Exhibit 10.13
CONFIDENTIAL TREATMENT (1)
AMENDED AND RESTATED AGREEMENT
FOR THE PROVISION OF A FIBER OPTIC TRANSMISSION NETWORK
This AMENDED AND RESTATED AGREEMENT FOR THE PROVISION OF A FIBER OPTIC
TRANSMISSION NETWORK (this "Agreement") is made and entered into effective as of
the Effective Date (as hereinafter defined), by and between National Fiber
Network, Inc., a Delaware corporation ("NFN"), and US ONE Communications of New
York, Inc., a Delaware corporation ("US ONE").
RECITALS:
A. US ONE and NFN entered into that certain Agreement for the
Provision of a Fiber Optic Transmission Network, dated as of April 16, 1996 (the
"Original Agreement"), whereby NFN agreed to, among other things, provide US ONE
exclusive long-term use, as described below, of certain dedicated capacity on
NFN's fiber optic cable network and certain extensions thereof, as more
particularly described below;
B. US ONE and NFN have agreed to amend and restate the Original
Agreement pursuant to the terms hereof;
C. US ONE desires to use such dedicated capacity on such fiber optic
cable network upon the terms and subject to the conditions set forth in this
Agreement;
D. NFN is the holder of a franchise (the "Franchise") granted
pursuant to that certain Franchise Agreement between the City of New York (the
"City") and National Fiber Network, Inc., dated as of December 20, 1993, as
amended (the "Franchise Agreement"), pursuant to which NFN has the right to
install, operate, repair, maintain, remove and replace cable, wire, fiber or
other transmission medium in order to provide telecommunications services and
high capacity fiber optic transmission facilities in the City;
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(1) Redacted portions have been marked with an asterisk (*). The redacted
portions are subject to a request for confidential treatment and have been
filed separately with the Securities and Exchange Commission.
E. NFN, through its wholly-owned subsidiary, National Fiber Network
of New Jersey, Inc., is the holder of a license granted by the City of Jersey
City to construct a fiber optic system within the City of Jersey City; and
F. Pursuant to the terms of the Franchise Agreement, NFN has
constructed a fiber optic cable transmission network consisting of 47 route
miles of fiber optic cable in and around the City (as set forth on the map
attached hereto as Exhibit A, the "Existing Network") and plans the construction
of additional route miles of fiber optic cable and other construction
constituting the Extended Network (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
"Additional Fiber" shall have the meaning set forth in Section 3.2 of
this Agreement.
"Affected Party" shall have the meaning set forth in Section 14 of
this Agreement.
"Affiliate" shall mean, with respect to any Person, any other Person
who, directly or indirectly, controls, is controlled by, or is under common
control with that Person. As used in this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether by way of equity
ownership, contract or otherwise.
"Colocation Point" shall mean a point designated by US ONE that is
physically in, or virtually colocated in, a particular NYNEX serving wire center
or central office and at which US ONE will interconnect the portion of the US
ONE network to be provided over the facilities leased hereunder from NFN to the
NYNEX local loops or other NYNEX communications network facilities.
"Colocation Agreements" shall mean colocation agreements between NYNEX
and US ONE allowing US ONE to establish Colocation Points for the purposes of
this Agreement.
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"Common Stock Equivalents" shall have the meaning assigned to such
term in the Warrant.
"Consumer Price Index" as used herein shall mean the Consumer Price
Index published by the bureau of Labor Statistics of the United States
Department of Labor for Urban Wage Earners and Clerical Workers for All Items
for the New York/Metropolitan area, or shall mean the successor thereto.
"CLEC" shall mean a certified local exchange company other than a LEC.
"Current Market Value" shall mean, with respect to a share of common
stock, par value $.01 per share (the "Common Stock"), of NFN as of any date (i)
the fair market value per share of Common Stock, as reasonably determined in
good faith by the Board of Directors of NFN, using an appropriate valuation
method, assuming an arms' length sale to an independent party of all of the
Common Stock of NFN, without giving regard to the lack of liquidity of the
Common Stock or any discount for minority interests and assuming the conversion
or exchange of all Common Stock Equivalents, including the Warrants, then
outstanding and exercisable (whether at the time of determination or with the
passage of time), or (ii) if there shall be a public market for the Common
Stock, the average of the daily market prices for each day during the 30
consecutive trading days commencing 45 business days before such date as of
which such a price can be established in the manner set forth below. The market
price for each such business day shall be the last sale price on such day as
reported in the Consolidated List Sale Reporting System or as quoted in the
National Association of Securities Dealers Automated Quotation System, or if
such last sale price is not available, the average of the closing bid and asked
prices as reported in either such system, or in any other case the higher bid
price quoted for such day as reported by The Wall Street Journal (or any
successor publication) and the National Quotation Bureau pink sheets.
"Effective Date" shall mean the date on which NFN shall complete the
sale of common stock and/or other securities convertible into common stock for
an aggregate purchase price of $30,000,000 or more.
"Existing Central Offices" shall mean the Colocation Points located at
000 Xxxx Xxxxxx and East 38th Street, New York, New York (which have been
completed as of the date hereof).
"Existing Network" shall have the meaning set forth in the recitals
hereto.
"Expiration Date" shall have the meaning set forth in Section 3.1 of
this Agreement.
"Extended Network" shall mean collectively the Existing Network, plus
the fiber loops to the Existing Central Offices that have been extended off of
the Network, and the Network Buildout.
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"Extended Term" shall mean an extension of the Initial Term for an
additional term of 13 years, commencing on December 21, 2008 and ending on
December 20, 2021.
"Fiber Mile" shall mean one fiber strand transversing one linear mile.
"Force Majeure" shall have the meaning set forth in Section 14 of this
Agreement.
"Initial Term" shall mean the term of this Agreement, commencing on
April 16, 1996 and ending on December 20, 2008.
"LEC" shall mean an incumbent local exchange carrier or operating
telephone company.
"Lump Sum Payment Option" shall have the meaning set forth in Section
4.2 of this Agreement.
"Lump Sum Price" shall have the meaning set forth in Section 4.2 of
this Agreement.
"More Favorable Terms" shall have the meaning set forth in Section
16.18 of this Agreement.
"Most Favored Nations" shall mean the most favorable terms and lowest
price offered to any customer on the relevant system at the time of
determination.
"Network Affiliate" shall mean any Person who, directly or indirectly,
controls, is controlled by, or is under common control with NFN. As used in
this definition, "control" means (i) the possession, directly or indirectly, of
the power to elect at a majority of the board of directors or other similar
governing body of such Person or (ii) the beneficial ownership of at least a
majority of the voting capital stock or other beneficial interests with voting
rights of such Person; provided, that notwithstanding the foregoing, a Network
Affiliate shall be deemed to include any Person as to which NFN and/or Xxxxxxx
Xxxxxxxx have the effective ability, directly or indirectly, to cause such
Person to lease or otherwise grant the right to use such Person's fiber optic
cable network to another Person.
"Network Buildout" shall mean such expansion of the Existing Network
as NFN may in its sole discretion build through the counties of Westchester, New
York, Nassau, New York, and Suffolk, New York.
"Note" shall have the meaning set forth in Section 4.1(b)(i) of this
Agreement.
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"NYNEX Cages" (sometimes referred to as "Cage") shall mean Colocation
Points.
"Other Party" shall have the meaning set forth in Section 14 of this
Agreement.
"Outage" shall have the meaning set forth in Section 12 of this
Agreement.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, corporation, trust, unincorporated organization, association,
institution, public benefit corporation, entity, or government (whether federal,
state, county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof) and shall for all
purposes include Xxxxxxx X. Xxxxxxxx and members of his immediate family,
including his parents, siblings, spouse and children.
"Term" shall mean the Initial Term and, if this Agreement is extended,
the Extended Term.
"Termination Point" shall mean any location where US ONE facilities
begin and NFN facilities end.
"US ONE POP" shall mean a specific geographical location designated by
US ONE at which customers of US ONE may, through the related entrance facility,
connect to the portion of the US ONE network to be provided over the facilities
leased hereunder from NFN.
"US ONE 12 Fiber Network" shall have the meaning set forth in Section
4.1(a) of this Agreement.
"Warrant" shall mean a warrant to be dated April 16, 1996
substantially in the form of Exhibit A attached to that certain Amended and
Restated Letter Agreement regarding Purchase and Sale of Warrant dated as of the
date hereof by and between NFN and US ONE Communications Corp., a Delaware
corporation.
2. LEASE
2.1 NFN shall lease to US ONE, for the exclusive use of US ONE and
its customers, an aggregate of * Fiber Miles, of which (i) * Fiber Miles
represent current availability of * strands of dark fiber per linear mile on the
Existing Network and (ii) * additional Fiber Miles may be designated by US ONE
at any time during the Initial Term, either within the Existing Network or in
any part of the Extended Network, in each case pursuant to technical
specifications which will meet or exceed those attached hereto as Exhibit B.
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2.2 The lateral extension policy attached hereto as Exhibit C shall
be utilized to afford US ONE Most Favored Nations treatment with respect to
fiber loops off of the Extended Network to commercial sites and to Colocation
Points in addition to the Existing Central Offices requested by US ONE during
the Term. US ONE shall be entitled to the benefits of any subsequent lateral
extension policy so that it will always be afforded Most Favored Nations
treatment with respect to such fiber loops. Notwithstanding the foregoing, in
the event US ONE elects to install any additional Colocation Points which are
designated in Section C of Schedule I attached hereto, NFN shall complete
construction of such Colocation Points at the prices set forth on such schedule.
Linear mileage comprising such fiber loops shall be counted for purposes of
calculating the * Fiber Miles provided for in Section 2.1 and the * Fiber Miles
provided for in Section 5.1.
2.3 NFN shall cause the buildout, if any, of the Extended Network to
be performed in compliance with technical specifications that meet or exceed the
technical specifications set forth on Exhibit B attached hereto.
3. TERM
3.1 Initial Term. Subject to Section 4, NFN leases, grants and
conveys to US ONE the exclusive use of (i) * Fiber Miles (that is, the * Fiber
Miles on the Existing Network as currently constituted plus * Fiber Miles that
may be designated by US ONE from time to time pursuant to Section 2.1 hereof)
plus any Option Fiber (as hereinafter defined) as to which the Option (as
hereinafter defined may be exercised (as determined pursuant to Section 5.1),
plus (ii) the fiber loops that have been extended off of the Existing Network to
the Existing Central Offices on the Extended Network for a term commencing as of
April 16, 1996 and terminating on December 20, 2008 (the "Expiration Date"),
unless extended as provided in this Agreement. All rights and privileges
granted to US ONE under this Agreement shall be irrevocable until the Expiration
Date (unless extended).
3.2 Extended Term. US ONE shall have the option to extend the
Initial Term for an additional term of up to 13 years, which option shall be
exercised by notice to NFN at least six months, but not more than 12 months,
prior to the end of the Initial Term. In the event the Franchise is not
extended for the entire Extended Term and US ONE has exercised its option to
extend the Initial Term for the entire Extended Term, NFN shall, for such
portion of the Extended Term as the Franchise shall not be in effect, provide US
ONE, with an equivalent number of strands of additional fiber (Fiber Mile for
Fiber Mile) ("Additional Fiber") on such portion of the Extended Network (or, at
the option of US ONE, on any other NFN networks (including networks belonging to
or controlled by Network Affiliates) which have been developed as of that point
in time) outside the Franchise territory as shall be designated by US ONE for
the Extended Term to compensate US ONE for the loss of its twelve strands of
fiber in the Franchise territory.
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4. LEASE PAYMENTS
4.1 Payment for Initial Term. In consideration of the exclusive
right to the long term use of * Fiber Miles on the Extended Network (as
determined pursuant to Section 2.1 hereof), plus the fiber loops to the Existing
Central Offices, US ONE shall prepay its lease payments for the Initial Term to
NFN in accordance with the following:
(a) As of April 16, 1996, US ONE has paid an advance lease
payment to NFN in the sum of $100,000.
(b) Upon written notification from NFN that the conditions
precedent for the determination of the Effective Date have taken place, such
written notification to be delivered to US ONE at least one business day prior
to the Effective Date, on the date which shall be two business days after the
Effective Date, US ONE shall (A) prepay additional lease payments aggregating
$3,400,000 and (B) pay $130,000 for the cost of installation of fiber loops to
Colocation Points at 000 Xxxx Xxxxxx and East 38th Street, New York, New York.
Such payments shall be made and satisfied by the simultaneous delivery and
exchange of the following:
(i) US ONE shall deliver to NFN (A) that certain promissory
note (the "Note") dated April 16, 1996 from NFN to US ONE in the principal
amount of $4,900,000, marked "Canceled," together with delivery and release of
all security instruments pledged or filed with respect thereto and (B) that
certain stock subscription warrant (the "Subscription Warrant") dated December
13, 1996 from NFN to US ONE for the purchase of up to 25,000 Warrant Shares (as
defined in the Subscription Warrant); and
(ii) NFN shall return to US ONE the balance of $1,370,000
in cash by wire transfer of immediately available funds to an account designated
in writing by US ONE.
(c) Payments to be made by US ONE pursuant to Section 4.l(b)
above shall be applied as a prepayment of this Agreement entitling US ONE to the
full and unfettered use, pursuant to this Agreement for the Initial Term (and
the Extended Term to the extent US ONE exercises its right to so extend), of *
Fiber Miles on the Extended Network, plus the fiber loops to the Existing
Central Offices as set forth in Section 2.1 hereto, without any further
obligation by US ONE in respect of such portion of the network whatsoever,
whether under the terms of this Agreement or otherwise.
4.2 Payments for Extended Term. Lease payments for the Extended Term
shall be payable, at the option of US ONE, either (i) monthly at a rate per
fiber mile equal to the lowest rate per fiber mile charged by NFN to any lessee
of "dark" fiber optic capacity on the Extended Network at the time US ONE
exercises its option
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to extend for the Extended Term, or, alternatively, if US ONE shall opt to lease
fiber on other NFN networks (including networks owned or controlled by Network
Affiliates) in the Extended Term pursuant to Section 3.2 hereof, the lowest
lease rate per fiber mile then charged to any lessee of dark fiber optic
capacity on such network, or (ii) in a lump sum payment (the "Lump Sum Payment
Option") equal to the present value of the lease payments described in Section
4.2(i) (which present shall be based upon discounting in accordance with
standard financial procedures at an implied interest rate of 15% per annum,
calculated monthly) (the "Lump Sum Price"); provided, that such present value
payment shall not exceed an amount equal to $8,750,000 plus the percentage by
which the Consumer Price Index as of December 2008 shall have increased over the
Consumer Price Index as of April 1996 (the "Lump Sum Cap"); provided, further,
that in the event NFN has not completed a minimum of 55 route miles of the
Network Buildout at such time as US ONE elects to pay the Lump Sum Price, then
the Lump Sum Cap shall be reduced to an amount equal to $8,750,000 times a
fraction, the numerator of which is the number of Fiber Miles which are leased
by US ONE as of the end of the Initial Term and the denominator of which is
2508. In the event US ONE elects to make payments pursuant to Section 4.2(i)
hereof, the Extended Term shall continue for the entire Extended Term unless
terminated by US ONE upon 30 days written notice to NFN. In the event US ONE
elects the Lump Sum Payment Option, US ONE shall have the option, within 30 days
after the exercise of such Lump Sum Payment Option, to put the Warrant or the
securities issuable thereunder to NFN (assuming the Warrant has been issued) for
a price equal to the greater of the Lump Sum Price or the Current Market Value
of the securities underlying such Warrant. In the event US ONE elects to
exercise the put option and the Current Market Value of the securities
underlying the Warrant exceeds the Lump Sum Price, US ONE shall be entitled to
receive from NFN in cash any excess of the Current Market Value over the Lump
Sum Price. In the event the Consumer Price Index is converted to a different
standard reference base or otherwise revised, the determination of the Lump Sum
Price shall be made with the use of such conversion factor, formula or table for
converting the Consumer Price Index as may be published by the Bureau of Labor
Statistics, or if the Bureau of Labor Statistics should fail to publish same,
then with the use of such conversion factor, formula or table for converting the
Consumer Price Index as may be published by Prentice Hall, Inc., or any other
nationally recognized publisher of similar statistical information. If the
Consumer Price Index ceases to be published and there is no successor thereto,
such other index as NFN and US ONE may agree upon shall be substituted for the
Consumer Price Index. If the parties hereto are unable to agree, then such
matter shall be submitted to arbitration.
4.3 Maintenance and Repair. NFN shall be responsible for, and shall
provide directly, all maintenance and repair on the Existing Network and the
Extended Network in a diligent, expeditious, good and workmanlike manner, using
first class workmanship and materials, and NFN shall use its best efforts to
cause the Extended Network to remain in good working order and condition at all
times. US ONE shall always be entitled to the benefit of the highest standard
of redundancy,
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surveillance, maintenance and repair, including, without limitation, in regard
to response time, alarm and monitoring and other surveillance systems, network
redundancy and technical innovation, then provided to any customer of NFN.
Notwithstanding the prior sentence, US ONE shall at a minimum be entitled to the
surveillance, maintenance and repair standards set forth on Exhibit D hereto.
No charge shall be made by NFN for maintenance, surveillance, general system
redundancy or repair on the NFN fiber optic network. NFN agrees that it shall
at all times maintain remote monitoring of the fiber cable for surveillance
purposes in substantial compliance with the specifications set forth on Exhibit
D hereto and to ensure the integrity of such cable. The monitoring shall be
accomplished through a remote optical test system connected to the fiber
strands. Any fiber strands necessary for such fiber monitoring program shall be
in addition to, and not deducted from, the fiber strands leased by US ONE
hereunder.
5. ADDITIONAL FIBER CAPACITY
5.1 In addition to the * Fiber Miles described in Section 2.1, US ONE
shall have the option (the "Option") to lease from NFN, at any time during the
Initial Term, up to * Fiber Miles (the "Option Fiber") on the Extended Network
(pursuant to technical specifications which will meet or exceed those attached
hereto as Exhibit B) for a term which will commence upon the date the Option is
exercised and terminate on the last day of the Initial Term. US ONE shall
exercise the Option by delivery of (i) a written notice to NFN and (ii) a
prepayment of the lease for any such additional Fiber Miles as to which the
Option is being exercised at the rate of * per Fiber Mile for each Option Fiber
Mile that has been constructed and is operational. Notwithstanding the prior
sentence, US ONE may exercise the Option for Option Fiber Miles that have not
yet been constructed but as to which NFN offers, in its discretion, to US ONE as
a result of a planned build-out (the "Offer"), but shall not be required to
prepay for any such Fiber Mile until it has been constructed and is operational.
US ONE may rescind an exercised Option for any unconstructed Option Fiber Mile
unless construction has begun in respect of such Option Fiber Mile or is
irrevocably scheduled to begin within 90 days of the date of rescission, as
certified by an executive officer of NFN. Notwithstanding anything to the
contrary herein contained, in the event that (i) NFN notifies US ONE that
construction on any such Option Fiber Miles subject to the Offer has been halted
or terminated or (ii) construction on any such Option Fiber Miles subject to the
Offer is not substantially completed on the date which is 180 days after US ONE
elects to purchase such Option Fiber Miles from NFN (each, a "Triggering
Event"), then such number of Option Fiber Miles shall be subject to the Option
for a period of 120 days after the occurrence of any such Triggering Event. Any
Fiber Miles as to which the Option may be exercised pursuant to this Section 5.1
shall consist of a minimum of eight fibers and a maximum of 48 fibers per route
mile, which number of fibers and location on the Extended Network of such Fiber
Miles shall be designated by US ONE upon its exercise of the Option. The Option
shall expire on November 1, 1998. Notwithstanding the foregoing, in the event
that NFN has not completed a minimum
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of 55 route miles of the Network Buildout (the "Minimum Condition") by
November 1, 1998, the term of the Option shall be extended until such time as US
ONE receives written notice from NFN that NFN has satisfied the Minimum
Condition and for a period of 30 days thereafter.
5.2 Commencing on the earlier of (i) the date on which US ONE
exercises the Option in full pursuant to Section 5.1 hereof or (ii) November 1,
1998 if NFN has not completed the Minimum Condition and continuing for a period
of 18 months thereafter, US ONE may, at its option, acquire additional fiber
optic capacity on any NFN network (including networks belonging to or controlled
by Network Affiliates), and NFN shall provide US ONE with such additional fiber
optic capacity on a Most Favored Nations basis on such NFN network. Upon
commencement of the installation by NFN of other fiber optic networks (including
networks belonging to or controlled by Network Affiliates) during the Term, NFN
shall, upon the request of US ONE, negotiate in good faith a lease to US ONE for
a portion of such network, such lease to be provided for on a basis
substantially the same as the lease provided under this Agreement. NFN agrees
that it will not, nor will any of its Affiliates, take any action the purpose or
effect of which would be to contravene the benefits which would otherwise accrue
to US ONE from this Section 5.
6. TERMINATION OF FRANCHISE
NFN shall use its best efforts to enter into an agreement with the
City whereby, in the event of the termination of the Franchise for any reason,
the City will agree to honor, and will cause (i) any subsequent holder or
holders of the Franchise, or (ii) any entity that purchases substantially all of
NFN's hard assets to honor, this Agreement. NFN agrees to use its best efforts
to enter into such an agreement with the City within six months after
commencement of the Initial Term.
7. PROHIBITION ON RESALE
During the Term, US ONE shall not, directly or indirectly, sublease,
condo, sublicense or wholesale to any third party fiber optic capacity on NFN's
network unless such fiber such fiber optic capacity is distributed through US
ONE's transmission system.
8. REMEDIES ON DEFAULT
In the event (i) NFN defaults materially under this Agreement
including, without limitation, any representations or warranties set forth in
Section 15 hereof, and (ii) such default or defaults results in the loss or
substantial diminution of effective use of the Extended Network to US ONE as
contemplated by this Agreement, then after notice from US ONE and the expiration
of any applicable grace periods, NFN shall provide US ONE with additional fiber
optic capacity on NFN's then existing Extended Network (and/or, at US ONE's
option, other NFN networks,
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including networks belonging to or controlled by Network Affiliates) equivalent
to the aggregate number of fiber miles US ONE would have been entitled to
receive had no default occurred. In addition to the relief specified in the
preceding sentence, NFN shall provide US ONE with two dedicated fiber strands to
each commercial or residential property then accessed by any of NFN's networks.
Attached hereto as Exhibit E is a list of ten office complexes into which NFN
currently has spur connections.
Notwithstanding anything contained in the first paragraph of this
Section 8, NFN shall not be deemed to be in default under this Agreement if such
default is the result of an event of Force Majeure (as hereinafter defined),
provided, however, that NFN shall use its best efforts to resume and/or provide
service to US ONE as soon as reasonably practicable after the occurrence of an
event of Force Majeure.
9. TAXES
US ONE agrees to pay any customer sales, use, gross receipts, excise,
excess, bypass, or any other local, state, or federal taxes or charges to the
extent such charges are imposed upon or based upon US ONE's purchase and use of
the services and products provided herein. US ONE shall not pay any amounts to
the extent such amounts are related to (i) NFN or the Extended Network, (ii)
employees, contractors, subcontractors, agents, or representatives of NFN, or
(iii) the Franchise Agreement, all of which shall remain the sole responsibility
of NFN.
10. INSURANCE
Each of NFN, any contractor and any subcontractor shall procure and
maintain, at its own cost and expense, the following types of insurance and
coverage during the Term of this Agreement:
Type of Insurance Minimum Amount
(1) Worker's compensation and all As required by State law
occupational disease
(2) Employer's liability including all $100,000 per occurrence
occupational disease when not
so covered by Worker's compensation
above
(3) Commercial General Liability $1,000,000 per occurrence
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(comprehensive) including contractual and annual aggregate
liability, product and completed
operations, business interruption,
bodily injury and property damage
combined
Type Of Insurance Minimum Amount
(4) Automobile liability (comprehensive), $1,000,000 per occurrence
bodily injury and property damage
combined
(5) Umbrella liability $2,000,000 per occurrence and
annual aggregate
NFN shall issue US ONE an insurance certificate and a copy of such policies,
naming US ONE as an additional insured as to (3) and (5) above. All such
insurance policies shall be issued by an insurer duly licensed and authorized to
conduct insurance business in New York and having a policyholder's and financial
rating of "AIX" or better. At least thirty (30) days prior to the expiration of
any policy, NFN shall furnish paid receipts and other evidence satisfactory to
US ONE that such policy has been renewed or replaced. In addition, all policies
shall be written so as to require ten (10) days' prior written notice delivered
to US ONE for any cancellation or termination.
US ONE shall maintain Commercial General Liability Insurance
(comprehensive) of at least $1,000,000 per occurrence and annual aggregate,
which shall name NFN as an additional insured.
11. INSTALLATION OF DARK FIBER OPTIC CABLE NETWORK
If NFN's use of the Existing Network and the Extended Network results
in the necessity of additional construction, installation, maintenance or repair
in order to comply with NFN's obligations hereunder, NFN at all times shall
remain responsible for all costs and expenses of same and shall proceed with
such additional construction promptly and in a diligent and workmanlike manner
consistent with the technical and engineering standards contemplated herein.
NFN shall terminate the fiber at an identified fiber termination panel
at each Termination Point and shall not be responsible in any manner whatsoever,
including for maintenance, repair or replacement for any extensions into US ONE
facilities from any Termination Point. NFN shall in no way be responsible for
any damages or losses caused by its fiber cable except as a result of the
negligent act or
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omission or deliberate misconduct of NFN or NFN's employees, agents, contractors
or subcontractors.
12. MAINTENANCE OF FIBER OPTIC CABLE NETWORK
As used in this Agreement, in supplement to the standard of care
described in Section 4.3 hereof, NFN's obligation to maintain fiber cable and
transmission equipment in good working order and condition shall mean in
accordance with best industry practices but in any event the fiber optic cable
splice loss shall not exceed .1 dB. Projected dB losses for each route are
presented on Exhibit F attached hereto.
In the event of physical damage or severance to, or a break in, any
Fiber Span, NFN shall respond directly, promptly, diligently and as
expeditiously as practicable, not to exceed two (2) hours, and shall restore
such Fiber Span within four (4) hours. Service will be provided seven (7) days
a week, twenty-four (24) hours a day. "Fiber Span" as used herein shall mean
the fiber optic cable originating from a fiber patch panel and terminating at
another fiber patch panel. "Outage" as used herein means Complete Interruption
of Service for one (1) or more particular circuits. A "Complete Interruption of
Service" as used herein shall mean an interruption of US ONE's traffic over any
circuit resulting from the interruption of US ONE's traffic over any Fiber Span,
whether or not due to the physical damage or severance of, or breaks in, such
Fiber Span, which is not prevented within 50 milliseconds by means of physical
or electronic protection that reroutes such traffic over another Fiber Span.
NFN shall pay to US ONE the sum of (i) $1,000 per hour for each Outage of
greater than four (4) but less than or equal to 12 hours; (ii) 5,000 per hour
for each Outage of greater than 12 but less than or equal to 24 hours; and (iii)
$10,000 per hour for each Outage of greater than 24 hours. NFN shall remit such
payments to US ONE within five business days of the end of the month in which
such Outage occurs; provided, that until July 1, 1997, NFN may defer the payment
of any such amounts by crediting to the account of US ONE an amount equal to the
payments otherwise required to be made, which shall be used by US ONE to offset
any amounts owed by US ONE or its Affiliates to NFN whether under this Agreement
or otherwise and on July 1, 1997, any amounts so credited to the account of US
ONE that have not been offset shall be paid in cash to US ONE by NFN.
If NFN is required to relocate any section of the Existing Network or
the Extended Network, NFN will be solely responsible for the cost and
implementation of such relocation. NFN will give US ONE a minimum of six months
written notice of any such relocation. Any such relocation will not cause any
change in the performance of the network to US ONE. Any US ONE Outages caused
by such relocation will not exceed one hour.
NFN will maintain a reasonable and customary inventory of spare cable
in the event cable repair is needed.
13
Upon prior written request a reasonable time in advance, NFN shall
have the right to inspect US ONE's use of the fiber cable during normal business
hours (9 a.m. to 5 p.m.) on business days. Such inspection shall be conducted
only to comply with applicable regulatory requirements or as part of maintenance
or repair related to this Agreement, and NFN shall use its best efforts to
effectuate inspection urgently, expeditiously and with no interruption of US
ONE's operations and security.
It is expressly understood, acknowledged and agreed that NFN is
and remains the owner of the Extended Network, except in the event that NYNEX
policies toward CLEFs or regulatory authorities require ownership of cable
inside the NYNEX wire centers, the parties hereto agree that US ONE shall obtain
ownership of such cable from NFN as joined at a theoretical splice point to be
determined in accordance with the applicable policy or regulation. It shall be
the responsibility of US ONE to maintain all cable that it shall be required to
own as provided in immediately preceding sentence; provided, that NFN shall
incorporate such US ONE owned portions of the Extended Network into its full
network control fault isolation and diagnostic system and shall cooperate fully
with US ONE in detection, fault isolation and diagnosis of cable within the US
ONE owned portions of the Extended Network. Except as set forth in the
immediately preceding sentence, nothing in this Agreement shall be construed as
conveying to US ONE any ownership right, title or ownership interest in the
fiber.
13. TERMINATION OF AGREEMENT
If one or more of the following events of default shall occur, US ONE
shall have the right to immediately terminate this Agreement:
(a) NFN materially breaches its obligations under the second
paragraph of Section 12 of this Agreement dealing with Outages; or
(b) NFN breaches any other material term or condition of this
Agreement in any material respect with the exception of a breach for which a
remedy is available under Section 8 hereof, and such breach remains uncured (i)
as to maintenance and repair obligations, three (3) days, and (ii) otherwise
twenty (20) days after NFN has received notice of such uncured breach; provided,
however, that if the breach is of a nature or involves circumstances reasonably
taking more than three (3) days or twenty (20) days, respectively, to cure, the
time period shall be extended for so long as may be required, as long as NFN
shall proceed urgently and expeditiously to cure same; or
(c) NFN becomes insolvent or applies for or consents to the
appointment of a receiver, trustee or similar officer for it or any substantial
part of its property or assets, or any such appointment is made without such
consent by NFN and remains undischarged for a period of sixty (60) days; or
14
(d) NFN consents to the institution of a petition, application,
answer, consent, default or otherwise of any bankruptcy, insolvency or
reorganization, or any such proceeding is involuntarily instituted against NFN
and remains undischarged for a period of sixty (60) days.
Notwithstanding any other remedies available to US ONE upon the
occurrence of an event of default by NFN, US ONE, its officers, attorneys,
accountants and other authorized representatives, upon reasonable notice to NFN,
shall be afforded reasonable access during normal business hours to the
employees, assets, facilities and the books and records of NFN so as to afford
US ONE full opportunity to make such review, examination and investigation of
the business as US ONE may desire to make in verifying that it has been afforded
Most Favored Nations treatment in accordance herewith. US ONE will be permitted
to make extracts from or to make copies of such books and records as may be
reasonably necessary in connection therewith.
14. FORCE MAJEURE
Neither NFN nor US ONE shall be considered in breach of this Agreement
or liable for any expense, loss or damage resulting from delay or prevention of
performance caused by any act attributable to an occurrence of an event of Force
Majeure. Neither party shall, however, be relieved of liability for failure of
performance due to a claimed Force Majeure hereunder if such failure is due to
causes arising out of its own negligence or to removable or remediable causes
that it fails to remove or remedy with reasonable dispatch.
The term "Force Majeure" shall mean any cause beyond the control of
the party affected which by exercise of due foresight such party could not
reasonably have been expected to avoid and, which by exercise of due diligence,
such party shall be unable to overcome during the period while such party shall
continue to exercise such due diligence, including, but not limited to, failures
of facilities, changes in laws except tax laws, rules, regulations, etc., flood,
earthquake, storm except for weather conditions normal to the area, fire,
lightning, epidemic, war, riot, civil disturbance, sabotage, inability due to
the previously mentioned conditions to obtain material, fuel or supplies in
adequate quantities, or restraint by court order or public authority. Nothing
contained herein, however, shall be construed to require either party to prevent
or settle a strike (other than a strike by employees of a contractor) against
its will.
Any party affected by an event of Force Majeure (the "Affected Party")
shall notify such other party (the "Other Party") promptly of any occurrence or
condition which in the Affected Party's opinion warrants an extension of time.
Such notice must be submitted in writing to the Other Party within five days or
such sooner date as is practicable after such delay is known to the Affected
Party, or shall, in the exercise of reasonable diligence, become known. Such
notice shall specify in detail
15
the anticipated length of delay, the cause of the delay, and a timetable by
which any remedial measures shall be implemented. Failure to provide such
notice within such period shall constitute a waiver by the Affected Party of any
request for extension applicable to any period prior to the date such notice is
actually received by the Other Party. The Other Party shall acknowledge receipt
of the Affected Party's notice within ten (10) days of its receipt advising of
its acceptance or rejection or further consideration. If the Other Party
reasonably requires further information in order to consider the request, the
Affected Party shall supply such information within ten (10) days and, if the
Affected Party fails to provide such information, the Affected Party's original
notice shall be deemed not to have been given.
15. WARRANTIES AND INDEMNITIES
NFN represents and warrants to US ONE that
(a) NFN has obtained or will obtain, when and if required by any
regulatory agency or court of law, all regulatory approvals, permits, orders or
consents necessary to be obtained by NFN to timely effectuate the terms and
provisions of this Agreement, including the timely completion of the Network
Buildout; and
(b) NFN shall comply with all applicable laws, rules and regulations
related to the performance of its obligations under this Agreement; and
(c) NFN is bound hereunder through its duly authorized signatory
below and is duly formed, validly existing and in good standing under the laws
of the State of Delaware; and
(d) this Agreement is not prohibited or in violation of or
inconsistent with the charter or bylaws of NFN or any other agreement signed by
NFN or which binds NFN and no such agreement will adversely affect US ONE's use
and enjoyment of the fiber for US ONE's purposes; and
(e) a default by NFN under this Agreement will cause trouble harm and
loss to US ONE for which US ONE may lack an adequate remedy at law (e.g., money
damages). Consequently, NFN agrees that US ONE may seek, and be entitled to
obtain, restraints and/or injunctions against NFN from any court of competent
jurisdiction to protect US ONE's business operations without same constituting
an election of remedies available hereunder or otherwise at law or in equity.
In addition, NFN acknowledges and agrees that in the event of a default by NFN
hereunder, US ONE shall be entitled to specific performance; and
(f) NFN acknowledges and agrees that this Agreement, to the extent
it is subject to regulation by the Federal Communications Commission, is an
agreement that is not subject to the filing requirements of Section 211 (a) of
the Local
16
Telephone Network Act of 1934 (47 U.S.C. Section 211 (a)) as implemented in 47
C.F.R. Section 43.51, and NFN is not a carrier as such term is used in such Act;
(g) no representation or warranty by NFN contained in this
Agreement, and no statement in any document (included, without limitation, all
documents executed in connection with any other transaction or transactions
consummated substantially concurrently with this Agreement), list, certificate
or other instrument or to be furnished by or on behalf of NFN or any Affiliate
thereof to US ONE or any of its representatives in connection with the
transactions contemplated hereby, contains or will contain any untrue statement
of a material fact, or omits or will omit to state any material fact necessary,
in light of the circumstances under which it was or will be made, in order to
make the statements herein or therein not misleading or necessary in order fully
and fairly to provide the information required to be provided in any such
document, list, certificate or other instrument. NFN has not failed to disclose
to US ONE any fact which would reasonably be determined to have a material
adverse effect on the business, financial condition, results of operations or
prospects of the business, or which is otherwise material to the business; and
(h) there are no presently existing federal, state or local
regulatory fees or penalties, including fees under the Franchise, to which US
ONE will be subjected as a result of the execution and delivery of this
Agreement and the related transactions.
US ONE shall indemnify, defend and hold NFN, its directors, officers,
agents, representatives and employees ("NFN Parties") harmless from and against
any claims, demands, losses, costs, damages, expenses and foes of any kind or
nature whatsoever arising from or related to death, personal injury or property
damage, and for reasonable legal fees to the extent asserted by persons other
than the NFN Parties arising from or out of US ONE's performance of or failure
to perform any term, condition or obligation of US ONE under this Agreement.
NFN hereby agrees to indemnify, defend and hold harmless US ONE and US
ONE's partners, directors, officers, agents, representatives and employees from
and against any and all claims, demands, losses, costs, damages, expenses and
fees of any kind or nature whatsoever arising from or related to death, personal
injury or property damage, and for reasonable legal fees arising from or out of
NFN's obligations or NFN's performance of or failure to perform any term,
condition or obligation of NFN under this Agreement or any related act or
omission of NFN. This Indemnity includes, without limitation, acts or omissions
of NFN's officers, agents, contractors, subcontractors, licensees, invitees,
representatives and employees.
The above indemnities shall survive the expiration or earlier
termination of this Agreement.
17
16. MISCELLANEOUS
16.1 Status of Parties. The parties to this Agreement expressly
state, and understand, that the obligations and rights hereunder in no way
constitute them as partners, joint venturers or otherwise related in any way,
and that neither has any power under this Agreement to bind or commit the other
in any way to any third party or parties.
16.2 Amendments, Alterations and Modifications. Agreement shall not
be amended, altered or modified except by an instrument in writing duly executed
by both parties.
16.3 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. It is the explicit intention of the parties
hereto that no person or entity, other than the parties hereto, is or shall be
entitled to bring any action to enforce any provision of this Agreement against
either of the parties hereto, and that the covenants, undertakings, and
agreements set forth in this Agreement shall be solely for the benefit of, and
shall be enforceable only by, the parties hereto or their respective successors
or permitted assigns.
16.4 Special and Consequential Damages. In no event shall either
party be liable to the other for special or consequential damages as a result of
its performance or nonperformance of this Agreement, and each party hereby
waives and releases the other from those specific types of damages.
16.5 Confidentiality. Each of NFN and US ONE reaffirms and
rememorializes its respective confidentiality obligations related to this
Agreement as set forth on Exhibit G attached hereto.
16.6 Subsidiaries. NFN consents to the exercise by any subsidiary of
US ONE of the rights, and the performance by any such subsidiary of the
obligations, of US ONE hereunder.
16.7 Leasing other Facilities. This Agreement shall not prevent US
ONE from leasing the facilities of any other network provider, whatever the
location and whatever the terms thereof.
16.8 Notices. All demands, reports, approvals or other communications
which may be or are required to be given, served or sent pursuant to this
Agreement shall be in writing and shall be hand delivered or sent by recognized
overnight carrier or mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to NFN, to:
18
National Fiber Network, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxx
If to US ONE, to:
US ONE Communications of New York, Inc.
One Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxx
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxx
Notices shall be effective when properly sent and received, refused or returned
undeliverable. Either party can notify the other of an address change pursuant
to this notice provision.
16.9 Severability. If any provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under any applicable law, same shall
be ineffective to the extent of such invalidity only, without in any way
affecting the remaining parts of said provision or the remaining provisions of
said Agreement. In such event, the parties shall negotiate in good faith to
amend this Agreement to comply with applicable law while preserving, to the
maximum extent feasible, the mutual benefits of this Agreement.
16.10 Further Assurances. To the extent that any statute,
regulation or policy passed or adopted after the date hereof materially alters
in a negative manner the practical realization of the value of this Agreement to
US ONE, NFN
19
agrees to modify this Agreement so as to preserve the practical realization by
US ONE of the value of this Agreement.
16.11 Exhibits. Exhibits are an integral part of this
Agreement. "Will" and "shall" have the same meaning in this Agreement.
"Including" or "include" shall mean "including without limitation."
16.12 Waiver. No failure or delay on the part of either party
hereto in exercising any right, power or privilege hereunder and no course of
dealing between the parties shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege.
16.13 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the transactions contemplated
herein, and it supersedes all prior oral or written agreements, commitments or
understandings with respect to the matters provided herein.
16.14 Titles and Headings. Section headings contained in this
Agreement are inserted for convenience of reference only. Such headings shall
not be deemed to be a part of this Agreement for any purpose and shall not in
any way define or affect the meaning, construction, or scope of any of the
provisions hereof.
16.15 Governing Law. This Agreement shall be governed by the
laws of the State of New York without regard to any other state's choice of law
principles.
16.16 Execution in Counterparts. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required.
16.17 Publication. Neither NFN nor US ONE shall publicize or
disclose any aspect or contents of this Agreement or its relationship with the
other party to this Agreement, in any way, without the other party's prior
written consent and specific approval, in such party's sole discretion, except
as required by law, rule or regulation or to a lender or prospective lender or
bona fide investment banker. Such consent shall not be unreasonably withheld as
to a bona fide investor, partner or joint venturer.
16.18 Most Favored Nations. Notwithstanding anything in this
Agreement, NFN agrees to treat US ONE to Most Favored Nations status for the
Term of this Agreement. NFN warrants that all financial terms, warranties and
provisions regarding termination or expiration provided in this Agreement are
equivalent to or better, as a whole, than the terms and provisions offered by
NFN to its current customers. In addition, if during the Term of this Agreement
NFN enters into any other agreement(s) with any other customer(s) providing such
customer(s)
20
with more favorable financial terms, warranties or provisions regarding
termination or expiration, taken as a whole, then this Agreement shall be deemed
appropriately amended to provide such better terms ("More Favorable Terms") to
US ONE, unless US ONE elects, in writing, to reject such new term(s) or
provision(s). NFN shall promptly provide US ONE with any refund or credits
thereby created.
16.19 Assignment. Neither NFN nor US ONE may assign this
Agreement, in whole or in part except by operation of law, without the prior
written consent of the other party, which consent shall not be unreasonably
withheld or delayed, and except as consistent with regulatory authorizations.
Notwithstanding the immediately preceding paragraph, US ONE may assign
this Agreement to any Affiliate or as a security interest to a lender without
NFN's consent. In addition, NFN shall be permitted to assign this Agreement
without US ONE's consent to a corporation of which it owns at least a majority
of the voting stock and controlling interest or any Affiliate. Upon any
assignment under this Section 16.19, the assignor shall remain responsible for
performance under this Agreement and shall guaranty any and all continuing
financial obligations hereunder. This guaranty shall be primary, joint and
several. Any assignee shall expressly assume all liabilities hereunder prior to
the effectiveness of such assignment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
21
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the Effective Date.
NATIONAL FIBER NETWORK, INC. US ONE COMMUNICATIONS OF NEW YORK, INC.
By: By:
--------------------------- --------------------------------
Xxxxxxx X. Xxxxxxxx, Xxxxx X. Stugres,
President President
22
Exhibit A
Map of Manhattan, Brooklyn, Queens and New Jersey
EXHIBIT B
Optical Fiber Properties
Fiber Type: Single Mode Dispersion Unshifted Optical Fiber
Manufacturer: Sumitomo Electric Lightwave Corporation
Construction
Glass Fiber Coating
Cure Cladding
Diameter Typically Diameter 125=1.0 um Material UV-Acrylate
8.3 um
Non- LESS THAN Non < 1.0% Inked 250 PLUS MINUS 15 um
Circularity MINUS 5% Circularity Diameter
Core/Clad- < 0.8 um
ding Offset
Optical Characteristics
Property Specification
Point Discontinuities at 1310/1550 nm LESS THAN MINUS 0.10 dB
Water Peak Attenuation at 1383 nm LESS THAN MINUS 2.0 dB/km
Attenuation Change vs. Wavelength 1285 to 1330 nm < 0.10 dB/km
1525 to 1575 nm LESS THAN MINUS 0.05 dB/km
Attenuation Change vs. Bending 100 wraps/75 nm LESS THAN MINUS 0.10 dB
1 wrap/32 nm LESS THAN MINUS 0.50 dB
Zero Dispersion Wavelength 1300-1322 nm
Maximum Dispersion at 1310/1500 nm LESS THAN MINUS 3.2/18.0
ps/xx.xx
Zero Dispersion Slope LESS THAN MINUS 0.092
ps/nm(2)
Mode Field Diameter 1310 nm 9.3 PLUS MINUS 0.5 um
1550 nm
Cabled Fiber Cutoff Wavelength < 1260 nm
Group Index of Refraction 1310 nm 1.466
1550 nm 1.467
DRAFT
Mechanical Characteristics
Property Specification
Proof-test Stress 100 kpsi
Fiber Curl Radius GREATER THAN MINUS 2 meters
Minimum Bend Radius Short 16.0 mm
Term 37.5 mm
Term Long
System Constituents and Designations
RNB-System 1
Span 1 (Primary) Span 2 (Secondary)
Routing: Routing:
111 Pavonia to 0 X00xx Xx. 0 X00xx Xx to 000 Xxxxxxx
xxx Xxxxxxx Xxxxxx (xxxxx tube) via Holland Tunnel (south tube)
Number of Fibers = 1 Number of Fibers = 1
It is important to note that NFN's Fiber Monitoring Program will
consider the attached fiber trace with its associated attenuation, length, etc.,
as the reference for surveillance purposes, thereby reacting to variations from
this reference for alarming and restoration notification. The degree of
variation from the reference trace necessary to generate an alarm will be
specified in this report. Fiber monitoring is conducted via maintenance
fiber(s) that emulate customer systems completely from one Customer Fiber
Distribution Panel (CFDP) to the next.
It is critical that the customer only utilize the ports on the CFDP
that are specified in this report as other ports may be under use by NFN's
monitoring program and for future provisioning. The use of these ports by the
customer would jeopardize NFN's ability to conduct surveillance on the system
under use and possibly other systems in the surrounding area.
NFN has provided patchcords for connection from the CFDP to the end
equipment as per the customer's request. These jumpers are of a length and with
specific end connector-types as specified in this report. While these
connectors have been supplied in the original packaging in which they were
received from the manufacturer, shipping and handling may cause dust and dirt to
accumulate on the connector endface, adversely affecting optical performance.
Therefore, prior to using any fiber connector, NFN recommends cleaning with
isopropyl alcohol of purity 95% or higher, via the following procedure: wipe
the ferrule sides and endface of the connector with an alcohol-dampened
lint-free cloth; wipe again with a dry lint-free cloth and finally, blow across
the ferrule with compressed air.
This report contains the following pertinent information:
- properties of the optical fiber.
- geographical map detailing each fiber system pictorially.
- routing and footages of each fiber system.
- OTDR trace of each fiber system with a table of optical events en
route.
- End-to-end attenuation for each fiber at both 1310nm and 1550nm
wavelengths.
- Loss thresholds that would generate alarming and notification
procedures.
- Specification of ports to be utilized by the customer at the
CFDP.
- Patchcord lengths provided with type of end connectors.
DRAFT
System 1 - Span 1 - Fiber 1
Summary: Total route length = 30271
Attenuation = 3.35 dB @ 1310 nm
= 2.53 dB @ 1550 nm
DRAFT
OTDR Trace (1310 nm)- Fiber 1
Note: Trace generated from 0 X.00xx Xx. location.
GRAPH
Trace Analysis
Feature Location (feet) Reflection (dB) Loss (dB)
Launch 0 -
Fusion 20784 - 0.315
Fusion 28461 - -0.08
End 30271 -
Results: End of fiber found at 30271 ft
Fiber under test loss: 3.35 dB
OTDR Trace (1550 nm) Fiber 1
Note: trace generated from 0 X00xx Xx location
GRAPH
Trace Analysis
Feature Location (feet) Reflection(dB) Loss(dB)
Launch 0 -
Fusion 10091 - 0.115
Fusion 20851 - 0.547
End 30271 -
Result: End of fiber found at 30271 ft.
Fiber under test loss: 3.35 dB
System 1 - Span 1 - Fiber 1
Summary: Total route length = 38962 feet
Attentuation = 5.38 dB @ 1310 nm
= 3.87 dB @ 1550 nm
OTDR Trace (1310 nm) - Fiber 1
GRAPH
Trace Analysis
Feature Location (feet) Reflection (dB) Loss (dB)
Launch 0 -
Fusion 16066 - 0.065
Fusion 24916 >31.73 -0.771
End 38962 -
Results: End of fiber found at 38962 ft
Fiber under test loss: 5.38 dB
OTDR Trace (1550 nm) Fiber 1
Note: trace generated from 0 X 00xx Xx location
GRAPH
Trace Analysis
Feature Location (feet) Reflection (dB) Loss (dB)
Launch 0 -
Fusion 7937 - 0.215
Fusion 15924 0.097
Mechanical 24925 > 35.06 0.726
Fusion 28972 0.126
End 38971
Results: End of fiber found at 38971 ft
Fiber under test loss: 3.87 dB
Loss Thresholds
This table represents the attenuation values that would generate an alarm on
each fiber as per NFN's Fiber Monitoring Program.
Deviations from Reference
Span 1 - Fiber 1 Span 2 - Fiber 1
End to end fiber loss 3.0 dB 3.0 dB
Fusion splice loss 0.15 dB 0.15 dB
Mechanical/Grouped Event loss 0.20 dB 0.20 dB
Reflectance 5.00 dB 5.00 dB
Absolute Values
Span 1 - Fiber 1 Span 2 - Fiber 1
Fusion splice loss 1.00 dB 1.00 dB
Mechanical splice loss 3.00 dB 3.00 dB
Reflectance 20.00 dB 20.00 dB
Customer Fiber Distribution Panel - Port Assignment
Location: 111 Pavonia
Port Assignment: Span 1 - Fiber 1 : port 1
Span 2 - Fiber 1 : port 8
Shaded ports are for customer use
GRAPH
Port Assignment: Span 1 - Fiber 1 : port 1
Span 2 - Fiber 1 : port 8
Shaded ports are for customer use
GRAPH
Patchcords
Length End Connectors Number
30 feet SC/SC 2
45 feet SC/FC 2
EXHIBIT C TO LEASE AGREEMENT
BETWEEN
NATIONAL FIBER NETWORK, INC.
AND
US ONE COMMUNICATIONS CORP.
LATERAL EXTENSION POLICY OF NATIONAL FIBER NETWORK, INC.
The policy of NFN with respect to construction cost reimbursement and
monthly charges for extension from its Network Backbone to locations requested
by a customer is as follows
(i) The NFN customer requesting a fiber connection from the NFN
Network Backbone to a specific location shall pay to NFN the cost
which it incurs for such construction plus 20% thereof measured
from the Splice Point off of the Network Backbone to the point at
which the connection terminates (the "Termination Point") at the
subject premises (the "Lateral Extension"). The cost paid by the
customer for such construction is referred to herein as the
"Lateral Extension Cost";
(ii) Upon lease of fiber in the Lateral Extension to additional NFN
customers, each such additional customer shall pay to NFN a
portion of the Lateral Extension Cost equal to its pro rata
portion thereof (based upon the total number of customers leasing
fiber in the Lateral Extension). Such payments shall be
distributed equally by NFN to each prior NFN customer which has
already contributed to the construction of the Lateral Extension;
(iii) Customers utilizing the Lateral Extension shall pay to NFN a
monthly lease per fiber mile at the rate of $250 per fiber mile
with a minimum of two fibers measured from the Splice Point
on the Network Backbone to the Termination Point at the
subject premises;
(iv) All customers leasing fiber on the Lateral Extension shall pay
their respective pro rata cost of any easement, right of way, or
other similar charge incurred by NFN for the right to maintain
the Lateral Extension, as and when such charges are incurred.
EXHIBIT D
ADMINISTRATION
NFN's Monitoring Program will provide standard procedures, such as the
cable and specific fiber IDs within each sheath and origin and destination of
each fiber, and OTDR traces of each fiber path (at both 1310 nm and 1550 nm
wavelengths) will be recorded along with the locations of all optical events
(splices, connection points, etc...) en route. The database will maintain a
manhole progression for each route which correlates optical distances obtained
via the OTDR to physical landmarks such as manholes, buildings, bridges, etc.
Locations of slack coils and ring cuts will also be indicated which facilitates
expeditious response to maintenance requirements.
CABLE MONITORING SYSTEM
NFN's monitoring system will at all times be based on state-of-the-art
OTDR technology with the capability of actively examining multiple fibers, each
with its own set of test parameters. The resultant traces will be linked to
physical landmarks in their path via a geographical graphical user interface
which facilitates a visual depiction of fiber routings.
NFN will monitor the complete routing of each customer system by
emulating its path in a maintenance fiber in the same sheath as the active
fiber. The full complement of maintenance fibers will be set in surveillance
mode at the OTDR, as described below, which entails continuous monitoring.
Testing of fibers will be conducted in three modes:
1. On-Demand Testing - This test will be used by a particular user
(Maintenance Center Analyzer) to exercise a test of a select fiber ID and
will return an OTDR trace and summary report of all pertinent information
in regard to the select fiber. The test results will be then be referenced
to an "as-built" trace. The On-Demand test will be performed in either
Fault Locate or Maintenance mode. The fault locate mode will be used to
locate "gross" problems (cable cuts) while Maintenance mode will be used to
perform a detailed analysis of selected fibers referenced to established
NFN thresholds.
2. Auto-Routining - This function will be used to execute a test of select
fibers at programmable times and dates. The scheduling time frames will be
hours, days or weeks with a multitude of scheduling parameters. This
function will be used to observe any degradation in the fiber under test
and will issue alarms if analysis indicates differences from threshold
settings.
3. Local Surveillance - Will execute repetitive tests of selected fibers
(Maintenance fibers) continuously, comparing the resultant trace to the
stored reference trace, thereby establishing "full-time surveillance".
FAULT ISOLATION AND RESTORATION
NFN's Cable Monitoring System will immediately identify the location and
nature of a fault. This information will be automatically depicted on the
geographical interface of the system along with the nearest physical landmarks
surrounding the problem. NFN's restoration parameters will require a response
time of 2-4 hours. Within the 2-4 hour corridor, analysis, restoration
requirements and internal and external escalation notification procedures will
be completed. The following details the procedures:
1. Analysis - Once an alarm is received at the Maintenance Center, the
Analyzer will review the fiber in alarm and determine the nature of the
problem. The determination will either reflect a degradation or
catastrophic (cable cut) event. Degradation Alarm - the Analyzer will
determine the cause and the service affecting potential. If the trouble is
deemed service affecting, the Analyzer will contact his immediate
Supervisor and Maintenance personnel of the alarm and direct the
maintenance personnel to the fault location. Maintenance personnel will
ascertain the nature of the trouble and the Analyzer/Supervisor will be
notified of repair requirements and time required by the Field Supervisor.
The Maintenance Center Supervisor will apprise the Customer
Telecommunications Operations Supervisor of the nature of the trouble and
the proposed time frame for restoration. The NFN Maintenance Supervisor
will maintain continual communications with the Customer Telecommunications
Operations Supervisor until completion of final repair and acceptance to
the Customer. In the event the Degradation Alarm is not service affecting,
full time surveillance will be maintained for a period of 4 hours to
ascertain the conditions of the deterioration. Following the full time
surveillance period if degradation continues to exist, the Analyzer will
contact Maintenance personnel for dispatch to clear alarm generation.
Catastrophic Alarm - the Analyzer will retrieve the fiber under alarm and
determine trouble and location. The system at this juncture has initiated
multiple notification alarms (internally) to various levels of Supervision
within NFN. The Analyzer will be additionally responsible to ensure alarms
have been received by contacting the various designated personnel. The
Analyzer will inform the designated individuals of location, size and
number of Customers affected. Maintenance personnel will be dispatched
immediately to the location in order to determine cause and restoration
time frames. Maintenance Center Supervisor will contact all affected
Customers to apprise them of our efforts and determination of anticipated
time for restoration.
NOTE: ALL RESTORED FIBERS WILL CONFORM TO SPECIFICATION OF THE ORIGINAL
DESIGN.
EXHIBIT E
NATIONAL FIBER NETWORK, INC.
POINT OF PRESENCE (POP)
NFN BLDG.
NFN BUILDING ADDRESS ID# STATUS
1. 000 Xxxxxxxx 252 Installed
2. 000 Xxxxxxx Xxx. 455 Installed
3. 000 X. 00xx Xx. 463 Installed
4. 000 X. 00xx Xx. 487 Installed
5. 000 X.00xx Xx. 493 Installed
6. 000 X. 00xx Xx. 495 Installed
7. 000 0xx Xxx. 597 Installed
8. 000 Xxxxxxxxxx Xxx. 515 Installed
9. 0 X. 00xx Xx. 516 Installed
10. 0 X. 00xx Xx. 517 Installed
EXHIBIT F
Network Properties and Statistics
Great care has been taken in selecting fiber & cable types so as to provide high
flexibility in cable deployment while allowing for rapid restorative ability.
Fusion splicing is the sole method of fiber connection used in the network with
strategically located slack loops for future provisioning and maintenance
purposes. Every attempt has been made to locate the cable in the lowest and
most central possible duct bank position in order to minimize the effect of any
disruptive activity from street work.
The technical parameters of customer systems that are currently on-line reflect
the impressive results that are attainable using the topology employed by NFN.
The average consumer system loss is 0.54 dB/km which includes cable loss, splice
loss and cross-connection insertion loss. It should be kept in mind that the
cable loss itself is rated at 0.40 dB/km with each system averaging over 23 km
in end-to-end length. The splice loss of these systems through their total
lengths reveal an average of 0.06 dB/splice with 0.15 dB being specified as the
maximum absolute splice loss with our contractors.
Customer systems may have either point-to-point or a ring-type configuration
depending on the specific requirements identified. NFN provides and encourages
complete route diversity if requested by a customer. This entails not only
identifying two separate street routings to link the customer locations, but
also providing two separate building entrances with independent risers so as to
achieve true redundancy in the fiber system. Thus, the only point of
commonality between the two routings would be at the termination, not at the
customer site.
EXHIBIT G
CONFIDENTIALITY
Definitions
Parties: National Fiber Network, Inc. ("NFN")
US ONE Communications of New York, Inc. ("US ONE New York")
US ONE Communications Corp. ("US ONE")
Disclosing Party: The party providing Confidential Material to another party.
Receiving Party: The party receiving Confidential Material from a Disclosing
Party.
Loan
Documents: The "Loan Documents" as defined in a certain Amended and Restated
Master Agreement dated as of April 15, 1996 between NFN and US
ONE.
Confidential
Material: Information and documents exchanged between Parties in connection
with the performance of their respective obligations pursuant to
the Loan Documents with the exception of information which (i) is
or becomes generally available to the public other than as the
result of a disclosure by the Receiving Party or its directors,
officers, employees, agents or representatives in violation of
this agreement, (ii) was available to the Receiving Party prior
to its disclosure to that party by the Disclosing Party, or
(iii) becomes available to the Receiving Party from a source
other than the Disclosing Party providing such information,
provided that such source is not bound by a confidentiality
agreement with respect to such confidential material.
A Receiving Party will not use Confidential Material received for any
purpose except as shall be necessary to fulfill its respective obligations and
exercise its rights in accordance wit the terms of the Loan Documents. A
Receiving Party will not disclose (except as expressly provided herein) any
portion of the Confidential Material to any person without the prior written
consent of the Disclosing Party; provided, however, that any Receiving Party may
disclose any Confidential Material to its directors, officers, employees, agents
or representatives, it being understood that they shall be informed by the
Receiving Party of the confidential nature of such information and that by
receiving such information they shall agree with the Receiving Party to treat
the Confidential Material accordance with this agreement.
In the event that a Party is requested or required by law, judicial or
governmental order, discovery request or other legal process or pronouncement to
disclose any Confidential Material which it has received from a Disclosing
Party, it will give the Disclosing Party prompt notice of such request so that
either Party may seek an appropriate protective order. If in the absence of a
protective order a Party is nonetheless required to disclose Confidential
Material, it may disclose such information without liability hereunder;
provided, however, that it gives the Disclosing Party written notice of the
information to be disclosed as far in advance of its disclosure as is
practicable and, upon request and at the Disclosing Party's expense, reasonably
cooperate with the Disclosing Party's efforts to obtain assurances that
confidential treatment will be accorded to such information.
The Parties agree that money damages would not be sufficient remedy
for any breach of this agreement, and that in addition to all such remedies, the
Parties shall be entitled (upon proof of all other necessary elements for such
relief) to specific performance and injunctive or other equitable relief as a
remedy for any such breach.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the Effective Date.
NATIONAL FIBER NETWORK, INC. US ONE COMMUNICATIONS OF NEW
YORK, INC.
By: By:
Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxx,
President President
2
SCHEDULE I
US ONE CONTRACT AMENDMENT
(PREPAYMENT REDUCED TO $3,530,000)
A. CURRENT * MILE NETWORK US ONE COST
1. * - Fiber Miles (FM) PREPAID
2. Credit for additional * Fiber Miles (FM) PREPAID
i. existing network = no minimum # strands
ii. future network = minimum of 8 strands
B. CENTRAL OFFICES ALREADY BUILT
1. (2) 000 Xxxx Xxxxxx PREPAID
2. East 38th Street PREPAID
C. CO'S TO BE BUILT @ US ONE'S SOLE OPTION
CENTRAL OFFICE AVAILABLE
1. Broad St. (3)$58,000
2. X. 00xx Xx. "
3. X. 00xx Xx. "
4. Ave of the Americas "
5. X 00xx Xx "
0. Xxxxxx Xx. (Bklyn) "
7. X 00xx Xx. "
0. X 00xx Xx "
9. X 00xx Xx "
00. X 00xx Xx. "
11. 000 Xxxxxx Xxx "
12. Varick St. "
13. E 97th St "
14. Bway & Elm (Queens) "
15. 2/Messerole St (Bklyn)
D. CO's TO BUILD UPON US ONE'S REQUEST, BUT AT NFN'S SOLE OPTION
CENTRAL OFFICE
1. Main Street (White Plains) T.B.D.
2. Zeckendorf Blvd. (Nassau) T.B.D.
3. Brentwood (Suffolk) T.B.D.
4. 00 Xxxxxx Xx. (Hicksville) T.B.D.
5. 0 Xxxxx Xx. (Tuckahoe) T.B.D.
-------------------------
(2) Single point of entry and non diverse path.
(3) Average cost per C.O. (individual cost per C.O. may vary)
6. 0 Xxxxxxxxxx Xx. (Lynbrook) T.B.D.
7. 00 X. 0xx Xx (Huntington) T.B.D.
8. 00 Xxxx Xx. (Mineola) T.B.D.
9. 000 Xxxxxx Xx. (Hempstead) T.B.D.
10. 00 Xxxxx Xx (Xxxx Xxxxxxx) T.B.D.
11. 000 Xxxxxx Xxx (Floral Park) T.B.D.
E. OPTION FOR ADDITIONAL * FIBER MILES * PER STRAND PER FM
(* STRAND MINIMUM
PREPAID 10 YEAR TERM
2