Execution Version of 11/17/97
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
FIBER OPTIC USE AGREEMENT
between
FIVECOM LLC
and
TELEPORT COMMUNICATIONS BOSTON
November 18, 1997
TABLE OF CONTENTS
1. TCG Fibers...............................................................................................1
1.1 Route...........................................................................................1
1.2 Specifications..................................................................................1
1.3 Completion......................................................................................1
2. Completion...............................................................................................2
2.1 Testing and Completion..........................................................................2
2.2 Failure to Meet Specifications..................................................................2
3. Deliverables.............................................................................................2
4. Term.....................................................................................................2
4.1 Initial Term....................................................................................2
4.2 Extension.......................................................................................2
5. Payments By TCG..........................................................................................3
5.1 Basic Rate and First Payment for TCG Fibers.....................................................3
5.2 Reduction.......................................................................................3
5.3 Outage Credit...................................................................................3
5.4 Payment for TCG Built Fiber.....................................................................3
6. Maintenance and Repair of the TCG Fibers.................................................................3
6.1 FiveCom's Obligations...........................................................................3
6.2 Emergency Maintenance...........................................................................4
6.3 Routine Maintenance.............................................................................4
6.4 Availability of TCG Fibers......................................................................4
6.5 Discontinuance by FiveCom.......................................................................4
6.6 Replacement.....................................................................................5
7. Representations..........................................................................................5
7.1 By FiveCom......................................................................................5
7.2 By TCG..........................................................................................5
8. Taxes....................................................................................................5
9. Limitation on Liability; Indemnification.................................................................6
9.1 Consequential Damages...........................................................................6
9.2 Indemnification.................................................................................6
9.3 Third Parties...................................................................................6
10. Force Majeure............................................................................................6
11. Permits and Required Rights-of-way.......................................................................7
12. Relocation of TCG Fibers.................................................................................7
13. Use of the TCG Fibers....................................................................................7
14. Confidentiality..........................................................................................7
15. Default and Termination..................................................................................7
15.1 By TCG..........................................................................................7
15.2 By FiveCom......................................................................................8
15.3 Remedies Cumulative.............................................................................8
15.4 Optional Termination by TCG.....................................................................8
16. Notices..................................................................................................8
17. Assignment; Succession...................................................................................9
17.1 By TCG..........................................................................................9
17.2 By FiveCom......................................................................................9
18. Vendors.................................................................................................10
19. Governing Law...........................................................................................10
20. Dispute Resolution......................................................................................10
20.1 Arbitration....................................................................................10
20.2 Continuation of Service........................................................................10
21. Miscellaneous...........................................................................................11
21.1 Headings.......................................................................................11
21.2 Amendments.....................................................................................11
21.3 No Waiver......................................................................................11
22. Defined Terms...........................................................................................11
23. Entire Agreement........................................................................................11
EXHIBIT 1.1(a) Route and Demarcation Points for TCG Fibers
EXHIBIT 1.1(b) TZG Built Fibers
EXHIBIT 1.2 Technical Specifications
EXHIBIT 2.1 Completion Test Plan
EXHIBIT 3 As-Built Drawing Specifications
EXHIBIT 6.2 Emergency Maintenance Procedures
EXHIBIT 6.3 Routine Maintenance Standards
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
FIBER OPTIC USE AGREEMENT
THIS IS AN AGREEMENT (the "Agreement") entered into as of November 18,
1997, between FiveCom, LLC ("FiveCom"), a Massachusetts limited liability
company, and Teleport Communications Boston (the "TCG"), a Massachusetts general
partnership.
Background. TCG is in the business of providing local
telecommunications services and desires to lease a portion of FiveCom's fiber
optic network and to utilize certain of FiveCom's services for the purpose of
providing local and long distance telecommunications services by TCG. FiveCom is
willing to lease a portion of its fiber optic network and to provide such
services to TCG for that purpose. Based on these facts and the following mutual
covenants and agreements, the parties agree as follows:
1. TCG Fibers
1.1 Route. TCG hereby leases from FiveCom the three fiber optic route
segments shown in Exhibit 1.1(a) as "Segment 1," "Segment 2" and "Segment 3"
(collectively the "TCG Fibers"). Segment 1 consists of [**]. Segment 2 consists
of [**]. Segment 3 consists of [**]. The two points of Segment 3 will be spliced
to two fibers provided by TCG on the [**] property. In addition, FiveCom shall
construct, in accordance with Exhibit 1.1(b), an additional fiber optic line for
TCG as described in Exhibit 1.1(b) (the "TCG Built Fibers"). FiveCom will
provide and TCG agrees to accept a temporary alternative route for Segment 1
identified in Exhibit 1.1 as "temporary TCG route" until Segment 1 is completed
pursuant to Section 1.3.
1.2 Specifications. Both the TCG Fibers and the TCG Built Fibers shall
satisfy the technical specifications (the "Specifications") set forth in Exhibit
1.2.
1.3 Completion. FiveCom shall use its best efforts to complete
construction and installation and have the TCG Fibers and the temporary TCG
route fibers ready for testing pursuant to Section 2.1 no later than December 1,
1997 except for Segment 1 in its final form for which construction shall be
completed and the Segment ready for testing no later than March 1, 1998. The TCG
Built Fiber shall be available for testing pursuant to Section 2.1 on the date
specified in Exhibit 1.1(b).
2. Completion
2.1 Testing and Completion. After installation of the TCG Fiber and
also following the installation of the TCG Built Fibers, FiveCom shall conduct
separate acceptance tests in accordance with the Acceptance Test Plan ("ATP")
described in
Exhibit 2.1. FiveCom shall provide TCG with at least five days prior notice of
the commencement of the conduct of the acceptance tests. TCG shall have the
right to have a person or persons present to observe any tests conducted by
FiveCom as a part of the ATP. Within 10 days of the conclusion of the acceptance
testing FiveCom shall provide the TCG with certified test results in accordance
with the ATP. The Completion Date shall be deemed to be the date on which TCG
has been given OTDR readings, tracings and power readings specified in Exhibit
2.1, that are within the parameters of the Specifications (the "Completion
Date").
2.2 Failure to Meet Specifications. If the measured test results are
not within the parameters of the Specifications, then within 10 days of its
receipt of the certified results from FiveCom, TCG shall notify FiveCom in
writing that such results are unacceptable and shall specify in reasonable
detail the portions of the TCG Fibers or TCG Built Fibers that are not within
the parameters of the Specifications. FiveCom shall then use its best efforts to
bring the unacceptable portions of the TCG Fibers within the parameters of the
Specifications. If FiveCom has not brought the operating standards of such
portions of the TCG Fibers within the parameters of the Specifications within 10
days of the written notice from the TCG that such measured test results are
unacceptable, TCG shall have the right to terminate this Agreement with respect
to such Fibers. If TCG shall not have so terminated this Agreement within such
10 day period it will be deemed to have agreed that the test results are within
the specifications cited in Exhibit 1.2.
3. Deliverables. FiveCom shall deliver two copies of the items listed in Exhibit
3 to TCG within 30 days following the Completion Date.
4. Term
4.1 Initial Term. Unless sooner terminated in accordance with the terms
of this Agreement, TCG agrees to lease from FiveCom the TCG Fibers for one year
and the TCG Built Fibers for 20 years (separately the "Initial Terms")
commencing on the Completion Date.
4.2 Extension. TCG shall have the option to renew the TCG Fibers for up
to four one-year periods (each an "Extension Term") commencing at the expiration
of the Initial Term of the TCG Fibers and at the end of each Extension Term
concerning which TCG's option was exercised. TCG shall give at least 60 days
notice of its intent to exercise any Extension Term.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
5. Payments By TCG
5.1 Basic Rate and First Payment for TCG Fibers. The TCG agrees to pay
[**] during the Initial Term, representing [**] times 66 fiber miles, for the
TCG Fibers. The first payment shall be made 30 days after the Completion Date.
The lease rate for the TCG Fibers during the Extension Term shall be [**].
5.2 Reduction. The basic rate for the TCG Fibers shall be [**] as are
set forth in the Agreement, [**]. If FiveCom [**] as set forth in this Agreement
[**]. FiveCom and TCG shall promptly thereafter execute an appropriate amendment
to this Agreement [**].
5.3 Outage Credit. TCG shall receive a credit ("Outage Credit") against
the basic fiber rate due FiveCom if the TCG Fibers do not operate within the
parameters of the Specifications. The Outage Credit shall be equal to the
proportionate amount of lease fee for the fibers out of compliance paid by TCG
for the duration of the noncompliance, measured from the time TCG notifies
FiveCom of the problem until the time FiveCom, or TCG in the event of self help,
has corrected the problem. The Outage Credit shall be [**].
5.4 Payment for TCG Built Fiber. TCG shall reimburse FiveCom for all
pole license expenses, [**] of such expenses as an administrative fee, incurred
in connection with the TCG Built Fiber. In addition, TCG shall pay FiveCom
[**]for the TCG Built Fiber in return for which FiveCom shall provide routine
surveillance of the TCG Built Fiber.
6. Maintenance and Repair of the TCG Fibers
6.1 FiveCom's Obligations. All routine maintenance and repair functions
and emergency maintenance and repair functions, including "One-Call" responses
and cable locate services for the TCG Fibers shall be performed by or under the
direction of FiveCom, at FiveCom's sole cost and expense. TCG shall have the
right to have an employee or representative available at TCG's expense to assist
FiveCom in any maintenance or repair of the TCG Fibers.
6.2 Emergency Maintenance. FiveCom shall use best efforts to respond to
any failure, interruption or impairment in the operation of the TCG Fibers
within one hour after receiving a report from TCG of any such failure,
interruption or impairment. TCG has the right to have a representative present
to assist in any maintenance or repair. FiveCom recognizes that TCG's company
objective is to have all fibers restored within four hours of any failure,
interruption or impairment and
Page 3
FiveCom will use its best efforts to accomplish this objective. When trouble is
encountered on the TCG Fibers, TCG, to assist FiveCom in its emergency
maintenance activities, will diagnose the trouble through OTDR testing, if
possible, and ascertain and notify FiveCom of the location address to the
nearest cross street. FiveCom shall use its best efforts to perform maintenance
and repair to correct any failure, interruption or impairment in the operation
of the TCG Fibers in accordance with the procedures set forth in Exhibit 6.2. In
the event FiveCom fails to perform any emergency maintenance in accordance with
FiveCom's emergency maintenance standards, after written notice from TCG, TCG
shall have the right, but not the obligation, to undertake such emergency
maintenance of the TCG Fibers, at FiveCom's expense, using contractors
pre-approved by FiveCom.
6.3 Routine Maintenance. FiveCom will schedule and perform specific
periodic maintenance and repair and services, as set forth in FiveCom's routine
maintenance Standards, attached hereto as part of Exhibit 6.3, from time to time
on the TCG Fibers, at FiveCom's reasonable discretion, upon adequate advance
notice to TCG, or at TCG's reasonable request. FiveCom shall use best efforts to
provide TCG within 48 hours advance notice for routine maintenance and routine
repair functions by notifying TCG's national transmission surveillance center at
(▇▇▇) ▇▇▇-▇▇▇▇. In the event of an emergency, similar notice shall be given to
TCG as soon as the emergency is discovered. TCG may request additional
reasonable routine maintenance by delivering to FiveCom, not more than twice per
year, for FiveCom's approval, a statement detailing the maintenance and services
TCG desires to be performed on the TCG Fibers. The cost for such additional
routine maintenance shall be negotiated by the parties. In the event FiveCom
fails to perform any routine maintenance in accordance with FiveCom's Routine
Maintenance Standards, after written notice by TCG, TCG shall have the right,
but not the obligation, to undertake such routine maintenance of the TCG Fibers,
at FiveCom's sole cost and expense, using contractors pre-approved by FiveCom.
6.4 Availability of TCG Fibers. TCG shall furnish to FiveCom six
consecutive hours each calendar year for FiveCom to perform periodic maintenance
and repair services on the TCG Fibers at an agreed time arranged at least 30
days in advance.
6.5 Discontinuance by FiveCom. In the event FiveCom, or others acting
in FiveCom's behalf after written notice to TCG, at any time during the term of
this Agreement discontinues maintenance and/or repair of the TCG Fibers, TCG, or
others acting in TCG's behalf, shall have the right, but not the obligation, to
thereafter provide for the maintenance and repair of the TCG Fibers, at
FiveCom's expense. Any such discontinuance shall be upon no less than six months
prior written notice to TCG. In the event of such discontinuance, FiveCom shall
obtain for TCG, or others acting in TCG's behalf adequate access to the
rights-of-way on or within which
Page 4
the TCG Fibers are located, for the purpose of permitting TCG, or others acting
in TCG's behalf, to undertaken such maintenance and repair of the TCG Fibers.
6.6 Replacement. In the event all or any part of the TCG Fibers shall
require replacement during the Initial Term of this Agreement, such replacement
shall be made as soon as reasonably practical, at FiveCom's expense. FiveCom
shall give TCG written notice of such replacement as soon as reasonably
practicable before the replacement optical fiber cable is ordered from the
manufacturer.
7. Representations
7.1 By FiveCom. FiveCom represents and warrants to TCG that it has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby by
FiveCom have been duly and validly authorized by all necessary corporate action
on the part of FiveCom.
7.2 By TCG. TCG represents and warrants to FiveCom that it has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby by
TCG have been duly and validly authorized by all necessary corporate action on
the part of TCG.
8. Taxes. TCG shall pay to FiveCom its pro rata portion, based on FiveCom's
actual cost without ▇▇▇▇-up, of any taxes and franchise, license or permit fees
imposed on FiveCom with respect to the TCG Fibers or the TCG Built Fibers, based
upon a calculation made by dividing the number of TCG Fibers by the number of
fibers contained in the cable sheath. If at any time during the Initial Term or
an Extension Term a federal, state or local government authority seeks to impose
any new taxes, franchise, license or permit fees on FiveCom because of FiveCom's
provision of the TCG Fibers or the TCG Built Fibers, TCG shall pay FiveCom its
pro rata share of such charges, provided TCG has been afforded a reasonable
opportunity to challenge such taxes or fees and has agreed to indemnify FiveCom
from any costs or penalties arising from such challenge.
9. Limitation on Liability; Indemnification
9.1 Consequential Damages. Neither TCG nor FiveCom shall be liable to
the other for any indirect, special, punitive or consequential damages
(including, but not limited to, any claim from any TCG for loss of services)
arising under this Agreement or from any breach or partial breach of the
provisions of this Agreement or arising out of any act or omission of either
party hereto, its employees, servants,
Page 5
contractors and/or agents. Both FiveCom and TCG shall use their best efforts to
include in any agreement with any third party relating to the use of the TCG
Fibers or the TCG Built Fibers a waiver by such third party to any claim for
indirect, special, punitive or consequential damages (including, but not limited
to, any claim from any client or TCG for loss of services) arising out of or as
a result of any act or omission by either party hereto, its employees, servants,
contractors and/or agents.
9.2 Indemnification. Each party hereto agrees to indemnify, defend,
protect and save the other harmless from and against any claim, damage, loss,
liability, cost and expense (including reasonable attorney's fees) in connection
with any personal injury, including death, loss or damage to any property, or
facilities of any party (including FiveCom, TCG or any other party operating or
using any part of the FiveCom System or the TCG Fibers) arising out of or
resulting in any way from the acts or omissions to act, negligent or otherwise,
of such party, its employees, servants, contractors and/or agents in connection
with the exercise of its rights and obligations under the terms of this
Agreement or any breach by such party of any obligation contained herein.
9.3 Third Parties. Nothing contained herein shall operate as a
limitation on the right of either party hereto to bring an action for damage,
including consequential damages, against any third party based on any acts or
omissions of such third party as such acts or omissions may affect the
construction, operation or use of the TCG System or the TCG Fibers, provided,
however, that each party hereto shall assign such rights or claims, execute such
documents and do whatever else may be reasonably necessary to enable the injured
party to pursue any such action against such third party.
10. Force Majeure. The obligations of the parties hereto are subject to force
majeure and neither party shall be in default under this Agreement if any
failure or delay in performance is caused by strike or other labor problems;
accidents; acts of God; fire; flood; adverse weather conditions; material or
facility shortages or unavailability not resulting from such party's failure to
timely place orders therefore; lack of transportation; the imposition of any
governmental codes, ordinances, laws, rules, regulations or restrictions;
condemnation or the exercise of rights of eminent domain; war or civil disorder;
or any other cause beyond the reasonable control of either party hereto;
provided, however, that the incidence of strikes or other labor unrest shall not
delay commencement of the running of time periods which must expire before TCG
shall be entitled to itself take corrective action under the terms of this
Agreement.
11. Permits and Required Rights-of-way. TCG recognizes that all or a portion of
the TCG Fibers and the TCG Built Fibers are located on rights of way made
available to FiveCom by one or more public utilities. FiveCom has informed TCG
that the agreements under which these rights of way have been made available
contain
Page 6
provisions allowing the utility to withdraw or limit that availability under
certain circumstances. TCG shall not assert any claim against FiveCom because of
or based upon such withdrawal or limitation if unless such withdrawal or
limitation occurred because of a wrongful or alleged wrongful action or omission
to act by FiveCom.
12. Relocation of TCG Fibers. If FiveCom is required by any third party to
relocate any of the facilities used or required in providing the TCG Fibers,
FiveCom shall give TCG at least 60 days (or such lesser period of notice that
FiveCom may have received) prior written notice of any such relocation and TCG
shall be entitled to terminate this Agreement by giving at least 30 days prior
written notice to FiveCom. In the event this Agreement is not terminated,
FiveCom shall relocate the TCG Fibers and, to the extent FiveCom is not
reimbursed for the cost of such relocation by a third party, governmental entity
or otherwise, FiveCom shall be responsible for all the costs associated with the
relocation of the TCG Fibers. If FiveCom desires, for any other reason, to
relocate any of the facilities used or required in providing the TCG Fibers,
such relocation shall be undertaken at FiveCom's sole cost and expense.
13. Use of the TCG Fibers. TCG shall not use the TCG Fibers in any way which
fails to comply with any applicable federal, state or local code, ordinance,
law, rule, regulation or restriction or any policy of insurance. TCG shall use
the TCG Fibers for TCG's network services and not for resale or transfer.
14. Confidentiality. If Parties have previously executed a Confidentiality
Agreement dated May 12, 1997 and the terms of that Confidentiality Agreement
shall continue in full force and shall not be superseded by this Agreement.
15. Default and Termination
15.1 By TCG. TCG shall not be in default under this Agreement, or in
breach of any provision hereof unless and until FiveCom shall have given TCG
written notice of such breach and TCG shall have failed to cure the same within
30 days after receipt of such notice; provided, however, that where such breach
cannot reasonably be cured within such 30 day period, if TCG shall proceed
promptly to cure the same and prosecute such curing with due diligence, the time
for curing such breach shall be extended for such period of time as may be
necessary to complete such curing. Upon the failure by TCG to timely cure any
such breach after notice thereof from FiveCom, FiveCom shall have the right, in
its sole discretion, to take such action as it may determine, to be necessary to
cure the breach or to terminate this Agreement upon written notice to TCG.
15.2 By FiveCom. FiveCom shall not be in default under this Agreement
or in breach of any provision hereof unless and until TCG shall have given
FiveCom written notice of such breach and FiveCom shall have failed to cure the
same within
Page 7
30 days after receipt of such notice; provided, however, that where such breach
cannot reasonably be cured within such 30 day period, if FiveCom shall proceed
promptly to cure the same and prosecute such curing with due diligence, the time
for curing such breach shall be extended for such period of time as may be
necessary to complete such curing. Upon the failure by FiveCom to timely cure
any such breach after notice thereof from TCG, TCG shall have the right in its
sole discretion to take such action as it may determine, to be necessary to cure
the breach or to terminate this Agreement.
15.3 Remedies Cumulative. No remedy provided for herein is intended to
be exclusive but each remedy shall be cumulative and in addition to and may be
exercised concurrently with any other remedy available to FiveCom or TCG at law
or in equity.
15.4 Optional Termination by TCG. TCG shall have the option, at its
sole discretion and for any reason, to terminate this Agreement upon 180 days
prior written notice to FiveCom and upon payment to FiveCom of all amounts due
to the end of the Initial Term or, if in effect, any Extension Term with respect
to the TCG Fibers and any sums that may be due with respect to the TCG Built
Fibers or otherwise under this Agreement.
16. Notices. Unless otherwise provided herein, all notices and communications
concerning this Agreement shall be in writing and addressed as follows:
If to FiveCom:
FiveCom LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to TCG:
Teleport Communications Boston
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director of Operation
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Page 8
With a copy to its General Counsel at:
TCG
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as may be designated in writing to the other party.
Unless otherwise provided herein, notices shall be sent by certified U.S. Mail,
return receipt requested, or by commercial overnight delivery service, or by
facsimile, and shall be deemed delivered: if sent by U.S. Mail, five days after
deposit; if sent by facsimile, upon verification of receipt; or, if sent by
commercial overnight delivery service, one business day after deposit.
17. Assignment; Succession
17.1 By TCG. Except as provided in this Section 18.1, TCG shall not
assign or otherwise transfer this Agreement, in whole or in part, to any other
party without the prior written consent of FiveCom, which consent shall not be
unreasonably withheld or delayed; provided, however, that without such consent,
TCG shall have the right to assign, sublet or otherwise transfer this Agreement,
in whole or in part, to any parent, subsidiary or affiliate of TCG which shall
control, be under the control of or be under common control with TCG, or any
corporation which purchases all or substantially all of the assets of TCG. Any
assignee or transferee shall continue to perform the TCG obligations to FiveCom
under this Agreement. It will be reasonable for FiveCom to take into
consideration the financial stability and ability to pay of any assignee.
17.2 By FiveCom. Except as provided in this Section 20.2, FiveCom shall
not assign or otherwise transfer this Agreement, in whole or in part, to any
other party without the prior written consent of TCG, which consent shall not be
unreasonably withheld or delayed. It is expressly understood that TCG shall not
consent to any such assignment if TCG has reasonably determined that the
proposed assignee lacks appropriate financial viability and technical
capabilities suitable for providing maintenance and repair of the TCG Fibers and
is incapable of performing FiveCom's obligations under this Agreement to TCG's
satisfaction. Notwithstanding the foregoing provisions of this Section 20.2,
FiveCom shall have the right without TCG 's consent, to assign or otherwise
transfer this Agreement to any parent, subsidiary or affiliate of FiveCom which
shall control, be under the control of or be under common control with FiveCom,
or any corporation which purchases all or substantially all of the assets of
FiveCom. Any assignee or transferee shall continue to perform the FiveCom
obligations to TCG under the terms of this Agreement.
Page 9
17.3 Succession. Subject to the provisions of this Section 18, this
Agreement, and each parties' respective rights and obligations hereunder, shall
be binding upon and shall inure to the benefit of the parties hereto and each of
their respective permitted successors and assigns.
18. Vendors. TCG shall have the right to review FiveCom's list of proposed
vendors, suppliers and manufacturers of materials to be used in the installation
and construction of the TCG Fibers.
19. Governing Law. This Agreement shall be interpreted and construed in
accordance with the internal laws of the Commonwealth of Massachusetts without
giving effect to its principles of conflicts of laws.
20. Dispute Resolution.
20.1 Arbitration. Any dispute arising out of or related to this
Agreement shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in Boston,
Massachusetts. The costs of arbitration, including the fees and expenses of the
arbitrator, shall be shared equally by the parties unless the arbitration award
provides otherwise. Each party shall bear the cost of preparing and presenting
its case. The parties agree that this provision and the arbitrator's authority
to grant relief shall be subject to the United States Arbitration Act, 9 U.S.C.
1-16 et seq. ("USAA"), the provisions of this Agreement, and the ABA-AAA Code of
Ethics for Arbitrators in Commercial Disputes. The parties agree that the
arbitrator shall have no power or authority to make awards or issue orders of
any kind except as expressly permitted by this Section 21.1, and in no event
shall the arbitrator have the authority to make any award that provides for
punitive or exemplary damages. The arbitrator's decision shall follow the plain
meaning of the relevant documents, and shall be final and binding. The award may
be confirmed and enforced in any court of competent jurisdiction. All post-award
proceedings shall be governed by the USAA.
20.2 Continuation of Service. FiveCom shall continue to provide the TCG
Fibers pursuant to this Agreement during the proceedings and litigation
described in Section 21.1 and TCG shall continue to make payments in accordance
with this Agreement.
21. Miscellaneous
21.1 Headings. The headings of the Sections in this Agreements are
strictly for convenience and shall not in any way be construed as amplifying or
limiting any of the terms, provisions or conditions of this Agreement.
Page 10
21.2 Amendments. This Agreement may be amended only by a written
instrument executed by the party against whom enforcement of the modification is
sought.
21.3 No Waiver. No failure to exercise and no delay in exercising, on
the part of either party hereto, any right, power or privilege hereunder shall
operate as a waiver hereof, except as expressly provided herein.
22. Defined Terms. The following terms are defined in the following locations in
this Agreement:
Agreement Paragraph 1
ATP Section 2.1
Completion Date Section 2.1
Extension Term Section 4.2
FiveCom Paragraph 1
Initial Term Section 4.1
Outage Credit Section 5.3
Specifications Section 1.2
TCG Paragraph 1
TCG Built Fibers Section 1.1
TCG Fibers Section 1.1
USAA Section 20.1
23. Entire Agreement. This Agreement and the Exhibits constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersede any and all prior negotiations, understandings and
agreements with respect hereto, whether oral or written other than the
Confidentiality Agreement referred to in Section 14.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and an
agreement under seal as of the day and year first above written.
Page 11
FiveCom LLC Teleport Communications Boston
By: FiveCom, Inc., Its Manager By: TC Boston Holdings, Inc.
a general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By:
------------------------------- ------------------------------
Name: Name:
------------------------------- ------------------------------
Title: Title:
------------------------------- ------------------------------
Page 12
EXHIBIT 1.1(a)
Route and Demarcation Points
for
TCG Fibers
[Graph]
Page 13
EXHIBIT 1.1(b)
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
TCG Built Fibers
1. FiveCom will build from the [**] shown on Exhibit 1.1, or acceptable
alternative splice point, to the TCG node located in [**]. FiveCom will work
closely with TCG during the design phase to ensure that all design requirements
are met for this short route. The mileage has been estimated at less than seven
miles.
2. This construction will be done on a cost plus [**] if the work is
completed before December 15, 1997. Every effort is being made to achieve a
December 1 completion. Any work completing after December 15, 1997 as a result
of FiveCom's performance, will result in FiveCom's profit markup being applied
to expediting construction completion. Costs shall include a [**] of direct
labor and material cost factor for overhead, G&A and supervision.
3. Prior to commencing the work, TCG shall review and approve the
design and cost estimate. TCG shall pay [**] the construction costs up front
followed by a final payment at the Completion Date. TCG shall have access to the
system fibers along this segment to accommodate any future routes that might be
spliced into this segment. FiveCom shall have the right to, at its expense, to
add additional fibers on the route described in this Exhibit 1.2(a).
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EXHIBIT 1.2
Technical Specifications
1. The maximum bi-directional average splice loss shall not exceed .08 dB.
2. All splices shall be sealed in waterproof splice enclosures.
3. Between the wavelengths of 1300nm and 1320nm, fiber attenuation shall
not exceed 0.4 dB/km for standard single-mode fiber and shall not
exceed 0.5 dB/km for TrueWave, from temperatures between -40 and +65 C.
4. Between the wavelengths of 1540nm and 1560nm, fiber attenuation shall
not exceed 0.3 dB/km for temperatures between -40 and +65 and shall not
exceed 0.25 dB/nm for TrueWave.
5. The wavelength of zero fiber dispersion shall be between 1300nm and
1320nm for unshifted single-mode fiber. The wavelength of zero fiber
dispersion shall be between 1535nm and 1565nm for TrueWave. The slope
of the dispersion curve at the wavelength of zero dispersion shall not
exceed .10ps/nm/km.
6. The fiber dispersion at a wavelength of 1500nm shall not exceed 5ps/(nm
(bullet) km).
7. The fiber cut-off wavelength shall be less than 1330nm and greater than
1130nm.
8. Fiber attenuation shall be uniform along its entire cable length.
Attenuation discontinuities shall not exceed .1 dB at either 1300nm or
1550nm as measured at any point along the fiber.
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EXHIBIT 3
As-Built Drawing Specifications
FiveCom shall deliver as-built drawings in either Autocad or DXF format in
addition to five 11" by 17" hard copies.
At a minimum, FiveCom's As-built drawings will include:
1. A route diagram that illustrates the location of the:
End Locations
Splice Locations
Repeater Locations
2. Manufacturer, type of cable, fiber count, and reel numbers.
3. A summary of distances between the locations listed above and offset of
cable in relation to fixed objects.
4. The type of cable construction between locations, buried, aerial,
conduit and any typicals or details needed for the specified type of
construction.
5. Any geographic information deemed necessary to further clarify the route.
6. Detailed route information that includes:
Street, road and highway names Railroad and/or highway
crossings Bridge Crossings Manhole and pole identification
Pole-to-pole distances in feet Manhole-to-manhole distances in
feet
Distances along or between any other attachment points on the
route New conduit, manhole, and pole installations Building
riser and lateral conduit locations, if any
7. Names of all manufacturers whose optical fiber cable, associated
splices and other equipment are used in installing and providing the
TCG Fibers.
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Dispatch:
FiveCom shall respond to the notification immediately upon taking the call. For
required emergency restoration. Technicians and appropriate equipment will
report to the location controlling signals designated by TCG. FiveCom will log
in at the location and pick up needed restoration materials.
Restoration Activities: Troubleshooting will continue until the problem is
found.
The restoration sequence will be:
[bullet] Report of Damage
[bullet] Estimate time to repair
[bullet] Notification of Utilities if needed (i.e., downed pole)
[bullet] Verbal report of tasks to repair given to the representative
of TCG and to TCG.
4. Repair:
a. Channel or End Equipment Problems:
FiveCom technicians will isolate the signal problem by reviewing the
following:
1. visible alarms on bay or terminal equipment.
2. computer generated equipment logs.
3. review of performance statistics for common and TCG
equipment.
4. application of DS1 & DS3 test equipment, fiber optic
signal level meter and ADDER as required.
Testing and diagnostics will be coordinated with TCG technicians. FiveCom
technicians will remain on the call until all alarm or signal problems have been
corrected.
b. Outside Plant Repairs
Commencing immediately FiveCom will restore service to the link by
fusion splice methods, as a first priority, or with mechanical connectors as a
second choice. FiveCom will use its fusion splicer and ADDER power meter and all
other equipment required, excluding only the parts in the restoration kit.
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