx Xxx Xxx 000 XXX
Xxxxxxxxx, XX 320 CLEVOH1W 5576 2544 215/687 AMERITECH CS
--------------------------------------------------------------------------------------------------------------------------
10 x Dallas TX 5,353 One Main Place
0000 Xxxx Xx Xxx X-000
Xxxxxx, XX 00000 552 DLLSTXRID1W 8437 4035 214/742 ACSI MFS SWB
--------------------------------------------------------------------------------------------------------------------------
11 Daytona Beach FL 10,000 000 X. Xxxxxxxx
Xxxxxxx Xxxxx, XX 00000 456 DYBHFL1W 7803 1036 904/252 BST
--------------------------------------------------------------------------------------------------------------------------
12 Ft. Lauderdale FL 10,000 XX Xxxxxx xx 0xx Xx
XX & 0xx Xxx XX 460 FTKDFK1W 8281.14 558.34 BST
--------------------------------------------------------------------------------------------------------------------------
13 x Greensboro NC 5,394 Xxxxx Xxx Xxxxxx 000-X
Xxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000 424 GNBONC1W 6402 1639 336/275 BST TW
--------------------------------------------------------------------------------------------------------------------------
14 x Houston TX 5,000 0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000 560 HSTNTX1W 8936 3536 713/225 TW SWB
--------------------------------------------------------------------------------------------------------------------------
15 x Indianapolis IN 5,723 000 Xxxxxxxx Xxxxxx
Xxxxx 0
Xxxxxxxxxxxx, XX 336 IPLSHN1W 6272 2992 317/916 TW AMT
--------------------------------------------------------------------------------------------------------------------------
16 Jackson MS 4,704 Capitol Building 000
X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000 482 JCSNMS1W 8035 2879 ESPIRE BST
--------------------------------------------------------------------------------------------------------------------------
17 Jacksonville FL 5,000 000 Xxxx Xxxxx Xx.
Xxxxxxxxxxxx, XX 00000 452 JCVLFL1W 7613 1245 904/358 BST
--------------------------------------------------------------------------------------------------------------------------
18 x Kansas City MO 7,693 The Xxxxxx Building
0000 Xxxxx Xxx #000
Xxxxxx Xxxx, XX 524 KSCYMO1W 7027 4202 816/221 SWB ESPIRE
--------------------------------------------------------------------------------------------------------------------------
19 Las Vegas NV 2,525 0000 X. Xxxxxx Xxx
Xxxxx 00 & 00 XXXXXX
Xxx Xxxxx, XX 00000 721 LSVGNV1W 3668 7422 702/244 NEXTLINK ACS
--------------------------------------------------------------------------------------------------------------------------
20 x Los Angeles CA 5,000 000 Xxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx XX 00000 730 LSANCA1W 9213 7878 213/623 GST PBT MFS
--------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
Xxxxxxxx Network Onnet City List X indicates InService
Horizontal
POP Sq. Vertical Coordin- NPA/ Local Access
City St Ft. Address LATA CLLI CODE Coordinate ate NXX Vendor
=================================================================================================================================
21 Melbourne FL 5,000 NE Corner of Line and
Lotana St Melbourne Fl 458 MLBRFL1W 7964.23 351.64 BST
--------------------------------------------------------------------------------------------------------------------------
22 Miami FL 10,000 0000 XX 00xx Xxxxxx
Xxxxx, Xx 00000 460 MIAMFL1W 8350 534 305/325 BST MFS
--------------------------------------------------------------------------------------------------------------------------
23 Minneapolis MN 10,000 000 00xx Xxx Xxxxx
Xxxxxxxxxxx, XX 00000 528 MPLSMN1W 5780 4526 612/339 USWEST
--------------------------------------------------------------------------------------------------------------------------
24 x New Orleans LA 5,000 Poydrous Plaza
000 Xxxxxx Xxx Xxx 0000
Xxx Xxxxxxx, XX 00000 490 NWORLA1W 8483 2638 504/529 BST
--------------------------------------------------------------------------------------------------------------------------
25 x New York NY 5,323 00 Xxxxxx Xxxxxx
12th Floor MFS
Xxx Xxxx, XX 00000 132 NYCMNY1W 5004 1406 212/571 BELLATLANTIC TW
--------------------------------------------------------------------------------------------------------------------------
00 Xxxxxx XX 20,000 000 Xxxxxx Xxxxxx XXX
Xxxxxx, XX 00000 224 NWRKNJ1W 5015 1430 973/643 BELLATLANTIC
--------------------------------------------------------------------------------------------------------------------------
27 Oklahoma City OK 7,445 000 Xxxxxx X. Xxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000 536 OKCYOK1W 7946 4372 405/232 SWB MFS COX
--------------------------------------------------------------------------------------------------------------------------
28 Orlando FL 10,000 SW Corner of Division
& Columbia 458 ORLDFL1W 7957.64 1031.53 BST MFS
--------------------------------------------------------------------------------------------------------------------------
29 x Philadelphia PA 3,800 0000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, XX 00000 228 PHLAPA1W 5252 1461 215/568 XXXX ATLANTIC MFS
--------------------------------------------------------------------------------------------------------------------------
30 Phoenix AZ 2,500 info not yet available 666 PHNXAZ1W 9119 6742 502/204 USWEST MFS
--------------------------------------------------------------------------------------------------------------------------
31 Portland OR 2,500 000 XX Xxxxxxxxxx Xx.
0xx Xxxxx
Xxxxxxxx, XX 00000 572 PTLDOR1W 6799 3915 503/417 XXX MFS SW
--------------------------------------------------------------------------------------------------------------------------
32 x Raleigh NC 5,000 0000 Xxxxxxx Xxxxx
Xxxx. 0 Xxx #000
Xxxxxxx, XX 00000 425 RLGHNC1W 5330 1435 919/873 BST TW
--------------------------------------------------------------------------------------------------------------------------
33 x Richmond VA 1,500 0000 X Xxxxx Xx
Xxx 000 Xxxxxxxx, XX 248 RCMDVA1W 5907 1479 304/359 BELLATLANTIC MEDIA
--------------------------------------------------------------------------------------------------------------------------
34 Rochester NY 5,000 0 Xxxx Xxxx Xxxxx 000
Xxxxxxxxx, XX 00000 974 ROCHNY1W 4912.92 2194.33 RCCHTEL MFS TW
--------------------------------------------------------------------------------------------------------------------------
35 Sacramento CA 2,403 000 X Xxxxxx Xxx 000
Xxxxxxxxxx, XX 00000 725 SCRMCA1W 8303 3581 916/441 PBT MFS
--------------------------------------------------------------------------------------------------------------------------
36 x Spartanburg SC 4,212 BCT 000 X Xxxxxx Xx
Xxxxxxxxxxx, XX 00000 430 SPBGSC1W 6809 1832 364/948 BST
--------------------------------------------------------------------------------------------------------------------------
37 x St. Louis MO 2,331 The Valley Building
000 Xxxxxx Xx Xxx 000
Xx. Xxxxx, XX 00000 520 STLSMO01DSC 6807 2483 314/436 MFS SWB
--------------------------------------------------------------------------------------------------------------------------
38 Syracuse NY 4,700 The Xxxxxx Xxxxxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 136 SYRCNY1W 4797.54 1990.96 315/422 BELLATLANTIC
--------------------------------------------------------------------------------------------------------------------------
39 Tucson AZ 5,000 135 & 000 Xxxxx 0xx Xxx
Xxxxxx, XX 00000 568 TCSNAZ1W 9346 5487 520/620 MFS USWEST
--------------------------------------------------------------------------------------------------------------------------
40 x Tulsa OK 5,238 000 X 0xx Xxxxxx
0xx Xxxxx
Xxxxx, XX 00000 538 TULSOK1W 7708 4176 918/584 MFS ACSI SWB
--------------------------------------------------------------------------------------------------------------------------
=================================================================================================================================
Xxxxxxxx Network Onnet City List X indicates InService
Horizontal
POP Sq. Vertical Coordin- NPA/ Local Access
City St Ft. Address LATA CLLI CODE Coordinate ate NXX Vendor
=================================================================================================================================
41 x Washington DC 5,279 0000 X Xxxxxx XX
Xxxxx 000
Xxxxxxxxxx, XX 00000 236 WASHDC1W 5622 1582 202/408 BELLATLANTIC MFS
--------------------------------------------------------------------------------------------------------------------------
00 Xxxx Xxxx Xxxxx XX 5,000 SW Corner of Xxxxxxxx &
Second Street
West Palm Beach, FL 460 WP8HFL1W 3161.4 509.48 561/ BST
--------------------------------------------------------------------------------------------------------------------------
Service provided between any of the cities listed above is considered On-Net.
Xxxxxxxx will update this listing periodically.
