Metro IRU Agreement - Level 3 Communications LLC and SAVVIS Communications Corp.
METRO IRU AGREEMENT
THIS METRO IRU AGREEMENT ("Agreement") is made and entered into as of the
2nd day of August 2, 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 9.
1.02 "Acceptance Testing" shall have the meaning set forth in Article 9.
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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 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, as and
to the extent more particularly described in this Agreement, including
designated space in the Grantor Gateway Facilities as set forth in a separate
agreement 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 9.02.
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 15.03.
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 24.
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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 19.
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,
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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 10.01.
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 "Lateral Segment" shall mean the Segments of the Grantor System identified
as such in Exhibit "A".
1.24 "Lateral Segment Fee" shall be the fee specified in Exhibit "B".
1.25 "Non-Targeted Lateral Segment" shall have the meaning set forth in Section
8.02.
1.26 "Person" shall mean any natural person, corporation, partnership, limited
liability company, business trust, joint venture, association, company or
Governmental Authority.
1.27 "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.
1.28 "Proprietary Information" shall have the meaning set forth in Section
23.01.
1.29 "Recurring Charge" shall have the meaning set forth in Section 13.02.
1.30 "Relocating Authority" shall have the meaning set forth in Section 6.03.
1.31 "Required Rights" shall have the meaning set forth in Section 6.01.
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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 "Targeted Lateral Segment" shall have the meaning set forth in Section
8.02.
1.38 "Term" shall have the meaning set forth in Article 5.
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"). The Grantor System will include the "Lateral Segments"
(each of which shall be considered a "Segment" for purposes hereof), if any,
identified in Exhibit "A".
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
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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 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
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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
(including but not limited to the Lateral Segments), 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 Grantee further agrees to pay, as compensation for the construction and
installation of Grantee Fiber within the Lateral Segments and as compensation
for the use thereof, the amounts as set forth on Exhibit "B" (the "Lateral
Segment Fee").
4.04 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.
4.05 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%).
4.06 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 contained in this Agreement,
Grantee shall pay separately an amount equal to
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the amount of Canadian tax withheld to Grantor.
4.07 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 20, 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 Loop (as delineated in Exhibit "A") so that the Term of all
Segments within such Loop expire contemporaneously with the Term of the last
Segment of Grantee Fibers comprising such Loop. 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
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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).
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 20, 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 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.
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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
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 "C", incorporate fiber meeting or exceeding the specifications set forth
in Exhibit "D" 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
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substantially in accordance with the construction specifications set forth in
Exhibit "C", 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
"D". 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 and
Lateral Segments.
7.03 Occupancy by Grantee in any Grantor Gateway Facility shall be subject to
the execution of a separate agreement in form mutually acceptable to both
Grantor and Grantee.
7.04 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.
7.05 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.
7.06 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
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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.
LATERAL SEGMENTS
8.01 In the event that Grantee desires to have Grantor construct and install
additional Lateral Segments (other than those listed in Exhibit "A") during the
Term, Grantee may request (in writing) that Grantor perform construction of
same. Upon receipt of such a request, Grantor shall determine whether it will
construct such additional Lateral Segments; Grantor shall be under no obligation
to construct additional Lateral Segments, and Grantee shall not be obligated to
contract with Grantor for the construction of any Lateral Segments.
8.02 A "Targeted Lateral Segment" is a Lateral Segment to connect a location
where Grantor has, at the time the written request is submitted, already
committed to build and for which Grantor has secured or reserved funding for
construction (including those Lateral Segments identified as Targeted Lateral
Segments on Exhibit "A"). Any Lateral Segment that is not a "Targeted Lateral
Segment" (as of the date of Grantee's request for fiber within such Lateral
Segment) shall be a "Non-Targeted Lateral Segment". In the event that Grantee
requests construction of additional Lateral Segments and Grantor determines to
construct same, then (unless otherwise agreed by the parties) the Lateral
Segment Fee respecting each such Lateral Segment shall be determined in
accordance with Exhibit "B".
8.03 When physically and economically prudent (as determined in Grantor's sole
discretion), Grantor will construct all Targeted Lateral Segments diversely to
Grantor's point of presence only (i.e., two distinct physical routes will be
used to connect the Segment End Point on the Grantor's backbone network to
Grantor's point of presence within or near the targeted building). Building
entrance facilities, or riser facilities within any building, may or may not be
diverse in Grantor's sole discretion. Grantor shall have discretion to determine
the design and route of all
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Lateral Segments (including decisions relating to the location or locations of
the Segment End Points). In the event that (for Lateral Segments other than
those listed in Exhibit "A") Grantor determines to construct a Lateral Segment
diversely, Grantee may (by written notice delivered no later that ten (10) days
after Grantee is informed of Grantor's determination to construct such Lateral
Segment diversely) elect not to use fibers within the diverse return route for
such Lateral Segment, in which event Grantee shall be entitled to use Grantee
Fibers within only the point-to-point section of the Lateral Segment and the IRU
Fee for such Grantee Segment shall be based on the Costs of construction only
for such point-to-point section.
8.04 For the Lateral Segments listed in Exhibit "A", Grantor shall complete
construction of each such Lateral Segment no later than the last to occur of
eighteen (18) months after (a) execution of this Agreement, or (b) completion of
the Segments into which such Lateral Segment is to connect. Grantor shall keep
Grantee informed of the progress of work necessary to complete such
construction, but Grantee shall not be entitled to any liquidated damages (as
set forth in Section 20.03) related to the failure to complete construction on
or before the date required by this Section.
ARTICLE 9.
ACCEPTANCE TESTING AND COMPLETION
9.01 Grantor shall test the Grantee Fibers in accordance with the procedures and
standards specified in Exhibit "E" ("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 installation required for any
Lateral Segments listed in Exhibit "A" (provided Grantor and Grantee have
acquired all necessary building access agreements or other authorizations to
perform such installation 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
(provided Grantee has designated its space and power requirements at least sixty
(60) days before the Scheduled
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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 Grantor Gateway Facilities, acquisition
of all necessary building access agreements or other authorizations required for
installation work and access to Grantee's Point of Presence within such
building, 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.
9.02 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
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 located
along a Segment.
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ARTICLE 10.
INTERCONNECTION POINTS
10.01 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.
10.02 Grantor may route the Grantee Fibers through Grantor's space in any
Grantor Gateway 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.
10.03 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 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.
ARTICLE 11.
OPERATIONS
11.01 Subject to the access restrictions set forth in Article 10, Grantee shall
(at its full cost and expense) have full and complete control and responsibility
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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.
11.02 Grantee acknowledges and agrees that 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.
11.03 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 "C", incorporate fiber and conduit meeting or
exceeding the specifications set forth in Exhibit "D", 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 at a 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 Grantee Fibers
will be tested in
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accordance with the provisions of this Agreement).
ARTICLE 12.
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
"F" attached hereto. The costs of all Scheduled Maintenance (as defined in
Exhibit "F") 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 "F")
(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.
<PAGE>
ARTICLE 13.
RECURRING CHARGE
13.01 Grantor shall be responsible for the payment of the costs of Scheduled
Maintenance of the Grantor System (as defined in Exhibit "F").
13.02 In consideration of Grantor's responsibilities under Section 13.01,
subject to the adjustments described in Section 13.03, Grantee shall pay to
Grantor each year, with respect to all Segments in a metropolitan area,
commencing with the Acceptance Date of the first Segment to be completed within
such metropolitan area and continuing until the expiration of the Term of the
IRU with respect to the last Segment to be completed within such metropolitan
area shall have occurred, the greater of [**] or the product obtained when: (a)
$[**] is multiplied by (b) the number of Route Miles in all such Segments within
a metropolitan area (the "Recurring Charge").
13.03 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.
13.04 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 14.
IMPOSITIONS
14.01 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
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
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.
14.02 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.
14.03 Following the Acceptance Date for each Grantor System and except with
respect to Impositions constituting ad valorem property taxes (which are
addressed in Section 14.04 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.
14.04 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 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, 4.03 and 4.04 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
<PAGE>
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.
14.05 With respect to Section 14.04, 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.
14.06 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 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
<PAGE>
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 15.
USE OF GRANTOR SYSTEM
15.01 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.
15.02 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.
15.03 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.
15.04 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.
15.05 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>
15.06 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 16.
INDEMNIFICATION
16.01 Subject to the provisions of Article 17, 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.
16.02 Subject to the provisions of Article 17, 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.
<PAGE>
16.03 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 unreasonably
withheld or delayed.
16.04 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.
16.05 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.
<PAGE>
ARTICLE 17.
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 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
16.05, 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 18.
INSURANCE
18.01 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.
<PAGE>
18.02 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.
18.03 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.
18.04 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.
18.05 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.
18.06 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.
18.07 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
<PAGE>
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 "F").
ARTICLE 19.
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, 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 20.
DEFAULT
20.01 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
<PAGE>
duties or obligations hereunder, and (B) subject to Article 17, 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.
20.02 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 20.03 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 17, 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.
20.03 If, other than as caused by a Force Majeure Event, Grantor has not
delivered a Completion Notice (in good faith) respecting a Segment within one
hundred eighty (180) days after the Scheduled Completion Date with respect
thereto, 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 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
<PAGE>
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 21.
ASSIGNMENT
21.01 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).
21.02 Any and all increased payments to grantors or Required Right and any 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.
21.03 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.
21.04 Nothing contained in this Article shall be deemed or construed to
<PAGE>
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.
ARTICLE 22.
REPRESENTATIONS AND WARRANTIES
22.01 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.
22.02 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 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" or "D" 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
<PAGE>
in writing of its discovery of a deviation from the specifications set forth in
Exhibits "C" or "D" 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.
22.03 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.
22.04 EXCEPT AS SET FORTH IN THE FOREGOING SECTIONS 22.01 AND 22.02, 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.
ARTICLE 23.
CONFIDENTIALITY
23.01 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
<PAGE>
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.
23.02 The foregoing provisions of Section 23.01 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.
23.03 Notwithstanding Sections 23.01 and 23.02 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.
23.04 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.
23.05 In the event either party shall be required to disclose all or any part of
<PAGE>
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.
23.06 The provisions of this Article shall survive expiration or termination of
this Agreement.
ARTICLE 24.
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
<PAGE>
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 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 25.
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:
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.
<PAGE>
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.
ARTICLE 26.
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
<PAGE>
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 27.
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 28.
COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of which
taken together shall constitute one and the same instrument.
<PAGE>
ARTICLE 29.
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 30.
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.
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
<PAGE>
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
1. Segment Descriptions
------------------------------------------------------------------------------------------------------------------------------------
GRANTEE SCHEDULED
SEGMENT NAME SEGMENT END POINT SEGMENT END POINT FIBER COUNT COMPLETION DATE
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
ATLANTA 15.65 MILES 09/29/00
LOOP C
------------------------------------------------------------------------------------------------------------------------------------
A-4 Pine & Peachtree St Gateway 4
------------------------------------------------------------------------------------------------------------------------------------
B-1 Pine & Peachtree St Peachtree & W Peachtree 4
------------------------------------------------------------------------------------------------------------------------------------
B-3 14th & Peachtree 8th & Peachtree 4
------------------------------------------------------------------------------------------------------------------------------------
B-4 8th & Peachtree 3rd & Peachtree 4
------------------------------------------------------------------------------------------------------------------------------------
B-5 3rd & Peachtree Gateway 4
------------------------------------------------------------------------------------------------------------------------------------
C-1 Peachtree & W Peachtree Monarch & Buckhead 4
------------------------------------------------------------------------------------------------------------------------------------
C-2 Monarch & Buckhead 14th & Peachtree 4
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
BOSTON 6.97 MILES 12/31/00
LOOP A
------------------------------------------------------------------------------------------------------------------------------------
A-1 Gateway Bent & 3rd 4
------------------------------------------------------------------------------------------------------------------------------------
A-2 Bent & 3rd Binney & 3rd 4
------------------------------------------------------------------------------------------------------------------------------------
A-3 Binney & 3rd Broadway & 3rd 4
------------------------------------------------------------------------------------------------------------------------------------
A-4 Broadway & 3rd Longfellow Bridge & Main 4
------------------------------------------------------------------------------------------------------------------------------------
A-5 Longfellow Bridge & Main Longfellow Bridge & Cambridge 4
------------------------------------------------------------------------------------------------------------------------------------
A-6 Longfellow Bridge & Cambridge Cambridge & New Sudbury 4
------------------------------------------------------------------------------------------------------------------------------------
A-7 Cambridge & New Sudbury Summer & Devonshire 4
------------------------------------------------------------------------------------------------------------------------------------
A-8a Summer & Devonshire Stuart & Charles 4
------------------------------------------------------------------------------------------------------------------------------------
A-8b Stuart & Charles Boylston & Charles 4
------------------------------------------------------------------------------------------------------------------------------------
A-9a Boylston & Charles Boylston & Gloucester 4
------------------------------------------------------------------------------------------------------------------------------------
A-9b Boylston & Gloucester Bolyston & Dalton 4
------------------------------------------------------------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------------------------------------------------------------
GRANTEE SCHEDULED
SEGMENT NAME SEGMENT END POINT SEGMENT END POINT FIBER COUNT COMPLETION DATE
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
A-9c Bolyston & Dalton Dalton & Belvidere 4
------------------------------------------------------------------------------------------------------------------------------------
A-9d Dalton & Belvidere I-90 & Massachusetts 4
------------------------------------------------------------------------------------------------------------------------------------
A-10 I-90 & Massachusetts Massachusetts & Public Alley 429 4
------------------------------------------------------------------------------------------------------------------------------------
A-11 Massachusetts & Public Alley 429 Massachusetts & Back 4
------------------------------------------------------------------------------------------------------------------------------------
A-12 Massachusetts & Back Mass. & Harvard Bdg (Bost) 4
------------------------------------------------------------------------------------------------------------------------------------
A-13 Mass. & Harvard Bdg (Bost) Mass. & Harvard Bdg (Cam) 4
------------------------------------------------------------------------------------------------------------------------------------
A-14 Mass. & Harvard Bdg (Cam) Albany & Massachusetts 4
------------------------------------------------------------------------------------------------------------------------------------
A-15 Albany & Massachusetts Broadway & Galileo Galilei 4
------------------------------------------------------------------------------------------------------------------------------------
A-16 Broadway & Galileo Galilei Binney & Fulkerson 4
------------------------------------------------------------------------------------------------------------------------------------
A-17 Binney & Fulkerson Bent & Fulkerson 4
------------------------------------------------------------------------------------------------------------------------------------
A-18 Bent & Fulkerson Gateway 4
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
CHICAGO 1.63 MILES 90 DAYS AFTER
LOOP A1 EXECUTION
------------------------------------------------------------------------------------------------------------------------------------
A-1 Washington & Canal Randolph & Canal 4
------------------------------------------------------------------------------------------------------------------------------------
A-2 Randolph & Canal Randolph & Franklin 4
------------------------------------------------------------------------------------------------------------------------------------
A-3 Randolph & Franklin Washington & Franklin 4
------------------------------------------------------------------------------------------------------------------------------------
A-4 Washington & Franklin Madison & Franklin 4
------------------------------------------------------------------------------------------------------------------------------------
A-9 Van Buren & Franklin Van Buren & Wacker 4
------------------------------------------------------------------------------------------------------------------------------------
A-10 Van Buren & Wacker Van Buren & Canal 4
------------------------------------------------------------------------------------------------------------------------------------
A-11 Van Buren & Canal Washington & Canal 4
------------------------------------------------------------------------------------------------------------------------------------
A1-1 Madison & Franklin Adams & Franklin 4
------------------------------------------------------------------------------------------------------------------------------------
A1-2 Adams & Franklin Van Buren & Franklin 4
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
DALLAS 27.22 MILES 90 DAYS AFTER
LOOP B2 EXECUTION
------------------------------------------------------------------------------------------------------------------------------------
A-1 Gateway Viceroy & I-35 4
------------------------------------------------------------------------------------------------------------------------------------
A-2 Viceroy & I-35 Hwy 12 & Hillcrest 4
------------------------------------------------------------------------------------------------------------------------------------
A-3 Hwy 12 & Hillcrest Irving & Oak Lawn 4
------------------------------------------------------------------------------------------------------------------------------------
A-6 Oak Lawn & Maple Irving & Inwood 4
------------------------------------------------------------------------------------------------------------------------------------
A-7 Irving & Inwood Gateway 4
------------------------------------------------------------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------------------------------------------------------------
GRANTEE SCHEDULED
SEGMENT NAME SEGMENT END POINT SEGMENT END POINT FIBER COUNT COMPLETION DATE
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
A2-1 Irving & Oak Lawn Oak Lawn & Lemmon 4
------------------------------------------------------------------------------------------------------------------------------------
B-1 Collector Node San Jacinto & Crockett 4
------------------------------------------------------------------------------------------------------------------------------------
B-2 San Jacinto & Crockett San Jacinto & Pearl 4
------------------------------------------------------------------------------------------------------------------------------------
B-7 Main & Lamar Ross & Lamar 4
------------------------------------------------------------------------------------------------------------------------------------
B-8 Ross & Lamar Broom & Field 4
------------------------------------------------------------------------------------------------------------------------------------
B-9 Broom & Field Moody & McKinnon 4
------------------------------------------------------------------------------------------------------------------------------------
B-11 Woodall Rodgers & Boll Ross & Leonard 4
------------------------------------------------------------------------------------------------------------------------------------
B-12 Ross & Leonard San Jacinto & Leonard 4
------------------------------------------------------------------------------------------------------------------------------------
B-13 San Jacinto & Leonard Collector Node 4
------------------------------------------------------------------------------------------------------------------------------------
B1-2 Live Oak & Pearl Live Oak & Olive 4
------------------------------------------------------------------------------------------------------------------------------------
B2-1 Moody & McKinnon Oak Lawn & Maple 4
------------------------------------------------------------------------------------------------------------------------------------
B2-2 Oak Lawn & Lemmon Woodall Rodgers & Boll 4
------------------------------------------------------------------------------------------------------------------------------------
B2-3 Live Oak & Olive Main & Lamar 4
------------------------------------------------------------------------------------------------------------------------------------
S1-1 San Jacinto & Pearl Live Oak & Pearl 4
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
LOS ANGELES 0.44 MILES 09/09/00
LOOP A1
------------------------------------------------------------------------------------------------------------------------------------
A-4 Wilshire & Figueroa 6th & Figueroa 4
------------------------------------------------------------------------------------------------------------------------------------
A-5 6th & Figueroa Wilshire & Flower 4
------------------------------------------------------------------------------------------------------------------------------------
A-6 Wilshire & Flower 7th & Lebanon (Gateway) 4
------------------------------------------------------------------------------------------------------------------------------------
S1-1 Wilshire & Figueroa 7th & Figueroa - 4
------------------------------------------------------------------------------------------------------------------------------------
S1-2 7th & Figueroa - 7th & Figueroa + 4
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
NEW YORK 6.53 MILES 90 DAYS AFTER
LOOP A EXECUTION
------------------------------------------------------------------------------------------------------------------------------------
A-1 17th St & 3rd Ave Park Row & St. James 4
------------------------------------------------------------------------------------------------------------------------------------
A-2 Park Row & St. James Fulton & Water 4
------------------------------------------------------------------------------------------------------------------------------------
A-3 Fulton & Water Fulton & Gold 4
------------------------------------------------------------------------------------------------------------------------------------
A-4a Fulton & Gold Spruce & Gold 4
------------------------------------------------------------------------------------------------------------------------------------
A-4b Spruce & Gold Park Row & Spruce 4
------------------------------------------------------------------------------------------------------------------------------------
A-5 Park Row & Spruce Barclay & Church 4
------------------------------------------------------------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------------------------------------------------------------
GRANTEE SCHEDULED
SEGMENT NAME SEGMENT END POINT SEGMENT END POINT FIBER COUNT COMPLETION DATE
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
A-6 Barclay & Church 15th St alley & 9th Ave 4
------------------------------------------------------------------------------------------------------------------------------------
A-7 15th St alley & 9th Ave Gateway (111 8th) 4
------------------------------------------------------------------------------------------------------------------------------------
B-8 17th St & 3rd Ave Gateway (111 8th) 4
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
NEW YORK 2.6 MILES 90 DAYS AFTER
LOOP C EXECUTION
------------------------------------------------------------------------------------------------------------------------------------
A-4a Fulton & Gold Spruce & Gold 4
------------------------------------------------------------------------------------------------------------------------------------
A-4b Spruce & Gold Park Row & Spruce 4
------------------------------------------------------------------------------------------------------------------------------------
A-5 Park Row & Spruce Barclay & Church 4
------------------------------------------------------------------------------------------------------------------------------------
C-1 Gateway (100 William) Maiden & Water 4
------------------------------------------------------------------------------------------------------------------------------------
C-2a Maiden & Water Pine & Water 4
------------------------------------------------------------------------------------------------------------------------------------
C-2b Pine & Water Whitehall & Water 4
------------------------------------------------------------------------------------------------------------------------------------
C-2c Whitehall & Water West & Battery Place 4
------------------------------------------------------------------------------------------------------------------------------------
C-3 West & Battery Place Barclay & Church 4
------------------------------------------------------------------------------------------------------------------------------------
C-4 Fulton & Gold Gateway (100 William) 4
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
SAN FRANCISCO LOOP B 5.15 MILES 90 DAYS AFTER
EXECUTION
------------------------------------------------------------------------------------------------------------------------------------
A-1 Gateway Townsend & 4th 4
------------------------------------------------------------------------------------------------------------------------------------
A-3 Brannan & 4th Brannan & 3rd 4
------------------------------------------------------------------------------------------------------------------------------------
A-4 Brannan & 3rd Folsom & 3rd 4
------------------------------------------------------------------------------------------------------------------------------------
A-6 Folsom & 2nd Townsend & 3rd 4
------------------------------------------------------------------------------------------------------------------------------------
A-7 Townsend & 3rd Gateway 4
------------------------------------------------------------------------------------------------------------------------------------
A2-1 Townsend & 4th Townsend & 7th 4
------------------------------------------------------------------------------------------------------------------------------------
A2-2 Townsend & 7th Brannan & 4th 4
------------------------------------------------------------------------------------------------------------------------------------
B-1 Folsom & 3rd Mission & 3rd 4
------------------------------------------------------------------------------------------------------------------------------------
B-2 Mission & 3rd Jessie & 3rd 4
------------------------------------------------------------------------------------------------------------------------------------
B-3 Jessie & 3rd Post & Kearney 4
------------------------------------------------------------------------------------------------------------------------------------
B-4 Post & Kearney Bush & Kearney 4
------------------------------------------------------------------------------------------------------------------------------------
B-5 Bush & Kearney Pine & Kearney 4
------------------------------------------------------------------------------------------------------------------------------------
B-6 Pine & Kearney Pine & Battery 4
------------------------------------------------------------------------------------------------------------------------------------
B-7 Pine & Battery California & Davis 4
------------------------------------------------------------------------------------------------------------------------------------
B-8 California & Davis California & Drumm 4
------------------------------------------------------------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------------------------------------------------------------
GRANTEE SCHEDULED
SEGMENT NAME SEGMENT END POINT SEGMENT END POINT FIBER COUNT COMPLETION DATE
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
B-9 California & Drumm Spear & Mission 4
------------------------------------------------------------------------------------------------------------------------------------
B-10 Spear & Mission Folsom & 2nd 4
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
ST. LOUIS TBD
LOOP A
------------------------------------------------------------------------------------------------------------------------------------
TBD TBD TBD
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
WASHINGTON DC LOOP B 29.16 MILES 11/14/00
------------------------------------------------------------------------------------------------------------------------------------
A-8 Chain Bridge & Old Meadow Gateway 4
------------------------------------------------------------------------------------------------------------------------------------
A2-1 Chain Bridge & Old Meadow Kirby & Westmoreland 4
------------------------------------------------------------------------------------------------------------------------------------
A2-3 Kirby & Great Falls Magarity & Peabody + 4
------------------------------------------------------------------------------------------------------------------------------------
A2-4 Magarity & Peabody + Gateway-3rd Entrance 4
------------------------------------------------------------------------------------------------------------------------------------
B-1 Kirby & Westmoreland L Street NW & 16th 4
------------------------------------------------------------------------------------------------------------------------------------
B-2 L Street & 21st Clarendon & Filmore 4
------------------------------------------------------------------------------------------------------------------------------------
D-1 Collector Node (DC) M Street NW & Connecticut 4
------------------------------------------------------------------------------------------------------------------------------------
D-5 L Street & 21st Collector Node (DC) 4
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
WASHINGTON DC LOOP D 5.97 MILES 90 DAYS AFTER
EXECUTION
------------------------------------------------------------------------------------------------------------------------------------
D-1 Collector Node (DC) M Street NW & Connecticut 4
------------------------------------------------------------------------------------------------------------------------------------
D-2 M Street NW & Connecticut Massechusetts & 7th 4
------------------------------------------------------------------------------------------------------------------------------------
D-3 Massechusetts & 7th E Street NW & North Capitol 4
------------------------------------------------------------------------------------------------------------------------------------
D-4a E Street NW & North Capitol Pennsylvania & 7th St 4
------------------------------------------------------------------------------------------------------------------------------------
D-4b Pennsylvania & 7th St L Street & 21st 4
------------------------------------------------------------------------------------------------------------------------------------
D-5 L Street & 21st Collector Node (DC) 4
--------------------------------------------------------------------------------------------------- ---------------------
------------------------------------------------------------------------------------------------------------------------------------
WASHINGTON DC LOOP E 34.99 MILES 11/14/00
------------------------------------------------------------------------------------------------------------------------------------
A-1 Gateway Magarity & Holley Ridge + 4
------------------------------------------------------------------------------------------------------------------------------------
A-2 Magarity & Holley Ridge + Old Courthouse & Aline 4
------------------------------------------------------------------------------------------------------------------------------------
A-3 Old Courthouse & Aline Boone & Gallows 4
------------------------------------------------------------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------------------------------------------------------------
GRANTEE SCHEDULED
SEGMENT NAME SEGMENT END POINT SEGMENT END POINT FIBER COUNT COMPLETION DATE
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
A-4a Boone & Gallows Old Courthouse & Goshell Rd. 4
------------------------------------------------------------------------------------------------------------------------------------
A-6 Westpark & Greensboro Chain Bridge & International 4
------------------------------------------------------------------------------------------------------------------------------------
A-7 Chain Bridge & International Chain Bridge & Old Meadow 4
------------------------------------------------------------------------------------------------------------------------------------
A-8 Chain Bridge & Old Meadow Gateway 4
------------------------------------------------------------------------------------------------------------------------------------
A1-1 Westpark & Greensboro International Dr & Jones Branch 4
------------------------------------------------------------------------------------------------------------------------------------
E-1a Leesburg Pk & Gosnell Rd Squaw Valley Rd & Dead End 4
------------------------------------------------------------------------------------------------------------------------------------
E-1b Squaw Valley Rd & Dead End Brittenford Dr & Dead End 4
------------------------------------------------------------------------------------------------------------------------------------
E-1c Brittenford Dr & Dead End Sunrise Valley Dr & Hunter Mill 4
------------------------------------------------------------------------------------------------------------------------------------
E-2 Sunset Hills & Hunter Mill Baron Cameron & Leesburg Pike 4
------------------------------------------------------------------------------------------------------------------------------------
E-3 Baron Cameron & Leesburg Pike Lewinsville & Springhill 4
------------------------------------------------------------------------------------------------------------------------------------
E-4 Lewinsville & Springhill International Dr & Jones Branch 4
------------------------------------------------------------------------------------------------------------------------------------
F-1 Sunrise Valley & Mercator Dr. Fox Mill Rd & Centreville Rd 4
------------------------------------------------------------------------------------------------------------------------------------
F-2 Fox Mill Rd & Centreville Rd Sterling Rd & Rock Hill Rd 4
------------------------------------------------------------------------------------------------------------------------------------
F-3 Sterling Rd & Rock Hill Rd Worldgate Dr & Centreville 4
------------------------------------------------------------------------------------------------------------------------------------
F-4 Worldgate Dr & Centreville Worldgate Dr. & Van Buren St. 4
------------------------------------------------------------------------------------------------------------------------------------
F-5 Worldgate Dr. & Van Buren St. Herndon Pkwy & Van Buren 4
------------------------------------------------------------------------------------------------------------------------------------
F-6 Herndon Pkwy & Van Buren Spring St & Herndon Pkwy 4
------------------------------------------------------------------------------------------------------------------------------------
F-7 Spring St & Herndon Pkwy Sunset Hills & Fairfax Co. Pwy. 4
------------------------------------------------------------------------------------------------------------------------------------
F-8 Sunset Hills & Fairfax Co. Pwy. Sunset Hills & Salliemae Dr 4
------------------------------------------------------------------------------------------------------------------------------------
F-9 Sunset Hills & Salliemae Dr Sunset Hills & Hunter Mill Rd 4
------------------------------------------------------------------------------------------------------------------------------------
F-11 Sunrise Valley & Hunter Mill Rd Sunrise Valley & Mercator Dr. 4
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* For all Segments for which the Scheduled Completion Date is less than
ninety (90) days from the execution of this Agreement, the Scheduled
Completion Date shall be ninety (90) days after execution of this
Agreement.
2. Lateral Segment Descriptions
------------------------------------------------------------------------------------------------------------------------------------
FIBER SEGMENT END SEGMENT END
LATERAL SEGMENT NAME COUNT POINT/MANNER OF POINT/MANNER OF TARGETED DIVERSITY
TERMINATION TERMINATION
------------------------------------------------------------------------------------------------------------------------------------
3340 Peachtree Road NE, #200, 4 Atlanta Local Loop OSX Panel, Grantee Point Non Targeted Diverse
Atlanta, GA Network Segment of Presence within Building
------------------------------------------------------------------------------------------------------------------------------------
<PAGE>
------------------------------------------------------------------------------------------------------------------------------------
FIBER SEGMENT END SEGMENT END
LATERAL SEGMENT NAME COUNT POINT/MANNER OF POINT/MANNER OF TARGETED DIVERSITY
TERMINATION TERMINATION
------------------------------------------------------------------------------------------------------------------------------------
99 Summer Street, 12th Floor, 4 Boston Local Loop OSX Panel, Grantee Point Non Targeted Diverse
------------------------------------------------------------------------------------------------------------------------------------
10 South LaSalle Street, Suite 4 Chicago Local Loop OSX Panel, Grantee Point Non Targeted Diverse
2416, Chicago, IL Network Segment of Presence within Building
------------------------------------------------------------------------------------------------------------------------------------
600 N. Pearl, #800, 4 Dallas Local Loop OSX Panel, Grantee Point Non Targeted Diverse
------------------------------------------------------------------------------------------------------------------------------------
515 S. Flower, #1000 4 Los Angeles Local Loop OSX Panel, Grantee Point Non Targeted Diverse
Los Angeles, CA Network Segment of Presence within Building
------------------------------------------------------------------------------------------------------------------------------------
1 State St. Plaza, 22nd Floor 4 New York Local Loop OSX Panel, Grantee Point Non Targeted Diverse
------------------------------------------------------------------------------------------------------------------------------------
325 Hudson Street 4 New York Local Loop OSX Panel, Grantee Point Non Targeted Diverse
------------------------------------------------------------------------------------------------------------------------------------
444 Market (1 Front Street), 4 San Francisco Local OSX Panel, Grantee Point Non Targeted Diverse
------------------------------------------------------------------------------------------------------------------------------------
390 Main Street, 6th Floor 4 San Francisco Local OSX Panel, Grantee Point Non Targeted Diverse
San Francisco, CA Loop Network Segment of Presence within Building
------------------------------------------------------------------------------------------------------------------------------------
717 Office Center Drive, 4 TBD TBD Non Targeted TBD
St. Louis, MO
------------------------------------------------------------------------------------------------------------------------------------
1411 K. Street, NW, 4 Washington, DC Local OSX Panel, Grantee Point Non Targeted Diverse
Washington D.C. Loop Network Segment of Presence within Building
------------------------------------------------------------------------------------------------------------------------------------
12851 World Gate Drive, 5th 4 Washington, DC Local OSX Panel, Grantee Point Non Targeted Diverse
Floor, Herndon, VA Loop Network Segment of Presence within Building
------------------------------------------------------------------------------------------------------------------------------------
3. Segment End Points for Lateral Segments
a. For Targeted Lateral Segments which are connecting the backbone network
to local exchange carrier central offices ("LEC CO's"), the Segment End Point
for the Grantee Fiber will be in the LEC CO "0" manhole then used by Grantor and
in which Grantor has rights to install facilities (i.e., the LEC manhole outside
the CO), and Grantor will provide the amount of slack fiber specified by Grantee
in the "0" manhole. Grantee shall be responsible for bringing its fiber to such
Segment End Point, and for securing any and all agreements, consents,
permissions or authorizations from the LEC necessary to permit Grantor to
provide Grantee with access to slack
<PAGE>
fiber within the "0" manhole.
b. For Targeted Lateral Segments which are connecting the backbone network
to locations other than LEC CO's, the Segment End Point for the Grantee Fiber
will be at an optical cross connect ("OSX") panel in or contiguous to Grantor's
point of presence within the building. Grantee shall be responsible for bringing
its fiber to such Segment End Point, and for securing any and all agreements,
consents, permissions or authorizations from the building owner or manager
necessary to install such connecting fiber.
c. For Non-Targeted Lateral Segments which are connecting the backbone
network to a LEC CO, the Segment End Point for the Grantee Fiber will be at the
"-1" manhole installed by Grantor in reasonable proximity to the LEC's "0"
manhole serving the specified LEC CO, and Grantor will provide a reasonable
amount of slack fiber in such manhole as requested by Grantee. After Grantee has
accepted the Grantee Fibers at the Segment End Point, Grantee shall be
responsible for bringing its fiber to such Segment End Point, and for securing
any and all agreements, consents, permissions or authorizations necessary to
install such connecting fiber.
d. For Non-Targeted Lateral Segments which are connecting to locations
other than LEC CO's, the Segment End Points for the Grantee Fiber will be at a
manhole ("A" Location) on the Grantors System Metro Ring installed by Grantor in
reasonable proximity to the designated end point building ("Z" Location) and as
designated by the parties in Section 2 of this Exhibit "A" above, and Grantor
will provide a reasonable amount of slack fiber in such manhole as requested by
Grantee. After Grantee has accepted the Grantee Fibers at the Segment End Point,
Grantee shall be responsible for bringing its fiber to such Segment End Point,
and for securing any and all agreements, consents, permissions or authorizations
necessary to install such connecting fiber.
e. Grantee shall inform Grantor of the amount of slack fiber to be supplied
in any manhole no later than the first to occur of (a) five (5) days after
Grantor's request for such information, or (b) ninety (90) days prior to the
date targeted for completion of such Lateral Segment under Section 8.04 of the
Agreement. Title to and ownership of slack fiber provided in any manhole
hereunder shall be conveyed to Grantee on the Effective Date for the
<PAGE>
Lateral Segment within which such slack fiber is provided; such slack fiber
shall NOT be considered to be "Grantee Fiber" hereunder and shall NOT be subject
to the terms and conditions of this Agreement (except that Grantor shall pass
through to Grantee any manufacturer's warranties respecting such slack fiber
under Section 22.03 of this Agreement).
f. Any work required to connect the Grantee Fibers to other fibers owned or
procured by Grantee (including, but not limited to, coring into Grantor's
manholes, hand holes or points of presence) shall be performed by Grantor
pursuant to Section 10.03 of the Agreement.
<PAGE>
EXHIBIT "B"
FEES
A. The Design, Planning and Engineering Fee.
The Design, Planning and Engineering Fee shall be [**] (which includes [**]
for the Segments set forth in Paragraph B below plus [**] which represents
fifty percent (50%) of the estimated construction costs for the Lateral Segments
set forth in Paragraph C below), and shall be due and payable no later than five
(5) days after obtaining board approval and closing financing as set forth in
Article 26.
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 LOOP IRU FEE
---------------------------------------------------------------------------------------
Atlanta, GA Loop C [**]
---------------------------------------------------------------------------------------
Boston, MA Loop A [**]
---------------------------------------------------------------------------------------
Chicago, IL Loop A1 [**]
---------------------------------------------------------------------------------------
Dallas, TX Loop B2 [**]
---------------------------------------------------------------------------------------
Los Angeles, CA Loop A1 [**]
---------------------------------------------------------------------------------------
New York, NY Loop A [**]
---------------------------------------------------------------------------------------
New York, NY Loop C [**]
---------------------------------------------------------------------------------------
San Francisco, CA Loop B [**]
---------------------------------------------------------------------------------------
St. Louis, MO TBD [**]
---------------------------------------------------------------------------------------
Washington, D.C. Loop B [**]
---------------------------------------------------------------------------------------
Washington, D.C. Loop D [**]
---------------------------------------------------------------------------------------
Washington, D.C. Loop E [**]
---------------------------------------------------------------------------------------
TOTAL [**]
---------------------------------------------------------------------------------------
The allocated IRU Fee for each Segment which is contained within a metro Loop
shall be
<PAGE>
due and payable on the later of (i) thirty (30) days after the Acceptance Date
for the last Segment to be completed within such metro Loop or (ii) the date
that is sixty (60) days prior to the Scheduled Completion Date for the last
Segment to be completed on the associated long-haul Ring. Notwithstanding the
foregoing, to the extent Grantor completes all Segments contained within a long
haul Ring prior to the Scheduled Completion Date for the last Segment to be
completed within such long haul Ring, then Grantee shall pay for the allocated
IRU Fee for all Segments within a metro Loop within thirty (30) days after the
Acceptance Date for the last Segment to be completed within such long haul Ring.
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
C. The Lateral Segment Fee.
1. Targeted Lateral Segments
Payment: For the Targeted Lateral Segments listed on Exhibit "A" or
classified as Targeted Lateral Segments under Article 8, Grantee will
reimburse Grantor (within fifteen (15) days after receipt of an
invoice therefor, which shall be delivered contemporaneously with the
Completion Notice for each such Lateral Segment) thirty five percent
(35%) of the Cost incurred by Grantor in connection with the
construction and installation of such Targeted Lateral Segment, plus a
management fee equal to thirty percent (30%) of such Costs.
Credit: As Grantor sells Dark Fiber to the second, third and fourth
customer on a Targeted Lateral Segment, Grantor shall credit a portion
of the fees paid by each such customer as set forth below:
2nd Customer - 0% of the total Cost shall be credited
3rd Customer - 5% of the total Cost shall be credited
4th Customer - An additional 5% of the Cost shall be credited (so that
the total percentage of overall costs borne by Grantee would be 25%)
2. Non-Targeted Lateral Segments
Payment: For the Non-Targeted Lateral Segments listed on Exhibit "A"
or classified as Non-Targeted Lateral Segments under Article 8,
Grantee will reimburse Grantor (within fifteen (15) days after receipt
of an invoice therefor, which shall be delivered contemporaneously
with the Completion Notice for each such Lateral Segment) one hundred
percent (100%) of the Cost incurred by Grantor in connection with the
construction and installation of such Non-Targeted Lateral Segment,
plus a management fee equal to thirty percent (30%) of such Costs.
Credit: As Grantor sells Dark Fiber to a second, third and fourth
customer on a Non-Targeted Lateral Segment, Grantor shall credit a
portion of the fees paid by each such customer as set forth below:
2nd Customer - 50% of the total Cost shall be credited
<PAGE>
3rd Customer - An additional 15% of the total Cost shall be credited
4th Customer - An additional 10% of the total Cost shall be credited
(so that the total percentage of overall cost borne by Grantee would
be 25%).
For purposes of credits for Non-Targeted Lateral Segments listed in
Exhibit "A", in the event Grantor utilizes such Non-Targeted Lateral
Segments to provide its own services to end-users in a building,
Grantor shall be treated as a customer utilizing the Non-Targeted
Lateral Segment and Grantee shall receive a credit equal to the amount
set forth above.
3. General
Credits shall be issued only to the extent that the customer's payment
to Grantor is sufficient to make such credit to Grantee, and Grantor
shall issue such credit to Grantee within thirty (30) days of
Grantor's receipt of payment from a customer. Grantee shall have the
right to use such credit to off-set the Cost of constructing and
installing any future Lateral Segments. If any Dark Fiber customer's
total payment for use of Dark Fibers within any Targeted Lateral
Segment is insufficient to reach the full credit amounts set forth
above, then the credit shall be carried over to the subsequent dark
fiber customer so that Grantee would in each event (assuming
sufficient revenue is generated from Dark Fiber sales along such
Targeted Lateral Segment) be entitled to a credit that results in
Grantee bearing 25% of the cost of construction for any Targeted
Lateral Segment.
Grantee shall be responsible for 100% of the Costs associated with
supplying slack fiber for Grantee's use in any manhole.
The Lateral Segment Fee for each Lateral Segment listed in Exhibit "A"
shall be reduced by the following amounts (reflecting the amount of
the Design, Planning and Engineering Fee allocated and directly
attributable to such Lateral Segment).
<PAGE>
---------------------------------------------------------------------------------------
LATERAL SEGMENT NAME TOTAL ESTIMATED COST OF REDUCTION IN LATERAL
CONSTRUCTION SEGMENT FEE
---------------------------------------------------------------------------------------
3340 Peachtree Road NE, #200, [**] [**]
Atlanta, GA
---------------------------------------------------------------------------------------
99 Summer Street, 12th Floor, [**] [**]
Boston, MA
---------------------------------------------------------------------------------------
10 South LaSalle Street, [**] [**]
Suite 2416,
Chicago, IL
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600 N. Pearl, #800, [**] [**]
Dallas, TX
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515 S. Flower, #1000 [**] [**]
Los Angeles, CA
---------------------------------------------------------------------------------------
1 State St. Plaza, 22nd Floor [**] [**]
New York, NY
---------------------------------------------------------------------------------------
325 Hudson Street [**] [**]
New York, NY
---------------------------------------------------------------------------------------
444 Market (1 Front Street), [**] [**]
San Francisco, CA
---------------------------------------------------------------------------------------
390 Main Street, 6th Floor [**] [**]
San Francisco, CA
---------------------------------------------------------------------------------------
717 Office Center Drive, [**] [**]
St. Louis, MO
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1411 K. Street, NW, [**] [**]
Washington, D.C.
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12851 World Gate Drive, 5th [**] [**]
Floor
Herndon, VA
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TOTAL [**] [**]
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Exhibit "C"
METROPOLITAN (LOCAL LOOP) NETWORK CONSTRUCTION SPECIFICATIONS
The intent of this Exhibit is to delineate the general specifications and
standards for construction of the Grantor System within their metropolitan
networks. In the event any federal, state, local or private agency having
jurisdiction shall impose higher standards, Grantor will comply and conform to
such higher standards. Grantor may deviate from the specifications and standards
described below in those instances where either (i) strict
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
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.
1. 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 Where conduit crosses railroads, the conduit shall be placed at a
minimum depth of 60 inches below the base of rail or below the
paralleling drainage ditch, 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 under the foreign object while
maintaining a minimum cover of 42 inches.
o In rock, the conduit shall be placed either: (a) 8 inches deep in rock
with 36 inches minimum cover; (b) 8 inch deep in rock with a concrete
cap and 30 inches minimum cover; (c) 8 inches deep in rock with a 1/4
inch steel plate cover and 24 inches minimum cover or (d) in steel
pipe placed on top of the rock with 18 inches minimum 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 conduit systems purchased or
leased from third parties or salvaged conduit systems, the existing
depths shall be considered adequate.
2. Cable Marking Tape
o Cablemarking tape shall be installed above all direct buried conduit,
generally at a minimum of 12 inches below the top of rough grade.
Conduit installed by means other than direct burial as well as
salvaged conduit systems or conduit systems purchased from third
parties will not have cable marking tape installed.
<PAGE>
3. 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, welding or other
industry accepted methods.
o Railroad crossings will be encased in HDPE or steel conduit.
o All underground crossings of 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 bulletproof fiberglass or
galvanized steel.
o All conduits placed on bridges shall have expansion joint placed at
each structural (bridge) expansion joint or at least every 100 feet,
whichever is the shorter distance.
4. Cable Installation
o The maximum pulling force to be applied to the fiber optic cable shall
be 600 pounds.
o A pulling swivel breakaway rated at 600 pounds shall be used at all
times when pulling fiber optic cable.
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 All splices will be contained in a cable vault or hand hole.
o A minimum of 60 feet of slack cable will be left in all intermediate
cable vaults or hand holes.
o A minimum of 50 feet of slack cable from each cable end (100 feet
total) will be left in all splice locations.
5. Cable Vaults and Hand Holes
o Cable vaults will be placed as required by local conditions and at
approximately every 3000 feet in rural areas and 500 feet in urban
areas
<PAGE>
o Cable vaults and hand holes placed in traveled surface streets shall
be a minimum HS-20 loading rated.
o Cable vaults and hand holes not installed in traveled surface streets
shall be a minimum HS-10 loading rated.
6. Proofing of Conduits
o Upon completion of conduit installed, conduit shall be proofed to
verify continuity and integrity of the conduit system.
o Proofing shall be accomplished by pulling or blowing a mandrel. The
outside diameter of the mandrel or pig shall be a minimum of 80
percent of the inside diameter of the conduit.
7. Compliance
o All work will be done in 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).
8. As Built Drawings
o As-built drawings for conduit will contain a minimum of the following:
o Information showing the location of running line, relative to
permanent landmarks.
o Cable vault and hand hole locations.
o Conduit information (type, length, 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 Fiber optic cable data (type, manufacturer, reel IDs, sequentials,
slack coils, splice points, etc.).
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 All deviations from specification (depth, etc.).
<PAGE>
o As-built drawings will be provided within 90 days after the Acceptance
Date in electronic format.
o As-built drawings for fiber will contain a minimum of the following:
o Maps depicting which streets the Grantee fiber route travels.
o Grantee logical loop configurations and fiber assignments per loop.
o Fiber assignments to all buildings Grantor provides connectivity for
Grantee.
o As-built drawings will be provided within 90 days after the Acceptance
Date in electronic format.
<PAGE>
EXHIBIT "D"
METROPOLITAN (LOCAL LOOP) NETWORK FIBER, CONDUIT AND CABLE VAULT
SPECIFICATIONS
The intent of this Exhibit is to delineate the manufacturer specifications for
the Grantee Fibers and the conduit and cable vault systems housing the Cable
within their metropolitan networks. Grantor may also 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.
1. Fiber
o In the metropolitan segments, single mode fiber will be used. In any case
where the routes for Grantor's intercity and metropolitan networks
converge, Grantor shall have the right to elect to install either non-zero
dispersion-shifted optical fiber or single mode 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:
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
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
o The fiber optic cable shall generally be single-armored (except where
Grantor determines otherwise at their sole discretion)
2. Conduit
<PAGE>
Grantor uses a variety of conduit types within its metropolitan networks
including the following:
o Conduit supplied on reels shall be 1-1/4 inch minimum High Density
Polyethylene (HDPE), UV stabilized, SDR 11 or SDR 9. Conduit shall be
connected by coupler. Conduits shall be unlubricated with no rope or tape.
o Conduit supplied in sections shall be 1-1/4 inch minimum Poly Vinyl
Chloride (PVC) schedule 40 conduit. Ends shall be bell and spigot/beveled.
PVC shall be connected using a PVC solvent in accordance with PVC conduit
manufacturer's recommendations. Conduits shall be unlubricated with no rope
or tape.
o 4 inch diameter conduit shall be Poly Vinyl Chloride (PVC) schedule 40.
Ends shall be bell and spigot/beveled. PVC shall be connected using a PVC
solvent in accordance with PVC conduit manufacturer's recommendations.
o 8 inch and 10 inch conduit shall be HDPE smooth wall polyethylene with a
SDR 11 nominal diameter.
o Fiberglass conduit shall be filament non-metallic, filament wound epoxy,
suitable for direct burial, concrete encasement and suspension from bridge
members without regard to outdoor ambient. The product shall contain carbon
black to provide ultraviolet protection.
o Steel conduit shall be galvanized rigid conduit (GRC). Steel casings shall
be a minimum 35,000 PSI.
3. Cable Vaults and Pull Boxes
o Cablevaults shall conform to the requirements of ASTM C478 and ASTM C858.
Cable vault and all components placed in traveled surface streets shall be
designed to withstand HS20 loading per AASHTO loading in accordance with
ASTM C857. Cable vaults not placed in traveled surface streets shall be
designed to withstand HS10 loading.
o Cable vaults of varying sizes will be used.
o Each cable splice vault shall be grounded using industry accepted methods.
o Cable vaults shall contain racking to support cable runs.
o Design of pull boxes shall follow the same manner as cable vaults.
<PAGE>
<PAGE>
Execution Copy
CONFIDENTIAL - IRU for Dark Fibers (Metro)
<PAGE>
EXHIBIT "E"
METROPOLITAN (LOCAL LOOP) NETWORK FIBER ACCEPTANCE TESTING PROCEDURES
AND STANDARDS
The intent of this Exhibit is to identify the fiber acceptances testing
procedures and standards used within the Grantor's metropolitan networks.
Deviations from these specifications may occur if Grantor acquires a portion of
the Grantor System from a third party pursuant to the Agreement.
1. All splices shall be fusion spliced. Mechanical splices are only allowed
during temporary restoration and will be replaced with fusion splices.
2. Fibers shall be terminated with Ultra SC-PC connectors (typical return loss
of 0.50 dB).
3. After end-to-end connectivity on the fibers has been completed,
bi-directional OTDR span and power meter testing will be completed. Grantor
shall perform tests after the fiber cable is installed and the splicing
enclosures have been completed and are in their final resting configuration
with the cable vault or hand hole covers closed. This ensures that no micro
or macro bending problems with the cable or fiber strands will contribute
to the loss/attenuation measurements.
4. Power meter tests shall be completed to verify and insure that no fibers
have been crossed at any of the splice points within the network. Grantor
shall test and record power level readings on all fiber strands in both
directions of transmission (bi-directionally) using the 1310 & 1550 nm
wavelengths.
5. All OTDR and power meter tests shall be completed as follows:
a. All OTDR traces shall be taken from both ends of a section (between
adjacent Locations) and recorded using the 1310 & 1550 nm wavelength.
Loss/attenuation measurements for each splice point from both
directions shall be taken and recorded.
b. The end-to-end loss value as measured with an industry-accepted laser
source and power meter should have an attenuation rating of less than
or equal to the following:
(1) At 1310 nm: (0.40 dB/km x km of cable) + (number of connectors x
0.50) + (0.10 x number of splices).
(2) At 1550 nm: (0.30 dB/km x km of cable) + (number of connectors x
0.50) + (0.10 x number of splices).
c. Grantor's loss/attenuation objective for each fiber optic splice is
0.10 dB when measured in one direction with an OTDR test set
(excluding connector loss, which is typically 0.50 dB per mated
connector pair). If
<PAGE>
after three attempts this parameter is not met, the splice will be
marked as Out-Of-Spec (OOS) and the splice will remain provided the
average loss/attenuation value of all splices on an individual fiber
basis shall not exceed 0.10 dB for the entire ring or subsystem.
d. For bi-directional OTDR testing, the distance from Location "A" and
Location "Z" shall be recorded for each splice point. The
loss/attenuation at each splice point shall be recorded at both
wavelengths (1310 nm & 1550 nm) in each direction. Grantor shall then
average the two readings to obtain the final average splice
loss/attenuation for each splice point of each fiber strand within the
fiber optic cable.
e. Each fiber strand color must be recorded along with its buffer tube
color or the ribbon color. The laser source transmit power level using
the 1310 & 1550 nm wavelengths will always be recorded together with
the receive power level reading at the receiving end of the test.
6. OTDR traces will be taken and splice loss measurements recorded. Grantor
will store OTDR traces on electronic media. Loss measurements will be
recorded using an industry-accepted laser source and a power meter. Copies
of all data sheets and tables and one set of diskettes with all traces will
be available to Grantee.
7. Following emergency restoral, Grantor personnel shall perform span test
documenting end-to-end attenuation measurement of each fiber and will be
completed in both directions at 1310 & 1550 nm wavelengths. Upon permanent
repair, new splice loss readings should be no greater than the original
splice loss specifications.
<PAGE>
EXHIBIT "F"
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.
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 operation
of fibers within the Grantor System, or any event imminently likely to
cause the failure, interruption or impairment in the
<PAGE>
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
<PAGE>
regarding the cable and/or fibers. In the event that any Scheduled or
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.
<PAGE>
o Grantor shall have qualified representatives on site any time Grantor has
reasonable advance knowledge that another person or entity is engaging in
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 "E". 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
<PAGE>
Scheduled Maintenance which is reasonably expected to produce any signal
discontinuity must be coordinated between the parties. Generally, this work
should be scheduled after midnight and before 6:00 a.m. local time. Major system
work, such as fiber rolls and hot cuts, will be scheduled for PSWP weekends. A
calendar showing approved PSWP will be agreed upon in the last quarter of every
year for the year to come. The intent is to avoid jeopardy work on the first and
last weekends of the month and high-traffic holidays.
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
<PAGE>
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.
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