Exhibit 10.6
Agreement ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇
Page of 8
ACCEPTANCE SHALL BE INDICATED BY
SIGNING AND RETURNING DUPLICATE
TO: FROM:
▇▇.▇▇▇ Corp. AT&T Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ Room 09E30
Falls Church, Va. 22042 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
General Purchase Agreement Number 4569177 ("Agreement") between AT&T Corp.
("Company") and ▇▇.▇▇▇, Corp. ("PFN") dated October 29,1999 and as modified by
Amendment Nos. 1, 2, 3 and 4 is further modified by Amendment Number 5 as
follows:
1. FIRST WHEREAS PARAGRAPH OF AGREEMENT: The last five words of the
paragraph as set forth as follows are deleted from this Agreement:
Deleted: "along with certain marketing arrangements".
2. ARTICLE 1.24: DEFINITION OF DISPOSITION FIBERS: This clause is hereby
deleted from this Agreement in its entirety.
3. ARTICLE 1.30: DEFINITION OF MARKETING AGREEMENT: This clause is hereby
deleted from this Agreement in its entirety.
4. ARTICLE 3.3.G(v): OWNERSHIP OF SYSTEM: Sub-paragraph (v) is hereby
deleted from this Agreement in its entirety.
5. ARTICLE 3.7: MARKETING OF FIBER: This clause is hereby deleted from
this Agreement in its entirety and is not replaced.
6. ARTICLE 10.4: SPECIAL PAYMENT TERMS: This clause is hereby deleted from
this Agreement in its entirety.
7. ARTICLE 3: STATEMENT OF WORK FOR THE SUPPLY OF LINK(S): The following
language is added to the Agreement as new Sections 3.1.V through
▇.▇.▇▇:
3.1.V For Page 19, Link 14 of Exhibit B of the Agreement,
Amendment 3, the Builder Substantially Complete Date and Builder
Compete Date are modified as follows:
BUILDER SUBSTANTIALLY COMPLETE DATE:
AT&T / PFN Proprietary
12/05/01
FROM: September 30, 2001
TO: June 30, 2003
BUILDER COMPLETE DATE:
FROM: March 31, 2002
TO: December 31, 2003
In order to accomplish the requested delay in delivery and minimize the
cost of work performed in 2002, AT&T and PFN agree that the credit due
AT&T in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00)
associated with OA construction shall be retained by PFN to satisfy
obligations associated with this delay which includes PFN's obligations
for sales to third parties.
3.1.W. For Link 14 during 2002, the limit of expenditure by AT&T to PFN
will not exceed Five Million Dollars ($5,000,000) for work performed in
2002.
3.1.X For Link 14, the location for the Santa ▇▇▇ POP is revised to
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ at an increase to the price for Link 14 of
Thirty Five Thousand Dollars ($35,000.00). The Long Beach POP will be
fiber to the handhole at the POP only with no increase in price to AT&T
to be charged by PFN.
3.1.Y With respect to Links 4 and 6, the parties acknowledge that a key
precedent to completion is an agreement with the Florida Turnpike. If
an Agreement with the Florida Turnpike cannot be completed by AT&T
prior to June 30, 2002, then PFN shall have the right to cancel its
obligations for Links 4 and 6 and submit an invoice for work performed
through the date of cancellation plus any reasonable actual costs for
cancellation and/or demobilization charges, as evidenced by
documentation with the invoices on Links 4 and 6.
3.1.Z Link 6, Ellisville to Orlando, PFN is authorized to trench or
bore two (2) one point nine inch (1.9") HDPE ducts as required from the
Florida Turnpike bore to the existing stub-out piping located outside
of the existing AT&T Windermere POP on the existing underground
building wall. PFN will bore one (1) six inch (6") steel pipe from AT&T
Windermere property across Florida Turnpike to east edge of ROW located
next to Royal Vista Subdivision. Upon acceptance by AT&T, AT&T will pay
within thirty (30) days of receipt of an invoice from PFN in an amount
not to exceed of Forty Thousand Five Hundred Dollars ($40,500.00) for
this completed work. In the event, PFN determines that the old six inch
(6") steel casing pipe under Florida Turnpike can be used, AT&T will
receive a invoice in the amount of Seventeen Thousand Dollars
($17,000.00) which represents a credit to AT&T of Twenty-Three Thousand
Five Hundred Dollars ($23,500.00).
3.1.AA Link 4 (Orlando FL to Miami, FL)
(i) Link 4B, Ft. ▇▇▇▇▇▇ to Miami-PFN to install two (2) one point
nine inch (1.9") HDPE ducts and pull a new fiber cable for the
connection from AT&T
handhole on Florida Turnpike at Glades Road to the new AT&T
Boca Raton POP at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and return to a new
handhole adjacent to the Florida Turnpike. AT&T will provide
the required cable to PFN for this additional work. The
increase in the price for Link 4B for this work to AT&T will
not exceed Three Hundred Twenty-Three Thousand Two Hundred
Dollars ($323,200.00) for this additional construction. This
work shall not commence prior to March 31, 2002. If the work
does begin prior to that time, AT&T will not be liable for any
of the costs associated with that work. AT&T has the option to
cancel this additional work in the event the decision can be
confirmed that allows AT&T to continue use of the existing
AT&T Boca Raton POP adjacent to the Florida Turnpike.
(ii) For Link 4, PFN will deliver As-built drawings of this Link
including those sections using existing AT&T duct. AT&T's
increased cost will be One Hundred Fifty Dollars ($150.00) per
mile for one hundred sixty three (163) miles for a total
amount not to exceed Twenty-Four Thousand Four Hundred Fifty
Dollars ($24,450.00) which will be paid by AT&T within thirty
(30) days upon receipt of an invoice after deliver and
acceptance of the As-built drawings.
(iii) For Link 4B, PFN will require safety precautions to be
provided by Florida State Police to close the traffic lane
closest to the location of the existing duct structure from
Fort ▇▇▇▇▇▇ to Miami. AT&T will pay PFN Five Hundred
Twenty-Eight Dollars ($528.00) per mile for one hundred
thirty-six (136) miles for an estimated total of Seventy-One
Thousand Eight Hundred Eight Dollars ($71,808.00) for this
required safety precaution.
3.1.AB BALTIMORE, MD. On Link 38, PFN is authorized by AT&T to make an
additional build for AT&T and PFN from the backbone past the PFN's ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ POP to the "AT&T ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ POP" for a an
estimated distance of ten thousand nine hundred four (10,904) feet. For
this additional build, AT&T authorizes PFN to construct in a single
ditch to include two (2) six (6") inch steel ducts with two (2) one
point nine (1.9") inch OD and one (1) one point two five (1.25") inch
ID innerducts in each ending at the PFN ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ POP
continuing on to the ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ POP. All ducts will be encased
with 3000 psi strength concrete that will conform to the City of
Baltimore specifications to provide mechanical protection in lieu of
diversity. The schedule for completion of this additional work is
subject to finalizing the required permits and arrangements for special
safety procedures to be required during construction. The construction
is estimated to be completed one hundred twenty (120) days following
the reception of the required permits. For the additional build as set
forth in this Section 3.1.AB and Exhibit B, there will be no additional
cost to AT&T.
▇.▇.▇▇ Link 37, Atlanta to Greensboro:
(i) AT&T authorizes PFN to install the fiber cable where it
reaches a POP to pass through said POP using a routing which
is internal to the POP building and accomplishes the objective
of providing a continuous path for the
cable to transit from the incoming manhole to the outgoing
manhole. Additionally, PFN will deliver as built drawings of
the Charlotte to Greensboro portion of Link 37, AT&T's
additional cost will be One Hundred Fifty Dollars ($150.00)
per mile for a total of four hundred seventy-eight (478) miles
for an amount not to exceed Seventy-One Thousand Seven Hundred
Dollars ($71,700.00) which will be due within thirty (30) days
of receipt of an invoice from PFN after delivery and
acceptance of the As-Built drawings by AT&T.
(ii) AT&T authorizes PFN to install a fiber cable in a spare duct
that currently exists between Atlanta Eastpoint and Atlanta
Peachtree POPs. This fiber cable will contain a minimum of
thirty-six (36) to forty-eight (48) single-mode fibers for
AT&T's sole use which are to be provided to AT&T and charged
at PFN's actual cost of that cable. The total fiber count in
the fiber cable should include ninety-six (96) TrueWave RS
fibers for AT&T which will be paid for by AT&T in this special
case and up to one hundred forty-four (144) TrueWave RS fibers
for PFN's use at PFN's expense. PFN agrees that it will
complete the new build with six (6) ducts as set forth in
Exhibit B on a diverse route and have this segment completed
by March 31, 2002. All three (3) of the AT&T ducts will be
left vacant, and the cable placed in the spare duct with the
special cable specified above will remain in service. If for
any reason other than reasons of Force Majuere as set forth in
Article 37, PFN is unable to complete this c onstruction of
the six (6) ducts on a diverse route on or before December 31,
2002, the installed fiber cable will revert one hundred (100%)
percent to AT&T, and PFN's use of the spare duct will no
longer be allowed. For purposes of Agreement, diverse route
will be defined as set forth in Exhibit E: Engineering and
Construction Requirements.
▇.▇.▇▇ Link 39, Philadelphia to Newark, the backbone route will only
pass the POP at Camden on the opposite side of the street for route
diversity and the backbone route will only pass the New Brunswick POP
due to AT&T change in POP plans at no additional cost to AT&T.
8. ARTICLE 3.6.C: ELECTRICAL POWER FOR OA SITES: Article 3.6.C is deleted
in its entirety from the Agreement and substituted with the following
language.
3.6.C ELECTRICAL POWER FOR OA SITES: After expiration of the three (3)
year period in which items (i) through (v) of Section 3.6.O are
provided by PFN at the fixed unit price, PFN will charge AT&T
negotiated rates for electrical power and building services. AT&T will
have the option at any time during the term of this Agreement to
provide its own electrical power upon giving ninety (90) days written
notice to PFN of AT&T's intention to provide its own power. AT&T and
PFN agree in the case where AT&T wants to provide its own standalone
emergency generator it will do so for $2000 per site for a pad nearby
the existing PFN standby generator and follow the same path for the
power to travel through the PFN power building and into the AT&T
buildings. The cost for installing the pad and the generator, plus
required power cable connections, will be at AT&T's expense.
9. ARTICLE 29: OTHER BUILDER COVENANTS, REPRESENTATIONS AND WARRANTIES:
The last paragraph of Section 29.8, as added to this Agreement in
Amendment No. 2, is amended to include the words "and Link 14" after
the words "ADDED LINKS PRIMARY CITIES". The last paragraph of 29.8 will
now read as follows:
"The Links listed in the following table titled ADDED LINKS
PRIMARY CITIES and Link 14, will not be considered in
determining the Builder Substantially Complete Date for the
last Link for the purposes of this Section 29.8; it being the
understanding that the Builder Substantially Complete Dates
for said Links, whenever they occur, will not be used in any
way to prohibit the sale of the Common Stock of Parent by ▇▇▇▇
Ventures, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇."
ADDED LINKS PRIMARY CITIES
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LINK TERMINATION A TERMINATION Z
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▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ (▇▇▇▇▇▇▇) ▇▇▇▇▇▇▇▇▇ ▇▇ (Reroute)
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▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ (Splice Point)
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6 Ellisville, FL Orlando, FL (through Windermere
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▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
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▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
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39 Philadelphia, PA Newark NJ
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43 Chicago, IL Elkhart, IN
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44 Toledo, OH Cleveland, OH
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10. MAINTENANCE SERVICES TO PFN AND TO THIRD PARTIES: The following
paragraphs 6, 7, 8 and 9 from Exhibit C of the Agreement are hereby
deleted and added to this Agreement as Article 39.1 through 39.4:
"ARTICLE 39: MAINTENANCE SERVICES TO PFN AND TO THIRD PARTIES.
39.1 COVERAGE PERIOD. Maintenance will be performed by AT&T or its
successors or assigns for all Links described in Exhibit A, and
conclude upon expiration or termination of the Agreement.
39.2 SUBCONTRACTING. AT&T may subcontract any maintenance activities as set
forth in Exhibit C, provided that AT&T shall require the
subcontractor(s) to perform in accordance with the Agreement and
Exhibit C. The use of any such subcontractor shall not relieve AT&T of
any of its obligations herein.
39.3 FEES AND COSTS. During any time after the Acceptance Date for any
Segment of a Cable System, AT&T shall provide for all maintenance
activity for all Links for which maintenance responsibility is assigned
to AT&T pursuant to the provisions of this Article 39 and Exhibit C.
39.3.A. PFN will pay AT&T an monthly fee of FORTY ONE DOLLARS AND SIXTY
SEVEN
CENTS ($41.67) PER ROUTE MILE OR FIVE HUNDRED DOLLARS ($500.00) PER
ROUTE MILE ANNUALLY for all maintenance activity described in Exhibit C
of this Agreement, with the exception of emergency restoral activity as
set forth in Section 1.3 or PCA work in Section 1.2 of Exhibit C which
will be billed as needed on a time and material basis according to the
parties' interests in the Fiber, Conduit or other property affected
with labor charges not to exceed one thousand dollars ($1,000.00) per
hour. Any fees and costs for emergency restoral paid to AT&T by
responsible parties assessed for damages to the System will be
reimbursed by AT&T to PFN at a rate of thirty-seven and one-half
percent (37.5%) of the total fees paid to AT&T, less legal and
administrative costs incurred by AT&T while participating in any damage
claim or settlement related to cable or conduit damage by responsible
parties. In the case of any decrease of ten percent (1 0%) or more
versus the first year forecasted costs of AT&T, an adjustment to
reflect said decrease will be made to PFN.
In addition to the paragraph above, PFN will receive an equitable
offset for any routine services provided by PFN that would otherwise be
provided by AT&T (For example if PFN does routine ROW clearing, the fee
will be adjusted to reflect the services performed).
Effective with the Acceptance Date for each Link, maintenance fees are
due and payable on a monthly basis until the monthly payment dated of
December 1, 2003 for all Links for which Acceptance has occurred.
Thereafter, maintenance fees for all Accepted Links are due and payable
annually beginning with January 1, 2004.
39.3.B. Maintenance fees for dark fibers and conduit sold or exchanged
to third parties (exclusive of emergency restoral fees), will be shared
as follows: fifty percent (50%) to PFN and fifty percent (50%) to AT&T,
but such fees shall not be less than the following:
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NUMBER OF FIBERS SOLD PER SALE MINIMUM FEE
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1-8 $20 per route mile per month
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9-12 $25 per route mile per month
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13-24 $28.50 per route mile per month
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25+ $30 per route mile per month
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EACH CONDUIT EXCHANGED OR SOLD $35 per route mile per month
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39.3.C Adjustment of monthly per mile fees, fees to third parties and
maximum labor charge maintenance fees to the Builder in Article 39.3A
and B above will be made every two (2) years beginning with the second
anniversary of the Link Acceptance Date, by the increase, if any, in
the Consumer Price Index, All Urban Consumers (CPI-U), U.S. City
Average, published by the United States Department of Labor, Bureau of
Labor Statistics (1982-84=100) for the twelve (12) month period ending
three months prior to such anniversary of the Link Acceptance Date. In
the event the Bureau of Labor Statistics (or any successor
organization) no longer publishes the CPI-U, AT&T may designate the
statistical index it deems most appropriate for adjustments and, from
the date the CPI-U ceased to be published, such index shall be used to
make adjustments under
this provision. AT&T will confirm such increases to PFN in writing.
39.4 TERM. The fees and services for this maintenance will commence on a
Link by Link basis following the Acceptance of each Link. Unless
earlier terminated as set forth in this Agreement, this Article 39 and
Exhibit C will be in force for the lesser of the period of time that
the AT&T System is in use on a reasonably continuous basis for
telecommunications purposes or the Builder System is in use for the
same purposes.
11. MODIFICATIONS TO EXHIBITS:
A. Exhibit B is deleted in its entirety and replaced with the
modified Exhibit B attached hereto.
B. Exhibit C: is hereby deleted in its entirety and replaced with
the modified and renamed Exhibit C: Maintenance Procedures attached
hereto.
C. Exhibit G: "Fiber and Conduit Disposition Agreement" is hereby
deleted from this Agreement in its entirety. It is the intent of the
parties that by the deletion of Exhibit G that neither party shall have
any fiber and conduit disposition obligations.
D. Exhibit O is deleted in its entirety and replaced with the
modified Exhibit O.
E. Exhibit P: General Terms and Conditions Associated with Land
Rights of OA Buildings and Services Contract is deleted in its entirety
and is replaced with the modified Exhibit P attached hereto.
F. Exhibit Q: E-Commerce Terms and Conditions are added to this
Agreement and attached hereto.
This Amendment No. 5 is effective as of the execution of this Amendment by both
parties and shall be incorporated in and shall constitute a part of the
Agreement as if fully set forth therein. EXCEPT AS AMENDED HEREIN, ALL TERMS AND
CONDITIONS OF THE AGREEMENT REMAIN UNCHANGED.
APPROVAL:
ACKNOWLEDGED AND AGREED TO BY:
▇▇.▇▇▇ CORP. AT&T CORP.
BY /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ BY /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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(signature) (signature)
NAME ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ NAME ▇▇▇▇▇ ▇. ▇▇▇▇▇
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TITLE SENIOR VICE PRESIDENT - TITLE PROCUREMENT DIRECTOR,
BUSINESS DEVELOPMENT AT&T SUPPLIER MANAGEMENT
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DATE DATE
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(typed or printed) (typed or printed)