Long Haul IRU Agreement - Level 3 Communications LLC and SAVVIS Communications Corp.
LONG HAUL IRU AGREEMENT
THIS LONG HAUL IRU AGREEMENT ("Agreement") is made and entered into as
of the 2nd day of August, 2000, by and between LEVEL 3 COMMUNICATIONS, LLC, a
Delaware limited liability company ("Grantor") and SAVVIS COMMUNICATIONS
CORPORATION, a Delaware corporation ("Grantee").
RECITALS
A. Grantor intends to construct and/or is currently constructing a
multi-conduit fiber optic communications system (the "Grantor System") as
generally described and depicted on Exhibit "A" attached hereto.
B. Grantor further intends to install within one of the conduits of the
Grantor System a high fiber count fiber optic cable (the "Cable").
C. Grantee desires to obtain the right to use the number of fibers and
connecting those points identified in Exhibit "A" attached hereto.
D. Grantor desires to grant to Grantee an indefeasible right to use the
fibers and other facilities described herein, all upon and subject to the terms
and conditions set forth below.
ARTICLE 1.
DEFINITIONS
1.01 "Acceptance Date" shall mean the date when Grantee delivers (or is deemed
to have delivered) notice of acceptance of a Completion Notice with respect to a
Segment in accordance with Article 8.
1.02 "Acceptance Testing" shall have the meaning set forth in Article 8.
1.03 "Affiliate" shall mean, with respect to any specified Person, any other
Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person ("control," "controlled by" and "under common control with" shall
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mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or credit arrangement, as trustee or executor,
or otherwise).
1.04 "Associated Property" shall mean the tangible and intangible property
needed for the use of the Grantee Fibers as permitted by this Agreement,
including designated space in the Regeneration Facilities and Opamp Facilities,
as and to the extent more particularly described in this Agreement, and
including designated space in the Grantor Gateway Facilities as set forth in a
separate agreement which shall be referred to as "General Terms and Conditions
for Delivery of Service" and shall be based on the applicable terms and
conditions as specified in the order for dark fiber colocation space and the
terms contained in Exhibit C but excluding in any and all events any electronic
and/or optronic equipment.
1.05 "Cable" shall have the meaning set forth in the Recitals.
1.06 "Completion Notice" shall have the meaning set forth in Section 8.02.
1.07 "Costs" shall mean the actual direct costs paid or payable in accordance
with the established accounting procedures generally used by Grantor and which
Grantor utilizes in billing third parties for reimbursable projects, including
the following: (i) direct costs and out of pocket expenses on a direct
pass-through basis, and (ii) thirty percent (30%) of the amount set forth in (i)
above for internal labor costs, including wages, salaries, benefits and
overhead.
1.08 "Dark Fiber" shall have the meaning set forth in Section 14.03.
1.09 "Design, Planning and Engineering Fee" shall be the fee set forth in
Exhibit "B".
1.10 "Dispute Notice" shall have the meaning set forth in Article 23.
1.11 "Effective Date" shall have the meaning set forth in Section 5.01.
1.12 "Fiber Upgrade Notice" shall have the meaning set forth in Section 3.02.
1.13 "Force Majeure Event" shall have the meaning set forth in Article 18.
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1.14 "Governmental Authority" shall mean any federal, state, regional, county,
city, municipal, local, territorial, or tribal government, whether foreign or
domestic, or any department, agency, bureau or other administrative or
regulatory body obtaining authority from any of the foregoing, including without
limitation, courts, public utilities and sewer authorities.
1.15 "Grantee Delay Event" shall mean the failure of Grantee to timely observe
and perform its obligations and agreements hereunder, which failure delays the
construction and installation of the Grantor System with respect to one or more
Segments.
1.16 "Grantee Fibers" shall have the meaning set forth in Article 3.
1.17 "Grantor Gateway Facilities" shall mean such facilities as may be mutually
agreed upon between Grantor and Grantee which are owned, leased or otherwise
used by Grantor to accommodate or house switch equipment, fiber optic
transmission and/or associated ancillary equipment to serve as a switch
terminal, transport concentrator, hub terminal or junction.
1.18 "Grantor System" shall have the meaning set forth in the Recitals.
1.19 "Impositions" shall mean all taxes, fees, levies, imposed duties, charges
or withholdings of any nature (including without limitation ad valorem, real
property, gross receipts, taxes and franchise, license and permit fees),
together with any penalties, fines or interest thereon arising out of the
transactions contemplated by this Agreement and/or imposed upon the Grantor
System, or any part thereof, by any Governmental Authority. Notwithstanding
anything to the contrary contained in this Agreement, Impositions shall not
include any income taxes assessed on the net or gross income of Grantor and any
of its Affiliates.
1.20 "Interconnection Points" shall have the meaning set forth in Section 9.01.
1.21 "IRU" shall have the meaning set forth in Article 3.
1.22 "IRU Fee" shall be the fee specified in Exhibit "B".
1.23 "Opamp Facilities" shall mean facilities (as determined by Grantor's,
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and not Grantee's, use) to optically amplify lit fibers in the Cable as more
particularly described in Exhibit "C".
1.24 "Person" shall mean any natural person, corporation, partnership, limited
liability company, business trust, joint venture, association, company or
Governmental Authority.
1.25 "Prime Rate" shall mean, as of any relevant date, the interest rate most
recently published in the Money Rates Section of The Wall Street Journal. as the
prime rate.
1.26 "Proprietary Information" shall have the meaning set forth in Section
22.01.
1.27 "Recurring Charge" shall have the meaning set forth in Section 12.02.
1.28 "Regeneration Facilities" shall mean facilities (as determined by
Grantor's, and not Grantee's, use) to regenerate the signal of lit fibers in the
Cable as more particularly described in Exhibit "C".
1.29 "Relocating Authority" shall have the meaning set forth in Section 6.03.
1.30 "Required Rights" shall have the meaning set forth in Section 6.01.
1.31 "Ring" shall mean a group of Segments as delineated in Exhibit "A".
1.32 "Route Miles" shall mean, for each Segment, the actual number of route
miles, or portion thereof, for such Segment as constructed.
1.33 "Scheduled Completion Date" shall mean, with respect to each Segment and
subject to Force Majeure Events, the dates set forth on Exhibit "A".
1.34 "Segments" shall have the meaning set forth in Section 2.01.
1.35 "Segment End Points" shall have the meaning set forth in Section 2.01.
1.36 "System Route" shall have the meaning set forth in Section 2.01.
1.37 "Term" shall have the meaning set forth in Article 5.
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ARTICLE 2.
SYSTEM ROUTE
2.01 The Grantor System will connect the points identified on Exhibit "A"
attached hereto (each point identified on Exhibit "A" is herein called a
"Segment End Point", the route between the applicable Segment End Points is
herein called a "Segment", and all of the Segments together are herein called
the "System Route").
2.02 The specific location of the System Route between Segment End Points is
subject to change in the sole discretion of Grantor; however, the System Route
will connect the Segment End Points for each Segment.
ARTICLE 3.
GRANT OF IRU
3.01 As of the Effective Date for each particular Segment of Grantee Fiber
delivered by Grantor to Grantee hereunder, Grantor hereby grants to Grantee, and
Grantee hereby acquires from Grantor (i) an exclusive indefeasible right of use
in, for the purposes described herein, the number of fibers set forth in Exhibit
"A" to be specifically identified in the Cable between the Segment End Points
for such Segment (the "Grantee Fibers"); and (ii) an associated and
non-exclusive indefeasible right of use, for the purposes described herein, in
the Associated Property respecting such Segment, all upon and subject to the
terms and conditions set forth herein (collectively the "IRU").
3.02 Grantee may, by written notice (a "Fiber Upgrade Notice") delivered to
Grantor, inform Grantor that Grantee desires to purchase an IRU in additional
fibers (whether of the same type as the Grantee Fibers or otherwise) either (a)
along the same System Route as the Grantee Fibers, or (b) within planned
extensions to the then-existing Grantor System. In the event that Grantor
subsequently determines to install such additional fibers, then Grantor shall
notify Grantee of such determination.
3.03 In the event that Grantee has delivered a Fiber Upgrade Notice and Grantor
has received such notice prior to its determination to install additional
fibers, Grantor and Grantee shall negotiate in good faith concerning Grantee's
acquisition of a portion of such additional fibers (including negotiation of the
additional IRU Fees due and payable by Grantee for the use of such additional
fibers). The Term for use of any additional fibers shall be, unless otherwise
agreed in writing by the parties, for a period
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which commences upon delivery of such additional fibers and which ends twenty
(20) years thereafter; provided, however, that to the extent such extended term
requires Grantor to extend or renew a Required Right, Grantor shall have the
right to increase the Recurring Charge in order to reflect, in Grantor's
reasonable discretion, the pass through (on a pro rata basis based upon the
number of fibers within the Grantor System) of any increase in the payments,
fees, charges, costs or other expenses incurred or to be incurred by Grantor in
connection with the extension or renewal of such Required Right. Notwithstanding
anything else in this Agreement to the contrary, the failure of Grantor to
notify Grantee of its determination to install additional fibers under Section
3.02, or the failure of the parties to successfully negotiate the terms of an
IRU in such additional fibers, shall not constitute a default or breach of this
Agreement hereunder and neither Grantee nor Grantor shall have any liability to
the other for the performance, or the failure to perform, any obligations
imposed under Sections 3.02 or 3.03 hereof.
ARTICLE 4.
FEES
4.01 Grantee agrees to pay, as compensation for Grantor's performance of
incremental design, engineering, planning and development of the Grantee Fibers,
the Design, Planning and Engineering Fee set forth in Exhibit "B".
4.02 Grantee further agrees to pay, as compensation for the use of the Grantee
Fibers, the IRU Fee set forth in Exhibit "B".
4.03 In addition to the foregoing amounts, Grantee shall pay directly or
reimburse Grantor for all other sums, costs, fees and expenses which are
expressly provided to be paid by Grantee under this Agreement.
4.04 Grantor will send Grantee invoices for payments of all other sums, costs,
fees and expenses owed by Grantee to Grantor hereunder and Grantee shall pay
such invoiced amounts within thirty (30) days after receipt of such invoice by
Grantee. Any sums not paid by Grantee when due shall bear interest at the Prime
Rate plus two percent (2%).
4.05 All payments made by Grantee hereunder shall be made without any deduction
for or on account of Canadian withholding taxes imposed by the Government of
Canada or its Provinces. If Grantee were required by law to make any such
deduction for Canadian withholding from any payment due hereunder to Grantor,
then, notwithstanding anything to the contrary
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contained in this Agreement, Grantee shall pay separately an amount equal to the
amount of Canadian tax withheld to Grantor.
4.06 Grantor and Grantee acknowledge and agree that Grantee shall be solely
responsible for all transaction taxes, including without limitation all sales or
use taxes, transfer taxes or stamp taxes that are legally imposed on Grantee in
connection with fees payable under this Article 4. Grantee hereby agrees to
indemnify Grantor from and against any such taxes that Grantor does not collect
from Grantee due to Grantor's failure to enforce the collection of such taxes.
In the event Grantor receives a valid and final assessment for failure to
collect such taxes from Grantee, including any interest or penalties thereon,
then Grantee shall reimburse Grantor for all amounts due by Grantor as taxes,
interest and or penalties upon presentation of a valid and final assessment to
Grantee. In this regard, Grantor and Grantee agree to use reasonable
administrative and judicial remedies to ascertain the validity of the assessment
issued against Grantor. The cost incurred in the pursuance of such
administrative and judicial remedies, as applicable, will be shared equally by
Grantor and Grantee.
ARTICLE 5.
TERM
5.01 The IRU with respect to each Segment shall become effective on the first
day when both (i) the Acceptance Date with respect to the Grantee Fibers within
a Segment has occurred and (ii) Grantor has received payment of all of the IRU
Fee with respect to such Segment then due to Grantor hereunder (the "Effective
Date"). Subject to the provisions of Article 19, the IRU with respect to the
Grantee Fibers within each Segment shall terminate at the end of the twentieth
(20th) anniversary of the Effective Date (the "Term"). Grantee shall be
permitted to extend the Term with respect to each Segment of Grantee Fibers that
is part of a Ring so that the Term of all Segments within such Ring expire
contemporaneously with the Term of the last Segment of Grantee Fibers comprising
such Ring. In the event that Grantee desires to so extend the Term of any
Segment of Grantee Fibers, Grantee shall (no sooner than 1 year nor later than 6
months prior to the expiration of the Term respecting such Segment of Grantee
Fibers) deliver to Grantor written notice of its election to so extend the Term
plus an additional IRU Fee (prorated for the duration of the extension allowed)
to compensate for the extension of the Term (so that, as an example, if the term
of a Segment of Grantee Fibers was extended by 1 year, the additional IRU Fee
would be 1/20th of the amount of the IRU Fee for that Segment).
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5.02 Upon the expiration of the Term respecting a Segment, all rights to the use
of the Grantee Fibers therein shall revert to Grantor without reimbursement of
any of the IRU Fee or other sums, costs, fees or expenses previously made with
respect thereto, and from and after such time Grantee shall have no further
rights or obligations hereunder with respect thereto unless such rights or
obligations are specifically provided herein to survive the Term.
5.03 Subject to Article 19, this Agreement shall become effective on the date
hereof and shall terminate on the date when all the Terms of the Segments shall
have expired or terminated, except that those provisions of this Agreement which
are expressly provided herein to survive such termination shall remain binding
on the parties hereto.
ARTICLE 6.
REQUIRED RIGHTS
6.01 Grantor agrees to obtain and maintain in full force and effect for and
during the Term of each Segment all rights, licenses, permits, authorizations,
rights-of-way, easements and other agreements which are necessary for Grantor to
obtain in order to permit Grantor to construct, install and keep installed, and
maintain the Regeneration Facilities, Opamp Facilities and Grantee Fibers within
such Segment in accordance with this Agreement and to convey the IRU in the
Grantee Fibers to Grantee and all other rights under this Agreement pursuant to
the IRU (collectively, the "Required Rights"). Grantee shall obtain, prior to
the commencement of the Term, and maintain in full force and effect for and
during the Term of each Segment all rights, licenses, permits, authorizations,
franchises and other approvals which are necessary for Grantee to obtain in
order to permit Grantor to grant the IRU to Grantee and for Grantee to use the
Grantee Fibers.
6.02 In the event Grantor shall receive notice from any grantor or provider of a
Required Right that Grantor has failed to observe or perform its obligations
under such Required Right, and Grantor is not contesting in good faith the
validity of such claimed or alleged failure, Grantor shall give written notice
to Grantee and Grantee may, at its option (subject to the terms and provisions
of the Required Right and the ability of third parties to cure defaults of
Grantor thereunder), cure or correct such failure and Grantor shall reimburse
Grantee for the costs and expenses incurred by Grantee in connection therewith.
6.03 If, after the Acceptance Date with respect to a Segment, Grantor is
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required (i) by any Governmental Authority under the power of eminent domain or
otherwise, (ii) by the grantor or provider of any Required Right, (iii) by any
other Person having the authority to so require (each a "Relocating Authority"),
or (iv) by the occurrence of any Force Majeure Event, to relocate the Grantor
System within such Segment or any portion thereof, Grantor shall have the right
to either proceed with such relocation, including, but not limited to, the
right, in good faith, to reasonably determine the extent and timing of, and
methods to be used for, such relocation, or to pay such amounts to the
Relocating Authority as are necessary to avoid the need for such relocation.
Grantee shall be kept fully informed of all determinations made by Grantor in
connection with such relocation, and any such relocation shall be constructed
substantially in accordance with the construction specifications set forth in
Exhibit "D", incorporate fiber meeting or exceeding the specifications set forth
in Exhibit "E" and be subject to Acceptance Testing. Grantee shall reimburse
Grantor for its proportionate share of the Costs (including Acceptance Testing
and including amounts paid to a Relocating Authority to avoid relocation)
related to such relocation (to the extent Grantor has not been reimbursed by the
Relocating Authority) allocated to Grantee pro rata based on the number of
Grantee Fibers and the total fiber count in the affected Segments of the Grantor
System.
ARTICLE 7.
CONSTRUCTION OF THE GRANTOR SYSTEM
7.01 Grantor will design, engineer, install and construct the Grantor System
substantially in accordance with the construction specifications set forth in
Exhibit "D", in a workmanlike manner and in accordance with industry standards
and all applicable laws. Such responsibilities shall include, without
limitation, preparation of construction drawings, materials specifications and
materials requisitions. The Grantee Fibers and the conduit housing the Cable
shall meet or exceed the fiber and conduit specifications set forth in Exhibit
"E". Nothing contained herein shall prohibit Grantor from commencing
construction of a portion of a Segment before Grantor has obtained all Required
Rights necessary for all of such Segment.
7.02 Grantor will undertake the Acceptance Testing of each of the Segments.
7.03 Grantor will construct Regeneration Facilities and Opamp Facilities along
the Grantor System as described in Exhibit "C". Grantee shall be provided with
the use of space and power as specified in Exhibit "C", and shall pay the
charges specified in Exhibit "C" in accordance with the terms
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hereof.
7.04 Occupancy by Grantee in any Grantor Gateway Facility shall be detailed in
and shall be subject to the execution of the General Terms and Conditions for
Delivery of Services. With respect to all Orders of space in Grantor Gateway
Facilities placed within sixty (60) days after execution of this Agreement,
Grantee shall be provided with the use of space and power as specified in
Exhibit "C", and shall pay the charges specified in Exhibit "C" in accordance
with the terms hereof.
7.05 Grantor and Grantee will consult with each other from time to time upon
request to attempt to coordinate construction of the Grantor System with other
network construction which may be undertaken by Grantee.
7.06 Subject to the terms and provisions of any applicable Required Right,
Grantee shall have the right, but not the obligation, at Grantee's cost and
expense on at least five (5) days prior written notice to Grantor, to inspect
the construction of each Segment, including the installation, splicing and
testing of the Grantee Fibers incorporated therein; provided that no inspection
or failure to inspect by Grantee shall impair, modify or amend any of the
representations, warranties, covenants and agreements of Grantor under this
Agreement.
7.07 Notwithstanding anything to the contrary contained herein, Grantor may
elect, at its option, to acquire any portion of the Grantor System from third
parties (whether under a lease, sublease, indefeasible right of use, or
otherwise) in lieu of constructing and installing the Grantor System respecting
such portion; provided, any such acquired portion shall be or have been
constructed substantially in accordance with the specifications and procedures
required by this Agreement except for such deviations which do not, in the
reasonable discretion of Grantor, materially diminish the utility, reliability
or expected useful life of the Grantor System.
ARTICLE 8.
ACCEPTANCE TESTING AND COMPLETION
8.01 Grantor shall test the Grantee Fibers in accordance with the procedures and
standards specified in Exhibit "F" ("Acceptance Testing"). 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. Acceptance Testing shall
include, but is limited to, (i) testing of the Grantee Fibers along a Segment,
(ii) if applicable, completion of any work or
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installation required for any Interconnection Point (which shall be limited to
Wilmington, DE, Greensboro, NC, Chepachet, RI, Irvine, CA, Fresno, CA and
Greenville, SC) along such Segment (provided Grantor has acquired all necessary
building access agreements or other authorizations to perform such installation
work and Grantee has acquired any additional authorizations as may be necessary
for Grantor to perform such work at least sixty (60) days before the Scheduled
Completion Date for such Segment) and (iii) if applicable, completion of any
build-out (inclusive of power) required for the Grantor Gateway Facilities,
Regeneration Facilities and Opamp Facilities by Grantor (provided Grantee has
designated its space and power requirements at least sixty (60) days before the
Scheduled Completion Date for such Segment). Grantee shall have the right, but
not the obligation, at Grantee's cost and expense, to be present to observe the
Acceptance Testing. Grantee shall be responsible for the timely designation of
its space and power requirements for the facilities, acquisition of all
necessary authorizations and completion of any work or installation required in
order for it to place the Grantee Fibers into operation (and Grantee's failure
to make such designations, acquire such authorizations or complete such work
shall not be grounds for rejection of a Completion Notice). Grantor shall
provide Grantee with a copy of such test results.
8.02 Upon the successful completion of Acceptance Testing respecting any
Segment, Grantor shall provide written notice of same to Grantee (a "Completion
Notice") and an invoice for the IRU Fee for such Segment. Grantor shall
contemporaneously deliver a copy of the results of the Acceptance Testing for
the entire Segment (if and to the extent that Grantor has not previously
delivered same) and Grantee shall, within fifteen (15) days of receipt of the
Completion Notice, either accept or reject the Completion Notice (Grantee shall
be permitted to reject only if Grantee specifies a material failure of the
Grantee Fibers to satisfy the requirements of this Agreement) by delivery of
written notice to Grantor. In the event Grantee rejects the Completion Notice,
Grantor shall promptly, and at no cost of Grantee, commence to remedy the defect
or failure specified in Grantee's notice. Thereafter Grantor shall again conduct
Acceptance Testing and (if successfully completed) provide Grantee a Completion
Notice with respect to such Segment. The foregoing procedure shall apply again
and successively thereafter until Grantor has remedied all defects or failures
specified by Grantee. Any failure by Grantee to timely accept or reject a
Completion Notice, or any use of the Grantee Fibers or Associated Property by
Grantee for any purpose other than testing, shall be deemed to constitute
acceptance for purposes of this Agreement and Grantee shall be deemed to have
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delivered a notice of acceptance upon such use or on the fifteenth day after
delivery of the Completion Notice. Notwithstanding the foregoing, Grantor may
send a separate Completion Notice for each Grantor Gateway Facility,
Regeneration Facility and Opamp Facility located along a Segment.
ARTICLE 9.
INTERCONNECTION POINTS
9.01 Grantee shall have the right to request that Grantor interconnect Grantee's
communications system with the Grantee Fibers at the Segment End Points and such
other points as are determined and designated by Grantor in its sole discretion
during the design, engineering and permitting phases of construction
("Interconnection Points"). None of the Interconnection Points shall be in any
portion of the Grantor System which transits Canada unless such interconnection
can be accomplished in a fashion which, in Grantor's judgement, will not cause
either Grantor or Grantee to be in violation of applicable laws or regulations
9.02 Grantor may route the Grantee Fibers through Grantor's space in any Grantor
Gateway Facilities, Regeneration facilities or Opamp facilities, in Grantor's
sole discretion; provided such routing shall not materially adversely affect
Grantee's use of the Grantee Fibers or Associated Property hereunder and Grantor
shall be responsible for all costs and expenses associated therewith.
9.03 Any work respecting the Grantor System or the Grantee Fibers required by
Grantee, including (a) splicing of the Grantee Fibers, or (b) changes in the
configuration or other changes relating to Grantee's space or racks within the
Regeneration Facilities or Opamp Facilities as set forth in Exhibit "C", shall
be undertaken only by Grantor at Grantee's request and shall be performed within
a reasonable amount of time consistent with industry accepted practices; Grantee
shall (except with respect to splicing and incidental work at Segment End Points
(and such other points) as previously identified between the parties prior to
the execution of this Agreement, the costs for which have been included in the
payments due hereunder) reimburse Grantor for all Costs incurred in connection
therewith, plus a management fee equal to thirty percent (30%) of such Costs.
Grantee shall have no right to perform work on or otherwise physically access
the Grantor System, except as expressly provided herein.
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ARTICLE 10.
OPERATIONS
10.01 Subject to the access restrictions set forth in Article 9, Grantee shall
(at its full cost and expense) have full and complete control and responsibility
for determining any network and service configuration or designs, routing
configurations, re-grooming, rearrangement or consolidation of channels or
circuits and all related functions with regard to the use of the Grantee Fibers;
provided, such control and responsibility by Grantee shall not adversely affect
the use by any other Person of the Grantor System and/or any electronic or
optronic equipment used by such Person in connection therewith.
10.02 Grantee acknowledges and agrees that except for the items included as a
part of the Regeneration Facilities and Opamp Facilities as described on Exhibit
"C", Grantor is not supplying nor is Grantor obligated to supply to Grantee any
optronic or electronic equipment or related facilities, all of which are the
sole responsibility of Grantee, nor is Grantor responsible for performing any
work other than as specified in this Agreement.
10.03 Upon not less than one hundred twenty (120) days written notice from
Grantor to Grantee with respect to "Operating Grantee Fibers" (as defined
below), Grantor may, at its option substitute for the Grantee Fibers within any
Segment or Segments, or any portions thereof, an equal number of alternative
fibers within such Segment or portion thereof, provided that in such event, such
substitution (i) shall be effected at the sole cost of Grantor, including,
without limitation, all disconnect and reconnect costs, fees and expenses; (ii)
shall be constructed substantially in accordance with the specifications and
procedures set forth in Exhibit "D", incorporate fiber and conduit meeting or
exceeding the specifications set forth in Exhibit "E", and be tested in
accordance with the Acceptance Testing; (iii) shall not change any Segment End
Points or other Interconnection Points; and (iv) Grantor shall use all
reasonable good faith efforts to minimize any interruption in the operation of
the Grantee Fibers. Substitution of Grantee Fibers shall not affect or extend
the Term with respect to the fibers so substituted. For purposes of the
foregoing, "Operating Grantee Fibers" shall mean Grantee Fibers which have been
jumpered to Grantee's space or equipment within a Regeneration Facility, Opamp
Facility or Segment End Point. Grantor may substitute Grantee Fibers which are
not Operating Grantee Fibers at any time during the Term without notice to
Grantee (provided that, in the event Grantor has substituted the Grantee Fibers,
then at the time such Grantee requests that its fibers be jumpered to its space
or equipment, the substituted
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Grantee Fibers will be tested in accordance with the provisions of this
Agreement).
ARTICLE 11.
MAINTENANCE AND REPAIR OF THE GRANTOR SYSTEM
From and after the Effective Date with respect to each Segment, the
maintenance of the Grantor System within such Segment shall be provided in
accordance with the maintenance requirements and procedures set forth in Exhibit
"G" attached hereto. The costs of all Scheduled Maintenance (as defined in
Exhibit "G") of the Grantee Fibers shall be borne by Grantor as a part of the
Recurring Charge; however, Grantee shall reimburse Grantor for its proportionate
share of the Costs of any Unscheduled Maintenance (as defined in Exhibit "G")
(if but only if (i) the total Costs of such Unscheduled Maintenance exceeds five
thousand dollars ($5,000.00) or (ii) Grantee is the sole user of the Cable),
which Costs shall be allocated to Grantee pro rata based on the number of
Grantee Fibers and the total fiber count in the affected portion of the Grantor
System.
ARTICLE 12.
RECURRING CHARGE
12.01 Grantor shall be responsible for the payment of the costs of Scheduled
Maintenance of the Grantor System (as defined in Exhibit "G") and insurance
premiums and rents associated with the Regeneration Facilities and Opamp
Facilities.
12.02 In consideration of Grantor's responsibilities under Section 12.01,
subject to the adjustments described in Section 12.03, Grantee shall pay to
Grantor each year, with respect to each Segment, commencing with the Acceptance
Date of such Segment and continuing until the expiration of the Term of the IRU
with respect to such Segment shall have occurred, the product obtained when: (a)
[**] is multiplied by (b) the number of Route Miles in such Segment (the
"Recurring Charge").
12.03 The Recurring Charge shall be increased on each anniversary of the
Acceptance Date of the first Segment in which Grantee will receive the IRU by
the increase, if any, in the Consumer Price Index, All Urban Consumers (CPI-U),
U.S. City Average, published by the United States Department of Labor, Bureau of
Labor Statistics (1982-84 = 100), for the preceding twelve (12) month period. In
the event such index shall cease to be computed or published, Grantor may, in
its reasonable discretion, designate a successor index to be used in determining
any increase to the Recurring Charge.
[**] CONFIDENTIAL TREATMENT REQUESTED
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12.04 The Recurring Charge shall be paid each year by Grantee in twelve (12)
equal installments due and payable on the first day of each month. In the event
the Acceptance Date or expiration of the Term of a Segment occurs other than on
the first day of the month, the Recurring Charge shall be prorated.
ARTICLE 13.
IMPOSITIONS
13.01 Grantor and Grantee acknowledge and agree that it is their mutual
objective and intent to (i) minimize, to the extent feasible, the administrative
expenses associated with and the aggregate Impositions payable with respect to
the Grantor System and the Grantee Fibers and (ii) share such Impositions
according to their respective interests in the Grantor System and the Cable, and
that they will cooperate with each other and coordinate their mutual efforts to
achieve such objectives in accordance with the provisions of this Article.
13.02 Grantor shall be responsible for and shall timely pay any and all
Impositions with respect to the construction or operation of the Grantor System
which Impositions are imposed or assessed prior to the Acceptance Date of a
Segment. Notwithstanding the foregoing obligations, Grantor shall have the right
to challenge any such Impositions so long as the challenge of such Impositions
does not materially adversely affect the rights to be delivered to Grantee
pursuant hereto.
13.03 Following the Acceptance Date for each Grantor System and except with
respect to Impositions constituting ad valorem property taxes (which are
addressed in Section 13.04 below), Grantor shall timely pay any and all
Impositions imposed upon or with respect to each Grantor System. Upon receipt of
a notice of any such Imposition, Grantor shall promptly notify Grantee of such
Imposition and Grantee shall pay or reimburse Grantor for its proportionate
share of such Imposition, which share shall be determined based upon Grantee's
proportionate share of the total fiber count in the affected portion of the
Grantor System under the terms of this Agreement.
13.04 Following the Acceptance Date for each Grantor System and except to the
extent prohibited by applicable laws or regulations, Grantor shall separately
file returns for and pay any and all ad valorem property taxes imposed on or
assessed against the Grantor System, including the Grantee
<PAGE>
Fibers. In lieu of direct reimbursement of such amounts, Grantee shall pay to
Grantor an amount each year equal to the average Property Tax Basis (as defined
below) times 1.75%, payable as of October 31 of that year. The initial Property
Tax Basis for each Segment shall equal the sum of the amounts payable by Grantee
to Grantor under Sections 4.01, 4.02, and 4.03 with respect to such Segment (the
"Initial Segment Cost"). The Property Tax Basis will then be reduced by 1/15 of
the Initial Segment Cost on each anniversary of the Acceptance Date for such
Segment until the Property Tax Basis for such Segment reaches 20% of the Initial
Segment Cost, at which point it will remain fixed for the remaining duration of
the Term. The average Property Tax Basis for each Segment is the average of each
day's Property Tax Basis for that Segment for that year, taking into account any
adjustment on the anniversary of the Acceptance Date, and the amount to be
multiplied by 1.75% above will be the sum of such average Property Tax Basis for
all Segments that have been accepted by the end of the year. To the extent a
Segment is accepted after October 31 of the year and no payment is made with
respect to such Segment for that year, the amount will carry over and be
included in the following year's payment. In the event that applicable laws or
regulations require Grantee to file returns for and pay any or all ad valorem
property taxes imposed on or assessed against the Grantee Fibers, Grantee shall
do so. If Grantee's payment of such taxes relieves Grantor of the obligation to
report and pay ad valorem property taxes with respect to the portion of the
Grantee Fibers in such jurisdiction, then the amounts payable by Grantee to
Grantor hereunder shall be reduced by the amount of such reduction in Grantor's
ad valorem property tax liability (including any refund received by Grantor as a
result of Grantee's payment), as determined reasonably by the parties
13.05 With respect to Section 13.04, Grantee may, at its sole option, separately
file returns for and pay any and all ad valorem property taxes if applicable
laws or regulations permit Grantee to file returns for and pay any and all ad
valorem taxes; provided Grantee has notified Grantor of its intent to exercise
such option on or before October 31 of the year preceding the year for which
this option is exercised
13.06 Notwithstanding any provision herein to the contrary, Grantor shall have
the right to contest any Imposition assessed against it, (including by
nonpayment of such Imposition provided such nonpayment does not materially
adversely affect the rights to be delivered to Grantee pursuant hereto). The
out-of-pocket costs and expenses (including reasonable attorneys' fees) incurred
by Grantor in any such contest shall be shared by
<PAGE>
Grantor and Grantee in the same proportion as to which the parties would have
shared in such Impositions, as they were originally assessed. Any refunds or
credits resulting from a contest brought pursuant to this Section shall be
divided between Grantor and Grantee in the same proportion as to which such
refunded or credited Impositions were borne by Grantor and Grantee.
ARTICLE 14.
USE OF GRANTOR SYSTEM
14.01 Grantee represents and warrants that it will use the Grantee Fibers and
the IRU hereunder in compliance with all applicable government codes,
ordinances, laws, rules and regulations.
14.02 Subject to the provisions of this Agreement, Grantee may use the Grantee
Fibers and the IRU for any lawful purpose. Grantee acknowledges and agrees that
it has no right to use any fibers, other than the Grantee Fibers, included or
incorporated in the Grantor System, and that Grantee shall keep any and all of
the Grantor System free from any liens, rights or claims of any third party
attributable to Grantee.
14.03 Notwithstanding anything to the contrary contained in this Agreement,
Grantee covenants and agrees that Grantee shall not, that Grantee shall have no
right to, and that Grantor may enjoin Grantee from any attempt to, assign, sell,
lease, sublease, transfer, grant an indefeasible right of use or other similar
right or interest in the IRU or the Grantee Fibers to anyone as Dark Fiber for a
period of four (4) years after the Acceptance Date for such Grantee Fibers. For
purposes hereof, "Dark Fiber" shall mean fiber provided without electronic
and/or optronic equipment and which is not "lit" or activated. Grantee shall not
sublease or assign the right to use space in any Regeneration Facility or Opamp
Facility without the prior written consent of Grantor.
14.04 Grantee shall not use the Grantee Fibers in a way which physically
interferes in any way with or otherwise adversely affects the use of the fibers,
cable or conduit of any other Person using the Grantor System.
14.05 Grantee and Grantor shall promptly notify each other of any matters
pertaining to, or the occurrence (or impending occurrence) of, any event of
which it is aware that could give rise to any damage or impending damage to or
loss of the Grantor System.
<PAGE>
14.06 Grantee and Grantor agree to cooperate with and support each other in
complying with any requirements applicable to their respective rights and
obligations hereunder by any Governmental Authority.
ARTICLE 15.
INDEMNIFICATION
15.01 Subject to the provisions of Article 16, Grantor hereby agrees to
indemnify, defend, protect and hold harmless Grantee and its employees, officers
and directors, from and against, and assumes liability for: (i) any injury, loss
or damage to any Person, tangible property or facilities of any Person
(including reasonable attorneys' fees and costs) to the extent arising out of or
resulting from the negligence or willful misconduct of Grantor, its officers,
employees, servants, Affiliates, agents, contractors, licensees, invitees and
vendors arising out of or in connection with the performance or omission by
Grantor of its obligations or the exercise by Grantor of its rights under this
Agreement; and (ii) any claims, liabilities or damages arising out of any
violation by Grantor of any regulation, rule, statute or court order of any
Governmental Authority in connection with the performance or omission by Grantor
of its obligations or the exercise by Grantor of its rights under this
Agreement.
15.02 Subject to the provisions of Article 16, Grantee hereby agrees to
indemnify, defend, protect and hold harmless Grantor, and its employees,
officers and directors, from and against, and assumes liability for: (i) any
injury, loss or damage to any Person, tangible property or facilities of any
Person (including reasonable attorneys' fees and costs) to the extent arising
out of or resulting from the negligence or willful misconduct of Grantee, its
officers, employees, servants, Affiliates, agents, contractors, licensees,
invitees and vendors arising out of or in connection with the performance or
omission by Grantee of its obligations or the exercise by Grantee of its rights
under this Agreement; and (ii) any claims, liabilities or damages arising out of
any violation by Grantee of any regulation, rule, statute or court order of any
Governmental Authority in connection with the performance or omission by Grantee
of its obligations or the exercise by Grantee of its rights under this
Agreement.
15.03 Grantor and Grantee agree to promptly provide each other with notice of
any claim which may result in an indemnification obligation hereunder. The
indemnifying party may defend such claim with counsel of its own choosing
provided that no settlement or compromise of any such claim shall occur without
the consent of the indemnified party, which consent shall not be
<PAGE>
unreasonably withheld or delayed.
15.04 Grantor and Grantee each expressly recognize and agree that its obligation
to indemnify, defend, protect and save the other harmless is not a material
obligation to the continuing performance of its other obligations, if any,
hereunder. In the event that a party shall fail for any reason to so indemnify,
defend, protect and save the other harmless, the injured party hereby expressly
recognizes that its sole remedy in such event shall be the right to bring legal
proceedings against the other party for its damages as a result of the other
party's said failure to indemnify, defend, protect and save harmless. These
obligations shall survive the expiration or termination of this Agreement.
15.05 Notwithstanding the foregoing provisions of this Article, to the extent
Grantor is required under the terms and provisions of any Required Right to
indemnify the grantor or provider thereof from and against any and all claims,
suits, judgments, liabilities, losses and expenses arising out of service
interruption, cessation, unreliability of or damage to the Grantor System,
regardless of whether such claims, suits, judgments, liabilities, losses or
expenses arise from the sole or partial negligence, willful misconduct or other
action or inaction of such grantor or provider and its employees, servants,
agents, contractors, subcontractors or other Persons using the property covered
by such Required Right, Grantee hereby releases such grantor or provider from,
and hereby waives, all claims, suits, judgments, liabilities, losses and
expenses arising out of service interruption, cessation, unreliability of or
damage to the Grantor System regardless of whether such claims, suits,
judgments, liabilities, losses or expenses arise from the sole or partial
negligence, willful misconduct or other action or inaction, of such grantor or
provider or its employees, servants, agents, contractors, subcontractors or
other Persons using the property covered by such Required Right.
ARTICLE 16.
LIMITATION OF LIABILITY
Notwithstanding any provision of this Agreement to the contrary, neither party
shall be liable to the other party for any special, incidental, indirect,
punitive or consequential damages, or damages for lost revenue or lost profits,
whether foreseeable or not, arising out of, or in connection with such party's
failure to perform its respective obligations hereunder, including, but not
limited to, loss of profits or revenue (whether arising out of transmission
interruptions or problems, any interruption or degradation of service or
otherwise), or claims of customers, whether occasioned by any
<PAGE>
construction, reconstruction, relocation, repair or maintenance performed by, or
failed to be performed by, the other party or any other cause whatsoever,
including breach of contract, breach of warranty, negligence, or strict
liability, all claims for which damages are hereby specifically waived. Except
as set forth in Section 15.05, nothing contained herein shall operate as a
limitation on the right of either party hereto to bring an action for damages
against any third party, including claims for indirect, special or consequential
damages, based on any acts or omissions of such third party. In no event shall
Grantor be liable to Grantee for any direct injury, loss or damages arising out
of or resulting from any cause whatsoever to the extent such damages are in
excess of the IRU Fee received from Grantee.
ARTICLE 17.
INSURANCE
17.01 During the term of this Agreement, each party shall obtain and maintain
the following insurance: (i) Commercial General Liability including coverage for
(a) premises/operations, (b) independent contractors, (c) products/completed
operations, (d) personal and advertising injury, (e) contractual liability, and
(f) explosion, collapse and underground hazards, with combined single limit of
not less than $1,000,000.00 each occurrence or its equivalent; (ii) Worker's
Compensation in amounts required by applicable law and Employer's Liability with
a limit of at least $1,000,000.00 each accident; (iii) Automobile Liability
including coverage for owned/leased, non-owned or hired automobiles with
combined single limit of not less than $1,000,000.00 each accident; and (iv) any
other insurance coverage required under or pursuant to the Required Rights.
17.02 During the term of this Agreement: (i) Grantee shall obtain and maintain
"all risk" property insurance in an amount equal to the replacement cost of all
electronic, optronic and other equipment utilized by Grantee in connection with
the Grantee Fibers, and (ii) Grantor shall obtain and maintain "all risk"
property insurance in an amount equal to the replacement cost of the
Regeneration Facilities and Opamp Facilities.
17.03 Both parties expressly acknowledge that a party shall be deemed to be in
compliance with the provisions of this Article if it maintains an approved
self-insurance program providing for a retention of up to $1,000,000.00. If
either party provides any of the foregoing coverage on a claims made basis, such
policy or policies shall be for at least a three (3) year extended reporting or
discovery period.
<PAGE>
17.04 Unless otherwise agreed, all insurance policies shall be obtained and
maintained with companies rated A or better by Best's Key Rating Guide and each
party shall, upon request, provide the other party with an insurance certificate
confirming compliance with the requirements of this Article.
17.05 Grantee and Grantor shall each obtain from the insurance companies
providing the coverage required by this Agreement, the permission of such
insurers to allow such party to waive all rights of subrogation and such party
does hereby waive all rights of said insurance companies to subrogation against
the other party, its affiliates, subsidiaries, assignees, officers, directors
and employees. To the extent of each party's respective indemnification
obligation, each party shall name the other party as an additional insured on
their respective Commercial General Liability and Automobile Liability policies.
17.06 In the event either party fails to maintain the required insurance
coverage and a claim is made or suffered, such party shall indemnify and hold
harmless the other party from any and all claims for which the required
insurance would have provided coverage.
17.07 Until the Effective Date for a Segment, Grantor shall bear all risk of
loss of and damage or destruction to the Grantor System within such Segment.
Commencing as of the Effective Date, any loss, damage or destruction of or to
the Grantor System not otherwise required to be insured hereunder shall be
treated for all purposes as Unscheduled Maintenance (as defined in Exhibit "G").
ARTICLE 18.
FORCE MAJEURE
Except as may be otherwise specifically provided in this Agreement,
neither party shall be in default under this Agreement if and to the extent that
any failure or delay in such party's performance of one or more of its
obligations hereunder is caused by any of the following conditions, and such
party's performance of such obligation or obligations shall be excused and
extended for and during the period of any such delay: act of God; fire; flood;
fiber, cable, conduit or other material failures, shortages or unavailability or
other delay in delivery not resulting from the responsible party's failure to
timely place orders therefor; lack of or delay in transportation; government
codes, ordinances, laws, rules, regulations or restrictions; war or civil
disorder; failure of a third party to recognize a Required Right; any other
cause beyond the reasonable control of such party and, in the case of Grantor,
<PAGE>
a Grantee Delay Event (each a "Force Majeure Event"). The party claiming relief
under this Article shall notify the other in writing of the existence of the
event relied on and the cessation or termination of said event.
ARTICLE 19.
DEFAULT
19.01 If (i) Grantee makes a general assignment for the benefit of its
creditors, files a voluntary petition in bankruptcy or any petition or answer
seeking, consenting to, or acquiescing in reorganization, arrangement,
adjustment, composition, liquidation, dissolution or similar relief; (ii) an
involuntary petition in bankruptcy, other insolvency protection against Grantee
as filed and not dismissed with 120 days; or (iii) Grantee fails to observe and
perform the terms and provisions of this Agreement and such failure continues
for a period of thirty (30) days after written notice from Grantor (or if such
failure is not susceptible of a cure within such thirty (30) day period, cure
has not been commenced and diligently pursued thereafter to completion), then
Grantor may (A) terminate this Agreement and the Term, in whole or in part, in
which event Grantor shall have no further duties or obligations hereunder, and
(B) subject to Article 16, pursue any legal remedies it may have under
applicable law or principles of equity relating to such default, including an
action for damages, specific performance and/or injunctive relief.
19.02 If (i) Grantor makes a general assignment for the benefit of its
creditors, files a voluntary petition in bankruptcy or any petition or answer
seeking, consenting to, or acquiescing in reorganization, arrangement,
adjustment, composition, liquidation, dissolution or similar relief; (ii) an
involuntary petition in bankruptcy, other insolvency protection against Grantor
as filed and not dismissed with 120 days; (iii) Grantor fails to observe and
perform the terms and provisions of this Agreement and such failure continues
for a period of thirty (30) days after written notice from Grantee (or if such
failure is not susceptible of a cure within such thirty (30) day period, cure
has not been commenced and diligently pursued thereafter to completion), then
Grantee may, subject to Section 19.03 below, (A) terminate this Agreement and
the Term, in whole or in part, in which event Grantee shall have no further
duties or obligations hereunder, and (B) subject to Article 16, pursue any legal
remedies it may have under applicable law or principles of equity relating to
such default, including an action for damages, specific performance and/or
injunctive relief.
19.03 If, other than as caused by a Force Majeure Event, Grantor has not
<PAGE>
delivered a Completion Notice (in good faith) respecting a Segment within one
hundred eighty (180) days after the Scheduled Completion Date for the last
Segment to be completed within such Ring, then, from and after such date and
until the installation is completed, Grantee shall receive a credit of one
percent (1.0%) off of the IRU Fee for such Segment (as liquidated damages and
not as a penalty) for each month or partial month (prorated based on a
thirty-day month) of delay thereafter; provided, however, that in no event shall
the amount of the credit provided to Grantee hereunder be greater than six
percent (6%). In the event Grantor fails to deliver the Grantee Fibers in a
Segment within twelve (12) months after the Scheduled Completion Date for the
last Segment to be completed within such Ring and otherwise in accordance with
this Agreement, then either party shall have the right to terminate this
Agreement and Grantor shall, upon such termination, pay Grantee a termination
charge in the amount of one-third (1/3rd) of the IRU Fee that would otherwise be
due and payable respecting such Segment, together with interest thereon (from
and after the date of payment of the Design, Planning and Engineering Fee due
under Section 4.01 hereof) at the Prime Rate plus two percent (2%). This Section
sets forth the sole and exclusive remedies of Grantee respecting a failure of
Grantor to complete installation of the Grantee Fibers within any Segment on or
before the Scheduled Completion Date.
ARTICLE 20.
ASSIGNMENT
20.01 Grantee may not assign, encumber or otherwise transfer this Agreement to
any other Person without the prior written consent of Grantor; provided, Grantee
shall have the right, without the Grantor's consent, but with prior written
notice to Grantor, to assign or otherwise transfer this Agreement (i) as
collateral to any institutional lender of Grantee subject to the prior rights
and obligations of the parties hereunder; and (ii) to any Affiliate of Grantee,
or to any entity into which such party may be merged or consolidated or which
purchases all or substantially all of the assets of Grantee; provided that
Grantee shall not be released from its obligations hereunder. Any assignee or
transferee shall continue to be subject to all of the provisions of this
Agreement, (except that any lender referred to in clause (i) above shall not
incur any obligations under this Agreement nor shall it be restricted from
exercising any right of enforcement or foreclosure with respect to any related
security interest or lien, so long as the purchaser in foreclosure is subject to
the provisions of this Agreement).
20.02 Any and all increased payments to grantors or Required Right and any
<PAGE>
other additional fees, charges, costs or expenses which result under the
Required Rights or otherwise as a result of any permitted assignment or transfer
of this Agreement by Grantee shall be paid by Grantee.
20.03 This Agreement and each of the parties' respective rights and obligations
under this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and each of their respective permitted successors and assigns.
20.04 Nothing contained in this Article shall be deemed or construed to prohibit
Grantor from selling, transferring, leasing, licensing, granting indefeasible
rights of use or entering into similar agreements or arrangements with other
Persons respecting any fibers and conduit constituting a part of the Grantor
System.
20.05 In the event that a portion of the Grantee Fibers are to be delivered in
Canada, Grantor intends to assign such portion of this Agreement to an Affiliate
of Grantor as is necessary to deliver such Grantee Fibers within Canada, and
Grantor may cause such Affiliate to separately invoice Grantee for the
performance of this Agreement allocable to Canada
ARTICLE 21.
REPRESENTATIONS AND WARRANTIES
21.01 Each party represents and warrants that: (i) it has the full right and
authority to enter into, execute and deliver this Agreement; (ii) it has taken
all requisite corporate action to approve the execution, delivery and
performance of this Agreement; (iii) this Agreement constitutes a legal, valid
and binding obligation enforceable against such party in accordance with its
terms, subject to bankruptcy, insolvency, creditors' rights and general
equitable principles; and (iv) its execution of and performance under this
Agreement shall not violate any applicable existing regulations, rules, statutes
or court orders of any local, state or federal government agency, court or body.
21.02 Grantor represents and warrants that the Segments of the Grantor System
that it will construct pursuant hereto will be designed, engineered, installed,
and constructed substantially in accordance with the terms and provisions of
this Agreement, any and all applicable building, construction and safety codes,
as well as any and all other applicable governmental laws, codes, ordinances,
statutes and regulations; provided Grantee's sole rights and remedies with
respect to any breach of such representation shall be (i) to
<PAGE>
inspect the construction, installation and splicing of the Grantee Fibers
incorporated in each Segment and to participate in the Acceptance Testing,
during the course and at the time of the relevant construction, installation and
testing periods for each Segment, as provided herein; (ii) if, during the course
of such construction, installation and testing any deviation from the
specifications set forth in Exhibits "C", "D" or "E" is discovered which is
reasonably likely to materially adversely affect the operation or performance of
the Grantee Fibers, the construction or installation of the affected portion of
the Segment shall be repaired to such specification by Grantor at Grantor's sole
cost and expense; and (iii) if, at any time prior to the date that is twelve
(12) months after the Acceptance Date, Grantee shall notify Grantor in writing
of its discovery of a deviation from the specifications set forth in Exhibits
"C", "D" or "E" which is reasonably likely to materially adversely affect the
operation or performance of the Grantee Fibers, with respect to any Segment
(which notice shall be given within thirty (30) days of such discovery) the
construction or installation of the affected portion of such Segment shall be
repaired to such specification by Grantor at Grantor's sole cost and expense.
21.03 Grantee acknowledges and agrees that Grantee's sole rights and remedies
with respect to any defect in or failure of the Grantee Fibers to perform in
accordance with the applicable vendor's or manufacturer's specifications with
respect to the Grantee Fibers shall be limited to the particular vendor's or
manufacturer's warranty. In the event any maintenance or repairs to the Grantor
System are required as a result of a breach of any warranty made by any
manufacturers, contractors or vendors, Grantor shall pursue all remedies against
such manufacturers, contractors or vendors on behalf of Grantee, and Grantor
shall reimburse Grantee's costs for any maintenance Grantee has incurred as a
result of any such breach of warranty to the extent the manufacturer, contractor
or vendor pays such costs.
21.04 EXCEPT AS SET FORTH IN THE FOREGOING SECTIONS 21.01 AND 21.02, GRANTOR
MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE GRANTEE FIBERS OR THE
GRANTOR SYSTEM, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
<PAGE>
ARTICLE 22.
CONFIDENTIALITY
22.01 Grantor and Grantee hereby agree that if either party provides
confidential or proprietary information to the other party ("Proprietary
Information"), such Proprietary Information shall be held in confidence, and the
receiving party shall afford such Proprietary Information the same care and
protection as it affords generally to its own confidential and proprietary
information (which in any case shall be not less than reasonable care) in order
to avoid disclosure to or unauthorized use by any third party. The parties
acknowledge and agree that all information disclosed by either party to the
other in connection with or pursuant to this Agreement shall be deemed to be
Proprietary Information, provided that verbal information is indicated as being
confidential or proprietary when given and promptly confirmed in writing as such
thereafter. All Proprietary Information, unless otherwise specified in writing,
shall remain the property of the disclosing party, shall be used by the
receiving party only for the intended purpose, and such written Proprietary
Information, including all copies thereof, shall be returned to the disclosing
party or destroyed after the receiving party's need for it has expired or upon
the request of the disclosing party. Proprietary Information shall not be
reproduced except to the extent necessary to accomplish the purpose and intent
of this Agreement, or as otherwise may be permitted in writing by the disclosing
party.
22.02 The foregoing provisions of Section 22.01 shall not apply to any
Proprietary Information which (i) becomes publicly available other than through
the disclosing party; (ii) is required to be disclosed by a governmental or
judicial law, order, rule or regulation; (iii) is independently developed by the
receiving party; or (iv) becomes available to the receiving party without
restriction from a third party.
22.03 Notwithstanding Sections 22.01 and 22.02 either party may disclose
Proprietary Information to its employees, agents, lenders, funding partners and
legal and financial advisors and providers to the extent necessary or
appropriate in connection with the negotiation and/or performance of this
Agreement or in obtaining financing, provided that each such party is notified
of the confidential and proprietary nature of such Proprietary Information and
is subject to or agrees to be bound by similar restrictions on its use and
disclosure.
22.04 Neither party shall issue any public announcement or press release
relating to the execution of this Agreement without the prior approval of the
other party, which approval shall not be unreasonably withheld.
<PAGE>
22.05 In the event either party shall be required to disclose all or any part of
this Agreement in, or attach all or any part of this Agreement to, any
regulatory filing or statement, each party agrees to discuss and work
cooperatively, in good faith, with the other party, to protect, to the extent
possible, those items or matters which the other party deems confidential and
which may, in accordance with applicable laws, be deleted therefrom.
22.06 The provisions of this Article shall survive expiration or termination of
this Agreement.
ARTICLE 23.
DISPUTE RESOLUTION
If the parties are unable to resolve any dispute arising under or
relating to this Agreement, the parties shall resolve such disagreement or
dispute as follows:
(i) Either party may refer the matter to management-level
representatives of the parties by written notice to the other party
(the "Dispute Notice"). Within fifteen (15) days after delivery of the
Dispute Notice such representatives of both parties shall meet at a
mutually acceptable time and place to exchange all relevant information
in an attempt to resolve the dispute.
(ii) If the matter has not been resolved within thirty (30)
days after delivery of the Dispute Notice, or if such officers fail to
meet within fifteen (15) days after delivery of such Dispute Notice,
either party may initiate mediation in accordance with the procedures
set forth in (iii) below. All negotiations conducted by such officers
shall be confidential and shall be treated as compromise and settlement
negotiations for purposes of federal and state rules of evidence.
(iii) If such representatives are unable to resolve the
dispute or have failed to meet, the parties agree to participate in a
non-binding mediation procedure as follows: (A) a mediator will be
selected by having counsel for each party agree on a single person to
act as mediator. The parties' counsel, as well as up to three (3)
representatives of each of the parties, will appear before the mediator
at a time and place determined by the mediator, but not more than sixty
(60) days after delivery of the Dispute Notice. The fees of the
mediator and other costs of the mediation will be
<PAGE>
shared equally by the parties. (B) Each party will present a review of
the matter and its position with respect to such matter. At the
conclusion of both presentations the parties may ask questions of each
other. Either party may abandon the mediation procedure at the end of
the presentation and question periods and the mediation procedure shall
not be binding on either party.
(iv) If the matter is not resolved after applying the
mediation procedure set forth above, or if either party refuses to take
part in the mediation process, the parties may initiate legal
proceedings to resolve their dispute.
ARTICLE 24.
NOTICES
All notices or other communications which are required or permitted
herein shall be in writing and sufficient if delivered personally, sent by
facsimile transmission followed by another form of written notification which is
capable of providing proof of delivery, sent by prepaid overnight air courier,
or sent by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
<PAGE>
IF TO GRANTOR:
Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, CO 80021
Attn: VP, Transmission and Special Services
Fax: (720) 888-5255
with a copy to:
Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, CO 80021
Attn: General Counsel
Fax: (720) 888-5127
IF TO GRANTEE: SAVVIS Communications Corporation
450 South Hamilton Street
Painted Post, NY 14870
Fax: 607.962.5687
Attn: Senior VP - Strategic Network Development
with a copy to: SAVVIS Communications Corporation
717 Office Parkway
St. Louis, MO 63141
Attn: Vice President - General Counsel
Fax: 314.468.7550
or at such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such
communication shall be deemed to have been given when delivered if delivered
personally, on the same day as facsimile transmission (or the first business day
thereafter if faxed on a Saturday, Sunday or legal holiday), on the business day
after dispatch if sent by overnight air courier, or on the third business day
after posting if sent by mail.
<PAGE>
ARTICLE 25.
ENTIRE AGREEMENT; AMENDMENT
This Agreement constitutes the entire and final agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes all prior agreements relating to the subject matter hereof, which are
of no further force or effect. The Exhibits referred to herein are integral
parts hereof and are hereby made a part of this Agreement. This Agreement may
only be modified or supplemented by an instrument in writing executed by a duly
authorized representative of each party. The parties acknowledge that Grantee
shall obtain financing for the capital costs of this Agreement with certain
financing parties. The Grantor acknowledges that Grantee has no liability under
this Agreement until it has closed such financing of its capital costs as
reflected on Exhibit "B" to this Agreement. Grantee shall give written notice to
Grantor upon closing such financing. Notwithstanding anything herein to the
contrary, Grantor may elect to terminate this Agreement without any liability or
further obligations if Grantee has failed to close such financing and notify
Grantor thereof by August 11, 2000.
ARTICLE 26.
RELATIONSHIP OF THE PARTIES
The relationship between Grantee and Grantor shall not be that of
partners, agents, or joint venturers for one another, and nothing contained in
this Agreement shall be deemed to constitute a partnership or agency agreement
between them for any purposes, including but not limited to federal income tax
purposes.
ARTICLE 27.
COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument.
ARTICLE 28.
CONSTRUCTION AND INTERPRETATION OF AGREEMENT
The language in all parts of this Agreement shall in all cases be
construed simply, as a whole and in accordance with its fair meaning and not
strictly for or against any party. The parties hereto acknowledge and agree that
this Agreement has been negotiated by the parties and has been the subject of
arm's length and careful negotiation over a considerable period of time, that
each party has been given the opportunity to independently review this Agreement
with legal counsel, and that each party has the requisite experience and
sophistication to understand, interpret and agree to the particular language of
the provisions hereof. Accordingly, in the event of an ambiguity in or dispute
regarding the interpretation of this Agreement, this Agreement shall not be
interpreted or construed against the party preparing it.
ARTICLE 29.
ENFORCEMENT
If any term or provision of this Agreement, the deletion of which would
not adversely affect the receipt of any material benefit by either party
hereunder, shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby and
each other term and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law. It is the intention of the parties to
this Agreement, and the parties hereto agree, that in lieu of each clause or
provision of this Agreement that is illegal, invalid or unenforceable, the court
shall supply as a part of this Agreement an enforceable clause or provision as
similar in terms to such illegal, invalid or unenforceable clause or provision
as may be possible.
<PAGE>
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the
date first above written.
LEVEL 3 COMMUNICATIONS, LLC, a
Delaware limited liability company
By: /s/ Steven M. Gallant
------------------------------------------------
Name: Steven M. Gallant
Title: Vice President and General Counsel
SAVVIS COMMUNICATIONS CORPORATION, a Delaware corporation
By: /s/ Neil Eckstein
------------------------------------------------
Name: Neil Eckstein
Title: Vice President and General Counsel
<PAGE>
Exhibit "A"
Segment Descriptions and Scheduled Completion Dates
------------------------------------------------------------------------------
SEGMENT NAME GRANTEE FIBER ROUTE SCHEDULED
COUNT MILES COMPLETION DATE*
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 1
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
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New York - Stamford 1 45 10/15/00
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Stanford - Hartford 1 93 12/27/00
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------------------------------------------------------------------------------
Hartford - Providence 1 62 3/6/01
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Providence - Boston 1 66 3/13/01
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Boston - Albany 1 180 2/26/01
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Albany - Montreal 1 238 9/12/00
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Montreal - Ottawa 1 102 9/19/00
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Ottawa - Toronto 1 254 10/15/00
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Toronto - Buffalo 1 125 10/8/00
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Buffalo - Cleveland 1 196 2/21/00
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Cleveland - Pittsburgh 1 162 2/6/00
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Pittsburgh - Washington D.C. 1 267 2/15/01
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Washington D.C. - Baltimore 1 72 11/30/00
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Baltimore - Wilmington 1 76 9/1/00
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------------------------------------------------------------------------------
Wilmington - Philadelphia 1 34 9/6/00
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Philadelphia - Princeton 1 52 3/5/01
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Princeton - Newark 1 35 3/5/01
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Newark - New York 1 16 10/27/00
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------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 2
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Washington D.C. - Richmond 1 125 11/30/00
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Richmond - Raleigh 1 170 10/27/00
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Raleigh - Charlotte 1 207 10/30/00
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Charlotte - Atlanta 1 257 10/25/00
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Atlanta - Nashville 1 391 12/10/00
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Nashville - Louisville 1 229 10/15/00
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Louisville - Cincinnati 1 126 9/16/00
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Cincinnati - Indianapolis 1 114 9/22/00
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Indianapolis- Chicago 1 241 9/22/00
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Chicago - Detroit 1 321 1/30/01
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Detroit - Cleveland 1 191 1/30/01
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Cleveland - Akron 1 41 2/6/01
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Akron - Pittsburgh 1 121 2/6/01
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Pittsburgh - Washington D.C. 1 267 2/15/01
------------------------------------------------------------------------------
------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 3
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Chicago - St. Louis 1 299 10/24/00
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------------------------------------------------------------------------------
St. Louis - Kansas City 1 300 10/13/00
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Kansas City - Omaha 1 206 Completed
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Omaha - Denver 1 540 Completed
------------------------------------------------------------------------------
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Denver - Stratford 1 359 9/9/00
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Stratford - Fort Worth 1 422 Completed
------------------------------------------------------------------------------
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Fort Worth - Dallas 1 30 Completed
------------------------------------------------------------------------------
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Dallas - Memphis 1 504 9/8/00
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------------------------------------------------------------------------------
Memphis - Nashville 1 253 9/21/00
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Nashville - Louisville 1 229 10/15/00
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Louisville - Cincinnati 1 126 9/16/00
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Cincinnati - Indianapolis 1 114 9/22/00
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Indianapolis - Chicago 1 241 9/22/00
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------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 4
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
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Denver - Stratford 1 359 9/9/00
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------------------------------------------------------------------------------
Stratford - El Paso 1 472 9/4/00
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El Paso - Phoenix 1 418 9/30/00
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------------------------------------------------------------------------------
Phoenix - San Diego 1 359 1/15/01
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San Diego - Los Angeles 1 158 12/22/00
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------------------------------------------------------------------------------
Los Angeles - San Bernardino 1 69 1/8/01
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------------------------------------------------------------------------------
San Bernardino - Las Vegas 1 227 3/11/01
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Las Vegas - Salt Lake City 1 485 12/11/00
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Salt Lake City - Denver 1 603 12/11/00
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------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 5
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
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Atlanta - Jacksonville 1 334 12/31/00
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Jacksonville - Orlando 1 143 11/6/00
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Orlando - Miami 1 253 11/6/00
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Miami - Tampa Bay 1 290 10/5/00
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Tampa Bay - New Orleans 1 725 12/31/00
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New Orleans - Houston 1 363 11/16/00
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Houston - Dallas 1 248 Completed
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Dallas - Memphis 1 504 9/8/00
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Memphis - Nashville 1 253 9/21/00
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Nashville - Atlanta 1 391 12/10/00
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<PAGE>
------------------------------------------------------------------------------
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RING 6
------------------------------------------------------------------------------
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Dallas - Houston 1 248 Completed
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Houston - San Antonio 1 217 Completed
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San Antonio - Austin 1 79 Completed
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Austin - Fort Worth 1 208 Completed
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Fort Worth - Dallas 1 30 Completed
------------------------------------------------------------------------------
------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 7
------------------------------------------------------------------------------
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Salt Lake City - Seattle 1 897 12/11/00
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Seattle - Portland 1 188 11/10/00
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Portland - Sacramento 1 657 1/25/01
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Sacramento - Oakland 1 85 12/3/00
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Oakland - San Francisco 1 9 2/14/01
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San Francisco - San Jose 1 43 1/5/01
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San Jose - San Luis Obispo 1 199 1/8/01
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San Luis Obispo - Los Angeles 1 222 1/17/01
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Los Angeles - San Bernardino 1 69 1/8/01
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San Bernardino - Las Vegas 1 227 3/11/01
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Las Vegas - Salt Lake City 1 485 12/11/00
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1
------------------------------------------------------------------------------
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<PAGE>
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 8 1
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------------------------------------------------------------------------------
1
------------------------------------------------------------------------------
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San Francisco - San Jose 1 43 1/5/01
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San Jose - San Luis Obispo 1 199 1/8/01
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San Luis Obispo - Los Angeles 1 222 1/17/01
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Los Angeles - San Bernardino 1 69 1/8/01
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San Bernardino - Sacramento 1 473 1/21/01
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Sacramento - Oakland 1 85 12/3/00
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------------------------------------------------------------------------------
Oakland - San Francisco 1 9 2/14/01
------------------------------------------------------------------------------
* For all Segments identified as "Completed" or all Segments for which the
Scheduled Completion Date is less than ninety (90) days from the execution date
of this Agreement, the Scheduled Completion Date shall be ninety (90) days after
execution of this Agreement.
The Segment End Point for each Segment listed above shall be contained in the
Grantor Gateway Facility within each such city, and the Grantee Fibers shall be
terminated via an optical cross connect ("OSX") within each such Gateway
Facility. Except in cases where Grantee connects to other equipment colocated
within such Gateway Facility, or to other networks which are connected to such
Gateway Facility, the Grantee Fibers will be cross connected (via fiber jumpers)
into the Grantee Fibers terminating at an OSX within the same Gateway Facility.
Within each Regeneration Facility or Opamp Facility, Grantor shall (at Grantee's
request) provide a jumper from the OSX where the Grantee Fibers terminate to the
Grantee's space within such facility. Grantee shall be responsible for
completing the connection to its equipment within such facility.
<PAGE>
Exhibit "B"
Fees
A. The Design, Planning and Engineering Fee.
The Design, Planning and Engineering Fee shall be [**], and shall be due and
payable no later than five (5) days after obtaining board approval and closing
financing as set forth in Article 25.
B. The IRU Fee.
The IRU Fee for the use of the Grantee Fibers shall be [**], allocated on a
Segment by Segment basis as follows:
------------------------------------------------------------------------------
SEGMENT NAME IRU FEE
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 1
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
New York - Stamford [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Stamford - Hartford [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Hartford - Providence [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Providence - Boston [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Boston - Albany [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Albany - Montreal [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Montreal - Ottawa [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Ottawa - Toronto [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Toronto - Buffalo [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Buffalo - Cleveland [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Cleveland - Pittsburgh [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Pittsburgh - Washington D.C. $[**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Washington D.C. - Baltimore [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Baltimore - Wilmington [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Wilmington - Philadelphia [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Philadelphia - Princeton [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Princeton - Newark [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Newark - New York [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 2
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Washington D.C. - Richmond [**]
------------------------------------------------------------------------------
Richmond - Raleigh [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Raleigh - Charlotte [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Charlotte - Atlanta [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Atlanta - Nashville [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Nashville - Louisville [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Louisville - Cincinnati [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Cincinnati - Indianapolis [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Indianapolis- Chicago [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Chicago - Detroit [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Detroit - Cleveland [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Cleveland - Akron [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Akron - Pittsburgh [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Pittsburgh - Washington D.C. [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
------------------------------------------------------------------------------
RING 3
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Chicago - St. Louis [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
St. Louis - Kansas City [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Kansas City - Omaha [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Omaha - Denver [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Denver - Stratford [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Stratford - Fort Worth [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Fort Worth - Dallas [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Dallas - Memphis [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Memphis - Nashville [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Nashville - Louisville [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Louisville - Cincinnati [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Cincinnati - Indianapolis [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Indianapolis - Chicago [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 4
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Denver - Stratford [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Stratford - El Paso [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
El Paso - Phoenix [**]
------------------------------------------------------------------------------
Phoenix - San Diego [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
San Diego - Los Angeles [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Los Angeles - San Bernardino [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
San Bernardino - Las Vegas [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Las Vegas - Salt Lake City [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Salt Lake City - Denver [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 5
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Atlanta - Jacksonville [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Jacksonville - Orlando [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Orlando - Miami [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Miami - Tampa Bay [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Tampa Bay - New Orleans [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
New Orleans - Houston [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Houston - Dallas [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Dallas - Memphis [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Memphis - Nashville [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Nashville - Atlanta [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
RING 6
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Dallas - Houston [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Houston - San Antonio [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
San Antonio - Austin [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Austin - Fort Worth [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Fort Worth - Dallas [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
------------------------------------------------------------------------------
RING 7
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Salt Lake City - Seattle [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Seattle - Portland [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Portland - Sacramento [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Sacramento - Oakland [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Oakland - San Francisco [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
San Francisco - San Jose [**]
------------------------------------------------------------------------------
San Jose - San Luis Obispo [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
San Luis Obispo - Los Angeles [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Los Angeles - San Bernardino [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
San Bernardino - Las Vegas [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Las Vegas - Salt Lake City [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Ring 8
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
San Francisco - San Jose [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
San Jose - San Luis Obispo [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
San Luis Obispo - Los Angeles [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Los Angeles - San Bernardino [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
San Bernardino - Sacramento [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Sacramento - Oakland [**]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Oakland - San Francisco [**]
------------------------------------------------------------------------------
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
For all Segments contained within a Ring (except for the last Segment to be
completed within such Ring), Grantor will send Grantee an invoice for payment of
the allocated IRU Fee for each Segment and Grantee shall pay such invoiced
amount on the later of (i) thirty (30) days after the Acceptance Date for each
such Segment or (ii) the date that is sixty (60) days prior to the Scheduled
Completion Date for the last Segment within such Ring. For the last Segment to
be completed within each Ring, Grantor will send Grantee an invoice for payment
of the allocated IRU Fee and Grantee shall pay such invoiced amount within
thirty (30) days after the Acceptance Date for such Segment. Notwithstanding the
foregoing, to the extent Grantor completes all Segments contained within a Ring
prior to the Scheduled Completion Date for the last Segment to be completed
within such Ring, then Grantor shall invoice Grantee for payment of the
allocated IRU Fee for all such Segments and Grantee shall pay such amounts
within thirty (30) days after the Acceptance Date for the last Segment to be
completed within such Ring.
C. Other Fees.
Additional IRU Fees shall be due and payable with respect to the use of
Regeneration Facilities and Opamp Facilities as set forth in Exhibit "C"
concurrently with the payment for the applicable Segment.
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
Exhibit "C"
Regeneration Facilities and Opamp Facilities Specifications
The following section delineates the general specifications for the Regeneration
Facilities and Opamp Facilities forming a part of the Grantor System. Grantor
may deviate from the specifications set forth herein, provided that such
deviation does not materially and adversely impact the utility, operation or
expected useful life of the Grantor System. Grantor may further deviate from
these specifications in those instances where either (i) strict compliance is
impractical due to physical (including environmental) conditions, right-of-way
issues or code restrictions, or (ii) Grantor has acquired a portion of the
Grantor System from a third party.
Grantor will install modular, prefabricated structures approximately 80 - 100
kilometers apart, along the System Route, to house DC power plants and the
telecom infrastructure for the installation and operation of regeneration
electronic and optronic equipment for the Grantor System.
The facilities will be equipped with a minimum of 200amp 120/208 volt electrical
services.
The entire site including the structure will be secured within a chain link
fenced area where permitted. The structures will be placed on a structural
concrete slab with gravel surrounding the outer perimeter.
The following are the general specifications of the facilities and support
equipment.
o Standard production, pre-manufactured, concrete reinforced
buildings with rebar. All doorframes are to be cast into the
concrete panels for added security and to prevent water
leakage around the frame.
o Facilities will be equipped with HVAC units. There will be two
units installed at each facility for HVAC redundancy.
o The facility sites will be equipped with an external backup
generator. The generator fuel tanks will have an approximately
48 hour-fuel capacity. As part of the normal maintenance, the
generator will be exercised on a monthly basis, running on a
load bank for a minimum of fifteen (15) minutes. There will be
an
<PAGE>
Automatic Transfer Switch for the automatic start-up of the
generator in the event of a primary power loss.
o Fire extinguishers will be provided within the facilities.
o The facilities will have grounding system termination bars
terminated to either the main electrical system ground and /or
driven ground rod.
o The facilities will be equipped with A/C duplex isolated
outlets for test equipment and miscellaneous use. Such outlets
will be placed as needed around the perimeter walls.
o The facilities will have sufficient lighting on the interiors
as well as the exteriors.
o Grantor will not be responsible for installation in the
customer space of relay racks, but will install a single tier
12" ladder rack system. The ladder rack will be used for DC
power distribution and with attached angle clips for signal
cable distribution.
o Grantor shall provide a level of - 48 volt DC power (specified
by Grantee) which shall not exceed 150 amps for the operation
of Grantee's equipment within each Regeneration Facility and
Opamp Facility.
o The fiber cable through the facility will enter and exit
within the Grantor space and terminate at Grantor's OSX. Fiber
will then be brought over to the customer space via a fiber
guide.
o All entry and exits and environmental systems will be
monitored remotely on a twenty-four hour basis.
Grantee will be responsible for monitoring its own power plant and regeneration
equipment.
Grantee Space Requirements:
Grantee shall provide Grantor with written notice within sixty (60) days
following execution of this Agreement specifying the amount of space it wishes
to utilize in each Regeneration Facility, Opamp Facility and Grantor Gateway
Facility within each Segment where Grantee is receiving Grantee Fibers. The
parties will work together, subject to current availability, to determine the
amount of space needed for Grantee. In the event that such notice is not
received by Grantor within such period, then Grantee shall be deemed to have
accepted for the Term sufficient space to accommodate three
<PAGE>
(3) racks within each Regeneration Facility and two (2) racks within each Opamp
Facility. Provided that the facility is accepted and payment is made by Grantee,
the facility is available for service (as defined by Grantor), and all related
terms and conditions are met, Grantee may access such facilities in advance of
the Effective Date for the associated Segment.
The IRU Fee for space in the Regeneration Facilities and Opamp Facilities is as
follows:
IRU Fee Space
[**] one-time payment Per square foot
[**] one-time payment Per rack
or
[**] per month Per rack
If the monthly payment option is selected for space in the Regeneration
Facilities and Opamp Facilities, then the monthly IRU Fee shall be increased on
each anniversary of the Acceptance Date of the Segment in which Grantee will
receive the IRU by the increase, if any, in the CPI-U for the preceding twelve
(12) month period. In the event such index shall cease to be computed or
published, Grantor may, in its reasonable discretion, designate a successor
index to be used in determining any increase to the monthly IRU Fee.
The IRU Fees set forth above shall be due and payable at the same times and in
accordance with the same procedures as set forth in the Agreement (so that the
IRU Fee for each Regeneration Facility and Opamp Facility located along a
Segment shall be due and payable at the same time as the Grantee Fibers for such
Segment).
In the event Grantee determines that it will require more space for the Grantee
Fibers than previously requested by Grantee or allocated by Grantor pursuant
hereto, Grantor will, subject to availability and Grantor's own business needs
and requirements, determined in Grantor's sole discretion, upon the request of
Grantee, provide Grantee during the Term with additional shared space sufficient
for the placement of additional equipment.
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
If such request for additional space is made in connection with the purchase of
additional fiber, then Grantor shall promptly notify Grantee of the availability
of additional space and, if such space is available, Grantee shall pay for fifty
percent (50%) of the cost of such space within thirty (30) days after receipt of
an invoice from Grantor and the remaining fifty percent (50%) of the cost of
such space upon the Acceptance Date of the relevant Segment of Grantee Fibers.
In the event Grantee requests additional space only (i.e. not in connection with
the purchase of additional fiber), then Grantor shall notify Grantee within
forty-five (45) days after receipt of Grantee's request for additional space of
the amount of space that is available in the next nine (9) month period and, if
such space is available, Grantee shall pay for fifty percent (50%) of the cost
of such space within thirty (30) days after receipt of an invoice from Grantor
and the remaining fifty percent (50%) of the cost of such space upon completion
of the build-out. Grantee shall pay Grantor the then current rate for additional
space.
Grantee Power Requirements and Charges:
Grantee shall pay the following charges for the consumption of power needed to
operate Grantee's electronic and optronic equipment: $15 per amp per month for
DC power.
If Grantor incurs an increase in power charges for the consumption of power
needed to operate Grantee's electronic and optronic equipment at Regeneration
Facilities and Opamp Facilities along the Grantor System, Grantor may increase
the power charges specified under this Exhibit, however, said increase shall
occur not more than annually. Grantee shall notify Grantor in writing of its
initial power requirements within sixty (60) days following execution of this
Agreement and shall provide Grantor written updates for any increased power
needs during the Term.
<PAGE>
Exhibit "D"
Long Haul Network Construction Specifications
1. The intent of this Exhibit is to delineate the general specifications and
standards for construction of the Grantor System. In the event any federal,
state, local or private agency having jurisdiction shall impose higher
standards, Grantor will comply and conform with such higher standards. Grantor
may deviate from the specifications and standards described below in those
instances where either (i) strict compliance is impractical due to physical
(including environmental) conditions, right-of-way issues or code restrictions,
or (ii) Grantor has acquired a portion of the Grantor System from a third party.
2. Material
o Steel casings shall be minimum 35,000 PSI.
o Any exposed steel conduit, brackets or hardware (i.e., bridge
attachments) shall be galvanized.
o Hand holes shall have a minimum 20,000 pound loading rating
with 6 to 12 inches of cover.
o Manholes shall have a minimum H-20 loading rating.
o Fiber optic cable shall generally be single armored (except
where Grantor determines otherwise, in its sole and absolute
discretion).
o HDPE SDR 11 conduits shall be used for plowing and HDPE SDR 9
conduits shall be installed in rock areas.
3. Minimum Depths
o Minimum cover required in the placement of conduit shall be 42
inches, except in the following instances:
o The minimum cover in borrow ditches adjacent to roads,
highways, railroads and interstates shall be 48 inches below
the clean-out line or existing grade, whichever is greater.
o The minimum cover across streams, river washes and other
waterways shall be 48 inches below the clean-out line or
existing grade, whichever is greater.
o At locations where conduit crosses other subsurface utilities
or other structures, the conduit shall be installed to provide
a minimum of 12 inches of vertical clearance; otherwise the
conduit
<PAGE>
will be installed under the existing utility or other
structure.
o In rock, the conduit shall be placed to provide a minimum of 8
inches below the surface of the solid rock with a steel or
concrete cap, or 18 inches below the surface of the rock or
provide a minimum of 42 inches of total cover, whichever
requires the least rock excavation. HDPE conduit will be
back-filled with 2 inches of select materials (bedding) and 4
inches of select cover in rock areas.
o In the case of the use/conversion of existing steel pipelines
or salvaged conduit systems, the existing depths shall be
considered adequate.
4. Buried Cable Warning Tape
All conduit will be installed with buried cable warning tape except
where existing steel pipelines or salvaged conduit systems are used. The warning
tape shall generally be placed at a depth of 12 inches below grade and directly
above the conduit.
5. Conduit Construction
o Conduits may be placed by means of trenching, plowing, jack and bore,
or directional bore. Conduit will generally be placed on a level grade
parallel to the surface, with only gradual changes in grade elevation.
o Steel conduit will be joined with threaded collars or welding.
o Railroad crossings will be encased in steel conduit where required.
o All underground crossings of major streams, rivers, bays and navigable
waterways will be placed in either HDPE or steel conduit at a minimum
depth of 20 feet below the bottom of the waterway.
o All conduits placed on DOT bridges will be bullet-proof fiberglass
where allowed by the authority and all other bridges galvanized steel
conduit shall be installed.
o All conduits placed on bridges shall have expansion joints placed at
each structural (bridge) expansion joint or at least every 100 feet,
whichever is the shorter distance.
6. Innerduct Installation
o HDPE inner ducts, where utilized, shall be 1 = 1/4 inches.
<PAGE>
o HDPE innerduct(s), where utilized, shall be encased by a HDPE or steel
conduit.
o HDPE innerduct(s) shall extend beyond the end of all conduits a minimum
of 18 inches.
7. Cable Installation
o The fiber optic cable shall be installed by using blowing
equipment or a powered pulling winch and hydraulic powered
assist pulling wheels. The maximum pulling force to be applied
to the fiber optic cable shall be 600 pounds.
o Bends of small radii (less then 20 times the outside diameter
of the cable) and twists that may damage the cable shall be
avoided during cable placement.
o The cable shall be lubricated and placed in accordance with
the cable manufacturer specifications.
o A pulling swivel break-away rated at 600 pounds shall be used
at all times.
o All splices will be contained in a hand hole or manhole.
o A minimum of 13 feet of slack cable will be left in all
intermediate hand holes or manholes.
o A minimum of 50 feet of slack cable from each cable end will
be left in all splice locations.
o A minimum of 100 feet of slack cable will be left in all
Regeneration Facilities and Opamp Facilities.
8. Manholes and Hand holes
o Hand holes and manholes placed in traveled surface streets
shall be HS-20 loading rated and shall have locking lids.
o Hand holes shall be placed in all other areas and be installed
with a minimum of 6 inches of soil covering the lid.
9. Cable Markers (Warning Signs)
Cable markers (with the same information as buried cable warning tape)
shall be installed at all changes in cable running line directions, waterways,
subsurface utilities, hand holes and at both sides of street, highway, bridge or
railroad crossings. At no time, shall any markers be
<PAGE>
spaced more than 1000 feet apart. Markers shall be positioned so that they can
be seen from the location of the cable and generally set facing perpendicular to
the cable running line.
10. Compliance
All work will be done in strict accordance with federal, state, local
and applicable private rules and laws regarding safety and environmental issues,
including those set forth by OSHA and the EPA. In addition, all work and the
resulting fiber system will comply with the current requirements of all
governing entities (FCC, NEC, DEC, and other national, state, and local codes).
11. As-Built Drawings
o As-built drawings will contain a minimum of the following:
o Informationshowing the location of running line, relative to
permanent land marks, including but not limited to, railroad
mileposts, boundary crossings and utility crossings.
o Manhole and hand hole locations.
o Conduit information (type, length, expansion joints, etc.).
o Notation of all deviations from specifications (depth, etc.).
o ROW detail (type, centerline distances, boundaries, waterways,
road crossings, known utilities and obstacles).
o Cable marker locations and stationing.
o Fiber optic cable data (type, manufacturer, reel Ids,
sequentials, slack coils, splice points, etc.).
o Regeneration Facility and Opamp Facility locations and floor
plans.
o Drawings will be updated with actual field data during and
after construction.
o Metro area scale shall not exceed 1 inch = 200 feet.
o Rural area scale shall not exceed 1 inch = 500 feet.
o As-built drawings will be provided within 90 days after the
Acceptance Date, in both hard copy and electronic format.
Updates to the as-built drawings will be provided within 60
days of completion of change.
<PAGE>
EXHIBIT "E"
Long Haul Network Fiber and Conduit Specifications
The intent of this Exhibit is to delineate the specifications for the Grantee
Fibers and the conduit housing the Cable. Deviations from these specifications
may occur if Grantor acquires a portion of the Grantor System from a third party
pursuant to the Agreement.
Fiber
Grantor is installing non-zero dispersion-shifted optical fiber in the long haul
segments (i.e., Gateway Facility to Gateway Facility) of the Grantor System. In
the metropolitan segments, single mode fiber will be used. In any case where the
routes for Grantor's long-haul and metropolitan networks converge, Grantor shall
have the right to elect to install either type of fiber. Grantor may substitute
alternative fibers if and only if such alternative fibers have performance
specifications which are at least equal to the specifications set forth below.
Non-Zero Dispersion -Shifted Optical Fiber
o Attenuation at 1550 nm = 0.25 dB/km max
o Attenuation at 1625 nm = 0.25 dB/km max
o Total Dispersion = 2.0 - 6.0 ps/nm-km for 1530 nm to 1565nm 4.5 - 11.2
ps/nm-km for 1565nm to 1625nm
o Effective Area (Aeff) = 72 m(2), typical
o Polarization Mode Dispersion = 0.20 ps max per fiber, typical 0.08 ps
link value
o Mode Field Diameter = 9.20 to 10.00 im at 1550 nm
o Cladding Diameter = 125.0 +- 1.0 im
o Core/Clad Concentricity <= 0.5 im
Single Mode Fiber
o Attenuation at 1310 nm = 0.40 dB/km max
o Attenuation at 1550 nm = 0.30 dB/km max
o Zero Dispersion wavelength = 1312nm typical
o Wavelength cutoff<1260nm typical
o Dispersion slope =<.0902ps typical
<PAGE>
o Polarization Mode dispersion = 0.20 ps max per fiber, 0.10 ps link
value
o Mode Field Diameter = 9.2+- 0.4 im at 1310 nm & 10.4 +-0.8 at 1550 nm
o Cladding Diameter = 125.0 +- 1.0 im
o Core/Clad Concentricity <=0.5 im
Conduit
o OSP Conduit SDR 11
o 1-1/4" (inside diameter)
o High density polyethylene (HDPE) duct
o Tensile yield 3200 psi o Flexural modulus 110,000 psi
o Smoothwall inside & outer
o Empty (no rope or tape)
o Unlubricated
<PAGE>
Exhibit "F"
Long Haul Network Fiber Acceptance Testing Procedures and Standards
All splices will be performed with an industry accepted fusion splicing machine.
Grantor will perform two stages of testing during the construction of a new
fiber cable route. Initially, Optical Time Domain Reflectometer ("OTDR") tests
will be taken from one direction. As soon as fiber connectivity has been
achieved to both Regeneration/Opamp Facilities, Grantor will verify and record
the continuity of all fibers. Grantor will take and record power level readings
on all fibers in both directions. Grantor will bi-directional OTDR test all
fibers.
During the initial construction, it is only possible to measure the fiber from
one direction. Because of this, 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 data is established. The pigtails
will also be qualified at this stage using an OTDR and a minimum 1 km launch
reel. All measurements at this stage in construction will be taken at 1550 nm.
After Grantor has completed end-to-end connectivity on the fibers,
bi-directional span testing will be done. These measurements must be made after
the splice manhole or hand hole 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. Grantor will store OTDR traces on diskette and on data sheets.
Laser Precision format will be used on all traces. Copies of all data sheets and
tables, and one set of diskettes with all traces will be available to Grantee.
The power loss measurements shall be made at 1550 nm, and performed
bi-directionally.
OTDR traces shall be taken in both directions at 1550 nm.
The splicing standards are as follows:
<PAGE>
o The loss value of the pigtail connector and its associated splice will
not exceed 0.50 dB. This value does not include the insertion loss from
its connection to the OSX (read comments below). For values greater
than this, the splice will be broken and respliced until an acceptable
loss value is achieved. If, after three attempts, Grantor is not able
to produce a loss value less than 0.50 dB, the splice will be marked as
Out-of-Spec ("OOS") on the data sheet. Each splicing attempt shall be
documented on the data sheet. (Grantor's splicing specifications
include a target for a single mode fiber to a non-zero
disperision-shifted optical fiber splice of 0.15dB and the target loss
from the fiber into a connector through the OSX and into the next fiber
is 0.3dB. Thus, a Grantee connecting into Grantor's OSX would see a
loss of approximately 0.5 dB from the backbone fiber into its jumper.)
o During installation, and during any restoration activity caused by
fiber cuts or other events, the objective for each splice is a loss of
0.15 dB or less. If, after three attempts, Grantor is not able to
produce a loss value of less than 0.15 dB, then 0.25 dB will be
acceptable. If, after two additional attempts, a value of less than
0.25 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. (Grantor's target splice loss is .08.)
o During end-to-end testing of a span (a span shall be OSX to OSX), the
objective for each splice is a bi-directional average loss of 0.15 dB
or less.
o The maximum bi-directional loss for each splice shall be 0.25 dB.
o The entire fiber optic cable system shall be properly protected from
foreign voltage and grounded with an industry-accepted system.
The fibers shall be terminated to the OSX with SC-PC connectors (max return loss
of 0.50dB and a typical of 0.57dB), unless another type of connector is
specified. Pigtails and jumpers shall be manufactured with standard single mode
fiber or equivalent.
Testing for Segments for which the Segment End Point is other than a Grantor
point of presence shall be performed in a coordinated fashion, so that Grantee
shall connect and test the fiber owned by it in conjunction with Grantor's
testing of the Grantee Fibers. In the event that the entire tested portion does
not satisfy the testing criteria set forth herein, Grantee and Grantor shall
work together in good faith to pinpoint the cause of the problem and each party
shall be responsible for the timely performance of such repairs on the fibers
owned by it (so that Grantor shall only be responsible for repairs needed to
bring the Grantee Fibers into compliance
<PAGE>
with this Exhibit). Grantor may (in the event of a dispute respecting testing
and acceptance of the Grantee Fibers within any such Segment) arrange to have
the Grantee Fibers tested only to the Segment End Point and, if such Grantee
Fibers meet the testing criteria set forth herein, Grantee shall be obligated to
accept and pay for such Grantee Fibers (notwithstanding the fact that the fibers
connected to Grantor's point of presence may not be functioning properly).
<PAGE>
Exhibit "G"
Maintenance Requirements and Procedures
Maintenance
Scheduled Maintenance. Routine maintenance and repair of the Grantee Fibers
described in this section ("Scheduled Maintenance") shall be performed by or
under the direction of Grantor, at Grantor's reasonable discretion. Scheduled
Maintenance shall commence with respect to each Segment upon the Effective Date.
Scheduled Maintenance shall only include the following activities:
o patrol of Grantor System route on a regularly scheduled basis, which
will not be less than monthly, unless hi-rail access is necessary, in
which case, it will be quarterly;
o maintenance of a "Call-Before-You-Dig" program and all required and
related cable locates;
o maintenance of sign posts along the Grantor System right-of-way with
the number of the local "Call-Before-You-Dig" organization and the
"800" number for Grantor's "Call-Before-You-Dig" program; and
o assignment of fiber maintenance technicians to locations along the
route of the Grantor System initially at approximately 110 mile
intervals dependent upon terrain and accessibility, and subject to
subsequent modification in Grantor's reasonable discretion.
Unscheduled Maintenance. Non-routine maintenance and repair of the Grantee
Fibers which is not included as Scheduled Maintenance ("Unscheduled
Maintenance") shall be performed by or under the direction of Grantor.
Unscheduled Maintenance shall commence with respect to each Segment upon the
Effective Date. Unscheduled Maintenance shall consist of:
o "Emergency Unscheduled Maintenance" in response to an alarm
identification by Grantor's Operations Center, notification by Grantee
or notification by any third party of any failure, interruption or
impairment in the
<PAGE>
operation of fibers within the Grantor System, or any event imminently
likely to cause the failure, interruption or impairment in the
operation of fibers within the Grantor System.
o "Non-Emergency Unscheduled Maintenance" in response to any potential
service-affecting situation to prevent any failure, interruption or
impairment in the operation of fibers within the Grantor System not
covered by Scheduled Maintenance. Grantee shall immediately report the
need for Unscheduled Maintenance to Grantor in accordance with
reasonable procedures promulgated by Grantor from time to time. Grantor
will log the time of Grantee's report, verify the problem and dispatch
personnel immediately to take corrective action.
Operations Center
Grantor shall operate and maintain an Operations Center ("OC") staffed
twenty-four (24) hours a day, seven (7) days a week by trained and qualified
personnel. Grantor's maintenance personnel shall be available for dispatch
twenty-four (24) hours a day, seven (7) days a week. Grantor shall have its
first maintenance personnel at the site requiring Emergency Unscheduled
Maintenance activity within four (4) hours after the time Grantor becomes aware
of an event requiring Emergency Unscheduled Maintenance, unless delayed by Force
Majeure Events. Grantor shall maintain a toll-free telephone number to contact
personnel at the OC. Grantor's OC personnel shall dispatch maintenance and
repair personnel along the system to handle and repair problems detected in the
Grantor System: (i) through the Grantee's remote surveillance equipment and/or
upon notification by Grantee to Grantor, or (ii) upon notification by a third
party.
Grantor will not be responsible for monitoring the performance or operation of
the Grantee Fibers; in the event that Grantee detects a failure in the operation
of the Grantee Fibers which may indicate the need for Unscheduled Maintenance,
Grantee shall report same to Grantor's OC.
Cooperation and Coordination
o In performing its services hereunder, Grantor shall take workmanlike
care to prevent impairment to the signal continuity and performance of
the Grantee Fibers. The precautions to be taken by Grantor shall
include notifications to Grantee. In addition, Grantor shall reasonably
cooperate with Grantee in sharing information and analyzing the
disturbances regarding the cable and/or fibers. In the event that any
Scheduled or
<PAGE>
Unscheduled Maintenance hereunder requires a traffic roll or
reconfiguration involving cable, fiber, electronic equipment, or
regeneration or other facilities of the Grantee, then Grantee shall, at
Grantor's reasonable request, make such personnel of Grantee available
as may be necessary in order to accomplish such maintenance, which
personnel shall coordinate and cooperate with Grantor in performing
such maintenance as required of Grantor hereunder.
o Grantor shall notify Grantee at least five (5) business days prior to
the date in connection with any Planned Service Work Period ("PSWP") of
any Scheduled Maintenance and as soon as possible after becoming aware
of the need for Unscheduled Maintenance. Grantee shall have the right
to be present during the performance of any Scheduled Maintenance or
Unscheduled Maintenance so long as this requirement does not interfere
with Grantor's ability to perform its obligations under the Agreement.
In the event that Scheduled Maintenance is canceled or delayed for
whatever reason as previously notified, Grantor shall notify Grantee at
Grantor's earliest opportunity, and will comply with the provisions of
the previous sentence to reschedule any delayed activity.
Facilities
o Grantor shall maintain the Grantor System in a manner which will permit
Grantee's use, in accordance with the terms and conditions of the
Agreement.
o Grantee 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 Grantee in connection with the
operation of the Grantee Fibers, none of which is included in the
maintenance services to be provided hereunder.
Cable/Fibers
o Grantor shall perform appropriate Scheduled Maintenance on the cables
contained in the Grantor System in accordance with Grantor's then
current preventive maintenance procedures which shall not substantially
deviate from standard industry practice.
o Grantor shall have qualified representatives on site any time Grantor
has reasonable advance knowledge that another person or entity is
engaging in
<PAGE>
construction activities or otherwise digging within five (5) feet of
any cable.
o Grantor shall maintain sufficient capability to teleconference with
Grantee during an Emergency Unscheduled Maintenance in order to provide
regular communications during the repair process. When correcting or
repairing cable discontinuity or damage, including but not limited to
in the event of Emergency Unscheduled Maintenance, Grantor shall use
reasonable efforts to repair traffic-affecting discontinuity within
four (4) hours after Grantor's representatives 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, Grantor shall commence its planning for
permanent repair, and thereafter promptly shall notify Grantee 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 PSWP.
o In performing repairs, Grantor shall comply with the splicing
specifications as set forth in Exhibit "F". Grantor shall provide to
Grantee any modifications to these specifications as may be necessary
or appropriate in any particular instance.
o Grantor'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. Grantor
shall maintain and supply an inventory of spare cable in storage
facilities supplied and maintained by Grantor at strategic locations to
facilitate timely restoration.
Planned Service Work Period
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
<PAGE>
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.
Restoration
o Grantor shall respond to any event giving rise to the need for
Unscheduled Maintenance (in any event, an "Outage") as quickly as
possible (allowing for delays caused by Force Majeure Events) in
accordance with the procedures set forth herein.
o When restoring a cut cable in the Grantor System, the parties agree to
work together to restore all traffic as quickly as possible. Grantor,
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. Grantor shall splice fibers tube by tube or ribbon
by ribbon or fiber bundle by fiber bundle, rotating between tubes or
ribbons operated by the parties having an interest in the cable,
including Grantee, Grantor and all future fiber users of the system
(collectively, the "Interest Holders"), in accordance with the
following described priority and rotation mechanics; provided that,
operating fibers (i.e., fibers which have been jumpered to Grantee's,
Grantor's or another party's space or equipment) in all buffer tubes or
ribbons or fiber bundles shall have priority over any non-operating
fibers in order to allow transmission systems to come back on line; and
provided further that, Grantor will continue such restoration efforts
until all lit fibers in all buffer tubes or ribbons are spliced and all
traffic restored. In general, and except to the extent prohibited by
applicable laws, 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 and equitable restoration
priority to all Interest Holders. Grantor will provide upon Segment
completion a System-wide rotation mechanism on a Segment-by-Segment
basis so that the initial rotation order of the Interest Holders in
each Segment is varied (from earlier to later in the order), such that
as restorations occur, each Interest Holder has approximately
equivalent rotation order positions across the Grantor System.
Additional participants in the Grantor System that become Interest
Holders after the date hereof shall be added to the restoration
rotation mechanism.
<PAGE>
o The goal of emergency restoration splicing shall be to restore service
as quickly as possible. This may require the use of some type of
mechanical splice, such as the "3M FiberLock", to complete the
temporary restoration. Permanent restorations will take place as soon
as possible after the temporary splice is complete.
Subcontracting
Grantor may subcontract any of the maintenance services hereunder; provided that
Grantor shall require the subcontractor(s) to perform in accordance with the
requirements and procedures set forth herein. The use of any such subcontractor
shall not relieve Grantor of any of its obligations hereunder.
<PAGE>
ASSIGNMENT AND ASSUMPTION OF IRU AGREEMENTS
THIS ASSIGNMENT AND ASSUMPTION OF IRU AGREEMENTS (this
"Assignment"), dated as of August 31, 2000, is between SAVVIS Communications
Corporation, a Delaware corporation ("ASSIGNOR"), and SAVVIS Communications
Corporation, a Missouri corporation ("ASSIGNEE").
WHEREAS, Assignor desires to assign to Assignee all of
Assignor's right, title and interest in that certain Metro IRU Agreement dated
as of August 2, 2000 between Assignor and Level 3 Communications, LLC and that
certain Long Haul IRU Agreement dated as of August 2, 2000 between Assignor and
Level 3 Communications, LLC (together, the "IRU Agreements"), and Assignee
desires to assume all of Assignor's right, title and interest in the IRU
Agreements.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, Assignor does hereby
bargain, sell, assign, transfer, convey and deliver to Assignee and its
successors and assigns the IRU Agreements and all of Assignor's right, title and
interest in and to the IRU Agreements.
TO HAVE AND TO HOLD the same unto the Assignee, its successors
and assigns, for their exclusive use and benefit forever.
Assignor fully and generally warrants to Assignee the right
and title to the IRU Agreements unto Assignee, its successors and assigns, for
their exclusive use and benefit forever.
Assignee hereby accepts the transfer of the IRU Agreements and
specifically assumes, covenants and agrees to perform and be bound by all of
Assignor's obligations and liabilities under, and all of the terms and
conditions set forth in, the IRU Agreements that constitute contractual
obligations of Assignor.
Each of the parties hereto hereby agrees to take or cause to
be taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such other documents, and to obtain such consents
as may be necessary or as may be reasonably requested in order to fully
effectuate the purposes of this Assignment.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be duly executed as of the day and year first above written.
SAVVIS COMMUNICATIONS
CORPORATION, a Delaware corporation
By: /s/ Steven M. Gallant
---------------------------------
Name: Steven M. Gallant
Title: Vice President
SAVVIS COMMUNICATIONS
CORPORATION, a Missouri corporation
By: /s/ Steven M. Gallant
---------------------------------
Name: Steven M. Gallant
Title: Vice President