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SCHEDULE B
LICENSE
National Fiber Network Inc. ("NFN")
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
June 19, 1996
NFN hereby grants to Local Fiber L.L.C. (the "Company"), for the exclusive
use of the Company and its customers ("Right of Usage") a minimum of four (4)
and a maximum of eight (8) strands of dark fiber which strands shall loop the
NFN existing fiber optic cable network in New York City and New Jersey (the "NFN
Network") which network is depicted on the map attached hereto as Exhibit A.
The grant and the continuation of the Right of Usage shall be subject to
the following:
(a) The Right of Usage shall terminate upon (i) the Dissolution of
the Company; (ii) the filing by the Company (or consent by answer or
otherwise) to the filing against it of a petition for relief or
reorganization or arrangement or any other petition in bankruptcy or
insolvency under the laws of any jurisdiction; (iii) the Company shall
consent to the appointment of a custodian, receiver, trustee or shall
become insolvent or (iv) the failure of the Class A Members of the Company
to arrange aggregate financing for the Company, whether in the form of
equity or debt, in an amount not less than $2,000,000 as of December 31,
1997.
(b) NFN shall not be required to incur any cost or expense arising
out of or in connection with the Company's Right of Usage (except for the
franchise and related fees which NFN would have been required to incur
notwithstanding this agreement) including but not limited to (i) fees or
charges imposed under that certain franchise agreement dated December 20,
1993 between NFN and the City of New York (the "Franchise") for or in
connection with the Company's Right of Usage or the granting of such Right
of Usage; (ii) the cost and expense of connecting or interfacing the NFN
Network with network facilities, fiber, or equipment owned or leased by
the Company (collectively the "Company Facilities"); (iii) taxes or other
charges (with the exception of income, property or other similar taxes for
which NFN is responsible) imposed or levied which are based upon or
related to the Company's use of the NFN Network. The Company shall
promptly reimburse NFN for any such fees, charges, cost or expense it may
incur
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and shall indemnify and hold NFN harmless for any damage or expense it may incur
as a result of any work, labor or service performed on the NFN Network by or
under the direction of the Company.
(c) The Company shall not perform any work, labor or service upon the NFN
Network without the prior written approval and consent of NFN. All splices
required to connect the NFN Network to the Company Facilities shall be performed
solely by NFN (and the costs thereof charged to the Company), or at its
discretion, by the Company subject to supervision by NFN personnel.
(d) The following shall apply with respect to all buildings, locations or
facilities (collectively, "Locations") which shall grant the Company access for
fiber optic cable by way of easement, right of way, license or otherwise
(collectively, "Right of Way").
(i) The Company at its sole cost and expense (including expense for
easements and permits) shall construct and install a connection (referred
to herein as the "Stubout Connection") which shall consist of (x) the
installation of fiber optic cable (consisting of a maximum of 16 fibers)
from a splice point on the NFN Network designated by NFN (which splice
point shall be the closest location on the Network to the designated
building), to the manhole in closest proximity to the Location (the "Zero
Manhole"); and (y) the installation and construction of one 4" duct with
two 2" inner ducts from the Zero Manhole directly to a termination point
within the Location which is commonly referred to as the point of entry
which shall be determined by the owner or manager of the subject Location
("Termination Point").
(ii) All right, title and interest to the Stubout Connections constructed
by the Company shall vest in NFN provided that the Company shall have a
perpetual license for the exclusive use of one 2" inner duct (the "Company
Duct") within such Stubout Connection. The Company shall earn a credit in
an amount equal to 10% of the cost of construction, which credit shall be
applied in accordance with the provisions of subparagraph "(h)" below. The
Company may install up to eight fibers in the Company Duct from the Zero
Manhole to the Termination Point provided that at the time of such
installation, the Company (without charge) shall also install eight fibers
on behalf of NFN in the remaining 2" inner duct which shall be reserved
for the exclusive use of NFN.
(iii) The Company shall use its reasonable efforts to provide that any
Right of Way granted to the Company shall afford the same rights to NFN;
provided, however, that the Company shall not be required to afford to NFN
any greater rights of access or entry to any property than are granted to
the Company,
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whether or not additional rights of access or entry are granted to any
affiliate of the Company, and provided, further, that the actual use by
NFN of any such Right of Way may be subject to the ultimate discretion of
the owner of such property.
(iv) Upon completion of the construction and installation of the Stubout
Connection, the Company shall deliver to NFN a set of shop drawings with
respect to such installation and a certification of an itemized statement
of costs incurred with respect to such construction and installation.
(e) On the Commencement Date, (i) the Right of Usage shall be limited to
four strands of dark fiber on the NFN Network and shall be increased to eight
strands of dark fiber (the additional four strands of dark fiber being referred
to as "Additional Strands") at such time as the Company shall obtain access to
twenty Locations and (ii) NFN shall reserve for, and shall designate and assign
to, the Company such Additional Strands for the Company's exclusive use.
(f) In the event the Company requires fiber capacity on the NFN Network in
excess of the number of fibers provided under the Right of Usage, NFN shall
provide additional fiber capacity to the Company at a monthly rate which is
equivalent to the lowest monthly lease rate then charged to any NFN customer
utilizing fiber capacity on such network.
(g) The Company shall not directly or indirectly sublease, condo,
sublicense or wholesale to any third party fiber optic capacity on the NFN
Network unless such fiber optic capacity is distributed through the Company's
transmission system.
(h) The term of this license shall commence on July 1, 1996 (the
"Commencement Date") and shall end on December 20, 2008 (the "Initial Term").
The Company shall have the option to extend the term of this license (the
"Extended Term") for an additional 15 years or for the remaining term of the
Franchise and any extensions thereof (whichever period shall be less), which
option shall be exercised by notice to NFN at lease six months, but not more
than 12 months, prior to the end of the Initial Term. Lease payments for the
Extended Term shall be payable, in a lump sum payment (the "Lump Sum Payment
Option") equal to the credit provided for in subparagraph "(d)(ii)" hereof.
(i) Neither NFN nor the Company shall be considered in breach of this
Agreement or liable for any expense, loss or damage resulting form delay or
prevention of performance caused by any act attributable to an occurrence of an
event of Force Majeure. Neither party shall, however, be relieved of liability
for failure of performance
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performance due to a claimed Force Majeure hereunder if such failure is due to
causes arising out of its own negligence or to removable or remediable causes
that it fails to remove or remedy with reasonable dispatch.
The term "Force Majeure" shall mean any cause beyond the control of the
party affected which by exercise of due foresight such party could not
reasonably have been expected to avoid and, which by exercise of due diligence,
such party shall be unable to overcome during the period while such party shall
continue to exercise such due diligence, including, but not limited to, failures
of facilities, changes in laws except tax laws, rules, regulations, etc., flood,
earthquake, storm except for weather conditions normal to the area, fire,
lightening, epidemic, war, riot, civil disturbance, sabotage, inability due to
the previously mentioned conditions to obtain material, fuel or supplies in
adequate quantities, or restraint by court order or public authority. Nothing
contained herein, however, shall be construed to require either party to prevent
or settle and strike (other than a strike by employees of a contractor) against
its will.
Any party affected by an event of Force Majeure (the "Affected Party")
shall notify such other party (the "Other Party") promptly of any occurrence or
condition which in the Affected Party's opinion warrants an extension of time.
Such notice must be submitted to the Other Party within five days or such sooner
date as is practicable after such delay is known to the Affected Party, or
shall, in the exercise of reasonable diligence, become known. Such notice shall
specify in detail the anticipated length of delay, the cause of the delay, and a
timetable by which any remedial measures shall be implemented. Failure to
provide such notice within such period shall constitute a waiver by the Affected
Party of any request for extension applicable to any period prior to the date
such notice is actually received by the Other Party. The Other Party shall
acknowledge receipt of the Affected Party's notice within ten (10) days of its
receipt advising of its acceptance or rejection or further consideration. If the
Other Party reasonably requires further information in order to consider the
request, the Affected Party shall supply such information within ten (10) days
and, if the Affected Party fails to provide such information, the Affected
Party's original notice shall be deemed not to have been given.
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IN WITNESS WHEREOF, the parties hereto have executed this License
Agreement as of June 19, 1996
LOCAL FIBER, LLC
By: /s/ [ILLEGIBLE]
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Vice Pres.
NATIONAL FIBER NETWORK, INC.
By: /s/ [ILLEGIBLE]
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