Exhibit 10.12
CONFIDENTIAL TREATMENT (1)
Fiber Optic Use Agreement
by and between
National Fiber Network, Inc.
and
*
June 3, 1997
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(1)Redacted portions have been marked with an asterisk (*).
FIBER OPTIC USE AGREEMENT
This AGREEMENT ("Agreement") made and entered into as of the
day of June, 1997, by and between National Fiber Network, Inc., a Delaware
corporation ("NFN") and * ("*"), a * limited liability company (either NFN or
* a "Party," and collectively the "Parties").
WHEREAS NFN constructs and maintains a fiber optic cable network (the
"NFN System") and desires to provide * with long term exclusive use of a
portion of this network subject to the terms and conditions of this
Agreement;
WHEREAS * desires to acquire certain long term rights to use portions
of the NFN System as described herein, subject to the terms and conditions of
this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained, the Parties and the Guarantor hereby
expressly agree as follows.
ARTICLE I
DEFINITIONS
For purposes of this Agreement words and phrases spelled with
initial capital letters (other than proper names, section headings, and
the beginnings of sentences) shall have the defined meanings set forth in
the applicable provisions of this Agreement or in this Article I.
"Central Office" shall mean a NYNEX end office or tandem office
facility where traffic may, through the related entrance facility, be
connected to the NYNEX network.
"Leased Fibers" shall mean the * Fibers together with any additional
fibers that * may lease from NFN pursuant to this Agreement. With regard
to any * Extension, Leased Fibers shall terminate at the point along such
Extension at which * connects fibers or other facilities of its own.
"* Extension" shall mean a fiber optic cable leased from NFN
connecting the * Fibers and a * Location.
"* Fibers" shall mean the fibers leased by * from NFN pursuant to this
Agreement, as described in Exhibit A hereto and more fully defined in
Subarticle 2.1 herein.
"* Locations" shall mean a building or buildings specified by * and
set forth in the initial Exhibit F hereto, which premises shall begin at the
exterior demising walls of such buildings, or specific "splice points" as
mutually agreed upon by the Parties on or before the second anniversary of
this Agreement. A * Location may be a Central Office or other commercial
or residential building or a splice point not thin a building.
"NFN System" shall mean the fiber optic network controlled and
operated by NFN in New York City with a connection to Jersey City, New
Jersey, on the date of this Agreement.
"Pro Rata" shall mean the percentage of the total count of optical
fiber strands and other cables within relocated conduit under the control of
NFN that is represented by the Leased Fibers.
ARTICLE II
TERM AND LEASE
2.1 Unless sooner terminated in accordance with the terms of this
Agreement, NFN hereby grants to * a lease of the exclusive use of *
fiber-miles of optical fiber, provided as those contiguous strands of fiber
within the NFN System as described in Exhibit A to this Agreement and as
other fibers (the "Banked Fiber") at locations within the NFN System in
Manhattan as * may choose to utilize up to the total of * fiber-miles of
optical fiber (such fiber together with * Extensions to those * Locations
listed in the initial Exhibit F hereto, hereinafter, "* Fibers"), for an
initial term commencing on the date of this Agreement and terminating on
December 19, 2008 (the "Initial Term"), and a first additional term of one
hundred and two (102) months, commencing immediately upon the expiration of
the Initial Term.
2.2 Banked Fiber may be used from time to time during the term of
this Agreement pursuant to the provisions of this Subarticle. * shall
proposed the utilization of Banked Fiber by completing a Banked Fiber Request
Form as provided by NFN. Upon receipt of a completed Request Form, NFN shall
evaluate *'s request and either (i) make such Banked Fiber available for use
by * within thirty (30) days or (ii) notify * within five (5) days that
Banked Fiber is not available at the location requested. Banked Fiber may
also be used for new * Extensions pursuant to Subarticle 2.5(b), in which
case Additional Fiber Charges shall not be assessed to the extent that
fiber-miles of Banked Fiber are available; Monthly Recurring Charges pursuant
to Subarticle 3.2, however, shall be required for * Extensions employing
Banked Fiber.
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2.3 * may, at its sole discretion, elect a second additional term
of ten (10) years, commencing immediately upon the expiration of the first
additional term (either the first or the second additional terms hereinafter
an "Additional Term"). Any Additional Term shall be subject to such terms
and conditions that may be imposed by the franchise granted to NFN by the
City of New York for the period of such Additional Term. * shall provide
written notice to NFN of its intention to exercise the option to make use of
such second Additional Term no later than six (6) months but no more than
twelve (12) months prior to the expiration of the first Additional Term.
2.4 NFN shall, as soon as practicable, but no later than nine (9)
months after the date of this Agreement, provide access to * for the
installation of its originating and terminating equipment on the * Extensions
at the points listed in Exhibit F hereto.
(a) NFN shall test all Leased Fibers in accordance with the
procedures specified in Exhibit D ("Fiber Acceptance Testing") to verify that
the Leased Fibers are installed and operating in accordance with the
specifications described in Exhibit D. Fiber Acceptance Testing shall
progress span by span along each segment as cable splicing progresses, so
that test results may be reviewed in a timely manner. NFN shall provide *
at least five (5) days advance notice of the date and time of each Fiber
Acceptance Testing (each of which shall take place during normal business
hours) such that * shall have the right, but not the obligation, to have a
person or persons present to observe NFN Fiber Acceptance Testing. When
NFN has determined that the results of the Fiber Acceptance Testing with
respect to a particular span show that the Leased Fibers so tested are
installed and operating substantially in conformity with the applicable
specifications set forth in Exhibit D, NFN shall promptly provide * with a
copy of such test results.
(b) When NFN reasonably determines the Leased Fibers with
respect to an entire segment are installed and operating substantially in
conformity with the applicable specifications set forth in Exhibit D, NFN
shall promptly provide written notice of completion to * (a "Completion
Notice"). * shall, within seven (7) days of receipt of the Completion
Notice, either reject the Completion Notice specifying the defect or
failure in such Fiber Acceptance Testing or give NFN written notice of
acceptance of such Fiber Acceptance Testing (the period from the date of
*'s receipt of the Completion Notice to the date of NFN's receipt of *'s
notice of rejection or acceptance being referred to herein as the "Review
Period". In the event * rejects the Completion Notice, NFN shall
promptly, and not later than seven (7) days after receipt of *'s notice of
rejection, and at no cost to *, commence to remedy the defect or failure.
Thereafter, NFN shall again give * a Completion Notice with respect to
such * Fibers. The foregoing procedure shall apply again and successively
thereafter for a total of two attempts to remedy the defect or failure. If
NFN fails to adequately remedy or complete the defect or failure after two
attempts, * shall have the right to proceed promptly and in an
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economically efficient manner to cure such defects or failures at NFN's
cost and expense, which shall be paid by NFN to * upon demand, or at the
election of * offset from any payment by * to NFN under this Agreement.
No acceptance of, or failure by * to reject, the Completion Notice shall
be deemed to be a waiver of any rights or remedies of * under this
Agreement; provided that, any failure by * to timely reject as set forth
above shall operate as a constructive acceptance for purposes of this
Agreement. The date when * accepts or is deemed to have accepted a
Completion Notice or cures such defects at NFN'S cost and expense as
provided above with respect to any portion of the Leased Fibers is herein
defined as the "Acceptance Date".
2.5 (a) During the first five (5) years of the Initial Term, at *'s
request and to the extent available, NFN shall make available to *
additional fibers on the NFN System ("Additional Fiber") not including the
Banked Fiber, up to a maximum of * additional fiber miles, for *'s use
during the time remaining in such Initial Term and any first Additional
Term subject to the payment of Additional Fiber Charges as set forth
herein. The maximum of * additional fiber miles shall apply to the total
of fiber provided under this Subarticle and Subarticle 2.5(c).
(b) During the first five (5) years of the Initial Term, at
*'s request and where technically and logistically feasible, NFN shall
construct and maintain * Extensions limited to a length of * or less from
the NFN fiber network as it exists at the time such * Extension is
requested, subject to Additional Fiber Charges and charges for
construction and installation as set forth herein. Upon completion of the
construction of a * Extension to a * Location and subject to approval by
the owners of underlying property and rights-of-way and advance notice to
NFN, * may have access to that portion of such * Extension as shall begin
with the "negative-one manhole," with respect to a Central Office, and the
"point of entry" manhole, with respect to other * Locations, (as such
terms are commonly defined in the industry) to connect its equipment and
fiber to such * Extensions. Beginning with the point on the fiber optic
cable at which * connects such equipment and fiber, NFN shall have no
further obligation to monitor or maintain such * Extension.
(c) During the first five (5) years of the Initial Term, *,
shall have the option to lease fiber on major expansions (greater than two
route miles) to NFN's fiber network in New York, at the then current
Additional Fiber Rate, as set forth in Exhibit B hereto, subject to
adjustments for expansion zones that will be disclosed at the time such
major expansions are undertaken, up to the maximum of * additional fiber
miles.
(d) No other leases of fiber are covered under this Agreement.
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(e) All commitments by NFN to provide fiber or services
pursuant to this Subarticle 2.4 shall expire on the earlier of (i) the
expiration of the period during which NFN has agreed to provide such fiber
or services in this Subarticle, (ii) the date on which * receives a
franchise to provide high capacity telecommunications services in the City
of New York, or (iii) the date on which * first begins construction
(directly or through contractors or agents) of fiber optic cables of its
own other than construction of not more than an aggregate of five (5)
miles on private rights of way.
2.6 NFN shall, at the request of * and to the extent available,
provide such construction and installation services as are necessary or
useful to the construction of * Extensions and the connection of *'s
origination and termination equipment to the * Fibers or * Extensions.
Such services shall be provided at rates set forth in Exhibit B hereto,
or, if no applicable rate is included in Exhibit B, at such rates as the
Parties may subsequently agree upon. If the Parties fail to agree upon
rates for such services within six (6) months of the receipt by NFN of a
request for such services by *, the issue of such rates shall be submitted
for arbitration in accordance with Article XX herein. Charges for
construction and installation services initiated by NFN contractors and
suppliers shall be due and payable thirty (30) days from the receipt by * of
invoices for such charges. Charges for associated NFN management and
administration fees shall be due and payable ten (10) days from the
Acceptance Date for the * Location associated with such services. NFN
shall not be obligated to furnish construction and installation services
under this Agreement at any time following the date that is the earlier
of: (i) the fifth anniversary of this Agreement, (ii) the date on which *
receives a franchise to provide high capacity telecommunications services
in the City of New York, or (iii) the date on which * first begins
construction (directly or through contractors or agents) of fiber optic
cables of its own other than construction of not more than an aggregate of
five (5) miles on private rights of way.
2.7 Exhibit F may be amended from time to time by agreement of the
Parties to add or remove * Locations. Any such amended Exhibit F shall be
incorporated into this Agreement only when signed by the Parties. NFN
agrees to consider in good faith amendments to Exhibit F proposed by *
from time to time after the date of this Agreement and to assent to such
amendments unless (i) it is prohibited from doing so by applicable law or
binding agreement or (ii) the proposed amendment would require the
construction of an extension in a manner that is not technically feasible.
The rates and charges for construction and use of fiber associated with
such amendments to Exhibit F shall be the same as those set forth in
Subarticles 2.6, 3.2, and 3.3 herein for such * Locations. No further
amendments to Exhibit F shall be made following the date that is the
earlier of: (i) the fifth anniversary of this Agreement, (ii) the date on
which * receives a franchise to provide high capacity telecommunications
services in the City of New York, or (iii) the date on which * first
begins construction (directly or through contractors or agents) of fiber
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optic cables of its own other construction of not more than an aggregate
of * miles on private rights of way
2.8 If, at the request of * NFN provides available space in such
cages, conduits, or buildings as may be necessary or useful to the
installation and operation of * equipment, * shall pay NFN an annual rent
for such space as set forth in Exhibit B hereto. or, if no applicable rent
is included in Exhibit B, at such rental rates as the Parties may
subsequently agree upon. The payment of rent shall be subject to the
terms and conditions for such payments under this Agreement and the lease
of spare under this Subarticle shall be subject to all relevant terms and
conditions of this Agreement.
2.9 Upon the expiration of the lease provided for in this
Agreement, or any earlier termination of this Agreement, * shall exercise
commercially reasonable efforts to remove all * property from the NFN
System and reroute *'s traffic within (60) days from such expiration or
termination and shall complete such removal in a manner that does not
interfere with or damage the NFN System. In the event that * fails to
remove its property within such period, NFN may remove and store the *
property at *'s expense.
ARTICLE III
TERMS OF PAYMENT
3.1 * shall pay NFN upfront payments as set forth in Exhibit B
hereto, as consideration for the Initial Term and the first Additional Term
of the lease of the * Fibers described in Exhibit A hereto (the "Upfront
Payments"). These Upfront Payments shall be due according to the payment
schedule set forth in Exhibit B. Charges for a second Additional Term shall
be at market rates at the time * elects to secure such second Additional
Term pursuant to Subarticle 2.3 above. If the Parties fail to reach an
agreement with regard to market rates for such second Additional Term, the
issues remaining open shall be submitted to arbitration pursuant to
Article XX of this Agreement.
3.2 * shall Pay NFN a Monthly Recurring Charge per terminated fiber
and, as set forth in Exhibit B, for each * Extension other than those
extensions to the * Locations set forth in Exhibit F hereto. The Monthly
Recurring Charge shall be adjusted for inflation annually as set forth in
Exhibit B hereto and shall be adjusted to accommodate new Taxes pursuant
to Subarticle 11.2 herein. The first Monthly Recurring Charge, along with
any rent pursuant to Subarticle 2.8, shall be payable on the Acceptance
Date for the * Location associated with such Monthly Recurring Charge and
rent. Subsequent Monthly Recurring Charges and rent shall be due on the
first day of each month during the Initial Term and any Additional Term.
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3.3 Within five (5) days of the Acceptance Date for any Additional
Fiber, * shall pay a one-time Additional Fiber Charge as set forth in
Exhibit B hereto, which charge shall be based on the length and number of
strands that comprise the Additional Fiber and the number of months
remaining in the Initial Term and any first Additional Term.
3.4 If a first Additional Term is unavailable because NFN's
franchise is not renewed, NFN shall refund the upfront payment for such
first Additional Term within thirty (30) days of the expiration of the
Initial Term.
3.5 In any circumstances under this Agreement in which NFN
contracts with third parties for maintenance or construction services the
charges for which are to be passed through to *, with or without the
addition of any management, administration, or other fees as set forth
herein, NFN shall secure bids for such maintenance or construction
services from not fewer than two and not more than three independent
contractors chosen by NFN and the amount billable to * shall be the lowest
of the bids submitted (plus any costs necessary to the project that are
not included in the bid and a * Management and Administration fee),
regardless of whether NFN actually selects the lowest bidding contractor
to perform the service.
3.6 Escrow. On the date of the execution of this Agreement the
Parties shall enter an Escrow Agreement substantially in conformance with the
form of agreement attached as Exhibit G hereto pursuant to which agreement
* shall deposit * in an escrow account with First National Association
(the "Escrow Agent"). The escrow agreement shall authorize the Escrow
Agent to remit the Upfront Payments to NFN pursuant to the Schedule of
Rates and Charges in Exhibit B hereto, when the conditions precedent to
such payments, as provided herein, are satisfied.
ARTICLE IV
MAINTENANCE AND REPAIR OF THE LEASED FIBERS
4.1 Routine Maintenance. Routine maintenance and repair of the
Leased Fibers described in this section ("Scheduled Maintenance") shall be
performed at NFN's expense by or under the direction of NFN, at NFN's
reasonable discretion or at *'s request. Scheduled Maintenance shall
commence with respect to each segment upon the Acceptance Date for such
segment.
4.2 Unscheduled Maintenance. Non-routine maintenance and repair of
the Leased Fibers which is not included as Scheduled Maintenance
("Unscheduled Maintenance"), shall be performed at NFN's expense (except
To the extent caused by the acts or omissions of *) by or under the
direction of NFN. Unscheduled Maintenance shall commence with respect to
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each segment upon the Acceptance Date for such segment. Unscheduled
Maintenance shall consist of:
(a) "Emergency Unscheduled Maintenance" in response to an
alarm identification by NFN's Operations Center, notification by * or
notification by any third party of any failure, interruption or impairment
in the operation of the Leased Fibers, or any event imminently likely to
cause the failure, interruption or impairment in the operation of the
Leased Fibers.
(b) "Non-Emergency Unscheduled Maintenance" in response to any
potential service-affecting situation to prevent any failure, interruption
or impairment in the operation of the Leased Fibers.
* shall immediately report the need for Unscheduled Maintenance to
NFN in accordance with procedures promulgated by NFN from time to time.
NFN will log the time of *'s report, verify the problem and will dispatch
personnel immediately to take corrective action.
4.3 Operations Centers. NFN shall operate and maintain one or
more Operations Centers ("OCs") staffed twenty-four hours a day, seven (7)
days a week by trained and qualified personnel beginning with the earliest
Acceptance Date under this Agreement. Qualified maintenance personnel
shall be available for dispatch twenty-four (24) hours a day, seven (7)
days week. NFN shall use its best efforts to have its first maintenance
representative at the site requiring Emergency Unscheduled Maintenance
activity within two (2) hours after the time NFN becomes aware of an event
requiring Emergency Unscheduled Maintenance. NFN shall maintain a
telephone number through which * may contact personnel at an OC without
toll from the New York metropolitan area. NFN's OC personnel shall
dispatch maintenance and repair personnel along the system to handle and
repair problems detected in the Leased Fibers, (i) through *'s remote
surveillance equipment and upon notification by * to NFN, or (ii) upon
notification by a third party.
4.4 Cooperation and Coordination. * shall utilize an Operations
Escalation List, as updated from time to time, to report and seek immediate
initial redress of exceptions noted in the performance of NFN in meeting
maintenance service objectives. * will, as necessary, arrange for escorted
access for NFN to all sites of the Leased Fibers, subject to applicable
contractual underlying real property and other third-party limitations and
restrictions. In performing its services hereunder, NFN shall take
workmanlike care to prevent impairment to the signal continuity and
performance of the Leased Fibers. The precautions to be taken by NFN
shall include notification to *. In addition, NFN shall reasonably
cooperate with * in sharing information and analyzing the disturbances
regarding the cable and/or fibers. In the event that any Scheduled or
Unscheduled Maintenance hereunder requires a traffic roll or
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reconfiguration involving cable, fiber, electronic equipment or regeneration
or other facilities of *, then * shall, at NFN's reasonable request, make
such personnel of * available as may be necessary in order to accomplish
such maintenance, which personnel shall coordinate and cooperate with NFN
in performing such maintenance as required of NFN hereunder. NFN shall
use its best efforts to notify * at least [five] business days prior to
the date of any Scheduled Maintenance on any * Extensions and as soon as
possible after becoming aware of the need for Unscheduled Maintenance. *
shall have the right to be present during the performance of any Scheduled
Maintenance on any * Extensions or Unscheduled Maintenance so long as this
requirement does not interfere with NFN's ability to perform its
obligations under this Agreement. In the even that Scheduled Maintenance
is canceled or delayed for whatever reason as previously notified, NFN
shall notify * at NFN's earliest opportunity, and will comply with the
provisions of the previous sentence to reschedule any delayed activity.
4.5 Facilities. NFN shall maintain the Leased Fibers in a manner
which will permit *'s use, in accordance with the terms and conditions of
this Agreement, of the Leased Fibers and associated facilities required to be
provided under the terms of this Agreement. Except to the extent otherwise
expressly provided in this Agreement, * will be solely responsible for
providing and paying for any and all maintenance of all electronic, optronic
and other equipment, materials and facilities used by * in connection with
the operation of the Leased Fibers, none of which is included in the
maintenance services to be provided hereunder.
4.6 Cable/Fibers. NFN shall perform appropriate Scheduled
Maintenance on the cable contained in the Leased Fibers in accordance with
NFN's then current preventative maintenance procedures as agreed to by *
which shall not substantially deviate from standard industry practice. NFN
shall maintain sufficient capability to teleconference with * during an
Emergency Unscheduled Maintenance in order to provide regular communication
during the repair process. When correcting or repairing cable discontinuity
or damage, including but not limited to in the event of Emergency Unscheduled
Maintenance, NFN shall use reasonable efforts to repair traffic affecting
discontinuity within four (4) hours after the NFN maintenance employee's
arrival at the problem site. In order to accomplish such objective, it is
acknowledged that the repairs so effected may be temporary in nature. In
such event, within twenty-four (24) hours after completion of any such
Emergency Unscheduled Maintenance, NFN shall commence its planning for
permanent repair, and thereafter promptly shall notify * of such plans, and
shall implement such permanent repair within an appropriate time thereafter.
Restoration of open fibers on fiber strands not immediately required for
service shall be completed on a mutually agreed-upon schedule. If the fiber
is required for immediate service, the repair shall be scheduled for the next
available Planned Service Work Period ("PSWP"). In performing repairs, NFN
shall comply with the splicing specifications as set forth in Exhibit D. NFN
shall provide to * any modifications to these specifications as may be
necessary or
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appropriate in any particular instance for *'s approval, which approval shall
not be unreasonably withheld. NFN's representatives that are responsible for
initial restoration of a cut cable shall carry on their vehicles the
typically appropriate equipment that would enable a temporary splice, with
the objective of restoring operating capability in as little time as
possible. NFN shall maintain and supply an inventory of spare cable in
storage facilities supplied and maintained by NFN at strategic locations to
facilitate timely restoration.
4.7 Planned Service Work Period ("PSWP"). Scheduled Maintenance
which is reasonably expected to produce any signal discontinuity must be
coordinated between the parties. Generally, this work should be scheduled
after midnight and before 6:00 a.m. local time. Major system work such as
fiber rolls and hot cuts will be scheduled for PSWP weekends. A calendar
showing approved PSWP will be agreed upon in the last quarter of every year
for the year to come. The intent is to avoid jeopardy work on the first and
last weekends of the month and high-traffic holidays.
4.8 Restoration. NFN shall use its best efforts to respond to any
interruption of service or a failure of the Leased Fibers to operate in
accordance with the specifications set forth in Exhibit D (in any event, an
"Outage") as quickly as possible in accordance with the procedures set forth
herein. When restoring a cut cable in the Leased Fibers, the parties agree
to work together to restore all traffic as quickly as possible. NFN,
promptly upon arriving on the site of the cut, shall determine the course of
action to be taken to restore the cable and shall begin restoration efforts.
NFN shall splice fibers tube by tube or ribbon by ribbon, rotating between
tubes or ribbons operated by any fiber lessees or holders of IRUs
(collectively, "Interest Holders"), including *, in accordance with the
following described priority and rotation mechanics; provided that, lit
fibers in all buffer tubes or ribbons shall have priority over any dark
fibers in order to allow transmission systems to come back on line; and
provided further that NFN will continue such restoration efforts until all
lit fibers in all buffer tubes or ribbons are spliced and all traffic
restored. In general, priority among Interest Holders affected by a cut
shall be determined on a rotating restoration-by-restoration and
segment-by-segment basis, to provide fair restoration to all Interest
Holders. However, NFN shall establish a Priority Customer Grouping ("PCG")
which will receive, whenever possible, priority in the restoration of tubes
or ribbons that affect their use of NFN facilities. All members of the PCG
shall receive equal treatment. NFN shall include * in its PCG. The goal of
emergency restoration splicing shall be to restore service as quickly as
possible. This requires the use of some of mechanical splice, such as the
"3M Fiber Lock" to complete the temporary restoration. Permanent
restorations will take place as soon as possible after the temporary splice
is complete.
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4.9 Subcontracting. NFN may subcontract any of the maintenance
services hereunder; provided that NFN shall require the subcontractor(s)
to perform in accordance with the requirement and procedures set forth
herein. The use of any such subcontractor shall not relieve NFN of any of
its obligations hereunder.
4.10 Fiber Replacement. In the event all or any part of the Leased
Fibers shall require replacement during the term of this Agreement, such
replacement shall be made as soon as reasonably practical, at NFN's sole
cost and expense; except, however, if the replacement of the Leased Fibers
is required as a result of the acts or omissions of *, NFN shall make such
replacement at *'s cost and expense on a time and materials basis.
4.11 Outages. During the Term of this Agreement, NFN shall credit
to * against the next due Monthly Recurring Charge, the amounts set forth
in Exhibit E hereto, as compensation for "Outages." For the purposes of
this Agreement, an Outage is the complete interruption of service over any
fiber circuit at any * Location, whether or not due to the physical damage
or severance of such fiber circuit; except that no interruption of service
caused in whole or in part by the negligent act or omission or willful
misconduct of * shall constitute an Outage.
4.12 Replacement Maintenance. For any isolated incident wherein NFN
has failed to cure an Outage Within twenty-four (24) hours of the onset of
service interruption at a specific location, * may secure the services of
the contractor selected in advance by NFN for the purposes of repairing
and maintaining the Leased Fibers at such location at NFN's expense.
ARTICLE V
PERMITS, ACCESS, AND REQUIRED RIGHTS-OF-WAY
5.1 NFN represents and warrants that it has obtained or will obtain
all regulatory approvals, franchises, permits, orders, consents, and
rights-of-way, either by contract or through a franchise, and all other
rights necessary to be obtained by NFN to enable its provision of the
Leased Fibers (all of which are herein collectively referred to as the
"Rights-of-Way"). On or before the Acceptance Date for each * Location
NFN shall provide * with a copy or a detailed summary of all Rights-of-Way
applicable to the segment of the NFN System or the * Extension associated
with such * Location. NFN shall use commercially reasonable efforts to
cause such Rights-of-Way to remain effective through the Initial Term and
the Additional Term of this Agreement and in the event that any
Rights-of-Way are discontinued and not replaced and the loss of such
Rights-of-Way adversely affects the use of the * Fibers, NFN shall issue a
rebate to * of a portion of the upfront payment for any Term of this
Agreement in which such loss of Right-of-Way has an effect, such rebate to
be in
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proportion to the number of fiber-miles affected and the duration of any
disruption in service caused by such loss of Right-of-Way.
5.2 * shall provide, obtain, and maintain in full force and effect,
all necessary approvals, licenses, or leases for building entrance
facilities at * Locations and the placement of intra-building conduits and
equipment through which the Leased Fibers may pass into *'s Locations. *
shall provide NFN with 24-hour-per-day, 7-day-per-week escorted access to
fix * Locations with notice by NFN reasonable under the circumstances for
which access is required. * shall provide at no cost to NFN all
electricity, sanitary facilities, and other utilities at the * Locations
as NFN may reasonably require to provide safe and convenient working
conditions during the construction and installation of * Extensions.
ARTICLE VI
RELOCATION OF THE NFN SYSTEM
AND THE * FIBERS
6.1 If NFN receives notice of any request, intent, or plan by any
third party, including, but not limited to, a governmental entity, to
relocate any segment of NFN's fiber network used in the provision of the
Leased Fibers, NFN shall notify * of such request, intent, or plan and
shall consult with * regarding proceedings and negotiations involving such
proposed relocation and communicate with * regarding the status of such
proceedings and negotiations. If NFN is required by any such third party
to relocate any segment of NFN's fiber network used in providing the
Leased Fibers, NFN shall give * at least sixty (60) days' (or such lesser
period of notice that NFN may have received) prior written notice of any
such relocation ("Relocation Notice"). Along with the Relocation Notice,
NFN shall provide an estimate of the cost of such relocation, NFN shall
relocate the Leased Fibers and, to the extent NFN is not reimbursed for
the cost of such relocation by a third party, governmental entity or
otherwise, * shall pay its Pro Rata share of the costs associated with the
relocation of the Leased Fibers; except, however, to the extent that the
factors causing such relocation are under NFN's control. NFN shall use
its reasonable best efforts to secure an agreement for reimbursement from
any third party, governmental entity or otherwise, requiring any
relocation of the NFN System and the Leased Fibers.
ARTICLE VII
CONDEMNATION
7.1 In the event any portion of the NFN System and/or the Leased
Fibers, or the Rights-of-Way in or upon which they shall have been
installed, become the subject of a condemnation proceeding which is not
dismissed within one hundred
12
eighty (180) days of the date of filing of such proceeding and which could
reasonably be expected to result in a taking by any governmental agency or
other party cloaked with the power of eminent domain for public purpose or
use, both parties shall be entitled to the extent permitted under
applicable law, to participate in any condemnation proceedings to seek to
obtain compensation by either joint or separate awards for the economic
value of their respective interests in the portion of the NFN System
subject to such condemnation.
7.2 Upon its receipt of a formal notice of condemnation or taking,
NFN shall notify * immediately of any condemnation proceeding filed
against the NFN System, including the Leased Fibers, or the Rights-of-Way
in or upon which the Leased Fibers shall have been installed. NFN shall
also notify * of any similar threatened condemnation proceeding and agrees
not to sell the Leased Fibers or Rights-of-Way to such acquiring agency,
authority or other party in lieu of condemnation without prior written
notice of five (5) business days to *.
ARTICLE VIII
USE OF THE LEASED FIBERS
8.1 * shall not, by itself or by or through any agent or
contractor, make any repair or replacement of the Leased Fibers or any
other equipment owned by NFN except as provided in Subarticle 4.12 herein.
8.2 * shall not use the Leased 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.
8.3 * shall not, directly or indirectly, sublease, condo,
sublicense, or wholesale to any third party dark fiber optic capacity on
any Leased Fiber. * shall no directly or indirectly, sublease, condo,
sublicense, or wholesale to any third party lit fiber optic capacity on
any Leased Fiber unless such lit fiber optic capacity is distributed
through *'s transmission and switching equipment.
ARTICLE IX
OWNERSHIP OF THE LEASED FIBERS
9.1 * shall have an undivided exclusive leasehold interest in the
Leased Fibers. NFN shall have undivided, absolute legal title to
ownership in the NFN System, including the Leased Fibers.
13
9.2 Except as otherwise provided in this Agreement, * shall not
represent to any third party that any party other than NFN is the legal
owner of the Leased Fibers.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
10.1 NFN represents that the Leased Fibers have been constructed
substantially as represented in Exhibit A hereto and warrants that for
the Term of this Agreement, the NFN System shall, at all times during the
Term of this Agreement: (a) be in full compliance with and operate within
the parameters of the specifications set forth in Exhibit D hereto, and
(b) be fit to perform as an optical fiber system; provided, however, that
such warranties shall in no way be deemed to be a limitation on or in
derogation of NFN's obligations under Article IV herein.
10.2 EXCEPT AS EXPRESSLY PROVIDED IN THE FOREGOING SUBARTICLE 10.1,
NFN MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
FIBER OPTIC SYSTEM AND THE LEASED FIBERS, DEMAND MAINTENANCE, AND
SCHEDULED MAINTENANCE THEREON. IN NO EVENT SHALL EITHER PARTY HERETO BE
LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT,
SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING THOSE BASED ON
LOSS OF REVENUES, PROFITS, OR BUSINESS OPPORTUNITIES, WHETHER OR NOT SUCH
PARTY HAD OR SHOULD HAVE HAD ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT
SUCH DAMAGES MIGHT BE INCURRED.
10.3 NFN represents and warrants to * 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 NFN have been duly and validly authorized by all
necessary corporate action on the part of NFN.
10.4 * represents and warrants to NFN 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 * have been duly and validly authorized by all
necessary corporate action on the part of *.
10.5 NFN represents and warrants to * that NFN is in compliance in
all material respects with all laws and regulations applicable to its
operation of the
14
NFN System, including its franchise to operate within the City of New
York. NFN has obtained and holds all permits, licenses, and approvals
necessary to conduct the operation of the NFN System as presently
conducted and as contemplated by this Agreement, in accordance with
applicable law. Neither the execution or performance of this Agreement
nor the delivery of the leased fibers contemplated hereby conflict with or
result in a breach or violation of any provision of NFN's franchise or
applicable law. There is no action, suit, investigation, claim,
arbitration, or litigation pending, or to NFN's knowledge, threatened
against, affecting, or involving NFN or the operation of the NFN System at
law or in equity or before any court, arbitrator, or governmental
authority that is reasonably likely to result in a material adverse effect
on the operation of the NFN System. NFN is not in default in any material
respect of any contract with a third party that is reasonably likely to
result in a material adverse effect upon the operation of the NFN System.
10.6 * represents and warrants to NFN that * is in compliance in all
material respects with all laws and regulations applicable to the
operation of the business it intends to pursue through the use of the NFN
Fiber. * has obtained or intends to obtain all permits, licenses, and
approvals necessary to conduct its business as contemplated by this
Agreement, in accordance with applicable law. Neither the execution or
performance of this Agreement nor the acceptance of the leased fibers
contemplated hereby conflict with or result in a breach or violation of
any provision of applicable law. There is no action, suit, investigation,
claim, arbitration, or litigation pending, or to *'s knowledge, threatened
against, affecting, or involving * at law or in equity or before any
court, arbitrator, or governmental authority that is reasonably likely to
result in a material adverse effect on *'s performance under this
Agreement. * is not in default in any material respect of any contract
with a third party that is reasonably likely to result in a material
adverse effect upon *'s performance under this Agreement.
ARTICLE XI
TAXES
11.1 * shall be responsible for and shall timely pay any and all
Taxes imposed with respect to this Agreement upon *. For the purposes of
this Agreement, Taxes shall include license, permit, or franchise fees
imposed by a government entity, including any New York City or New York
State Sales and Use Taxes or any Taxes assessed on the Monthly Recurring
Charge payable by * to NFN. NFN shall be responsible for and shall timely
pay any and all Taxes imposed with respect to this Agreement upon NFN
including any fees assessed by the City of New York on NFN as compensation
for its Franchise for Local High Capacity Telecommunication Service.
15
11.2 If at any time during the Initial Term a federal, state or
local governmental authority seeks to impose any new Taxes on NFN because
of NFN's provision of the Leased Fibers pursuant to this Agreement, NFN
shall be responsible, at its sole expense, for paying such Taxes either
with or without a protest to the appropriate administrative jurisdiction
or administrative forum; provided, however that if the amount of such new
Taxes exceeds * of the amount of the Monthly Recurring Charge (on an
annualized basis) during any year of the Term of this Agreement, the
Monthly Recurring Charge for the next year shall be increased by the
amount of such new Taxes that exceeds * of such Monthly Recurring Charge
in addition to the adjustment for inflation set forth in Exhibit B hereto.
11.3 If at any time during the Term of this Agreement, any Taxes are
imposed on or assessed against *, directly or through NFN, on the basis of
revenue received by * or on the basis of its use of the Leased Fibers, *
shall have the right to protest, by appropriate proceedings, the
imposition or assessment of any such Taxes. In such event, * shall be
responsible for such payments and shall indemnify and hold NFN harmless
from any expense, legal action or cost, including reasonable attorney's
fees, resulting from the exercise of its rights under this Subarticle
11.3. In the event of any refund, rebate, reduction, or abatement to * of
any such Taxes, * shall be entitled to receive the entire benefit of such
refund, rebate, reduction, or abatement.
ARTICLE XII
LIABILITY
12.1 Neither * nor NFN shall be liable to the other for any
indirect, special, punitive, or consequential damages (including, but not
limited to, any claim from any customer 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, contractors and/or agents.
Both NFN and * shall use their reasonable best efforts to include in any
agreement with any third party relating to the use of the NFN System or
the Leased Fibers a waiver by such third party of any claim for indirect,
special, punitive, or consequential damages (including, but not limited
to, any claim from any client or customer 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.
12.2 Each Party 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 NFN, *, or any other party operating or
using any part of the NFN System or the Leased Fibers) arising out of or
resulting in any way from the acts or omissions to act, negligent or
16
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.
12.3 Nothing contained herein shall operate as a limitation on the
right of either Party hereto to bring an action for damages, 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 NFN System or the Leased 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.
ARTICLE XIII
INSURANCE
13.1 Each Party shall, at its own expense, secure and maintain in
force, throughout the term of this Agreement, general liability insurance,
with competent and qualified issuing insurance companies, such that the
total available limits to all insureds will not be less than * in respect
of injuries to or death of any one person and not less than * in respect
of injuries to or death of any number of persons aggregated for any one
occurrence and not less than * in respect of damage to or loss of use of
property in any one occurrence, and worker's compensation and employer's
liability insurance as required by the laws of the State of New York and
any other applicable governmental entity. Such insurance may be provided
in policy or policies, primary and excess, including the so-called
umbrella or catastrophe forms. The undertaking with respect to insurance
shall not relieve either Party of its obligation in Article XII.
ARTICLE XIV
FORCE MAJEURE
14.1 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 therefor; 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.
17
ARTICLE XV
DEFAULT
15.1 Neither Party shall be in default under this Agreement, or in
breach of any provision hereof unless and until the other Party shall have
given it written notice of such breach and it shall have failed to cure
the same within thirty (30) days after receipt of such notice; provided,
however, that where such breach cannot reasonably be cured ,within such
thirty (30) day period, if the defaulting Party 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 the defaulting
Party to timely cure any such breach after notice thereof from the other
Party, the non-defaulting Party shall have the right, in its sole
discretion, to take such action is it may determine to be necessary to
cure the breach or to terminate this Agreement upon written notice to the
defaulting Party. If this Agreement is terminated by NFN pursuant to the
preceding sentence prior to the end of the Initial Term pursuant to
Article II, * shall immediately pay to NFN an amount equal to the present
value of the aggregate unpaid Monthly Recurring Charges payable to NFN for
the remainder of the Initial Term (calculated using a discount rate equal
to ten percent (10%)). NFN shall refund to * the portion of the Monthly
Recurring Charges paid pursuant to this Subarticle that relates to fiber
that NFN is subsequently able to lease to a third party for the remainder
of the Initial Term. If this Agreement is terminated by * pursuant to
this Subarticle, * may cease payment of any charges that would thereafter
become payable under this Agreement.
15.2 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 NFN or * at law or in
equity.
ARTICLE XVI
CONFIDENTIALITY
16.1 The Parties acknowledge and agree that the information each
Party has provided or will provide in connection with this Agreement,
including, without limitation, the terms and conditions of this Agreement,
are and shall be confidential and proprietary to the Party providing such
information (the "Providing Party"). The Party in receipt of confidential
information (the "Receiving Party") agrees not to use or disclose to any
third party the confidential information of the Providing Party except as
required for performance of its obligations under this Agreement. Each
Party shall restrict dissemination of confidential information to only
those persons in its respective organization who must have access to such
confidential information in order to perform its obligations under this
Agreement. Neither Party
18
shall be required to hold confidential any information which becomes
publicly available other than through the Receiving Party; which is
independently developed by the Receiving Party; which becomes available to
the Receiving Party without restriction from a third party; with respect
to which the Providing Party consents to the disclosure by the Receiving
Party; or with respect to which a court, administrative agency, or other
governmental body with jurisdiction over the Receiving Party orders the
disclosure, provided that in such circumstances the Receiving Party first
provides the Providing Party with notice of such required disclosure and
takes reasonable steps to allow the Providing Party to seek a protective
order with respect to the confidential information. The Receiving Party
will cooperate and assist the Providing Party in connection with such
protective order at the Providing Party's request.
16.2 The provisions of this Article XVI shall be subject to and
superseded by any separate confidentiality agreement between the Parties,
whether now existing or later entered into.
16.3 Notwithstanding the other provisions of this Article XVI and
without waiver of any obligations hereunder, NFN may disclose the identity
of * as a customer of NFN and * may disclose the identity of NFN as a
supplier of *, and each Party may disclose the length of the term of this
Agreement, the number of fibers and route miles provided pursuant to this
Agreement, and the fact that such fibers are being provided in Manhattan
or the New York metropolitan area, all without any additional consent from
the other.
ARTICLE XVII
NOTICES
17.1 Unless otherwise provided herein, all notices and
communications concerning this Agreement shall be in writing and addressed
as follows:
IF to NFN:
National Fiber Network, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
19
If to *
*
or at such other address as may be designated in writing to the other Party.
17.2 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 (5) days after deposit; if sent by facsimile, upon
verification of receipt; or, if sent by commercial overnight delivery
service, one (1) business day after deposit.
ARTICLE XVIII
ASSIGNMENT; SUCCESSION
18.1 Except as provided in this Subarticle 18.1, * shall not assign
or otherwise transfer this Agreement in whole or in part to any other
party without the prior written consent of NFN, which consent shall not be
unreasonably withheld or delayed. * shall remain secondarily liable for
all payments due under this Agreement after assignment. Without such
consent, * shall have the right to assign, sublet, or otherwise transfer
this Agreement, in whole or in part, to any parent, subsidiary or
affiliate of * which shall control, be under the control of, or be under
common control with *, any entity that purchases all or substantially all
of the assets of *, or any entity formed by the merger of * and another
entity.
18.2 NFN shall retain the right to assign this Agreement, in whole
or in part, to any other party subject to the prior written consent of *,
which consent shall not be unreasonably withheld or delayed; provided,
however, that without such consent, NFN shall have the right to assign or
otherwise transfer this Agreement to any parent, subsidiary or affiliate
of NFN which shall control, be under the control of, or be under common
control with NFN, any entity which purchases all or substantially all of
the assets of NFN, or any entity formed by the merger of NFN and another
entity.
18.3 Subject to the provisions of this Article XVIII, this
Agreement, and each of the 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.
ARTICLE XIX
GOVERNING LAW
20
19.1 This Agreement shall be interpreted and construed in accordance
with the internal laws of the State of New York without giving effect to its
principles of conflicts of laws.
ARTICLE XX
DISPUTE RESOLUTION
20.1 Any claims or disputes arising under the terms and provisions
of this Agreement, or any claims or disputes which the Parties are unable
to resolve to their mutual satisfaction within thirty (30) calendar days
(or such longer period as may be mutually agreed upon) from the date that
either Party notifies the other in writing that such claim or dispute
exists, shall be settled in New York, New York, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in
effect at the time of the dispute. The written notice shall contain a
concise statement of the claim or issue in dispute, together with relevant
facts and data to support the claim. The arbitrator(s) shall be bound by
the limits on damages set forth in this Agreement. The decision of the
arbitrator(s) shall be final and binding upon the Parties if based upon
written findings of law and fact. The arbitrator(s) shall be empowered to
order injunctive relief and judgment may be obtained on the decision of
the arbitrator(s) by either Party in a court of competent jurisdiction.
Each Party shall bear the cost of preparing and presenting its own case.
The cost of the arbitration, including the fees and expenses of the
arbitrator(s), will be shared equally by the parties hereto unless the
award otherwise provides.
20.2 During arbitration proceedings under this Article, NFN shall
continue to provide the Leased Fibers pursuant to this Agreement and *
shall continue to make payments in accordance with this Agreement.
ARTICLE XXI
ENTIRE AGREEMENT
21.1 This Agreement, and any Exhibits attached hereto or to be
attached hereto, constitute the entire agreement between the parties
hereto with respect to the subject matter hereof and supersede any and all
prior negotiations, understandings, and agreements with respect hereto,
whether oral or written.
ARTICLE XXII
MISCELLANEOUS
21
22.1 The headings of the Articles in this Agreement 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.
22.2 In the event any term of this Agreement shall be held invalid,
illegal, or unenforceable in whole or in part, neither the validity of the
remaining part of such term nor the validity of the remaining terms of
this Agreement shall in any way be affected thereby.
22.3 This Agreement may be amended only by a written instrument
executed by the Parties.
22.4 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.
22.5 This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement
the day and year fist above written.
NATIONAL FIBER NETWORK, INC. *
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ *
President President
22
Exhibit A - The * Fibers
23
Exhibit A
NEW YORK NETWORK - FIBER SIZING
[Insert graphic - map]
24
Exhibit B - Schedule of Rates and Charges
Upfront Payment for the Initial Term: *
Upfront Payment for the first Additional Term: *
Schedule for Upfront Payments
Within five (5) business days of the date of the execution of this Agreement,
a payment of * shall be due and payable by * and * shall deposit the amount
of * into the Escrow Account, from which account the following Upfront
Payments shall be made.
A payment of * for each of three groups of * Locations, as set forth in
Exhibit F, shall be due and payable by * within five (5) days of the date at
which NFN completes construction to the "negative one manhole" (for Central
Offices) or the "point of entry manhole" (for other * Locations) of all *
Locations within such group.
A fourth payment of * shall be due and payable on the date that is nine (9)
months following the date of the execution of this Agreement; provided,
however, that NFN has performed all construction obligations under this
Agreement to the extent that * has made * Locations available to NFN. In the
event that NFN has not fully performed its construction obligations nine
months after the execution of this Agreement, * shall pay this fourth payment
within five (5) days of the completion of such construction; except, however,
that if NFN has not fully performed its construction obligations because *
has not made * Locations available to NFN, * shall pay the fourth payment as
scheduled and NFN's construction obligations shall continue until all such
construction has been completed.
Seventeen (17) payments of * each shall be due and payable by * within five
business days of the Acceptance Date for each of the seventeen (17) *
Locations listed in Exhibit F hereto; except, however, that any of these
seventeen payments that have not been paid prior to the first anniversary of
the date of this Agreement shall be due and payable on that first anniversary.
Initial Monthly Recurring Charge for Terminated Fibers
Monthly Recurring Charge is based on the number of fiber strands
terminated at * Locations other than those * Locations set forth in the
initial Exhibit F hereto. (See Exhibit B, Figure #2)
25
For each month in the year beginning with the date of Agreement:
Strands Cost per Strand
1 *
2
4
6
8
10
12
Annual Adjustment to Monthly Recurring Charge
For each subsequent year of the Initial Term or any Additional Term of
this Agreement ("Term"), the Monthly Recurring Charge from the previous year
for each * Location, other than those * Locations set forth in the initial
Exhibit F hereto, shall be increased by a factor equal to the difference
between the Consumer Price Index ("CPI" as defined below) from the month
preceding by two months the beginning of the next year of the Term and the
CPI for the month preceding by one year and two months the beginning of the
next year of the Term.
Example: Acceptance Date: April 1, 1996
second year of Term begins: April 1, 1997
CPI for February, 1997: 166.2
CPI for February, 1996: 161.7
Difference: 4.5
Monthly Recurring Charge for year
ending March 1997 *
Monthly Recurring Charge for year
beginning April 1997
* *
CPI shall mean the Consumer Price Index published by the Bureau of Labor
Statistics ("BLS") of the United States Department of Labor for Urban Wage
Earners and Clerical Workers for All Items for the New York Metropolitan Area
(New York - Northern New Jersey - Long Island), or shall mean the successor
thereto. In the event the BLS Consumer Price Index is converted to a
different standard reference base (current base period: 1982-84 = 100) or
otherwise revised, the determination of Monthly Recurring Charge increase
shall be made with the use of such conversion factor, formula, or table for
converting the BLS Consumer Price Index as may be
26
published by the BLS, or if the BLS should fail to publish the BLS Consumer
Price Index, then with the use of such conversion factor, formula, or table
for converting the BLS Consumer Price Index as may be published by Prentice
Hall, Inc. or any other nationally recognized publisher of similar
statistical information. If the BLS Consumer Price Index ceases to be
published and there is no successor thereto, such other index as NFN and *
may agree upon shall be substituted for the BLS Consumer Price Index. If the
Parties are unable to agree upon such substitution, the dispute shall be
settled pursuant to Article XX of this Agreement.
Additional Fiber Charge
NFN shall provide Additional Fiber (Fiber other than that described in
Exhibit A hereto, made available for *'s use on a date after the date of this
Agreement) for a one-time charge that shall be calculated by multiplying the
number of fiber miles (rounded off to the nearest hundredth of a mile) by the
number of months remaining in the Initial Term, by the Additional Fiber Rate,
which rate shall depend upon the year of the Initial Term in which the
Additional Fiber is made available to * according to the schedule below, and
adding the total of the monthly first Additional Term Fiber Charges for the
entire first Additional Term. (See Exhibit B, Figure #3).
Year of Initial Term Additional Fiber Rate
1 *
2
3
4
5
6
7
8
9
10
11
12
First Additional Term
Fiber Charge
(Per Month, Per Fiber-
Mile of Additional Fiber)
27
Construction and Installation Services
NFN shall construct * Extensions at the actual cost to NFN of materials
and services provided by NFN's vendors for such construction plus a
Management and Administration Fee of * thereof.
The construction charges for the * Extensions to the seventeen (17) *
Locations set forth in Exhibit F hereto shall not exceed *, including
Management and Administration Fees.
28
Exhibit C - Notification Procedures for Emergency Maintenance
Any trouble with the Leased Fibers should be promptly reported to:
*
This number will be answered 24 hours per day, 7 days per week.
NFN may, from time to time, change this notification procedure with advance
notice to *.
29
Exhibit D - Technical Specifications
DOCUMENTATION
Not later than ninety (90) days after the Acceptance Date for each segment,
NFN shall provide * with the following documentation:
(a) As built drawings for such segment in accordance with the
following requirements:
Survey information (either from existing data or new information)
will be put on drawings.
Drawing will contain cable information, splice locations, assist
point locations with permanent structures, landowner information,
conduit information, regen locations and optical distances to
each regen from each splice location.
Drawings will be updated with actual field data during and after
construction.
Metro areas scale shall not exceed 1 inch = 200 feet.
Cable information shall include manufacturer and type of fiber,
and manufacturer and style of cable.
Red line drawings will be provided at the time of acceptance.
(b) Technical specifications of the optical fiber cable and
associated splices and other equipment placed in that segment.
FIBER CABLE SPLICING
1. All splices will be performed with an industry accepted fusion
splicing machine. NFN will perform two stages of testing during the
construction of a new fiber cable route. Initially, OTDR tests will be taken
from one direction. As soon as fiber connectivity has been achieved to both
regen sites, NFN will verify and record the continuity of all fibers. NFN will
take and record power level readings on all fibers at both wavelengths in both
directions. NFN will perform bidirectional OTDR tests on all Leased Fibers.
30
2. If during the initial construction it is only possible to measure
the fiber from one direction, splices will be qualified during initial
construction with an OTDR from only one direction. The profile alignment system
or light injection detection system on the fusion splicer may be used to qualify
splices as long as a close correlation to OTDR is established. All measurements
at this stage in construction will be taken at * nm. As splice joints are
completed, unidirectional OTDR measurements of the splice losses will be made
and recorded.
3. After NFN has provided end-to-end connectivity on the fibers,
bidirectional end-to-end testing will be done. These measurements must be made
after the splice manhole or handhole is closed in order to check for
macro-bending problems. Continuity tests will be done to verify that no fibers
have been "frogged" or crossed in any of the splice points. Once the pigtails
have been spliced, loss measurements will be recorded using an industry accepted
laser source and a power meter. OTDR traces will be taken and splice loss
measurements will be recorded. NFN will also store OTDR traces on diskette and
on data sheets. Laser Precision format will be used on all traces. NFN will
provide three copies of all data sheets and tables, and one set of diskettes
with all traces.
(a) The power loss measurements shall be made at both *, and
performed bi-directionally.
(b) OTDR traces shall be taken in both directions at both *.
4. The splicing standards are as follows:
(a) The loss value of the pigtail connector and its associated
splice will not exceed * dB. This value does not include the inherent loss in
the pigtail or its connector, nor the insertion loss from its connection to the
FDP. For values greater than this, the splice will be broken and respliced
until an acceptable loss value is achieved. If, after five attempts, * is not
able to produce a loss value less than * dB, the splice will be marked as
Out-of-Space ("OOS") on the data sheet. Each splicing attempt shall be
documented on the data sheet.
(b) During initial unidirectional OTDR testing, the objective
for each splice is a loss of * dB or less. If, after three attempts, NFN is not
able to produce a loss value of less than * dB, then * dB will be acceptable.
If, after two additional attempts, a value of less than * dB is not achievable,
then the splice will be marked as OOS on the data sheet. Each splicing attempt
shall be documented on the data sheet.
(c) During the end-to-end testing of a span (a span shall be FDP
to FDP), the objective for each splice is a bidirectional average of * dB or
less.
31
(d) The objective for all splices of all fibers within a span
shall be an average loss of * dB or less.
5. The entire NFN fiber-optic cable system shall be properly
protected from foreign voltage and grounded with an industry accepted system.
6. Leased Fibers will be consecutive in count and in a separate
buffer tube (or ribbon) from others. The maximum number of fibers within a
single buffer tube shall be *,
32
Exhibit E - Outage Credits
* shall receive a credit against the Monthly Recurring Charges for Outages
according to the following schedule:
For each Outage at a site:
Less than or equal to 4 hours *
greater than 4 hours but less than 24 hours *
greater than or equal to 24 hours *
All Outages shall be rounded to the nearest hour.
33
Exhibit F - Initial * Locations
34
*INITIAL EXHIBIT F
MAP_KEY SWITCH ADDRESS CITY OCN_NAME NXX_BLKS DESCRIPTION CD MFS TCG TWC NFN TOT_LINE
*
35
EXHIBIT G
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of , 1997, by
and among *, a * limited liability company ("*") and National Fiber Network,
Inc., a Delaware corporation, ("NFN"), and First Trust National Association,
as escrow agent (the "Escrow Agent").
BACKGROUND
NFN and * entered into a Fiber Optic Use Agreement, dated June , 1997
(the "Fiber Agreement"), relating to the long-term lease of certain fiber
optic cable and related matters.
The terms of the Fiber Agreement contemplate that * shall place in
escrow * (collectively, the "Escrow Deposit"), the Escrow Deposit to be
released upon satisfaction of certain terms and conditions stated in the
Fiber Agreement. The parties wish to specify the terms and conditions on
which the Escrow Deposit, together with all interest accrued thereon will be
held, invested and disbursed.
THEREFORE, in consideration of the mutual undertakings and covenants
contained in this Agreement, the parties agree as follows:
AGREEMENTS
Section 1. Definitions. All terms used and not otherwise defined in
this Agreement shall have the meanings given to them in the Fiber Agreement.
Section 2. Obligation of Escrow Agent. Promptly after the execution of
this Agreement by *, NFN and Escrow Agent, * shall deposit in escrow with the
Escrow Agent the Escrow Deposit. The Escrow Agent agrees to hold and dispose
of the Escrow Deposit pursuant to the terms and conditions of this Agreement.
Any additional deposits shall constitute part of the Escrow Deposit and
shall be held and disbursed by Escrow Agent in accordance with the terms of
this Agreement.
Section 3. Payment of Interest; Investment. The Escrow Agent shall
distribute the interest received on all amounts held by Escrow Agent under
this Agreement, less the fees paid to Escrow Agent pursuant to Section 14, to
* unless * otherwise instructs the Escrow Agent in writing. The payment of
accrued interest to date shall be made at the time all or any portion of the
Escrow Deposit is disbursed under this Agreement. The Escrow Agent shall
invest all funds held by Escrow Agent under this Agreement as directed in
writing by the * in one or more of the following: (a) in marketable direct
obligations issued or unconditionally guaranteed by the United States of
America or any agency thereof; (b) in open market commercial paper currently
having the highest rating obtainable from either Standard & Poors Corporation
or ▇▇▇▇▇'▇ Investors Service, Inc.; (c) in certificates of deposit issued by
commercial banks or savings institutions incorporated under the laws of the
United States of America, having total assets of not less than
$100,000,000.00; (d) any money market fund which invests exclusively in
direct obligations of the United States of America; or (e) in such other
investments or interest bearing accounts as shall be directed in writing to
the Escrow Agent signed by *. If there are insufficient funds held by Escrow
Agent to make the disbursements to NFN that are required under this
Agreement, * shall pay to NFN and it shall have no duty to review investments
to determine if they are eligible or permitted under this paragraph. Escrow
Agent shall not be liable for any loss resulting from the selection or sale
of any investment directed by *. All entities entitled to receive interest
from the escrow shall provide Escrow Agent with a W-8 or W-9 prior to
disbursement of interest. If voting rights apply to any investment
hereunder, * shall be responsible for exercising such voting rights.
Section 4. Disposition of Documents and Escrow Deposit. Promptly upon
receipt by Escrow Agent of a certificate in the form attached to this
Agreement as Exhibit A (the "Escrow Release Certificate"), executed by *,
Escrow Agent shall deliver to NFN the Upfront Payments pursuant to the terms
and conditions of Exhibit B to the Fiber Agreement; provided, however, that
Escrow Agent shall not disburse any amount identified by * as being subject
to a good faith dispute, in a certificate in the form attached to this
Agreement as Exhibit B (the "Holdback Certificate"), unless and until Escrow
Agent either receives joint written instructions from * and NFN or receives
written payment instructions from an arbitrator pursuant to Section 22.
Escrow Agent shall comply with such joint written instructions of the parties
or such written direction from the arbitrator. With respect to any subsequent
deposits of funds in escrow by * under this Agreement, Escrow Agent shall
comply with *'s written directions for disbursement.
Section 5. Conditions to Execution and Delivery of Escrow Release
Certificate. * agrees to execute and to deliver to Escrow Agent the Escrow
Release Certificate upon satisfaction (or waiver by *) of the conditions set
forth in the Fiber Agreement.
Section 6. Termination of Escrow. If the Escrow Agent has not received
all of the executed Escrow Release Certificates by June 1, 1998, the Escrow
shall terminate, Escrow Agent shall wire transfer to * the full amount of the
Escrow Deposit and wire transfer to * the interest on the Escrow Deposit less
the amount of Escrow Agent's fees. After doing so, Escrow Agent shall have
no further obligations under this Escrow Agreement.
2
Section 7. Payment of Escrow Deposit.
a. The Escrow Agent shall make no disbursements of the Escrow
Deposit, except as permitted pursuant to Sections 4 or 6 above.
b. Any amounts payable by the Escrow Agent hereunder shall be
paid by wire transfer of immediately available funds, unless otherwise
designated in a written notice to the Escrow Agent by the payee.
c. Upon disbursement in full of the Escrow Deposit, and
interest thereon, this Agreement shall terminate and the Escrow Agent shall
be released and discharged from any further obligations or liability
hereunder.
Section 8. Wire Transfer Instructions. Wire transfers by the Escrow
Agent under this Agreement shall be directed to an account designated in
writing to the Escrow Agent by * with respect to funds it is to receive and
by NFN with respect to funds it is to receive. All wire transfer fees shall
be deducted from the amount of the transfer. The parties hereto agree that
the wire transfer security procedures identified on the attached Exhibit C to
this Agreement are commercially reasonable. The parties hereto further agree
that Escrow Agent should use these procedures to detect unauthorized wire
transfer payment requests prior to executing such requests and further agree
that any request acted upon by the Escrow Agent in compliance with these
security procedures, whether or not authorized, shall be treated as an
authorized request. The parties hereto agree that the Escrow Agent has the
right to change the wire transfer security procedures from time to time and
that use of any changed procedures evidences the acceptance of the commercial
reasonability of such change.
Section 9. Duties of Escrow Agent. This Agreement states the entire
agreement between the parties hereto and merges all prior negotiations,
agreements and understandings, if any, and states in full the representations
and warranties which have induced the agreement, there being no
representations or warranties, other than those herein stated, with respect
to the escrow property (except as stated in the Fiber Agreement as between *
and NFN). Escrow Agent's rights, duties and obligations are strictly limited
to those expressly set forth in this Agreement and Escrow Agent shall be
under no implied obligation or subject to any implied liability hereunder.
Escrow Agent shall not be required to take notice of any default or any other
matter, nor be bound nor required to give notice or demand, nor required to
take any action whatever except as herein expressly provided. Escrow Agent
shall not be liable for any loss or damage unless caused by its own gross
negligence or willful misconduct. Escrow Agent may act in reliance upon any
instrument of signature believed to be genuine and may assume that any person
purporting to give any notice or make any statement in connection with the
provisions hereof has been duly authorized to do so. Escrow Agent is
requested and authorized, but not obligated, to rely upon and act in
3
accordance with any communication which may be given by telephone, facsimile,
telex, or other electronic transmission. Escrow Agent shall be entitled, but
not bound, to treat such communication as fully authorized by and binding and
shall be entitled to take such steps in connection with or in reliance on
such communication.
Section 10. Indemnification. In consideration of its acceptance of the
appointment as the Escrow Agent, * and NFN jointly and severally agree to
indemnify and hold the Escrow Agent harmless from any loss, damages, claims
or liability incurred by it to any person, firm or corporation by reason of
its having accepted the same or in carrying out any of the terms of this
Agreement, and to reimburse the Escrow Agent for all its reasonable expenses,
including, among other things, counsel fees and court costs, including
reasonable attorneys' fees and costs at trial and on any appeal, incurred by
reason of its position hereunder or actions taken pursuant to this Agreement.
This indemnity shall survive the termination of this Agreement for any
reason.
Section 11. No Additional Duties. The Escrow Agent shall have no
duties except those which are expressly set forth herein, and it shall not be
bound by any notice of a claim for payment, or demand with respect thereto,
or any waiver, modification, amendment, termination or rescission of this
Agreement, unless received by it in writing.
Section 12. Amendments. This Agreement may be amended, and observance
of any term of the Agreement may be waived, with (and only with) the written
consent of the parties hereto.
Section 13. Resignation of Escrow Agent. The Escrow Agent, and any
successor Escrow Agent, may resign at any time as Escrow Agent by giving at
least (30) calendar days written notice to NFN and *. Upon such resignation
and the appointment of a successor Escrow Agent, the resigning Escrow Agent
shall be absolved from any and all liability in connection with the exercise
of its powers and duties as Escrow Agent. Upon their receipt of notice of
resignation from the Escrow Agent, * and NFN shall use their best efforts
jointly to designate a successor Escrow Agent. In the event * and NFN do not
agree upon a successor Escrow Agent within thirty (30) calendar days after
the receipt by * and NFN of such notice, the Escrow Agent so resigning may
petition any court of competent jurisdiction for the appointment of a
successor Escrow Agent or other appropriate relief, including delivery of any
assets to a court in an interpleader action, and any such resulting
appointment shall be binding upon all parties to this Agreement. By mutual
agreement, * and NFN shall have the right at any time upon not less than
seven (7) calendar days written notice to terminate their appointment of the
Escrow Agent or successor Escrow Agent, as Escrow Agent. The Escrow Agent or
successor Escrow Agent shall continue to act as Escrow Agent until a
4
successor is appointed and qualified to act as Escrow Agent; provided Escrow
Agent shall have the right to interplead the Escrow Deposit as provided in
this Agreement, if * and NFN do not jointly appoint a successor escrow agent
within 30 days after Escrow Agent's receipt of such notice.
Section 14. Fees of the Escrow Agent. The Escrow Agent shall be
entitled to compensation in accordance with the schedule set forth in Exhibit
D. The cost of such compensation and expenses shall be paid out of the
interest earned on amounts held by Escrow Agent under this Agreement. In the
event that the interest earned (but not yet distributed under Section 3
above) on the funds held by Escrow Agent under this Agreement is insufficient
to pay the compensation and expenses owing to the Escrow Agent, the excess of
such compensation and expenses over the interest earned but unpaid shall be
paid by *, upon demand. In the event that Escrow Agent brings an action in
interpleader or in the event the conditions of this Agreement are not
promptly fulfilled, or Escrow Agent is required to render any service not
provided for in the Agreement or in Exhibit D, or there is any assignment of
the interest of this escrow or any modification hereof, Escrow Agent shall be
entitled to reasonable compensation for such extraordinary services and
reimbursement for all fees, costs, liability and expenses, including attorney
fees. Such compensation and reimbursement shall be paid by *.
Section 15. Miscellaneous. The Escrow Agent may execute any of its
powers or responsibilities hereunder and exercise any rights hereunder either
directly or by or through its agents or attorneys. Nothing in this Agreement
shall be deemed to impose upon the Escrow Agent any duty to qualify to do
business or to act as fiduciary or otherwise in any jurisdiction other than
the State of Washington. The Escrow Agent shall not be responsible for and
shall not be under a duty to examine or pass upon the validity, binding
effect, execution or sufficiency of this Agreement, of any agreement or
document deposited in escrow, or of any agreement amendatory or supplementary
hereto. If any controversy arises between the parties to this Agreement or
with a third person relating to this Agreement, Escrow Agent shall not be
required to resolve the controversy but may, at its discretion, institute an
interpleader or other proceeding as it reasonably deems proper. Escrow Agent
may rely on any joint written instructions as to the disposition of funds or
documents held in escrow.
Section 16. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 17. Notices. Any notices to be given hereunder shall be
sufficiently given if in writing and delivered personally, or mailed by
registered or certified mail, return receipt requested, postage prepaid, to
the following addresses or to such other addresses as the parties may from
time to time designate in writing delivered in accordance with this Section
17:
5
a. If to *:
*
With a copy to:
*
b. If to NFN:
National Fiber Network, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ Slate ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c. If to Escrow Agent:
First Trust National Association
Global Escrow Depository Services
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any notices to be given hereunder shall be deemed received (a) on the date
delivered, if delivered personally or (b) on the third business day after the
date such notice was sent, if sent by registered or certified mail.
Section 18. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and permitted assigns. * and NFN may not assign their respective obligations
hereunder without the prior written consent of the other parties. Any
assignment in contravention of this provision shall be void. No assignment
shall release * or NFN from any obligation or liability under this Agreement.
6
Section 19. Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
giving effect to its principles of conflict of laws.
Section 20. Dispute Resolution. * and NFN desire to resolve disputes
arising out of this Agreement without litigation. Accordingly, except for
action seeking a temporary restraining injunction related to the purposes of
this Agreement, or suit to compel compliance with this dispute resolution
process, * and NFN agree to use the dispute resolution procedures set forth
in Sections 20 through 22 as their sole remedy with respect to any
controversy or claim arising out of or relating to this Agreement or its
breach. Escrow Agent shall not be subject to the provisions of Sections 20
through 22.
At the written request of either * or NFN, the parties will appoint a
knowledgeable, responsible representatives to meet and negotiate in good
faith to resolve any dispute arising under this Agreement. The parties
intend that these negotiations be conducted by non-lawyer, business
representatives. The location, format, frequency, duration and conclusion of
these discussions shall be left to the discretion of the representatives.
Discussion and correspondence among the representatives for purposes of these
negotiations shall be treated as confidential information developed for
purposes of settlement, exempt from discovery and production, which shall not
be admissible in the arbitration described below. Documents identified in or
provided with such communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise admissible, be
admitted in evidence in the arbitration or lawsuit.
Section 21. Mediation. If the negotiations set forth in Section 20 do
not resolve the dispute within sixty (60) days of the initial written
request, the parties agree to work in good faith to settle the dispute by
mediation under the commercial mediation rules of the American Arbitration
Association. The parties will attempt to agree on a mediator. If they are
unable to do so, the mediation will be referred to the New York office of the
American Arbitration Association for mediation which will appoint a qualified
mediator to serve. The mediation shall take place in New York. Unless the
parties agree otherwise, the first mediation session shall take place no
later than ninety (90) days after the initial written request to negotiate.
The mediation shall continue until the dispute is resolved or until such time
as the mediator makes a good faith determination that the likelihood of
resolution is sufficiently remote that continuation of the mediation is not
warranted.
Section 22. Arbitration. If a determination is made pursuant to
Section 21 that continuation of the mediation process is not warranted, the
dispute shall be submitted to binding arbitration by a panel of three
arbitrators pursuant to the Commercial Arbitration Rules of the American
7
Arbitration Association. Either * or NFN may demand such arbitration in
accordance with the procedures set out in those rules. Each party shall have
the right to take the deposition of one individual, and any expert witness
designated by the other party. Each party shall also have the right to
request production of relevant documents, the scope and enforcement of which
shall be governed by the arbitrator. Additional discovery may be only by
order of the arbitrator, and only upon a showing of substantial need. The
arbitrator shall rule on the dispute by issuing be authorized to issue
subpoenas for the purpose of requiring attendance of witnesses at
depositions. The arbitration hearing shall be commenced within sixty (60)
days of the determination that mediation is not going to be successful. The
arbitration shall be held in New York, New York, or such other location as
mutually agreed upon by the parties. The arbitrator shall control the
scheduling so as to process the matter expeditiously. The parties may submit
written briefs. The arbitrator shall rule on the dispute by issuing a
written opinion within thirty (30) days after the close of hearings. The
times specified in this section may be extended upon mutual agreement of the
parties or by the arbitrator upon a showing of good cause. The award
rendered by arbitration shall be final, binding and nonappealable judgment
and the award may be entered in any court of competent jurisdiction in the
United States. No special consequential or punitive damages shall be awarded
by the arbitrator.
Section 23. Confidentiality. * and NFN agree that all communications
and negotiations between the parties during the dispute resolution process,
any settlements agreed upon during the dispute resolution process and any
information regarding the other party obtained during the dispute resolution
process (that are not already pubic knowledge) are confidential and may be
disclosed only to employees and agents of * and NFN who shall have a "need to
know" the information and who shall have been made aware of the
confidentiality obligations set forth in this Section, unless the party is
required by law to disclose such information.
Section 24. Fees and Expenses. * and NFN shall equally split the fees
of the mediator and the arbitrator. Any party found by the arbitrator to have
breached this Agreement shall pay all other cost and expenses, including
reasonable attorneys' fees and expenses, of the other party incurred in
connection with the dispute resolution process. The costs and expenses shall
also include the attorneys' fees and other reasonable costs and expenses
incurred by the Escrow Agent arising from the dispute. If the arbitrator
does not find that any party has reached this Agreement, then each party
shall bear its own costs and expenses, including attorneys' fees and expenses.
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
*
By:
-------------------------------------------
Its:
-------------------------------------------
NATIONAL FIBER NETWORK, INC.
By:
-------------------------------------------
Its:
-------------------------------------------
FIRST TRUST NATIONAL ASSOCIATION
By:
-------------------------------------------
Its:
-------------------------------------------
9
EXHIBIT A
ESCROW RELEASE CERTIFICATE
To: First Trust National Association
Global Escrow Depository Services
▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned hereby certifies that all conditions set forth in
the Fiber Agreement have been satisfied, or waived by *, and you are
authorized to make disbursements and deliveries as provided in the Escrow
Agreement among *, National Fiber Network, Inc. and First Trust National
Association.
*
By:
Its:
Date:
EXHIBIT B
HOLDBACK CERTIFICATE
To: First Trust National Association
Global Escrow Depository Services
▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned hereby certifies that * claims in good faith that a
dispute exists with respect to the disbursement of $ from the
Escrow Deposit held by you pursuant to the Escrow Agreement among *, National
Fiber Network, Inc. and First Trust National Association. Consequently, you
are hereby directed to continue to hold such amount in escrow pending receipt
of joint written instructions from * and NFN or receipt of written direction
from an arbitrator pursuant to Section 22 of the Escrow Agreement.
*
By:
Its:
Date:
EXHIBIT C
Wire Transfer Security Procedures
[See Attached]
EXHIBIT D
Escrow Agent's Compensation
[See Attached]