Exhibit 10.9
Execution Copy
PRIVATE NETWORK AGREEMENT
These General Terms and Conditions together with the Product Order(s) and
Exhibits constitute the Private Network Agreement ("Agreement") which is
effective as of December 17, 1999, ("Effective Date") by and between Metromedia
Fiber Network Services, Inc. ("MFN"), whose address is 0 Xxxxx Xxxxxxxxx Xxxxxx,
0xx Floor, White Plains, New York 10601, and FiberNet Telecom Group, Inc.
("Customer") whose address is 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Definitions of terms used in this Agreement appear in the Product Order(s),
Exhibits and in the General Terms and Conditions set forth below.
General Terms and Conditions
1. DEFINITIONS
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Unless otherwise defined, industry terms and abbreviations, including but not
limited to descriptions of equipment and capacity, shall have their ordinary and
commonly accepted industry definitions.
1.1. "Additional Licensed Fiber" shall have the meaning set forth in
Section 2.2.
1.2. "Affiliates" shall mean any person, firm, corporation, partnership,
association, trust or other person that controls, is controlled by, or
is under common control of the Party.
1.3. "Agreement" shall mean this Private Network Agreement, including all
Product Orders, signed by the Parties and Exhibits.
1.4. "Applicable Taxes" includes any and all charges, fees and taxes and as
more fully described in Section 13, below.
1.5. "Authorization(s)" shall mean all material and applicable governmental
or non- governmental licenses, easements, rights of way, conduit, pole
attachment and any other facilities or property rights, licenses,
contracts, franchises, approvals, permits, orders, consents, and all
other rights required for MFN to operate and maintain the Network or
provide the Product to Customer pursuant to this Agreement.
1.6. "Building Network Connection" shall mean a Lateral Extension provided
by MFN into an On-Network Building or splice connection for an
Off-Network Building.
1.7. "Charge" shall refer to those charges specified in the Product Orders
(including Prepaid Charges and Monthly Charges) and payable by
Customer.
1.8. "Commencement Date" shall be that date upon which installation
pursuant to a Product Order is complete as more fully described in
Section 2.5, below.
1.9. "Customer" is the named customer on the Product Order.
1.10."Customer Locations" are those On-Network Buildings and Off-Network
Buildings specified in Product Order(s).
1.11."Dark Fiber License" shall refer to a Product Order pursuant to which
MFN licenses Licensed Fiber to Customer.
1.12."Early Termination Charge" shall have the meaning set forth in
Section 11 below.
1.13."Effective Date" is the date first written above.
1.14."Equipment" shall mean any equipment provided by MFN within any
Customer Location.
1.15."Lateral Extensions" shall refer to Licensed Fiber and associated
facilities which are provided by MFN pursuant to this Agreement which
connect from a customer's fiber on the MFN Network to and into a fiber
distribution point within any MFN On-Network Building or fiber and
associated facilities which are provided by Customer which connect
from a fiber distribution point within an Off-Network Building to such
customer's fiber on the Network at a splice point designated by MFN.
For each Lateral Extension into an On Network Building, MFN will bring
Licensed Fiber into dual entrance points in a Customer Location to the
extent permitted by the building owner or building manager.
1.16."Licensed Fiber" shall refer to dark optical fiber strands on the MFN
Network and on Lateral Extensions licensed by Customer pursuant to
this Agreement.
1.17."Location" shall mean any commercial property in the United States
(other than any carrier hotel) in which Customer has installed and
operates a CDS and to which Customer has the right, pursuant to its
own agreement with the owner or manager of such property, to provide
access and use to third parties.
1.18."Location Access" means the right to provide dark or lit fiber optic
facilities and services to third parties at a Location pursuant to the
terms set forth in the Location Access Agreement.
1.19."Location Access Agreement" shall refer to the Location Access
Agreement dated as of the date hereof and executed simultaneously with
this Agreement.
1.20."Network" refers to all or part of a fiber optic cable network and
related facilities owned or controlled by MFN in the cities listed in
Exhibit A to this Agreement.
1.21."Monthly Charge" shall be the amount set forth in Section 4.2 and
specified in the Product Order(s) and payable by Customer.
1.22."Off-Network Building" shall mean a building into which MFN has not
constructed or has maintained in effect a Lateral Extension at the
time that Customer requests a Building Network Connection and MFN has
declined to construct a Lateral Extension.
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1.23."On-Network Building" shall mean any building into which MFN has
constructed and maintains in effect a Lateral Extension at the time
Customer requests a Building Network Connection into such building.
1.24."On-Network Building List" shall mean the list of On-Network
Buildings as of the Effective Date set forth in Exhibit B to this
Agreement and any updated lists which MFN shall provide to Customer
from time to time, but not more frequently than once per year during
the Term.
1.25."Outage" is defined as the complete interruption or material
degradation of communications between any two Customer Locations
resulting from physical damage, severance, or other failure of the
Licensed Fiber(s).
1.26."Outage Credit" shall mean any credit against Monthly Charges
otherwise payable for Additional Licensed Fiber resulting from an
Outage in accordance with Section 9, below.
1.27."Outage Period" shall be any continuous four (4) hour period during
which Customer experiences an Outage.
1.28. "Party" or "Parties" shall mean either or both MFN and Customer.
1.29."POP" shall mean a point of presence, which is a location at which a
telecommunications company has facilities designed to establish
interconnections between its network and the network of a local
exchange customer for purposes of obtaining exchange access services
(private line, data, video, or switched) or unbundled network elements
used for providing exchange access services.
1.30."Premises" shall mean any site at which Product is provided to
include generally the Customer Locations specified in the Product
Order.
1.31."Prepaid Charges" shall refer to those prepaid charges specified in
the Product Orders and prepaid by Customer.
1.32."Product" shall refer to the Licensed Fiber, Building Network
Connection, Location Access, Equipment and normal installation,
maintenance, inspection, repair and testing services as set forth
herein.
1.33."Product Order(s)" refers to those product orders executed between
the Parties, including Exhibits attached thereto and made a part
hereof, which shall be in the form set forth in Exhibit C attached
herewith.
1.34."Rack or Cage Facilities" shall mean Customer's provision of one (1)
equipment rack or cage to serve as a fiber termination point within a
Customer Location for MFN's exclusive use as a fiber distribution
facility for Customer and other MFN customers in the building.
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1.35."Rings" shall refer to those particular routes on the Network as
described in Exhibit A to this Agreement, as same may be modified by
MFN from time to time.
1.36."Splice Point" shall have the meaning set forth in Section 2.3.2
below.
1.37."Term" shall be the period commencing on the Effective Date and
terminating twenty years thereafter, unless sooner terminated in
accordance with the provisions of this Agreement.
2. PRODUCT
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2.1. During the Term MFN shall license to Customer a total of up to
[********} ([*****]) fiber miles of Licensed Fiber on the Rings, which
Licensed Fiber shall include that Licensed Fiber heretofore provided
by MFN to Customer and which is described in Exhibit D to this
Agreement. Customer may license not less than two (2) nor more than
twenty four (24) Licensed Fibers on any one Ring. Fiber miles shall be
determined by the aggregate number of Licensed Fibers multiplied by
the total distance (for example, two Licensed Fibers on a four mile
route equals eight fiber miles).
2.2. Customer shall from time to time during the period of twelve (12)
months after the Effective Date request Licensed Fiber on the Rings
from MFN for up to [*****] ([*****]) fiber miles. In addition, during
such twelve (12) month period, if Customer has requested and MFN has
delivered the [*****] ([*****]) fiber miles of Licensed Fiber pursuant
to Section 2.1 hereof, Customer may also purchase additional Licensed
Fiber on the Rings from MFN for up to an additional [*****] ([*****])
fiber miles (the "Additional Licensed Fiber" for purposes of this
Section 2.2, and Sections 4, 9.1 and 11.2.) for the prices set forth
in Section 4.2.
2.3. Such requests, pursuant to 2.2 hereof, shall be in writing and shall
specify the number of Licensed Fibers, the Rings, Building Network
Connections into Customer Locations and the requested date of delivery
of such Licensed Fibers. Customer may at any time during the Term
request a Building Network Connection from Customer's Licensed Fibers
on a Ring into an On-Network Building. MFN will advise Customer in
writing if such Licensed Fiber or Rings are not available. MFN will
use commercially reasonable efforts to make requested fiber available
to Customer, provided Customer's requests therefor are themselves
reasonable and made in accordance with the terms of this Agreement. In
addition, MFN will further advise Customer of whether or not the
requested Customer Location is an On-Network Building. Customer shall
provide to MFN Location Access pursuant to the terms of the Location
Access Agreement.
2.3.1. If the Customer Location is not an On-Network Building and
Customer desires a Building Network Connection to and into
such building, Customer may request that MFN (i) designate
and add such building to the On-Network Buildings List and
(ii) construct a Lateral Extension from the Network to and
into such building. MFN will determine, in its
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sole discretion, whether or not to designate such building
as an On-Network Building and construct such a Lateral
Extension. All right, title and interest to the Lateral
Extensions constructed by MFN shall vest in MFN.
2.3.2. If MFN declines to build a Lateral Extension to a Customer
Location, such building shall be designated as an
Off-Network Building. Customer may request a Building
Network Connection to an Off-Network Building by informing
MFN of same. MFN will advise Customer, in writing, of the
estimated costs of providing a splice connection (on a pass
through basis plus [******] ([**]%) at the Network splice
point determined by MFN (the "Splice Point") and, if
Customer consents, will provide such splice connection to a
Lateral Extension supplied by Customer. All right, title and
interest to the Lateral Extensions constructed by Customer
to such Splice Point shall vest in Customer.
2.4. If the requested Licensed Fibers and Rings are available and the
parties are in agreement with regard to the provision of the Product,
MFN will prepare and deliver to Customer a Product Order with respect
to such requested Licensed Fiber, Rings and Customer Locations. The
Parties shall thereupon execute each such Product Order, specifying
one or more of the following: (i) the number of Licensed Fibers and
Rings; (ii) a Building Network Connection to Customer Locations; (iii)
construction and splicing costs (where applicable) and Charges; and
(iv) Estimated Commencement Date.
2.5. MFN will use commercially reasonable efforts to complete installation
and testing of the Product on or before the Estimated Commencement
Date specified in the Product Order(s). Upon satisfactory completion
of Product testing, MFN will provide Customer with access to the
Product and Customer shall have a period of time not to exceed ten
(10) business days to conduct such testing as it reasonably deems
necessary to ensure that the Product conforms in all material respects
to the material specifications set forth in the relevant Product
Orders. If Customer fails to notify MFN within this time period of any
deficiencies, the Product will be deemed accepted. The "Commencement
Date," whereupon the Term of any Product Order commences, shall be the
earlier of (i) completion of testing and acceptance of Product by
Customer, or (ii) if Customer has identified deficiencies, then the
first date upon which Product conforms in all material respects with
the relevant specifications.
2.6. MFN shall provide, install, maintain, and repair the Equipment
necessary for the Product at Customer Locations in accordance with
this Agreement and the Product Order(s) attached hereto.
2.7. MFN may provide additional Products to Customer in the future upon
full execution of additional Product Orders, such Product Orders to be
referred to by Product Order number, attached hereto and made a part
hereof.
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3. ACCESS AND AUTHORIZATIONS
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3.1. Customer will obtain all approvals for access into all Customer
Locations for the purpose of Product installation, periodic
maintenance, and services, and for the use of any required building
entrances, power, riser conduit or other required building facilities
at all such Customer Locations.
3.2. If applicable, Customer agrees to provide all reasonable assistance to
MFN in procuring, and installing or activating such additional
telecommunication circuits and facilities as shall be required by MFN
to provide telemetry from any and all Customer Locations to MFN's
monitoring center(s). Except for costs associated with local telephone
lines, other monthly telecommunication costs and any reasonable
installation costs shall be paid for by MFN.
3.3. MFN will use commercially reasonable efforts to obtain all required
Authorizations by the Commencement Date, and to maintain or renew all
such Authorizations throughout the Term.
3.4. If any Authorizations are modified or terminated, and the loss of such
Authorizations threatens to cause or does cause material financial
harm to MFN, or prevents or materially interferes with MFN's control,
possession and/or use of the Network, Product or the Equipment or its
ability to provide the Product, then in its sole discretion MFN shall
have the option to: (i) provide Customer with comparable Product on
alternate portions of MFN's then existing Network or on networks of
third parties, or (ii) terminate this Agreement with respect to the
affected Product without further obligation or liability to Customer.
The foregoing will be MFN's sole and exclusive liability and
Customer's sole and exclusive remedy with respect to termination as a
result of the loss of Authorizations.
3.5. Customer shall provide MFN with access to all Customer Locations for
the purpose of removing MFN Equipment upon the expiration or earlier
termination of this Agreement.
3.6. MFN reserves the right to utilize unused external building access, and
space within the building conduit(s) occupied at the Customer
Locations, provided that such use does not interfere with or hinder
Customer's use of the Product as permitted hereunder.
3.7. Upon the expiration of any Term, or earlier termination of this
Agreement, Customer will promptly remove from any property owned,
leased or licensed by MFN all Customer property, equipment and other
materials used in connection with the Product within thirty (30) days
from such expiration or termination. Customer will complete such
removal in a manner that does not interfere with or damage the Product
or the Network. If Customer fails to remove its property within such
period, such property will be deemed abandoned, and MFN will make such
disposition of the property as it deems necessary or advisable at
Customer's sole expense.
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3.8. If applicable, and unless otherwise specified in the Product Order,
Customer will arrange for its own cage space, manhole assignments, and
installation approval for MFN to build laterals and risers into
Customer's cages within any ILEC Central Offices. The estimated time
required for completion of construction and installation into an ILEC
Central Offices will be 90 - 180 days after Customer gives MFN written
notice of completion of ILEC approval and an executed copy of the ILEC
Method of Procedure for each ILEC Central Office.
4. TERMS OF PAYMENT
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4.1. Licensed Fiber. In consideration for the Licensed Fiber licensed by
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MFN to Customer pursuant to this Agreement,
4.1.1. Customer has executed and delivered to MFN the Exchange
and Registration Rights Agreement dated as of the same date
as this Agreement (the "Exchange and Registration Rights
Agreement"), attached herewith as Exhibit E, and has
delivered to MFN the "Common Stock" as defined therein (the
"Common Stock"). For purposes of this Agreement, four
million (4,000,000) shares of Common Stock shall be deemed
to be consideration for the Licensed Fiber (exclusive of
Additional Licensed Fiber) licensed by MFN to Customer
pursuant to this Agreement and one million (1,000,000)
shares of Common Stock shall be in consideration for
exchange of the interest in Local Fiber LLC. For purposes of
Section 1.467-1(c)(2)(ii) A) of the Treasury Regulations
promulgated under the internal Revenue Code of 1986, as
amended ("Treas. Reg."), the Parties agree that the number
of shares of Common Stock shall be treated as the total
rental payable in respect of such license of Licensed Fiber
and such amount shall be allocated as set forth in Exhibit F
hereto within the Term in accordance with Treas. Reg.
Section 1.467-2(c). The portion of shares of Common Stock so
allocated to the license hereunder shall be treated as the
"principal balance of a Section 467 loan" within the meaning
of Treas. Reg. 1.467-1(e)(2). The Parties further agree to
utilize such allocation for all tax purposes unless
otherwise required by applicable law.
4.1.2. From time to time, MFN shall request and Customer shall
provide Location Access pursuant to the terms of the
Location Access Agreement.
4.2. Additional Licensed Fiber. In the event that Customer requests
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Additional Licensed Fiber, Customer shall have the option to pay MFN
for such Additional Licensed Fiber as follows:
4.2.1. Monthly Charge.
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4.2.1.1. Customer may elect to pay MFN a Monthly Charge plus
Applicable Taxes. The Monthly Charge shall be
determined by adding (1) the number of fiber miles
requested for the
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first [*****] ([*****]) miles of Additional
Licensed Fiber multiplied by the monthly rate of
[*****] and 00/100 dollars ($[*****]) per fiber
mile to (2) the number of fiber miles requested
for the next [*****] ([*****]) miles of Additional
Licensed Fiber multiplied by the monthly rate of
[*****] and 00/100 dollars ($[*****]) per fiber
mile.
4.2.1.2. Beginning on the Commencement Date, Customer shall
pay the Monthly Charge and any Applicable Taxes in
advance for each month. Customer will be invoiced
at the beginning of each month. If the Agreement
commences or terminates on a day other than the
first or last day of any month, then payment for
such partial month will be pro-rated.
4.2.1.3. All late payments will accrue interest on the
unpaid sum at the lower of the highest legal rate
of interest permitted in the State of New York or
one and one-half percent (1.5%) per month.
4.2.2. Prepaid Charge. At the time the first monthly payment for any
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applicable Product Order is due, Customer may elect to prepay the
Charge for the Additional Licensed Fiber, determined by
multiplying the number of remaining months of the Term by a
monthly rate of [*****] and 00/100 dollars ([*****]) per fiber
mile of Additional Licensed Fiber.
4.3. Building Network Connections.
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4.3.1. On-Network Buildings.
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4.3.1.1. In consideration for MFN providing a Building
Network Connection into each On-Network Building,
Customer agrees to pay to MFN the Prepaid Charge
set forth in Section I of Exhibit G, hereto plus
Applicable Taxes.
4.3.1.2. As set forth in Exhibit G, hereto, the Prepaid
Charge for a Building Network Connection into each
On-Network Building depends on whether Customer
provides or does not provide Rack Facilities to
MFN.
4.3.1.3. The Prepaid Charge for a Building Network
Connection into an On- Network Building includes
fiber termination into the Customer's Locations
and does not include any fees assessed by any
building owner, landlord or other third party for
the right or permission to build into Customer
Locations, which fees shall be solely paid by
Customer.
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4.3.2. Off-Network Buildings. In consideration for providing a
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Building Network Connection via a splice for each Customer
supplied Lateral Extension to a Off-Network Building,
Customer agrees to pay to MFN the Prepaid Charge set forth
in Section II of Exhibit G and Applicable Taxes. In
addition, Customer will reimburse MFN for its costs of
splicing plus [*****] ([**]%) plus Applicable Taxes.
5. EQUIPMENT AND INSTALLATION
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5.1. If applicable, Customer is responsible for providing, at its
sole cost and expense, suitable facilities within all
Customer Locations including, without limitation, riser
conduits, adequate space and power, and proper environmental
conditions meeting no less than the minimum specifications
of the Equipment manufacturer(s).
5.2. All Equipment installed at Customer Locations shall remain
the property of MFN or its supplier and shall never be
deemed a fixture to any real property owned by Customer or
any third party. Nothing contained in this Agreement shall
give or convey to Customer any right, title or interest
whatever in the Equipment. Customer shall not adjust,
encumber or attempt to repair the Equipment, and may not
remove or relocate the Equipment without the prior written
consent of MFN. Customer may not allow any liens to be
placed on the Equipment or Network.
5.3. Customer shall be liable to MFN for any loss or damage to
Equipment arising from the negligence, acts, errors or
omissions, unauthorized maintenance or other cause,
including theft, of Customer, its employees, invitees,
contractors or agents.
6. MONITORING MAINTENANCE OF EQUIPMENT
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6.1. MFN will provide remote monitoring of the Network and
Product to the extent incorporated into the Network and will
use commercially reasonable efforts to provide continuous
service at all times other than for maintenance as provided
herein.
6.2. MFN or its agents shall perform all maintenance and repairs
for the Product, including preventative maintenance and
periodic upgrades of operating system software, as MFN deems
necessary to ensure proper functioning of the Product.
6.3. Customer may not, without the express written consent of
MFN, perform any repairs or maintenance to the Product,
Equipment or Network, or contract with any third party to
perform any such repairs or maintenance. Customer will not
install any equipment to be used with the Product, Equipment
or Network or use any Product in any manner that damages or
interferes with the Product, Network or Equipment.
6.4. If all or part of the Product, Network or Equipment requires
restoration, replacement or repair by reason of an act or
omission of Customer, its employees, agents, or contractors,
such repair, replacement and/or restoration may be made by
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MFN, at Customer's sole expense, in accordance with MFN's
then current time and materials rates plus Applicable Taxes.
7. USE OF THE PRODUCT
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7.1. Customer will use the Product in full compliance with all
applicable federal, state and local laws, rules and
regulations and all applicable franchises, rights of way,
leases, licenses, franchises and contracts and other
obligations to third parties with respect to the Network or
Product. At Customer's sole cost and expense, Customer will
obtain and maintain in effect during the Term all rights,
leases, licenses, permits and governmental or non
governmental approvals necessary for use of the Product by
Customer.
7.2. MFN is providing all Products for Customer's exclusive use.
Customer will not under any circumstances permit the use of
or provide access to the Product, Equipment or Network in
whole or part, by any third party, other than a customer of
Customer in the ordinary course of business. For purposes of
this Agreement, the ordinary course of Customer's business
shall not include the sale, leasing or granting of any
rights of use in "dark fiber", as such term is commonly
understood in the telecommunications industry, nor shall
Customer's business include the resale of any Product.
7.3. Customer may not sublease, assign, license, sublicense,
sell, share or otherwise utilize in conjunction with a third
party (including without limitation in any joint venture or
as part of any outsourcing activity) the Product or Network,
or any component thereof. Any breach of this Section will be
deemed a material breach of this Agreement and in the event
of such material breach MFN will have the right to
immediately terminate this Agreement in addition to any and
all rights and remedies.
7.4. MFN will have the right to inspect Customer's use of the
Product at any time during normal business hours and upon at
least twenty-four (24) hours prior notice by MFN. MFN may
make such inspection on less than twenty-four hours notice
in cases of an emergency.
7.5. MFN may subcontract to any third party any or all of its
performance obligations (including without limitation
maintenance) under this Agreement without the consent of
Customer, provided that MFN will remain obligated for such
performance in accordance with the terms of this Agreement.
8. OUTAGES
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8.1. If Customer experiences an Outage, Customer shall
immediately notify MFN by telephone at (000) 000-0000, or by
such other means as the Parties may agree. Provided that MFN
personnel or contractors have access to affected Customer
facilities immediately upon notification, MFN will respond
and commence work within two (2) hours after the time of
notification by Customer and restore effective use of the
Licensed Fiber as expeditiously as practicable, but in no
event more than
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four (4) hours after receipt by MFN of Customer's
notification, subject to "Force Majeure" as provided in
Section 19 below.
8.2. Unless otherwise specified, if an Outage lasts longer than
fifteen (15) days for any reason other than "Force Majeure",
then at any time thereafter, unless and until such Outage is
corrected, either Party may terminate this Agreement with
respect to the affected Product by written notice of such
termination delivered to the other Party.
8.3. In addition to other rights under this Agreement, MFN shall
have the right to terminate this Agreement as a result of
any Outage caused by Customer's breach of its material
obligations under this Agreement, subject to any relevant
cure provisions as provided in this Agreement.
8.4. The Outage Credit, set out in Section 9, or the right to
terminate hereunder shall be the sole and exclusive remedies
of Customer for any Outage regardless of the cause of such
Outage.
9. OUTAGE CREDITS
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9.1. In the event of an Outage on any Licensed Fiber, whether
such Licensed Fiber is provided to Customer pursuant to
Section 2.1 of this Agreement or is Additional Licensed
Fiber pursuant to Section 2.2 of this Agreement, Customer
will receive an Outage Credit calculated at [*****] percent
([**]%) of the Monthly Charge, which for purposes of
determining the Outage Credit shall be one [*****] 00/100
dollars ($[*****]) per fiber mile, for the affected Licensed
Fiber strands for each Outage Period, up to a maximum of the
Monthly Charge for one (1 ) full month. The Outage Credit
shall be calculated as follows:
(a) Monthly Charge (i.e. $[*****] per fiber mile) for
affected Licensed Fiber Strands number of Customer
Locations = "X";
(b) X total number of Customer's Additional Licensed
Fiber Strands = monthly charge per fiber strand;
(c) monthly charge per fiber strand multiplied by the
number of affected Customer Licensed Fiber strands
multiplied by [*****] percent ({**]%) multiplied
by the number of Outage Periods Outage Credit.
9.2. Customer will not receive any Outage Credit for an Outage
caused by or resulting from (i) Force Majeure; (ii) an act
or omission of Customer, its employees, agents or
contractors; (iii) the use or failure of any Customer
equipment or facilities used in connection with the Product;
(iv) failures of redundant equipment or subsystems, or (v)
planned Outages for maintenance or repair that are scheduled
and approved in advance by Customer.
9.3. Outage Credits will not be credited or payable for any
period of time during which MFN personnel or contractors are
denied access to Customer Locations or other facilities to
remedy an Outage.
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10. LIMITATION OF LIABILITY AND INDEMNIFICATION ,
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10.1. Unless otherwise provided for in this Agreement, and except
in cases of gross negligence or willful misconduct, the
liability of each Party to the other Party for damages will
be limited to five million and 00/100 dollars
($5,000,000.00). Notwithstanding the foregoing, in no event
will either Party be liable to the other Party for any
incidental, indirect, special, consequential, exemplary, or
punitive damages arising out of or relating to this
Agreement or the Product provided hereunder, including
damages based on loss of revenues, profits or lost business
opportunities, regardless of whether the respective Party
had been advised of or could have foreseen the possibility
of such damages.
10.2. MFN agrees to indemnify, defend and hold the Customer, its
officers, directors, employees, agents and contractors
harmless from and against all loss, damage, liability, cost
and expense (including reasonable attorney's fees and
expenses) by reason of any claims or actions by third
parties for (i) bodily injury, including death, (ii) damage,
loss or destruction of any real or tangible personal
property which third party claims arise out of or relate to
(a) any Product provided by or on behalf of MFN hereunder,
(b) MFN's performance of or failure to perform any term,
condition or obligation under this Agreement, or (c) any
negligent act or omission of a MFN's directors, agents,
employees, contractors, representatives or invitees.
10.3. Customer agrees to indemnify, defend and hold MFN, its
officers, directors, employees, agents and contractors
harmless from and against all loss, damage, liability, cost
and expense (including reasonable attorney's fees and
expenses) by reason of any claims or actions by third
parties for (i) bodily injury, including death, (ii) damage,
loss or destruction of any real or tangible personal
property (including without limitation the Network and
Product) which third party claims arise out of or relate to
(a) Customer's performance of or failure to perform any
term, condition or obligation under this Agreement, (b) any
negligent act or omission of Customer's directors, agents,
employees, contractors, representatives or invitees, or (c)
Customer's or its customer's use of the Product and conduct
of their respective businesses including without limitation
the content of any video, voice or data carried by Customer
or its customers on the Product or Network.
10.4. Customer's rights to indemnification under this agreement
are subject and subordinate to MFN's prior obligations to
indemnify third parties. Customer shall not seek damages,
recovery or performance from any third party with whom MFN
has a previous obligation to indemnify, including but not
limited to MFN landlords and building owners with whom MFN
has leasing agreements.
10.5. No contract, subcontract, or other agreement between
Customer and any third party in connection with the Product
hereunder shall provide the basis for any indemnity,
guarantee, assumption of liability or other obligation of
MFN with respect to such arrangements.
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10.6. Except as otherwise set forth in this Agreement, nothing
contained herein will operate as a limitation on the right
of either Party to bring an action for damages against any
third party based on any act or omission of such third party
as such act or omission may affect the construction,
operation, or use of the Network, Equipment or the Product.
Each Party agrees to execute such documents and provide such
commercially reasonable assistance, at the claiming Party's
sole expense, as may be reasonably necessary to enable the
claiming Party to pursue any such action against such third
party.
11. DEFAULT
-------
11.1. The following events shall be considered events of default
the happening of which shall give the non-defaulting party
the right to terminate this Agreement or a portion of this
Agreement as the case may be, by written notice following
the expiration of any stated cure periods:
11.1.1. Customer fails to deliver to MFN the Common Stock
as set forth in the Exchange and Registration
Rights Agreement.
11.1.2. Customer fails to make any payment within thirty
(30) days after receipt of written notice from MFN
shall give MFN the right to terminate its
corresponding obligations with respect to such
payments without further notice to Customer;
11.1.3. the breach of any material term or condition of
this Agreement if such breach remains uncured
thirty (30) days after delivery to the breaching
Party of written notice of such breach. If the
breach is of a nature or involves circumstances
reasonably requiring more than thirty (30) days to
cure, the time period may be extended for such
time as will be reasonably required provided the
breaching Party proceeds diligently to cure the
breach;
11.1.4. A Party applies for or consents to the appointment
of a receiver, trustee or similar officer for it
or any substantial part of its property or assets,
or any such appointment is made without such
application or consent by such Party and remains
undischarged for a period of sixty (60) days;
11.1.5. A Party files a petition in bankruptcy or makes a
general assignment for the benefit of creditors;
or
11.1.6. Customer defaults under the material terms of any
other agreement or Product Order between the
parties subject to the cure periods set forth in
such agreement or Product Order, including but not
limited to any agreement for Collocation, Licensed
Fiber, Capacity Product or a Managed Network
Product, whether such other agreement is executed
prior or subsequently to the execution of this
Agreement.
13
11.2. Where Customer has purchased Additional Licensed Fiber and Customer is
making monthly payments for such Additional Licensed Fiber, if the
Agreement or any Product Order is terminated by reason of Customer's
default, before the expiration of the then current Term, in addition
to all other sums due and owing, Customer will immediately pay the
Early Termination Charge for such Additional Licensed Fiber set forth
below. The parties acknowledge and agree that such Early Termination
Charge reflects a reasonable estimate of the damages incurred by MFN
as a result of the early termination, and is not a penalty against the
Customer. Notwithstanding the foregoing, MFN may seek all other
available remedies in the case of Customer default.
11.2.1. 1st year termination - 100% of all unpaid Monthly Charges
for the first year, plus 80% of all unpaid Monthly Lease
Payments for the second year, plus 60% of all unpaid Monthly
Charges for the third year, plus 40% of all for the fourth
year, plus 20% of all unpaid Monthly Charges for the fifth
year, plus 10% of all unpaid Monthly Charges for the sixth
through twentieth years.
11.2.2. 2nd year termination - 80% of all unpaid Monthly Charges for
the second year, plus 60% of all unpaid Monthly Charges for
the third year, plus 40% of all unpaid Monthly Charges or
the fourth year, plus 20% of all unpaid Monthly Charges for
the fifth year, plus 10% of all unpaid Monthly Lease
Payments for the sixth through twentieth years.
11.2.3. 3rd year termination - 60% of all unpaid Monthly Charges for
the third year, plus 40% of all unpaid Monthly Charges for
the fourth year, plus 20% of all unpaid Monthly Charges for
the fifth year, plus 10% of all unpaid Monthly Lease
Payments for the sixth through twentieth years.
11.2.4. 4th year termination - 40% of all unpaid Monthly Charges for
the fourth year, plus 20% of all unpaid Monthly Charges for
the fifth year, plus 10% of all unpaid Monthly Charges for
the sixth through twentieth years.
11.2.5. 5th year termination - 20% of all unpaid Monthly Charges for
the fifth year, plus 10% of all unpaid Monthly Charges for
the sixth through twentieth years.
11.2.6. 6th through 20th year termination - 10% of all Monthly
Charges for the sixth through twentieth years.
11.3. If the Agreement or any Product Order is terminated by reason of
Customer's default, before the expiration of the then current Term, in
addition to all other sums due and owing, MFN will retain as an Early
Termination Charge, the unamortized portion of the Prepaid Charges
over the License Term as of the date of termination.
14
12. REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
12.1. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
MFN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE (i) NETWORK OR
EQUIPMENT, (ii) PRODUCT, (iii) MAINTENANCE (iv) CONSTRUCTION
AND INSTALLATION, AND (v) ANY OTHER SERVICE(S) PROVIDED BY
OR ON BEHALF OF MFN HEREUNDER.
12.2. Each Party represents and warrants to the other that (a) it
is duly organized, validly existing and in good standing
under the laws of the state of its organization, (b) it has
all requisite power and authority to enter into and perform
its obligations under this Agreement and the Product Order
and (c) this Agreement and the Product Order, when executed,
will become the legal, valid and binding obligation of such
Party.
12.3. During the Term of the Agreement Customer shall maintain, at
its sole cost and expense, the insurance coverages with
limits stipulated below, as well as such other coverage(s)
and limits as may be required by the landlord or owner of
the Premises:
Type of Insurance Minimum Amount
----------------- --------------
Commercial General Liability (inclusive of Broad Form $1,000,000.00 per occurrence
Contractual Liability Coverage) with coverage extending to $2,000,000.00 aggregate
independent contractors and personal injury coverage,
product and completed operations, business interruptions,
bodily injury and property damage combined
Commercial Blanket Bond/Crime (including Fidelity) Coverage $1,000,000.00 per occurrence
Umbrella Liability $5,000,000.00 per occurrence
If requested by MFN, Customer shall: (i) deliver to MFN a
certificate of insurance prior to the execution of this
Agreement stating that such policy will not be canceled,
terminated or modified without thirty (30) days' prior
written notice to MFN. All policies shall be endorsed with
the provision that coverage provided thereunder shall be
primary, and not excess or contributory with regard to any
other insurance maintained by MFN; (ii) name MFN as an
additional insured as its interests may appear under the
Commercial General Liability and Umbrella Liability
policies; and (iii) obtain the express consent of each
underwriter of the policies of insurance specified above to
waive its right of subrogation against MFN.
15
13. APPLICABLE TAXES
----------------
13.1. Each Party shall be fully responsible for the payment of any
and all taxes required by law to be paid by that Party.
13.2. Customer shall pay all taxes and fees associated with
Customer's use of the Product, including but not limited to
any sales, use, transfer, gross receipts, federal excise and
similar taxes and surcharges lawfully levied by a taxing
authority against or upon the Products. Alternatively,
Customer will provide MFN with a certificate evidencing
Customer's exemption from payment of or liability for the
above taxes.
13.3. In addition to the Charges, Customer may be invoiced for
franchise, privilege, property, and occupational taxes based
upon the gross revenues received from Customer or assets of
MFN made available to Customer, or for any tax surcharge on
the Product or, if applicable, Universal Service Fund or
similar charges imposed on MFN with respect to Customer's
use of the Product.
13.4. Customer is solely responsible for calculating and remitting
any and all assessments, including but not limited to
franchise fees, license fees, right-of-way fees, taxes and
any other assessment against Customer for Customer's use of
the Product (collectively, "Assessments"). Such Assessments
may be made by any governmental, quasi governmental agency
or regulatory body and MFN will not direct or notify
Customer to pay any Assessments, and shall not be directly
or indirectly responsible in any way for Customer's
remitting such Assessments.
14. RELOCATION. CONDEMNATION.
-------------------------
14.1. If MFN is required by any third party to relocate any
segment of its Network, MFN will provide Customer at least
sixty (60) days prior written notice of any relocation
unless prevented from doing so by the timing of the
relocation. Prior to the relocation, MFN will provide
Customer an estimate of the cost of such relocation, and to
the extent MFN is not reimbursed for those costs by the
requesting third party, Customer agrees to pay its pro rata
share of the relocation costs. MFN will use its commercially
reasonable efforts to secure an agreement for reimbursement
from the third party.
14.2. If any portion of the Network, and/or the Authorizations
become the subject of a condemnation proceeding which is not
dismissed within one hundred eighty (180) days after the
date of filing of such proceeding and which could reasonably
be expected to result in a taking by any governmental agency
or other party having the power of eminent - domain, MFN, in
its sole discretion, shall have the option of providing
alternate service to Customer, or immediately terminating
the Agreement without further obligation to Customer. MFN
shall be entitled, to the extent permitted under applicable
law, to participate in any condemnation proceedings for
compensation for the economic value of MFN interests or
Authorizations relating to the Product subject to such
condemnation proceeding.
16
15. ASSIGNMENT; SUCCESSION
----------------------
15.1. Subject to Section 15.3 below, Customer will not assign any
right nor delegate any duty under this Agreement, in whole
or in part, whether by operation of law or otherwise,
without the prior written consent of MFN, such consent not
to be unreasonably withheld. Upon any permitted assignment
(or delegation) hereunder, the assigning Parties will remain
jointly and severally responsible for the performance under
this Agreement, unless released in writing by the
non-assigning Party. Any permitted assignee will expressly
assume all liabilities hereunder prior to the effectiveness
of such assignment. Any attempted assignment or delegation
without such consent will be null and void and will be
deemed to constitute a material breach of this Agreement.
15.2. Notwithstanding anything contained in this Agreement to the
contrary, Customer may, without the consent of MFN,
collaterally assign this Agreement in whole but not in part
to any or all parties providing financing to Customer or any
other entity controlled by or under common control with
Customer under a collateral trust for the benefit of the
entities providing such financing or similar arrangement for
the benefit of such financing entities. Customer will advise
MFN in writing of the assignment at the time of such
assignment. If requested by Customer, MFN will within seven
(7) days of such request provide a written consent to any
such permitted assignment; provided that such consent will
permit reassignment in accordance with the terms of this
Agreement if the financing parties exercise their remedies
under the documents for such financing upon notice by the
financing parties.
15.3. This Agreement will be binding upon and inure to the benefit
of the Parties hereto and their respective successors and
permitted assigns.
16. NOTICES
-------
16.1. All notices and communications concerning this Agreement
must be in writing and delivered to MFN at the following
addresses: Metromedia Fiber Network Services, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, 0xx Floor
White Plains, New York 10601
Attn: Vice President - Marketing
If declaring a default or termination, a copy of the notice
must be sent to:
Metromedia Fiber Network Services, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, 0xx Floor
White Plains, New York 10601
Attn: Vice President - Legal Affairs
16.2. Notices and communications to Customer must be in writing
and will be delivered to the address specified in the
Product Order.
17
16.3. Notices will be sent by certified US Postal Service, return
receipt requested, or by commercial overnight delivery
service, or by facsimile, and will be deemed delivered, if
C) sent by US Postal Service, five (5) days after deposit,
if sent by facsimile, upon verification or receipt or, if
sent by commercial overnight delivery service, one (1 )
business day after deposit therewith.
17. 17. GOVERNING LAW
-----------------
THIS AGREEMENT WILL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS PRINCIPLES OF
CONFLICTS OF LAWS.
18. DISPUTE RESOLUTION; ARBITRATION.
--------------------------------
18.1. Any dispute or disagreement relating to this Agreement or
any matter arising between the Parties in connection with
this Agreement which is not settled to the mutual
satisfaction of the Parties within thirty (30) calendar days
from the date that either party informs the PRIVATE NETWORK
AGREEMENT Metromedia Fiber Network Services, Inc. Page 14
other in writing that such dispute or disagreement exists,
shall be settled by arbitration by a single arbitrator in
New York, New York, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in
effect on the date that such notice is given. If the parties
are unable to agree on a single arbitrator within fifteen
(15) calendar days, the American Arbitration Association
shall select an arbitrator. The decision of the arbitrator
shall be final and binding upon the parties and shall
include written findings of law and fact, and judgment may
be obtained thereon by either party in a court of competent
jurisdiction. Each party shall bear the cost of preparing
and presenting its own case. The cost of arbitration,
including the fees and expenses of the arbitrator, shall be
shared equally by the parties unless the award otherwise
provides.
18.2. The obligation herein to arbitrate shall not be binding upon
any party with respect to requests for preliminary
injunctions, temporary restraining orders or other
procedures in a court of competent jurisdiction to obtain
interim relief when deemed necessary by such court to
preserve the status quo or prevent irreparable injury
pending resolution by arbitration of the actual dispute.
19. FORCE MAJEURE
-------------
Neither Party will be in breach of this Agreement resulting from delay or
prevention of performance of such Party which is caused by any act attributable
to an occurrence or an event of "Force Majeure" as defined herein, and which by
the exercise of due foresight, the Party could not reasonably have been expected
to avoid. An event of Force Majeure may include an action by governmental
authority (including without limitation moratorium on any activities related to
the Agreement), third party labor dispute, flood, earthquake, fire, lightning,
epidemic, war, riot, civil disturbance, and sabotage. The party affected by an
event of Force Majeure will notify the other party promptly of any occurrence or
condition, which, in the Affected Party's reasonable
18
opinion, warrants an extension of time. Such notice will specify the anticipated
length of delay, the cause of the delay and a timetable by which any remedial
measures will 3 be implemented.
20. SURVIVAL
--------
The Parties' respective representations, warranties, together with obligations
of indemnification, confidentiality and limitations on liability will survive
the expiration, termination or rescission of this Agreement and continue in full
force and effect.
21. REMEDIES
--------
Except as otherwise expressly provided, the rights and remedies set forth in
this Agreement will be in addition to, and cumulative of, all other rights and
remedies at law or in equity.
22. CONFIDENTIALITY AGREEMENT
-------------------------
22.1. The Parties acknowledge and agree that this Agreement and
the information each Party has provided or will provide in
connection with this Agreement or that the other Party
learns or obtains from a source other than the public domain
or from a source (including a Party) not in violation of any
obligation of confidentiality, including, without
limitation, the terms and conditions thereof, are and will
be confidential and proprietary to the Party providing such
information (the "Providing Party,). The Party in receipt of
or learning or obtaining the confidential information (the
"Receiving Party") agrees not to distribute, use or disclose
to any third party the confidential information of the
Providing Party.
22.2. Except as may be required by applicable legal requirements
in the course of defending or prosecuting a legal, insurance
or other claim or as required by applicable law, rule or
regulation, including, without limitation, any reporting or
filing requirements under state or Page 15 federal
securities laws, each Party will restrict dissemination of
confidential access to such confidential information or this
Agreement in order to perform their respective rights or
obligations hereunder. Each Party will promptly notify the
other Party prior to any such required disclosure or filing,
and in the case of any filing or disclosure of this
Agreement, to seek confidential treatment of this Agreement,
and to permit such other Party to seek protective relief
therefrom and/or confidential treatment thereof and shall
cooperate as such other Party may request in connection
therewith. The Party seeking disclosure pursuant to state or
federal securities laws and the other Party shall cooperate
reasonably and in good faith to permit such disclosure and
the other Party shall not unreasonably withhold or delay any
consent to such required disclosure. After the Parties have
agreed as to the confidential information or such portions
of this Agreement which are to be disclosed pursuant to
state or federal securities laws, no further notification or
consent pursuant to this Section 22.2 shall be required for
subsequent disclosures by the disclosing Party which are the
same in all material respects as the agreed upon
disclosures.
22.3. Customer may disclose the identity of MFN as a supplier of
Customer and MFN may disclose the identity of Customer as a
customer of MFN, each with the prior
19
written consent from the other; which will not be
unreasonably withheld or delayed; provided, that no such
disclosure shall imply any endorsement of the disclosing
Party or contain any misleading reference to the nature of
the relationship between the Parties. Each Party may, in
connection with a financing transaction, disclose
confidential information to a leading financial institution
which has executed an agreement with such Party to maintain
the confidentiality of this Agreement in a manner consistent
with the terms of this Section 22. For purposes of this
Agreement, the ordinary course of Customer's business shall
not include the sale, leasing or granting of any rights of
use in "dark fiber", as such term is commonly understood in
the telecommunications industry, nor shall Customer's
business include the resale of any Product.
22.4. Each Party acknowledges and agrees that the information of a
Party described in this Section 22 constitutes valuable
property of such Party and that such Party will suffer
irreparable injury not compensable by money damages for
which such Party will not have an adequate remedy at law in
the event of a breach by the other Party of the provisions
of this Section 22 and therefore such Party shall be
entitled to injunctive relief to prevent or curtail any such
breach, threatened or actual. The foregoing shall be without
prejudice to or limitation of any rights a Party may have
under this Agreement, at law or in equity.
23. MISCELLANEOUS
-------------
23.1. The covenants, undertakings, and agreements set forth in
this Agreement will be solely for the benefit of and will be
enforceable only by the Parties hereto or their respective
successors or permitted assigns.
23.2. The headings of the Sections in this Agreement are strictly
for convenience and will not in any way be construed as
amplifying or limiting any of the terms, provisions or
conditions thereof.
23.3. In the event any term of this Agreement is held invalid,
illegal or unenforceable, in whole or in part, neither the
validity of the remaining part of such term nor the validity
of the remaining terms of this Agreement will be in any way
affected thereby.
23.4. This Agreement may be amended only by a written instrument
executed by the Parties.
23.5. No failure to exercise and no delay in exercising, on the
part of either Party hereunder, any right, power or
privilege hereunder will operate as a waiver hereof, except
as expressly provided herein.
23.6. This Agreement may be executed in multiple counterparts,
each of which will constitute one and the same instrument.
20
23.7. This Agreement may be separated by MFN into two or more
individual agreements, each comprised of the General Terms
and Conditions, one or more Product Orders and the Exhibits
associated with such Product Order(s).
23.8. If any conflict or contradiction exists between the terms of
this Agreement and one or more Product Orders, the terms of
the Product Order(s) shall control.
24. ENTIRE AGREEMENT
----------------
24.1. Effective upon the execution of this Licensed Fiber
Agreement by both Parties, as between Customer and MFN this
Agreement cancels and supercedes that certain agreement
entered into by any among Local Fiber LLC and National Fiber
Network, Inc., now known as Metromedia Fiber Network, Inc.
("MFNI"), the corporate parent of MFNS, which agreement is
identified as the Operating Agreement of Local Fiber LLC
dated as of June 19, 1996, which, together with all
Schedules thereto, including without limitation Schedule A
thereto with respect to Class B Members as described
therein, and Schedule B thereto, the License as between
Local Fiber LLC and MFNI, will be referred to herein as the
"1996 Agreement". The execution of the Exchange and
Registration Rights Agreement set forth in Exhibit E to this
Licensed Fiber Agreement by each of MFN and Customer
constitutes a withdrawal by MFN from Customer and Local
Fiber LLC. In addition, in consideration for the execution
and delivery of this Licensed Fiber Agreement and other good
and valuable consideration, the adequacy and receipt of
which is hereby acknowledged, Customer for itself and all of
its affiliates, including, without limitation, Local Fiber
LLC, as the "Releasing Party" with respect to each of MFNI
and MFN as the "Released Party, and each of MFNI and MFN as
the "Releasing Party" with respect to Customer and Local
Fiber LLC as the Released Party, hereby releases and
discharges the respective Released Party and all of such
Released Party's successors and assigns from any and all
actions, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises,
obligations, duties, variances, trespasses, damages,
judgments, extents, executions, claims, and demands
whatsoever, in law or equity, which against the respective
Released Party, the respective Releasing Party and such
Releasing Party's successors and assigns ever had, now have
or hereafter can, shall or may, have for, upon, or by reason
of any matter, cause or thing whatsoever from the beginning
of the world to the day of the date of this Licensed Fiber
Agreement arising from the 1996 Agreement.
24.2. With the exception of a confidentiality agreement between
the parties, this Agreement, including the Product Order,
Appendices and Exhibits attached hereto constitute the
entire agreement between the Parties with respect to the
subject matter hereof and supersede any and all prior
negotiations, understandings, and agreement with respect
hereto, whether oral or written.
21
The Parties hereto have executed this Agreement as of the date first written
above.
METROMEDIA FIBER NETWORK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------------------
Print Name: Xxxxxx Xxxxxxxxxxx
----------------------------------------------
Title:
---------------------------------------------------
FIBERNET TELECOM GROUP, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------------------
Print Name: Xxxxxxx X. Xxxx
----------------------------------------------
Title:
---------------------------------------------------
22
Exhibit A: MFN Fiber Optic Cable Network and Rings
Exhibit B: List of On-Network Buildings
Exhibit C: Form of Product Order
Exhibit D: Licensed Fiber Previously Provided by MFN to Customer
Exhibit E: Exchange and Registration Rights Agreement
Exhibit F: Rental Allocation Schedule
Exhibit G: Building Network Connection Pricing.
1
EXHIBIT A
MFN FIBER OPTIC CABLE NETOWRK RINGS
Boston Downtown Area Network
[*************]
Chicago Area Network
[*************]
Manhattan Area Network
[*************]
Washington D.C. Downtown Area Network
[*************]
San Francisco Downtown Area Network
[*************]
Los Angeles Downtown Area Network
[*************]
EXHIBIT B
List of On-Network Buildings
New York City Metropolitan Area
-------------------------------
[***************]
Washington D.C. Metropolitan Area
---------------------------------
[***************]
Chicago Metropolitan Area
-------------------------
[***************]
Boston Metropolitan Area
------------------------
[***************]
San Francisco Metropolitan Area
-------------------------------
[***************]
Los Angeles Metropolitan Area
-----------------------------
[***************]
EXHIBIT C
METROMEDIA FIBER NETWORK SERVICES, INC.
PRODUCT ORDER
Dark Fiber License
FiberNet Telecom Group, Inc.
1. Date:
----
2. Number of Licensed Fibers:
-------------------------
3. Rings: #1_________
----- #2_________
#3_________
#4_________
#5_________
4. Customer Locations: #1_______________
------------------ #2_______________
5. Building Network Connection (On-Network Buildings): Estimate Splice Connection Costs:
-------------------------------------------------- --------------------------------
6. Building Network Connection (Off-Network Buildings):
---------------------------------------------------
7. Customer Charges:
---------------------------------------------------
a. Prepaid Charge $__________
b. MFN will invoice for the Lateral Extension construction cost or splice connection
cost (if applicable).
Invoices shall paid net 30 days after delivery of invoice.
c. Customer will pay all Applicable Taxes.
8. Licensed Fiber Specifications: See Exhibit A, attached hereto.
----------------------------- ---------
9. Estimated Commencement Date(s): _______________
------------------------------
10. Special Requirements.
--------------------
11. Customer Notice:
---------------
FiberNet Telecom Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
This Product Order alone shall not constitute an Agreement between the parties
but shall be incorporated by reference into a Private Network Agreement to be
executed between MFN and Customer.
METROMEDIA FIBER NETWORK SERVICES, INC.
By:_______________________________________________
Print Name:_______________________________________
Title:____________________________________________
FIBERNET TELECOM GROUP, INC.
By:_______________________________________________
Print Name:_______________________________________
Title:____________________________________________
Exhibit A
---------
Leased Fiber Specifications
and
Fiber Optic Cable Splicing, Testing and Acceptance Standards
MFN will perform fiber testing as described below on each Leased Fiber and will
provide the documentation (hard copy and/or diskette) of results to the
Customer. Each "span" will be defined in documentation included in the
Customer's package. Acceptance of a span by Customer will be an acknowledgement
by the Customer that all Leased Fiber complies with all performance criteria
contained herein.
1) Power testing: This end-to-end loss measurement will be conducted for each
Leased Fiber in the span and both directions using an industry-accepted
laser source and power meter. The bi-directional average will be used to
determine the end-to-end css of the span at each appropriate wave length.
This test will be conducted at both, 1310 nm and 155 nm for Standard Single
Mode Fiber: Dispersion Shifted Fiber (True Wave(TM), LEAF(TM), etc.) will be
tested at 1550 nm only. In the event that a scan consists of both Standard
Single Mode and Dispersion Shifted fiber type, only 1550 nm testing will be
conducted. This power testing will ensure fiber continuity and the absence
of crossed fibers in the span. Power testing will only be conducted where
the Leased Fiber is terminated by MFN in fiber distribution panels at both
ends of the span.
2) OTDR testing: All traces will be provided in hard copy and diskette form
using GR 196 format. This testing will be conducted at both 1310 and 1550 nm
wavelenghts when the Leased Fiber consists of Standard Single Made Fiber,
but will be done at 1550 nm only if the Leased Fiber consists of either
Dispersion Shifted Fiber (True-Wave(TM), LEAF(TM), etc.) or a combination of
Single Mode and Dispersion Shifted fiber types.
OTDR testing will be conducted on a bi-directional basis for each Leased Fiber
in each span at the appropriate wavelengths for the Leased Fiber described
above. However, if due to length or attenuation reasons that the Leased Fiber
span exceeds the dynamic range of an OTDR, a portion or the entire span may be
tested on a unidirectional basis only. Alternatively, the Leased Fiber span may
be divided into shorter testing spans, to the extent reasonably possible, in
order to obtain bi-directional analysis. Also, in instances where a Customer
intends to accept Leased Fiber that is not terminated at one end by MFN in a
fiber distribution panel (such as in manhole or handhold) only unidirectional
testing will be performed.
The turnover documentation package delivered to Customer will contain the actual
trances that detail the testing parameters (including Purse width, averaging and
range). The average bi-directional spice loss for all splices within each span
will be of 0.15 dB or less for all connectors within each span. (Note that the
front and end connector of the span pan only to be measured uni-directionally
and will also have a loss equal to or less than 0.5 dB). In the event that CTDR
acceptance testing must be done on a unidirectional basis (for reasons described
above), an average per span spice loss will be 0.30 dB.
All traces will be provided in hard copy and/or diskette form using GR 196
format. If the average bi-directional splice loss of each span exceeds 0.15 dB
or 0.30 dB uni-directionally), MFN will provide upon the Customer's request
documentation of at least three attempts to reduce this value to below 0.15 dB
(0.30 dB uni-directionally). The only exception to this will be in the instance
of a splice between two different fiber types (Standard Single-mode to
Dispersion Shifted, Depressed-Clad to Matched Clad, fibers with different mode-
field diameters).
Customer should also not that the loss and/or reflectance of the front-end
connector (as measured using a launch cord) is only an indicator of a problem
such as a defective port, bulkhead, or the like. Since a different patch cord
will be used by Customer (that connects to their equipment, or example ) to
mate this connector, a different loss and/or reflectance may
occur.
EXHIBIT D
LICENSED FIBER PREVIOUSLY PROVIDED BY MFN TO CUSTOMER
[*************]
EXHIBIT E
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated
as of December 17, 1999 among Metromedia Fiber Network Services, Inc., a
Delaware corporation (the "Stockholder"), FiberNet Telecom Group, Inc., a Nevada
corporation (the "Company"), and Local Fiber LLC, a New York limited liability
company of which the Stockholder and the Company are members (the "LLC").
Capitalized terms used herein but not otherwise defined shall have the meanings
given them in Section 1 of this Agreement.
WHEREAS, the Stockholder and the Company have determined to exchange the
Stockholder s membership interest in the LLC for 5,000,000 shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"), in
accordance with the terms and provisions of this Agreement.
1. Definitions. As used herein, unless the context otherwise requires, the
-----------
following terms have the following respective meanings:
"AMEX" means the American Stock Exchange Inc.
----
"Commission" means the Securities and Exchange Commission or any other
----------
federal agency at the time administering the Securities Act.
"Common Stock" has the meaning ascribed to such term in the recital to this
------------
Agreement.
"Demand Registration" means a registration statement with respect to the
-------------------
other Registrable Securities, including any prospectus contained any such
registration statement and any amendment of or supplement to such registration
statement or prospectus, filed pursuant to Section 4.1 (a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
------------
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934, as amended, shall
include a reference to the comparable section, if any, of any such successor
federal statute, and to the rules and regulations under such section.
"Incidental Registration" has the meaning ascribed to such term in Section
-----------------------
4.2(a) hereof.
"`Lock-up period" means the period commencing on the date hereof and ending
--------------
one year therefrom.
"Investor Registration Rights Agreement" means "Registrable Shares" as
--------------------------------------
such term is defined in the Investor Registration Rights Agreement.
1
"Investor Registration Rights Agreement" means that certain Registration
--------------------------------------
Rights Agreement dated as of May 7, 1999, by and among the Company and the
Purchasers named therein, as the same may be amended from time to time.
"Majority Holders" means the holder or holders of a majority of the
----------------
outstanding Registrable Securities, based upon the total number of shares of
Common Stock included in the definition of the Registrable Securities
outstanding at the time such calculation is made.
"NYSE" means the New York Stock Exchange, Inc.
----
"Outstanding" means, with respect to the Common Stock, shares of Common
-----------
Stock issued and outstanding on the date hereof and at any time on or prior to
90 days after the date hereof, and shares of Common Stock issuable upon exercise
or conversion of options, warrants, convertible notes or other debt securities,
convertible preferred stock or other convertible or derivative securities.
"Person" means any individual, corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, joint stock company,
government (or an agency, department or political subdivision thereof) or other
entity of any kind.
"Registrable Securities" means (i) the Shares and (ii) any Related,
----------------------
Registrable Securities. As to any particular Registrable Securities, once
issued such securities shall cease to be Registrable Securities when (a) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (b) they shall have
been distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities, (c) they shall have been otherwise transferred, and new
certificates representing them not bearing a legend restricting further transfer
shall have been delivered sby the Company and subsequent public distribution of
them shall not, in the opinion of counsel to the holders (or in the opinion of
counsel to the Company, which opinion is reasonably satisfactory to the
holders), require registration of them under the Securities Act, or (d) they
shall have ceased to be outstanding.
"Registration Expenses" means all costs, fees and expenses incident to the
---------------------
Company's performance of or compliance with Section 4, including, without
limitation, all registration, filing and NASD fees, all fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and disbursements
of counsel for the Company and of its independent public accountants, and the
reasonable fees and expenses of one counsel to the Stockholder.
"Related Registrable Securities" means any securities of the Company issued
------------------------------
or issuable with respect to the Shares by way of a dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise.
"Representative" means, if the Stockholder does not hold at least 50% of
--------------
the Registrable Securities, a representative holder designated in writing to the
Company by the Majority Holders.
2
"Request" has the meaning ascribed to such term in Section 4.1(a) hereof.
-------
"SEC" means the Securities and Exchange Commission or any successor agency.
---
"Securities Act" means the Securities Act of 1933, or any successor federal
--------------
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time. References to a particular section of the
Securities Act of 1933 shall include a reference to the comparable section, if
any, of any such successor federal statute, and to the rules and regulations
under such section.
"Shares" means the 5,000,000 shares of Common Stock to be received by the
------
Stockholder pursuant to this Agreement.
"Shelf Registration" means a "shelf" registration statement with respect to
------------------
the Registrable Securities on Form S-3 or other appropriate form pursuant to
Rule 415 under the Securities Act, including any prospectus contained any such
registration statement and any amendment of or supplement to such registration
statement or prospectus.
"Stockholder" has the meaning ascribed to such term in the preamble hereof,
-----------
provided that term "Stockholder" shall also mean any assignee or transferee of
--------
the Registrable Securities. If at any time a majority of the Registrable
Securities then outstanding are not held by a single holder, the rights of the
Stockholder hereunder may be enforced by the Majority Holders.
"Transfer" means the sale, transfer, exchange, assignment, pledge or
--------
hypothecation of any Shares to any Person other than Stockholder or a Person
controlled by or under common control with the Stockholder.
2. Exchange of LLC Interests for Shares. The Stockholder hereby exchanges the
------------------------------------
outstanding membership interest held by the Stockholder in the LLC for the
Shares. Effective upon the execution and delivery of this Agreement and the
delivery by the Company to the Stockholder of a certificate representing the
Shares, the Stockholder hereby withdraws as a member of the LLC. In conjunction
with and as a condition precedent to the consummation of the transactions
contemplated by this Section 2, the Stockholder's subsidiary Metromedia Fiber
Network Services, Inc. and Local Fiber LLC shall execute and deliver a Private
Network Agreement in the form of Exhibit A hereto.
3. Representations and Warranties of the Company. The Company and the LLC
---------------------------------------------
hereby jointly and severally represent and warrant to the Stockholder as
follows:
3.1 Corporate Organization and Authority of the Company; Binding Effect.
(a) The Company is a corporation duly organized, validly existing and in good
standing under the laws of Nevada and has all corporate power and authority
to carry on its business as now being conducted and to own its properties.
The Company has heretofore delivered to the Stockholder complete and
correct copies of its certificate of incorporation and by-laws, as
currently in effect.
3
(b) The LLC is a limited liability company duly organized, validly existing and
in good standing under the laws of New York and has all limited liability
company power and authority to carry on its business as now being conducted
and to own its properties.
(c) The Company has full corporate power and authority to enter into this
Agreement and any other applicable agreements contemplated hereby and to
consummate the transactions contemplated hereby. The execution, delivery
and performance by the Company of this Agreement and each such other
agreement contemplated hereby to which it is or will be a party have been
duly authorized by all requisite corporate action.
(d) The LLC has full limited liability company power and authority to enter
into this Agreement and any other applicable agreements contemplated hereby
and to consummate the transactions contemplated hereby. The execution,
delivery and performance by the LLC of this Agreement and each such other
agreement contemplated hereby to which it is or will be a party have been
duly authorized by all requisite action.
(e) This Agreement has been, and each of the other Agreements to which the
Company or the LLC is a party will be as of the Closing Date, duly executed
and delivered by the Company and the LLC, and (assuming due execution and
delivery by he Stockholder) this Agreement constitutes, and each of such
other Agreements when executed and delivered will constitute, a valid and
binding obligation of the Company and the LLC, enforceable in accordance
with is terms, except as may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally or by
general equitable principles.
3.2 Capitalization. As of the date hereof, the Company has (i) 50,000,000
--------------
shares of Common Stock, $.001 par value authorized and (ii) 5,000,000 shares of
Preferred Stock, $.001 par value ("Preferred Stock") authorized. Of the
50,000,000 shares of Common Stock authorized, 20,432,464 shares are issued and
outstanding and 23,233,210 shares have been reserved for issuance upon the
conversion or exercise of the issued and outstanding Preferred Stock, warrants
and options existing as of the date hereof. Of the 5,000.000 shares of
Preferred Stock authorized, (i) 1,000,000 shares are designated and authorized
as Series A Convertible Cumulative Preferred Stock, $.001 par value ("Series A
Preferred Stock"), (ii) 80,000 shares are designated and authorized as Series B
Voting Preferred Stock, $.001 par value ("Series B Preferred Stock"), (iii)
133,333 shares are designated and authorized as Series C Preferred Stock, $.001
par value ("Series C Preferred Stock"), (iv) 500,000 shares are designated and
authorized as Series D Preferred Stock") $.001 par value ("Series D Preferred
Stock"), (v) 750,000 shares are designated and authorized as Series E Preferred
Stock, $.001, par value ("Series E Preferred Stock") and (vi) 500,000 are
designated and authorized as Series F Preferred Stock, $.001 par value ("Series
F Preferred Stock ). Of the designated and authorized Preferred Stock, 133,333
shares of the Series C Preferred Stock are issued and outstanding, 309,143
shares of the Series D Preferred Stock are issued and outstanding, 291,926
shares of the Series E Preferred Stock are issued and outstanding and 345,515
shares of the Series F Preferred Stock are issued and outstanding. There are no
shares of the Series A Preferred Stock or Series B Preferred Stock; issued and
outstanding as of this date. All the shares of Common Stock to be issued upon
the conversion or exercise of issued and outstanding shares
4
of Preferred Stock, and all of the shares of Common Stock to be issued upon the
conversion or exercise of issued and outstanding shares of Preferred Stock and
warrants and options issued by the Company will be when issued, fully paid and
nonassessable.
3.3 No Violation; Consents.
----------------------
(a) Except as otherwise described on Schedule 1 hereto, neither the Company nor
any the subsidiary of the Company is subject to or bound by any provision:
(i) any law, statute, rule, regulation or judicial or administrative decision;
(ii) any articles or certificates of incorporation or by-laws;
(iii)any mortgage, deed of trust, lease, note, shareholders' agreement, bond,
indenture, instrument, agreement, license, permit, trust or custodianship,
in each case to which the Company or any such subsidiary is a party or
under which the Company or any such subsidiary is bound; or
(iv) any judgment, order, writ, injunction or decree of any court, governmental
body, administrative agency or arbitrator,
that would prevent or be violated by or that would result in the creation of any
lien, charge, security interest or other restriction or encumbrance as a result
of, or under which there would be a default or right of termination as a result
of, the execution, delivery and performance by the Company and the LLC of this
Agreement and the consummation of the transactions contemplated hereby.
(b) Except as otherwise described on Schedule 1 hereto, no consent, approval or
authorization or declaration or filing with any Person is required for the
valid execution, delivery and performance by Seller of this Agreement and
the consummation of the transactions contemplated hereby.
3.4 SEC Filings. The Company has timely filed all reports and other documents
-----------
(collectively, the "SEC Filings") required to be filed by the Company with the
SEC pursuant to the Securities Act, the Exchange Act and any other applicable
provision of the United States securities laws. Each such report, at the time
filed, did not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made.
3.5 Financial Statements. Except as noted therein and except for normal year-
--------------------
end adjustments with respect to unaudited financial statements, all financial
statements contained n the SEC Filings or otherwise delivered to the Stockholder
were prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods indicated, and present fairly in all
material respects the consolidated, financial position of the Company and its
Subsidiaries at such dates, and the consolidated results of their operations and
cash flows for the period then ended.
5
3.6 No Material Change. Since the September 30, l999, there has been no
------------------
material adverse change in the financial condition, assets, liabilities
(contingent or otherwise), results of operations or business of the Company and
its subsidiaries considered as a whole.
4. Registration Under Securities Act, etc.
--------------------------------------
4.1 Demand Registration.
-------------------
(a) Right to Demand Registration. Subject to Section 4.1(c), at any time or
----------------------------
from time to time after the end of the Lock-up period the Stockholder
shall have the right to request in writing that the Company register all or
part of the Registrable Securities (a "Request") (which Request shall
specify the amount of Registrable Securities intended to be disposed of and
the intended method of disposition thereof) by filing with the SEC a Demand
Registration. The Company shall, within 30 days following a Request, cause
to be filed with the SEC a Demand Registration providing for the
registration under the Securities Act of the Registrable Securities which
the Company has been so requested to register, to the extent necessary to
permit the disposition of such Registrable Securities in accordance with
the intended methods of disposition thereof specified in such Request. The
Company shall use its best efforts to have such Demand Registration
declared effective by the SEC as soon as practicable, and in no event more
than 180 days, and thereafter to keep such Demand Registration Statement
continuously effective for the period specified in Section 4.1(b). The
Company shall pay all Registration Expenses incurred in connection with any
Demand Registration, whether or not it becomes effective (unless the
Stockholder shall for any reason unilaterally withdraw such Demand
Registration other than for a materially adverse change in the Company's
business, operations, prospects or valuation), and whether all none or some
of the Registrable Securities are sold pursuant to the Demand Registration.
Notwithstanding anything contained in Section 4.1 or Section 6 hereof, in
the event any Investor Registrable Securities are publicly registered
pursuant to a demand registration under the terms of the Investor
Registration Rights Agreement prior to the end of the Lock-up Period, the
Stockholder will have the right to participate in such investor demand
registration on a pro rata basis with such requesting holders of Investor
--- ----
Registrable Securities.
(b) Priority in Demand Registrations. If a Demand Registration involves an
--------------------------------
underwritten offering, and the sole or lead managing underwriter, as the
case may be, of such underwritten offering shall advise the Company in
writing that, in its opinion, the amount of Registrable Securities
requested to be included in such Demand Registration exceeds the number
which can be sold in such offering within a price range acceptable to the
Stockholder (such writing to state the basis of such opinion and the
approximate number of Registrable Securities which may be included in such
offering), the Company shall include in such Demand Registration, to the
extent of the number which the Company is so advised may be included in
such offering, the Registrable Securities requested to be included in the
Demand Registration by the Stockholder. If no such written notice is
provided, the company may include in such Demand Registration securities
for its own account or for the account of other persons.
(c) Limitations on Registrations. The right of the Stockholder to request
----------------------------
Demand Registrations pursuant to Section 4. (a) are subject to the
following limitations: (i) the Company shall not be obligated to effect a
Demand Registration within six months after the effective date of any other
registration of Common Stock Securities Act (other them pursuant to a
registration
6
on Form S-8 or Form Successor or similar form which is then in
effect), and (ii) in no event shall the Company be required to effect, in
the aggregate, more than two (2) Demand Registrations.
(d) Underwriting; Selection of Underwriters. If the Company so elects, any
---------------------------------------
offering of Registrable Securities pursuant to a Demand Registration shall
be in the form of an underwritten offering. If any Demand Registration
involves an underwritten offering, the sole or managing underwriters and
any additional investment bankers and managers to be used in connection
with such registration shall be selected by the Company subject to the
reasonable approval of the Stockholder, such approval not to be
unreasonably withheld or delayed.
(e) Effective Registration Statement; Suspension. A Demand Registration shall
--------------------------------------------
not be deemed to have become effective (and the related registration will
not be deemed to have been effected) unless it has been declared effective
by the SEC and remains effective in compliance with the provisions of the
Securities Act with respect to the disposition of all Registrable
Securities covered by such Demand Registration.
(f) Registration Statement Form. Registrations under this Section 4.1 shall be
---------------------------
on such appropriate registration form of the SEC (i) as shall be selected
by the Company, and (ii) which shall be available for the sale of
Registrable Securities in accordance with the intended method or methods of
disposition specified in the requests for registration.
4.2 Incidental ("Piggyback") Registration.
(a) Right to Include Registrable Securities. If at any time or from time to
time after the Lock-up Period the Company proposes to register any shares
of its Common Stock under the Securities Act (other than in a registration
on Form S-4 or S-8 or any successor form to such forms, other than a
registration on any registration form which does not permit secondary sales
and other than pursuant to Section 4.1 ) whether or not pursuant to
registration rights granted to other holders of its securities and whether
or not for sale for its own account, the Company shall deliver prompt
written notice to the Stockholder of its intention to undertake such
registration (an "Incidental Registration") and of the Stockholder's right
to participate in such registration under this Section 4.2 as hereinafter
provided. Subject to the other provisions of this paragraph (a) and
Section 4.2(b), upon the written request of the Stockholder made within 10
days after the receipt of such written notice (which request shall specify
the amount of Registrable Securities to be registered), the Company shall
use its best efforts to include in such registration all Registrable
Securities requested by the Stockholder to be so registered to the extent
requisite to permit the registration of the Registrable Securities to be so
registered. If an Incidental Registration involves an underwritten
offering, the sole or leading managing underwriter may require the
Stockholder to participate in the underwritten offering and to sell its
Registrable Securities to the underwriters at the same price and on the
same terms of underwriting applicable to the Company and any other Persons
selling securities of the Company. The Company shall pay all Registration
Expenses incurred in connection with any Incidental Registration, whether
or not it becomes effective, and whether all, none or some of the
Registrable Securities are sold pursuant to the Incidental Registration.
If at any time after giving written notice of its intention to register any
securities and prior to the effective date of the incidental Registration
Statement filed in connection with such
7
registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election give
written notice of such determination to the Stockholder and, thereupon, (i) in
the case of a determination not to register, the Company shall be relieved of
its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses
incurred in connection therewith), without prejudice, however, to the rights the
Stockholder to cause such registration be effected as a registration under
Section 4.1, and (ii) in the case of a determination to delay such registration,
the Company shall be permitted to delay the registration of such Registrable
Securities for the same period as the delay in registering such other
securities.
(b) Priority in Incidental Registration. If an Incidental Registration
-----------------------------------
involves an unwritten offering, and the sole or the lead managing
Underwriter, as the case may be, of such underwritten offering shall advise
the Company in writing (with a copy to the Stockholder) that, in its
opinion, the amount of securities (including Registrable Securities)
requested to be included in such registration exceeds the amount which can
be sold in such offering without interfering with the successful marketing
of the securities being offered (such writing to state the basis of such
opinion and the approximate number of such securities which may be included
in such offering without such effect), or, in the case of an Incidental
Registration not involving an underwritten offering, the Company shall
reasonably determine (and notify the Stockholder of such determination),
after consultation with an investment banking firm, that the amount of
securities (including Registrable Securities) proposed to be sold in such
offering exceeds the number which can be sold in such offering within a
price range acceptable to the Company, the Company shall include in such
registration, to the extent of the number which the Company is so advised
(or, in the case of an Incidental Registration not involving an
underwritten offering, which the Company reasonably determines) may be
included in such offering without such effect, (i) in the case of a
registration initiated by the Company, (A) first, the securities that the
Company proposes to register for its own account, and (B) second, the
Registrable Securities requested to be , included in such registration by
the Stockholder and other securities of the Company to be, registered on
behalf of any other Person, allocated rata in proportion to the number of
securities requested to be included in such registration by each of them,
and (ii) in the case of a registration initiated by a Person other than the
Company, (A) first, the securities of the Company requested to be included
in such registration by the Persons initiating such registration, (B)
second, the securities that the Company proposes to register for its own
account, and (C) third, the Registrable Securities requested to be included
in such registration by the Stockholder and any other securities of the
Company to be registered on behalf of any Person, allocated pro rata in
proportion to the number or securities requested to be included in such
registration by each of them.
(c) Suspension of Demand Registration. Notwithstanding anything herein to the
---------------------------------
contrary, from the date of notice by the Company of its intention to under
which an incidental Registration and for so long as the Company is on a
best efforts basis pursuing such registration, the right of the Stockholder
to effect a Demand Registration shall be suspended.
4.3 Shelf Registration. The Company shall file, as soon as reasonably
------------------
practicable following later of the date hereof and the first date upon which the
Company is eligible to file a registration statement on Form S-3 under the
Securities Act, a Shelf Registration. The Company shall use its commercially
reasonable efforts to have the Shelf Registration declared effective as
8
soon as reasonably practicable after such filing, and shall use its commercially
reasonable efforts to keep the Shelf Registration continuously effective from
the date such Shelf Registration is declared effective until the earlier of (i)
such time as all of the Registrable Securities shall cease to be Registrable
Securities and (ii) December 13, 2002.
The Company shall supplement or amend, if necessary, the Shelf
Registration, as required by the registration form utilized by the Company or by
the instructions applicable to such registration form or by the Securities Act
or as reasonably required by the Stockholder, and the Company shall furnish to
the holders of the Registrable Securities to which the Shelf Registration
relates copies of any such supplement or amendment prior to its being filed with
the Commission or the intended date of its first use if no filing with the
Commission is required. The Company shall pay all Registration Expenses
incurred in connection with the Shelf Registration whether or not it becomes
effective, and whether all, none or some of the Registrable Securities are sold
pursuant to the Shelf Registration. In no event shall the Shelf Registration
include securities other than Registrable Securities, unless the Stockholder
consents to such inclusion.
4.4 Registration Procedures. In connection with any registration statement
-----------------------
filed pursuant to this Section 4, the Company will, as expeditiously as
possible:
(i) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration
statement or as may be reasonably requested by the Stockholder, until such
time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement;
(ii) furnish to each seller of Registrable Securities covered by such
registrator statement, such number of conformed copies of such registration
statement and to each such amendment and supplement thereto (in each case
including all exhibits and such number of copies of the prospectus
contained in such registration statement (including each preliminary,
prospectus and any summary prospectus and any other prospectus filed under
Rule 24 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, as such seller may reasonably
request;
(iii)use its best efforts to (x) register or qualify all Registrable Securities
and other securities covered by such registration statement under such
other securities or blue sky laws of such States of the United States of
America where an exemption is rot available and as the sellers of
Registrable Securities covered by such registration statement shall
reasonably request, (y) keep such registration or qualification in effect
for so long as such registration statement remains in effect, and (z) take
any other action which may be reasonably necessary or advisable to enable
such sellers to consummate the disposition in such jurisdictions of the
securities to be sold by such sellers, except that the Company shall not
for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein would not but for the
requirements of this subdivision (iii) be obligated to be so qualified
subject itself to taxation in any such jurisdiction or consent to general
service of process in any such jurisdiction;
9
(iv) use its best efforts to cause all Registrable Securities covered by such
registration statement to be registered with or approved by such other
federal or state governmental agencies or authorities as may be necessary
in the opinion of counsel to the Company and counsel to the seller or
sellers of Registrable Securities to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities;
(v) promptly notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or
upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, in the light of the circumstances under which they were
made, and shall promptly prepare and furnish to each seller a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(vi) otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11 (a) of the Securities Act and Rule 158 promulgated
thereunder, and promptly furnish to each such seller of Registrable
Securities a copy of any amendment or supplement to such registration
statement or prospectus; and
(vii)use its best efforts (X) list all Registrable Securities covered by such
registration statement on the NYSE, the AMEX or such other national
securities exchange on which Registrable Securities of the same class and,
if applicable, series, covered by such registration statement are then
listed, or (y) if the Registrable Securities are quoted on Nasdaq National
Market, Inc. or another interdealer quotation system, arrange for the
quotation of all Registrable Securities covered by such registration
statement on Nasdaq National Market, Inc. or such other interdealer
quotation system.
The Company may (i), require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing and (ii) require each seller of
Registrable Securities to agree to comply with the Securities Act and the
Exchange Act in connection with the registration and distribution of the
Registrable Securities.
Notwithstanding the foregoing, if any such registration or comparable
statement refers to any holder by name or otherwise as the holder of any
securities of the Company and in its sole and exclusive judgment such holder is
or might be deemed to be a controlling person of the Company, such holder shall
have the right to require the insertion therein of language, in form
10
and substance reasonably satisfactory to such holder and the Company, to the
effect that the holding by such holder of such securities is not to be construed
as a recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in subdivision (v) of this Section
4.4, such holder will forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (v) of this
Section 4.4 and, if so directed by the Company, will promptly deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such holder's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
4.5 Preparation; Reasonable Investigation. In connection with the preparation
-------------------------------------
and filing of each registration statement under the Securities Act pursuant to
this Agreement, :he Company
(i) shall give the Stockholder or the Representative, and counsel and accounts
designated by the Stockholder or the Representative, as the case may be,
the opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission,
and each agreement thereof or supplement thereto,
(ii) shall give each of them such reasonable access to its books and records and
such opportunities to discuss the business of the Company with its officers
and the independent public accountants who have certified its financial
statements as shall be necessary in the opinion of the Stockholder or the
Representative, as the case may be, and such counsel or accountants, to
conduct a reasonable investigation within the meaning of the Securities
Act, and (iii) shall promptly notify the Stockholder or the representative,
as the case may be, and its counsel of any stop order issued or threatened
by the Commission and promptly take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered.
4.6 Indemnification.
---------------
(a) Indemnification by the Company. The Company will, and hereby does,
------------------------------
indemnify and hold harmless, in the case of any registration statement
filed pursuant to this Section 4, each seller of any Registrable Securities
covered by such registration statement and each other Person who
participates as an underwriter in the offering or sale of such securities
and each other Person if any, who controls such seller or any such
underwriter within the meaning of the Securities Act, and their perspective
directors, officers partners, shareholders, employees and affiliates
against any losses, claims, damages or liabilities, joint or several, to
which such seller or underwriter or any such director, officer, partner,
shareholder, employee, affiliate or controlling person may become subject
under the Securities Act or otherwise, including, without limitation, the
fees and expenses of legal counsel, insofar as such losses, claims, damages
or liabilities (or actors or proceedings, whether commenced or threatened,
in respect thereof) arise
11
out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which
such securities were registered under the Securities Act, any preliminary
prospectus final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances in which they
were made not misleading, or any violation by the Company of the Securities
Act, and the Company will reimburse each Such seller or underwriter and
each such director, officer, partner, shareholder, employee, affiliate and
controlling Person or any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provide that the Company shall not be
-------
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense rises out
of or is based upon an untrue statement or alleged untrue statement mission
or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and conformity with written information
furnished the Company through an instrument duly executed by or on behalf
of such seller or underwriter, as the case may be specifically stating that
it is or use n the preparation thereof. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of
any such seller or any such director, officer, employee, affiliate, or
controlling person and shall surviving the transfer of such securities by
such seller.
(b) Indemnification by the Sellers. As a condition to including any
------------------------------
Registrable Securities in any registration statement, the Company shall
have received an undertaking satisfactory to it from the prospective seller
of such Registrable Securities, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in subdivision (a) of this
Section 4.6) the Company, and each director, officer, employee and
shareholder of the Company and each other Person, if any, who participates
as an underwriter in the offering or sale of such securities and each other
Person who controls the Company or any such underwritten within the meaning
of the Securities Act, with respect to any untrue statement or alleged
untrue statement of a material fact contained in or any omission or alleged
omission to state therein a material fact in any such registration
statement any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
or on behalf of such seller specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; provided that the
liability of such indemnifying party under this Section 4.6(b) shall be
limited to the amount of proceeds received by such indemnifying party in
the offering giving rise to such liability. Such indemnity shall remain in
full force and effect, regardless of any investigation made by or an behalf
of the Company or any such director, officer, employee, shareholder or
controlling person and shall survive the transfer of such securities by
such seller.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified party of
----------------------
notice of the commencement of any action or proceeding involving a claim
referred to in the preceding subdivisions of this Section 4.6, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the
commencement of
12
such action; provided that the failure of any indemnified party to give
--------
notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 4.6, except to
the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party the indemnifying party shall be entitled to participate
in and to assume the defense thereof, jointly with any other indemnifying
party similarly notified to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses subsequently
incurred by latter in connection with the defense thereof other than
reasonable costs of investigation, provided that if the indemnified party
--------
reasonably believes it is advisable for it to be represented by separate
counsel because there exists a conflict of interest between its interests
and those of the indemnifying party with respect to such claim, or there
exist defenses available to such indemnified party which may not be
available to the indemnifying party, or if the indemnifying party shall
fail to assume responsibility to such defense, the indemnified party may
retain counsel satisfactory to it and the indemnifying party shall pay all
fees and expenses of such counsel. No indemnifying party shall be liable
for any settlement of any action or proceeding effected without its written
consent, which consent shall not be unreasonably withheld or delayed. No
Indemnifying party shall, without the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by he claimant or
plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation or which requires action other than the
payment of money by the indemnifying party. Each indemnified party shall
furnish such information regarding itself or the claim in question as an
indemnifying party may reasonably request in writing and as shall be
reasonably requested in connection with the defense of such claim and
litigation resulting therefrom.
(d) Contribution. If the indemnification provided for in this Section 4.6
------------
shall for any reason be held by a court of competent jurisdiction to be
unavailable to an indemnified party under subparagraph (a) or (b) hereof in
respect of any loss, claim, damage or liability, or any action in respect
thereof, then, in lieu of the amount paid or payable under subparagraph (a)
or (b) hereof, the indemnified party and the indemnifying party under
subparagraph (a) or (b) hereof shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating the same), in such
proportion as is appropriate to reflect the relative fault of the Company
and the prospective sellers of Registrable Securities covered by the
registration statement in connection with the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations (the
relative fault of the Company and such prospective sellers to be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or such
prospective sellers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission). The parties hereto agree that it would not be just and
equitable if contribution pursuant to this paragraph were determined by pro
---
rata allocation or other method which does not take into account the
----
considerations referred to in paragraphs 4.4(a) and 4.4(b). No person
guilty of fraudulent misrepresentation (within the meaning of Section 11
(f) of the Securities Act) shall be entitled to contribution from any
Person
13
who was not guilty of such fraudulent misrepresentation. Such prospective
sellers obligations to contribute as provided in this subparagraph (d) are
several in proportion to the relative value of their retrospective
Registrable Securities covered by such registration statement and not
joint. In addition, no Person shall be obligated to contribute hereunder,
any amounts in, payment for any settlement of any action or claim effected
without such Person's consent which consent shall not be unreasonably
withheld or delayed.
(e) Other Indemnification. Indemnification and contribution similar to that
---------------------
specified in the preceding subdivisions of this Section 4.6 (with
appropriate modifications) shall be given by the Company and each seller of
Registrable Securities with respect to any required registration or other
qualification of securities under any federal or state law, rule or
regulation of any governmental authority other than the Securities Act.
(f) Indemnification Payments. The indemnification and contribution required by
------------------------
this Section 4.6 shall be made by prompt periodic payments of the amount
thereof during the course of the investigation or defense as and when bills
are received or expense, loss, damage or liability is incurred.
5. Rule 144 and Rule 144A. The Company shall take all actions reasonably
----------------------
necessary to enable holders of Registrable Securities to sell such securities
after the expiration of the Lock-up Period without registration under the
Securities Act within the limitation of the exemptions provided by
(a) Rule 144 under the Securities Act as such Rule may be amended from time to
time,
(b) Rule 144A under the Securities Act, as such Rule may be amended from time
to time, or
(c) any similar rules or regulations hereafter adopted by the Commission,
including, without limiting the generality of the foregoing, filing on a
time basis all reports required to be filed by Exchange Act.
Upon the request of any holder of Registrable Securities, the Company will
deliver to such holder a written statement as to whether it has complied with
such requirements.
6. Lock-up. Except as otherwise provided in the last sentence of Section
-------
4.1(a) hereof, the Stockholder will not transfer any of the Shares during the
Lock-up Period.
7. Restricted Securities. The parties hereto agree that the certificate
---------------------
representing the Shares have not been registered under the Securities Act and
shall bear the following legend
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE
14
WITH THE TERMS OF THE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT DATED
AS OF DECEMBER 13, 1999, AMOUNG METROMEDIA FIBER NETWORK SERVICES,
INC., FIBERNET TELECOM GROUP, INC. AND LOCAL FIBER LLC.
8. Amendments and Waivers. This Agreement may be amended with the written
----------------------
consent of the Company and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent to such amendment, action or
omission to act, of the Stockholder. Each holder of any Registrable Securities
at the time or thereafter outstanding shall be bound by any consent authorized
by this Section 4, whether or not such Registrable Securities shall have been
marked to indicate such consent.
9. Nominees for Beneficial Owners. In the event that any Registrable
------------------------------
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company, be treated as the holder of such Registrable Securities for purposes of
any request, consent, waiver or other action by any holder or holders of
Registrable Securities pursuant to this Agreement or any determination of any
number or percentage of shares of Registrable Securities held by any holder or
holders of Registrable Securities contemplated by this Agreement. If the
beneficial owner of any Registrable Securities so elects, the Company may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Securities.
10. Notices. All notices, demands and other communications provided for or
-------
permitted hereunder shall be made in writing and shall be registered or
certified first-class mail, return receipt requested, telex, telegram,
telecopier, reputable courier service or personal delivery to the following
addresses (or at such other address for a party as shall be specified by like
notice):
(i) if to the Stockholder;
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy: (000 ) 000-0000
With a copy to:
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 000000
Attn: General Counsel
Telecopy: (000) 000-0000 1
(ii) if to the Company, to:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
15
Attn: Xxxxxxx Xxxx, President
Telecopy: 000 000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; create business day
after being sent by reputable courier service; three business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; and when receipt is acknowledged, if telecopied.
11. Assignment. This Agreement shall be binding upon and inure to the benefit
----------
of and shall be enforceable by the parties hereto and, with respect to the
Company, its respective successors and assigns and, with respect to the
Stockholder, any holder of any Registrable Securities.
12. Investment Only. The Stockholder hereby represents and Warrants to the
---------------
Company that it has acquired the Shares or investment only, for its own account
and not for resale or distribution. The Stockholder further acknowledges that
the Shares are being issued pursuant to and exemption from registration under
the Securities Act and agrees not to sell or otherwise dispose of the Shares in
any transaction which, in the reasonable opinion of the Stockholder's counsel,
would be in violation of the Securities Act. The Stockholder acknowledges that
a legend appears on the certificates representing the Shares reflecting the
foregoing restriction and the Stockholder hereby consents to the Company's
maintaining "stop transfer" instructions with its transfer agent with respect
thereto.
13. No Inconsistent Agreements. The Company will not hereafter enter into any
--------------------------
agreement with respect to its securities which is inconsistent with the rights
granted to the Stockholder in this Agreement.
14. Remedies. In addition to being entitled to exercise all rights granted by
--------
law. including recovery) of damages, the Stockholder will be entitled to
specific performance of its rights under this Agreement. The Company agrees
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this agreement and hereby
agrees, in any action for specific performance, to waive the defense that a
remedy at law would be adequate.
15. Severability. If any one or more of the provisions contained herein, or
------------
the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended and understood that all of the rights and privileges of the Stockholder
shall be enforceable to the fullest extent permitted by law
16. Entire Agreement. This Agreement is intended by the parties as a final
----------------
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
16
17. Descriptive Headings. This agreement shall be construed and enforced in
--------------------
accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York applicable to agreements made and to be performed entirely
within such state.
18. Governing Law. This agreement shall be construed and enforced in any
-------------
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
19. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same
instrument.
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
METROMEDIA, FIBER NETWORK SERVICES, INC.
By : /s/ Xxxxxx Xxxxxxxxxxx
-----------------------
Name:
Title:
FIBERNET TELECOM GROUP, INC.
By : /s/ Xxxxxxx X. Xxxx
--------------------
Name:
Title:
LOCAL FIBER LLC
By : /s/ Xxxxxxx X. Xxxx
--------------------
Name:
Title:
SCHEDULE 1
The Parties acknowledge and agree that all appropriate Shareholder and/or
Board of Director's consents and approvals have been provided and received.
EXHIBIT F
Rental Allocation Schedule
The Parties shall determine the allocation for rental payable for the
Licensed Fiber based on a valuation of the allocated Common Stock which
valuation shall be determined by the price of the Common Stock for the thirty
(30) day average prior to the Effective Date with appropriate discounts applied
for the block size of and restrictions on the Common Stock pursuant to the
Exchange and Registration Rights Agreement.s
2
EXHIBIT G
BUILDING NETWORK CONNECTION RINGS
Section 1: On-Network Building
------------------------------------------------------------------------------------------------
Number of Licensed Fibers per Prepaid Charge per Licensed Prepaid Charge per Licensed
Lateral Extension Fiber/ Per Lateral Extension Fiber/ Per Lateral Extension
(Exclusive of Customer (Inclusive of Customer
Provided Rack Facilities) Provided Rack Facilities)
------------------------------------------------------------------------------------------------
4 $[****] $[****]
------------------------------------------------------------------------------------------------
6 $[****] $[****]
------------------------------------------------------------------------------------------------
8 $[**** $[****]
------------------------------------------------------------------------------------------------
10 $[****] $[****]
------------------------------------------------------------------------------------------------
12 $[****] $[****]
------------------------------------------------------------------------------------------------
14 $[****] $[****]
------------------------------------------------------------------------------------------------
16 $[****] $[****]
------------------------------------------------------------------------------------------------
18 $[****] $[****]
------------------------------------------------------------------------------------------------
20 $[****] $[****]
------------------------------------------------------------------------------------------------
22 $[****] $[****]
------------------------------------------------------------------------------------------------
24 $[****] $[****]
------------------------------------------------------------------------------------------------
Section II: Splice Connection to Off-Network Building*
-----------------------------------------------------------------------------------------------
Number of Licensed Fibers per Splice Prepaid Charge per Licensed Fiber/ Per Splice
Connection Connection
-----------------------------------------------------------------------------------------------
4 $[****]
-----------------------------------------------------------------------------------------------
6 $[****]
-----------------------------------------------------------------------------------------------
8 $[****]
-----------------------------------------------------------------------------------------------
10 $[****]
-----------------------------------------------------------------------------------------------
12 $[****]
-----------------------------------------------------------------------------------------------
14 $[****]
-----------------------------------------------------------------------------------------------
16 $[****]
-----------------------------------------------------------------------------------------------
18 $[****]
-----------------------------------------------------------------------------------------------
20 $[****]
-----------------------------------------------------------------------------------------------
22 $[****]
-----------------------------------------------------------------------------------------------
24 $[****]
-----------------------------------------------------------------------------------------------
* Price does not include reimbursement to MFN for it costs of splicing plus
([**]%) plus Applicable Taxes.
3
21
