Exhibit 10.1
FIBER OPTIC NETWORK LEASED FIBER AGREEMENT
PRODUCT ORDER
This Product Order ("Product Order") together with the General Terms and
Conditions constitute the Fiber Optic Private Network Agreement ("Agreement")
which is effective as of February 7, 2000 (the "Effective Date") by and between
METROMEDIA FIBER NETWORK SERVICES, INC. ("MFN"), ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and COGENT COMMUNICATIONS, INC.
("Carrier"), ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Definitions
of terms used in this Agreement appear in this Product Order and in the General
Terms and Conditions.
Carrier hereby orders and MFN hereby agrees to provide Leased Fiber as follows:
1. Lease Term: The Lease Term for each Supplement shall commence on the
respective Service Date and shall terminate two hundred forty months
after the earlier of (i) sixty (60) months after the Effective Date or
(ii) the date on which Carrier satisfies its Commitment set forth
below.
2. Number of Leased Fibers and requests for Building Access into Carrier
Locations: To be specified in each Supplement ("Supplements" and each
a "Supplement") to this Product Order to be executed by the parties.
3. Commitment:
3.1. Number of Leased Fiber Miles: A minimum aggregate of [*]
[*] fiber miles [*] to be leased within sixty (60)
months after the Effective Date.
3.2. Number of Carrier Locations into which Carrier will order
Building Access: A minimum aggregate of [*]
buildings within sixty (60) months after the Effective Date.
4. Specifications pertinent to testing the Leased Fiber is attached
herewith: as Exhibit A.
5. Installation Charge and Monthly Lease Payments:
5.1 One Time Installation Charge: To be specified in each Supplement,
if any. There shall be no one time installation charge for Leased
Fiber or Lateral Extensions into any Carrier Location which is
already part of the MFN Network or any Proposed Carrier Location,
provided that the Leased Fiber is to be brought to the MFN point
of demarcation in such Carrier Location.
5.2 Monthly Lease Payments:
5.2.1. Monthly Fiber Charge:
INCREMENTAL
PRICE PER
FIBER MILE FIBER MILE
PER MONTH
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[*] Indicates confidential treatment requested.
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5.2.2. Notwithstanding the table set forth in Section 5.2.1,
above, in the event Carrier orders Leased Fiber in a
network route ring configuration, such Leased Fiber shall
be provided for a minimum Monthly Fiber Charge of [*]
[*] regardless of the
number of the fiber miles and fiber strands ordered.
Subject to availability, MFN will lease to Carrier a
minimum of one (1) fiber strand and a maximum of eight (8)
fiber strands in any single MFN network ring. MFN shall
promptly notify Carrier when MFN has available eight (8)
or fewer fibers on a single ring.
5.2.3. Monthly Building Access Charge: [*] per Carrier
Location except as otherwise provided in Section 8.2.3.2
to this Product Order.
5.2.4. Applicable Taxes (as defined in the Agreement) on any
Installation Charge incurred pursuant to a Supplement and
all Monthly Lease Payments are to be paid by Carrier as
and when due.
6. Estimated Installation Completion Dates: To be specified in Supplements
7. Early Termination Charge:
In the event of termination of this Agreement or any Supplement to this
Product Order pursuant to Section 11.2 of the General Terms and Conditions
of this Agreement, Carrier will pay to MFN an Early Termination Charge
(plus Applicable Taxes) for the affected Leased Fiber and Building Access
determined as follows:
1st year termination - [*]% of all unpaid Monthly Lease Payments for the
affected Leased Fiber for the first year, plus [*]% of all unpaid Monthly
Lease Payments for the affected Leased Fiber and Building Access for the
second year, plus [*]% of all unpaid Monthly Lease Payments for the
affected Leased Fiber for the third year, plus [*]% of all unpaid Monthly
Lease Payments for the affected Leased Fiber and Building Access for the
fourth year, plus [*]% of all unpaid Monthly Lease Payments for the
affected Leased Fiber and Building Access for the fifth year, plus [*]% of
all unpaid Monthly Lease Payments for the affected Leased Fiber and
Building Access for the sixth through the last day of the then scheduled
Lease Term.
2nd year termination - [*]% of all unpaid Monthly Lease Payments for the
affected Leased Fiber and Building Access for the second year, plus [*]% of
all unpaid Monthly Lease Payments for the affected Leased Fiber and
Building Access for the third year, plus [*]% of all unpaid Monthly Lease
Payments for the affected Leased Fiber and Building Access for the fourth
year, plus [*]% of all unpaid Monthly Lease Payments for the affected
Leased Fiber and Building Access for the fifth year, plus [*]% of all
unpaid Monthly Lease Payments for the affected Leased Fiber and Building
Access for the sixth through the last day of the then scheduled Lease Term.
3rd year termination - [*]% of all unpaid Monthly Lease Payments for the
affected Leased Fiber and Building Access for the third year, plus [*]% of
all unpaid Monthly Lease Payments for the affected Leased Fiber and
Building Access for the fourth year, plus [*]% of all unpaid Monthly Lease
Payments for the affected Leased Fiber and Building Access for the fifth
year, plus [*]% of all unpaid Monthly Lease Payments for the affected
Leased Fiber and Building Access for the sixth through the last day of the
then scheduled Lease Term.
[*] Indicates confidential treatment requested.
4th year termination - [*]% of all unpaid Monthly Lease Payments for the
affected Leased Fiber and Building Access for the fourth year, plus [*]% of
all unpaid Monthly Lease Payments for the affected Leased Fiber and
Building Access for the fifth year, plus [*]% of all unpaid Monthly Lease
Payments for the affected Leased Fiber and Building Access for the sixth
through the last day of the then scheduled Lease Term.
5th year termination - [*]% of all unpaid Monthly Lease Payments for the
affected Leased Fiber and Building Access for the fifth year, plus [*]% of
all unpaid Monthly Lease Payments for the affected Leased Fiber and
Building Access for the sixth through the last day of the then scheduled
Lease Term.
6th through 20th year termination - [*]% of all unpaid Monthly Lease
Payments for the affected Leased Fiber and Building Access for the balance
of the then scheduled Lease Term.
In the event that this Agreement is terminated, and if Carrier has not yet
leased [*] fiber miles from MFN hereunder as
of the date of any termination, then such termination shall be calculated
as if Carrier has actually leased [*] fiber
miles as of the date of termination. For purposes of this Section 7 only,
except in cases of Carrier's gross negligence or willful misconduct,
Carrier's payment to MFN of (i) the Early Termination Charge, (ii) MFN's
costs of construction and installation plus fifteen percent (15%) plus
applicable sales or other taxes, and (iii) the Applicable Taxes (set forth
in Section 2 of the General Terms and Conditions of this Agreement) shall
be MFN's sole and exclusive remedy under this Agreement.
8. Fiber, Locations and Requirements
8.1 Leased Fiber Commitment. Carrier acknowledges and agrees that within
[*] days of the effective date of this Agreement,
Carrier will lease Leased Fiber subject to the terms and conditions of
this Agreement totaling at least [*] fiber miles in
metropolitan areas where MFN has or reasonably expects to have within
such [*] day period an installed Network as set
forth in Exhibit B. Carrier acknowledges and agrees that within sixty
(60) months after the Effective Date of this Agreement, Carrier will
lease Leased Fiber subject to the terms and conditions of this
Agreement totaling at least [*] fiber
miles in the United States and/or Canada in metropolitan markets in
which MFN itself or through one or more of its affiliated companies
has constructed or plans to construct a Network within the next twelve
(12) months. Any fiber mile leased in a Canadian metropolitan market
shall be pursuant to a Supplement entered into by either MFN or one of
its affiliates directly.
8.1.1. For the purposes of this Agreement, fiber miles will be
calculated by multiplying the physical mileage of Carrier's
Leased Fiber route(s) by the quantity of Leased Fiber along the
same route(s).
8.1.2. The Monthly Fiber Charge for the initial [*]
[*] Leased Fiber miles that MFN leases to Carrier
within sixty (60) months after the Effective Date of this
Agreement shall be [*] per
fiber mile per month.
8.1.3. Carrier further acknowledges and agrees that for the period
beginning at the end of sixty (60) months after the Effective
Date until such time as Carrier has leased [*]
[*] fiber miles pursuant to Supplements, Carrier
shall be liable to MFN for any difference that may exist
between the Monthly Fiber Charge for [*]
[*] fiber miles and Carrier's actual total Monthly Lease
Payments for Leased Fiber miles pursuant to Supplements (the
"Contract Balance"). In the event that MFN has reason to
believe that such difference may exist, MFN will provide
Carrier written notice of the deficiency fifty-nine (59) months
[*] Indicates confidential treatment requested.
after the Effective Date of this Agreement and Carrier will
then have thirty (30) days to order additional fiber subject
to the terms and conditions of this Agreement necessary to
achieve Supplements for [*]
Leased Fiber miles. If after sixty (60) months after the
Effective Date of this Agreement, Carrier does not lease
from MFN Leased Fiber totaling [*]
[*] fiber miles pursuant to Supplements, then in advance
of the sixty-first (61st) month after the Effective Date,
MFN will invoice and Carrier will pay the Monthly Fiber
Charge each month equal to the aggregate Monthly Fiber
Charge pursuant to Supplements plus the Contract Balance (as
the Contract Balance may be reduced in accordance with the
final sentence of this paragraph) multiplied by [*]
dollars [*] per fiber mile per month until such
time as Carrier has leased an aggregate of [*]
[*] fiber miles pursuant to Supplements. Any
such amount will be subject to an Early Termination Charge
as set forth in Section 7. As and when Carrier has leased
additional Leased Fiber miles pursuant to Supplements, the
Contract Balance shall be reduced by the amount of the fiber
miles subject to such Supplements. Notwithstanding anything
to the contrary contained in this Agreement, Carrier will
have no liability under this provision or Section 7 of this
Product Order in the event that any failure of Carrier to
lease [*] fiber miles is due
to MFN's inability to deliver fiber in accordance with any
Supplements, including, without limitation, any failure of
MFN to timely deliver Leased Fiber, any failure of any
Leased Fiber to meet the Specifications, MFN's failure to
build to announced build plans, and/or any other failure or
inability of MFN to timely deliver Leased Fiber in
accordance with the terms of the Agreement.
8.1.4. In no event shall Carrier be obligated to lease Leased Fiber
from MFN in excess of [*] fiber
miles.
8.2 Building Access Commitment. Carrier acknowledges and agrees that
within sixty (60) months after the Effective Date, Carrier will order
from MFN Building Access into at least [*] Carrier
Locations. Such Carrier Locations will consist of buildings and/or
central offices connected to the Network selected from the target
building list (the "Target Building List"), annexed herewith as
Exhibit C and updated from time to time by MFN, but not more
frequently than once every three (3) months.. Notwithstanding anything
herein to the contrary, MFN shall not be obligated to provide Building
Access into [*] Carrier Locations. Within sixty (60)
months after the Effective Date, in the event that MFN fails to
provide Building Access into a minimum of [*] buildings
designated on the Target Building List, exclusive of Proposed Carrier
Locations (defined in Section 8.2.3, below), then Carrier's Building
Access Commitment shall be reduced accordingly by such number of
buildings into which MFN fails to provide Building Access.
8.2.1. Subject to Section 8.2.3.2, the Monthly Building Access Charge
shall be [*] per month.
8.2.2. Carrier further acknowledges and agrees that for the period
beginning at the end of sixty (60) months after the Effective
Date until such time as Carrier has requested Building Access
into [*] Carrier Locations, selected from the
Target Building List, pursuant to Supplements, Carrier shall be
liable to MFN for any difference that may exist between the
Monthly Building Access Charge for [*] Carrier
Locations and Carrier's actual total Monthly Building Access
Charge pursuant to Supplements (the "BA Contract Balance"). In
the event that MFN has reason to believe that such difference
may exist, MFN will provide Carrier written notice of the
deficiency fifty-nine (59) months after the Effective Date
of this Agreement and Carrier will then have thirty (30) days
to order additional Building Access into Carrier Locations
subject to the terms and conditions of this Agreement
necessary to achieve Supplements for [*] Carrier
Locations. If after
[*] Indicates confidential treatment requested.
sixty (60) months after the Effective Date of this Agreement,
Carrier does not order Building Access into Carrier Locations
totaling [*] pursuant to Supplements, then in
advance of the sixty-first (61st) month after the Effective
Date, MFN will invoice and Carrier will pay the Monthly
Building Access Charge each month equal to the aggregate
Monthly Access Charge pursuant to Supplements plus the BA
Contract Balance (as the BA Contract Balance may be reduced in
accordance with the final sentence of this paragraph)
multiplied by [*] per
Carrier Location per month until such time as Carrier has
ordered Building Access into an aggregate of [*]
Carrier Locations pursuant to Supplements or such lesser number
as provided in Section 8.2 of the Product Order Any such amount
will be subject to an Early Termination Charge as set forth in
Section 7. As and when Carrier has ordered Building Access in
Carrier Locations pursuant to Supplements, the BA Contract
Balance shall be reduced by the amount of the Carrier Locations
subject to such Supplements. Notwithstanding anything to the
contrary contained in this provision, Carrier will have no
liability under this provision in the event that any failure of
Carrier to order Building Access into [*]
Carrier Locations is due to (i) MFN's inability to deliver
Building Access into [*] Carrier Locations or (ii) MFN's
failure to timely deliver Building Access pursuant to any
Supplements in accordance with the terms of the Agreement.
8.2.3. Notwithstanding anything contained in this Section 8.2. to
the contrary, Carrier shall have the right to request Building
Access into a proposed Carrier Location not designated on the
Target Building List. Such requests shall be provided to MFN in
a written notice pursuant to Section 9.2, specifying the
proposed Carrier Location(s) (the "Proposed Carrier Location")
and any necessary documentation (including, without limitation,
a copy of the telecommunications license agreement between
Carrier and the building owner or manager), in a form
acceptable to MFN, certifying that a Proposed Carrier Location
meets MFN's commercial building criteria (the "Commercial
Building Criteria") set forth in Exhibit D, annexed herewith.
MFN will determine, in its sole discretion, whether or not the
proposed Carrier Location(s) meets the Commercial Building
Criteria, and to provide Building Access and construct a
Lateral Extension to and into such Proposed Carrier
Location(s). All right, title and interest to the Lateral
Extensions constructed by MFN shall vest in MFN.
8.2.3.1. Carrier shall use its best efforts to assist MFN in
entering into a Telecommunications License Agreement
with the owner or manager of a Proposed Carrier
Location in the form attached hereto as Exhibit E.
Carrier agrees to promptly forward or deliver to
MFN's Real Estate Group any and all communications by
the owner or manager of a Proposed Carrier Location
regarding the Telecommunications License Agreement.
Subject to Section 8.2.3, MFN may enter into a
Telecommunications License Agreement with a building
owner or manager of proposed Carrier Location,
pursuant to this Section 8.2.3.1 wherein the terms of
such agreement differ from the terms of the form
Telecommunications License Agreement attached hereto
as Exhibit E, provide that such terms are not in
variance with the Building Access Criteria. All such
communications should be sent or forwarded to:
Metromedia Fiber Networks, Inc.
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Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President - Real Estate Group
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
[*] Indicates confidential treatment requested.
8.2.3.2. In the event that MFN provides Carrier with Building
Access into a Proposed Carrier Location and in
consideration of Carrier assisting MFN to enter into
a Telecommunications License Agreement with an owner
or manager of a Proposed Carrier Location as set
forth in Section 8.2.3.1, such Building Access with
respect to the Carrier Location shall be provided to
Carrier at no charge during the Lease Term.
8.2.3.3. In no event shall Carrier be obligated to order
Building Access into an excess of [*]
Carrier Locations.
8.3. Carrier will, from time to time, request Leased Fiber and Building
Access pursuant to the terms and provisions hereof, by providing MFN
with one or more written notices (each a "Carrier Request Notice").
Each such notice shall indicate the number of fibers, the MFN
metropolitan market and Carrier's proposed Locations. Within thirty
(30) days after receipt of such notice, MFN will respond to Carrier
with a Supplement confirming the availability, the Monthly Lease
Payment for the Leased Fiber and Building Access subject to the
Supplement, the one time installation charge, if any, and the
estimated installation completion date for the requested fiber.
Carrier may order fiber in any metropolitan market in which MFN has
constructed a Network, except for the first [*] fiber
miles which must be requested in the metropolitan markets set forth in
Exhibit B. Carrier will execute and return to MFN each such Supplement
within ten (10) days of receipt thereof. Carrier shall do so by
following the procedure set forth in this Section 8.3. Carrier
acknowledges and agrees that any Leased Fiber in international
metropolitan markets may be provided directly by one or more
affiliates of MFN and that Carrier will enter into an agreement with
such affiliate for such provision of Leased Fiber.
8.4. Provided Carrier is not in default of this Agreement, Carrier may
request additional Carrier Locations be added to any then existing
Supplement by providing MFN one or more written requests. Such
requests shall indicate the number of fibers, requested term, and any
relevant information necessary to identify the requested Locations
including, but not limited to, the address, floor, suite, and room
number of the requested Location. Within thirty (30) days after
receipt of such orders, MFN will respond to Carrier with a revised
Supplement confirming the availability, the Monthly Lease Payment for
the additional fiber miles, the one time installation charge, if any,
and the estimated installation completion date for the requested
additional Locations. Carrier will execute and return to MFN each such
Supplement within ten (10) days of receipt thereof, failing which such
Supplement shall be deemed rejected.
9. MFN address (and contact person) is as follows:
Metromedia Fiber Network Services, Inc.
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Attn.: Vice President - Marketing
For purposes of declaring a default or termination, a copy of the notice
must be sent to:
Vice President - Legal Affairs
Metromedia Fiber Network Services, Inc.
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Carrier address (and contact person) is as follows:
Cogent Communications, Inc.
[*] Indicates confidential treatment requested.
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Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
For purposes of declaring a default or termination, a copy of the notice
must be sent to:
Cogent Communications, Inc.
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Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
METROMEDIA FIBER NETWORK SERVICES, INC. COGENT COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President Title: President
FIBER OPTIC PRIVATE NETWORK AGREEMENT
GENERAL TERMS AND CONDITIONS
1. TERM AND LEASE
1.1 MFN hereby leases to Carrier, pursuant to Supplements to be executed by the
parties, optical fiber ("Leased Fiber") on MFN's fiber optic cable network
("Network") and/or constructed and installed specifically for Carrier and
the equipment and interfaces described in the Supplements to the Product
Order ("Equipment"), as provided in the Product Order and the Supplements
thereto. The Leased Fiber, Building Access and Equipment leased by Carrier
will be referred to as the "Product". The lease term ("Lease Term") and
other specific terms pertaining to the Product are set forth in the
Supplements. The term "Party" will refer, individually, to either MFN or
Carrier and the term "Parties" will refer to both of them. The term
"Agreement" will mean and include the Product Order, Supplements and all
Exhibits thereto and these General Terms and Conditions.
1.2 MFN will use commercially reasonable efforts to complete installation of
and provide Carrier with access to the Product on or about the Estimated
Installation Completion Date specified in the Supplements at the Carrier
Locations specified in the Supplement ("Turnover Date"). For a period of
time not to exceed ten (10) business days after the Turnover Date (the
"Acceptance Test Period"), Carrier will conduct such testing as it
reasonably deems necessary to ensure that the Product conforms in all
material respects to the technical specifications set forth in Exhibit A to
the Product Order ("Specifications"). Carrier will use commercially
reasonable efforts to complete such acceptance testing and notify MFN in
writing within five (5) business days after the Turnover Date, but in any
event within the Acceptance Test Period, of acceptance or of any
"Deficiencies" (as defined herein) in the Product. Deficiencies exist if
the Product does not conform in all respects to the relevant
Specifications. Upon receipt of such notification from Carrier, MFN will
promptly undertake correction of such Deficiencies and restore access to
and use of the Product to Carrier. The "Service Date," whereupon the Lease
Term commences, will be the earlier of (i) completion of testing and
acceptance of Product by Carrier, (ii) expiration of the AcceptanceTest
Period or, (iii) if Carrier has identified Deficiencies, then the first
date upon which Product conforms in all material respects with the relevant
Specifications. If the Service Date for any Leased Fiber does not occur
within one hundred and eighty (180) days of the Estimated Installation
Completion Date set forth in the applicable Supplement, or such other date
as may be mutually extended by the Parties, Carrier may terminate the
Supplement with respect to such Leased fiber.
1.3 Carrier will obtain all necessary approvals for collocation in a building
and for the use of any required building riser conduit or other required
building facilities at all Carrier Locations. Unless otherwise provided for
in the Product Order, if there is no existing and available riser conduit
or other required facilities within such buildings then MFN will perform
all construction and installation of such riser conduit and Carrier will
reimburse MFN for the entire out of pocket cost to construct and install
such riser conduit plus fifteen percent (15%) plus Applicable Taxes.
1.4. Upon the expiration of the Lease Term, or any earlier termination of this
Agreement or a Supplement, Carrier will promptly remove from any property
owned, leased or licensed by MFN all Carrier property, equipment and other
materials used in connection with the Product within forty five (45) days
from such expiration or termination. Carrier will complete such removal in
a manner that does not interfere with or damage the Product or the Network.
Subject to the preceding sentence, in all events, carrier may remove its
optronic and electronic equipment. If Carrier fails to remove its property
within such period, such property will be deemed abandoned, and MFN will
make such disposition of the property as it deems necessary or advisable at
Carrier's sole expense.
2. 2. TERMS OF PAYMENT
2.1 Unless otherwise provided for in the Product Order, Carrier agrees to pay
the One Time Installation Charge, if any, as provided in each Supplement,
upon the execution of the Supplement. Carrier will also pay to MFN all
applicable sales or other similar taxes assessed on the transactions
contemplated by this Agreement other than taxes on or measured by MFN's
income or capital, or any franchise or permit fees payable by MFN (except
those fees directly attributable to Carrier) ("Applicable Taxes"), unless
Carrier is eligible for an exemption and Carrier provides to MFN an
exemption certificate or other documentation. Commencing on the earlier of
(i) the Service Date for the first Location of each Ring or (ii) 180 days
after the Effective Date of the Supplement (unless all such delays are
caused by or result from the act or omission of MFN) and continuing each
month thereafter for the duration of the Lease Term, Carrier will pay the
Monthly Lease Payment and for such Supplement (and the Monthly Maintenance
Payment for the Equipment, if applicable) plus Applicable Taxes in advance
for each month. If service commences after the first day of any month or
terminates before the last day of a month, then the payment for such
partial month will be pro rated based on the number of days of the Lease
Term during that month to the number of days in that month. Carrier will
include such pro rata payment for the initial partial month in the first
monthly payment at the commencement of the Lease Term for such Supplement.
The Prepaid Lease Payment, not to exceed four (4) months if any, will be
paid as provided in the Supplement.
2.2 If Carrier fails to pay any sum when due pursuant to this Agreement, then,
in addition to such sum, Carrier will pay interest on such unpaid sum at
the lower of the highest legal rate of interest permitted in the State of
New York or one and one-half percent (1.5%) per month.
3. MAINTENANCE, RESTORATION AND REPAIR OF THE NETWORK AND PRODUCT MONITORING
3.1 MFN will provide remote monitoring of the Network and the Product to the
extent that the Product is incorporated into the Network. MFN will use
commercially reasonable efforts to maintain the Product in accordance with
the Specifications (subject to reasonable wear and tear) and the Network in
good operating condition at all times during the Lease Term. The foregoing
maintenance will be at no additional charge to Carrier, except as set forth
in Section 3.4 hereof.
3.2 An "Outage" will mean the complete interruption of communications on one or
more of Carrier's Leased Fibers resulting from physical damage to, or
severance of, or a break in, or other failure of any Product. If an Outage
or any other material degradation of service on any Leased Fibers occurs
Carrier will immediately notify MFN by telephone at (▇▇▇) ▇▇▇-▇▇▇▇ or
through such other notification procedure as Parties may establish.
Provided that MFN personnel or contractors have access to affected Carrier
facilities immediately upon notification, MFN will respond and commence
work within two (2) hours after the time of notification by Carrier and
restore effective use of the Product as expeditiously as practicable, but
in no event more than four (4) hours after receipt by MFN of Carrier's
notification, subject to "Force Majeure" as provided in Section 11 hereof.
3.3 Except for any Outage caused by or resulting from (i) Force Majeure as set
forth in Section 11 hereof; (ii) the act or omission of Carrier, its
employees, agents or contractors; (iii) any of Carrier's equipment or
facilities used in connection with the Product; or (iv) planned Outages by
reason of Services which have been scheduled and approved in advance by
Carrier ("Excepted Outages") in the event of an Outage, Carrier will
receive from MFN a credit ("Outage Credit") calculated at 5% of the Monthly
Lease Payment for the affected Leased Fiber strands for each four (4) hours
of Outage, up to a maximum of the Monthly Lease Payment for one (1) full
month. Except in the case of a Prepaid Lease Payment or termination as
provided in this Section 3.3, the Outage Credit will be applied against
future payments which may become due and payable by Carrier to MFN. The
Outage Credit will be determined by dividing the total Monthly Lease
Payment by the number of Carrier Locations and dividing this result by the
number of Leased Fiber strands to determine the Monthly Lease Payment per
Leased Fiber Strand. This result is then multiplied by five percent (5%)
and by the number of four (4) hour Outage periods. For example, if the
Monthly Lease Payment for six (6) Carrier Locations is $60,000.00, the
Monthly Lease Payment for each Location would be $10,000.00, and if there
were four (4) Leased Fiber strands for each Location, the result would be
$2,500.00 per Fiber Strand. If the Outage affected two (2) strands at one
Location for eight (8) hours, the Outage Credit would be $2,500 x 5% x 2 =
$250.00. For the purposes of determining the Outage Credit pursuant to this
Section 3.3, if the Product Order provides for a Prepaid Lease Payment,
then the Monthly Lease Payment will be determined by dividing the Prepaid
Lease Payment by the total number of months of the Lease Term. The Outage
Credit will be in the form of a cash payment to Carrier by MFN if the
Carrier has paid the Prepaid Lease Payment in full or if this Agreement is
terminated by either Party as provided in Section 3.4 hereof. Outage
Credits will not be credited or payable for any period of time during which
MFN personnel or contractors are denied access to Carrier Locations or
other facilities to remedy an Outage.
3.4 If an Outage occurs and continues for a period longer than fifteen (15)
days for any reason other than "Force Majeure" as defined in this
Agreement, then at any time thereafter, unless and until such Outage is
corrected, either Party can terminate this Agreement and the Supplement
with respect to the Product subject to the Outage by written notice of such
termination delivered to the other Party. Notwithstanding the foregoing, if
such Outage occurs and continues by reason of a breach by a Party of its
obligations under this Agreement, such breaching Party will not have any
right to terminate this Agreement. The Outage Credit and right to terminate
will be the sole and exclusive remedy of Carrier and liability of MFN for
any Outage regardless of the cause of such Outage.
3.5 If all or part of the Product requires restoration, replacement or repair
by reason of an act or omission of Carrier, its employees, agents, or
contractors or any of Carrier's equipment or facilities used in connection
with the Product, such repair, replacement and/or restoration will be made
by MFN, at Carrier's sole expense, in accordance with MFN's then current
time and materials rates plus Applicable Taxes. In addition, Carrier will
not receive any Outage Credit by reason of the foregoing.
3.6 MFN may assign or subcontract to any third party any or all of its
performance obligations (including without limitation maintenance) under
this Agreement and Product Order at any time, without the consent of
Carrier, provided that MFN will remain obligated for such performance in
accordance with the terms of this Agreement.
3.7 MFN will have the right to inspect Carrier's use of the Product at any time
and from time to time during normal business hours upon at least
`twenty-four (24) hours" prior notice by MFN provided that such inspection
does not interfere with or hinder Carrier's use of its Product as permitted
hereunder.
4. USE AND OWNERSHIP OF THE PRODUCT
4.1 Carrier will not, by itself or through any agent or contractor, make any
repair to or replacement of the Product or the Network or any other
equipment or facilities provided by MFN in connection with the Product or
otherwise. Carrier will not install any equipment to be used with the
Product or use the Product in any manner which damages or interferes with
the Product or the Network.
4.2 Carrier will use the Product in material compliance with all applicable
federal, state and local laws, rules and regulations and all applicable
franchises, rights of way, leases, licenses, contracts and other
obligations to third parties with respect to the Network or Product.
Carrier will obtain and maintain in effect during the Lease term all
rights, leases, licenses, permits and governmental or non-governmental
approvals necessary for use of the Product by Carrier and its customers.
4.3 Carrier acknowledges and agrees that the Product is provided for use (1)
exclusively by Carrier and/or affiliated entities which control or are
controlled by or commonly controlled with Carrier ("Affiliates") which are
named in the Product Order (if so named, then the term "Carrier" as used in
this Agreement will include any such Affiliates of Carrier), (2) customers
of Carrier and (3) in either case only in the ordinary course of business
of Carrier. For purposes of this Agreement, the ordinary course of
Carrier's business shall not include the sale, leasing or granting of any
rights of
use in "dark fiber", as such term is commonly understood in the
telecommunications industry. Carrier will not under any circumstances (a)
permit or provide access to or use of the Product, in whole or part, to any
third party (other than a customer of Carrier in the ordinary course of
business of Carrier), pursuant to (by way of example and not in limitation)
sublease, license, sublicense or resale, or any other right to use, or (b)
share or otherwise utilize in conjunction with a third party (including
without limitation in any joint venture or as part of any outsourcing
activity) any of the Product. Any breach of this Section 4.3 will be deemed
to be a material breach of this Agreement and in the event of such material
breach MFN will have the right to immediately terminate this Agreement, any
applicable Product Orders and Carrier's access to the Network, in addition
to any and all rights and remedies. ,
4.4 MFN retains all right, title and interest in and to the Product and the
Network to the points within the Carrier Locations specified in the Product
Order at which MFN's facilities end and Carrier's facilities begin, subject
only to the grant of access and use provided to Carrier pursuant to this
Agreement.
4.5 MFN reserves the right to utilize unused external building access and space
within the building conduit(s) occupied by the Product at the Carrier
Locations and otherwise, provided that such use does not interfere with or
hinder Carrier's use of its Product as permitted hereunder.
5. AUTHORIZATIONS; RELOCATION; CONDEMNATION
"Authorization(s)" will mean all material and applicable governmental or
non-governmental licenses, easements, rights of way, conduit, pole attachment
and any other facilities or property rights, licenses, contracts, franchises,
approvals, permits, orders, consents, and all other rights required for MFN to
operate and maintain the Network or provide the Product to Carrier pursuant to
this Agreement.
5.1 MFN will use commercially reasonable efforts to have or obtain by the
Service Date, all Authorizations and to maintain or renew all such
Authorizations through the Initial Term and to replace such Authorizations
with reasonably suitable replacement Authorizations if any expire or are
terminated or discontinued during the Initial Term. If any Authorizations
are modified, terminated or discontinued and not replaced, and the loss of
such Authorizations threatens to cause or does cause material financial
harm to MFN, or prevents or materially interferes with MFN's control,
possession and/or use of the Network or ability to lease the Product or
materially and adversely affects the use by Carrier of the Product, then
MFN will at its option either (i) provide Carrier with comparable Product
or fiber optic capacity on portions of MFN's then existing Network (and/or
other MFN Networks, including networks belonging to or controlled by MFN
Affiliates) or on networks of third parties, or (ii) terminate this
Agreement with respect to the affected Product and rebate to Carrier the
pro rata portion of all Prepaid Lease Payments allocable to the terminated
Product and amortized over the remainder of the Lease Term. The foregoing
will be MFN's sole and exclusive liability and Carrier's sole and exclusive
remedy with respect to the foregoing.
5.2 If MFN receives notice of any request, intent or plan by any governmental
or non-governmental third party, to relocate any material part of the
Product or any material segment of MFN's Network used in the provision of
the Product, MFN will notify Carrier of such request, intent, or plan. If
MFN is required by any such third party to relocate any segment of MFN's
network used in providing the Product, MFN will give Carrier at least sixty
(60) days (or such lesser period of notice that MFN may have received)
prior written notice of any such relocation ("Relocation Notice"). Together
with the Relocation Notice, MFN will provide an estimate of the cost of
such relocation. MFN will relocate the Leased Fibers, and, to the extent
MFN is not reimbursed for the cost of such relocation by a third party,
governmental entity or otherwise, Carrier will pay its pro rata share
(based on the ratio of leased fiber to total fiber in the affected
portion)of the costs associated with the relocation of the Product; except,
however, to the extent that such relocation is the direct result of any
negligent or willful act or omission of MFN. MFN will use its commercially
reasonable efforts to secure an agreement for reimbursement from any third
party, governmental entity or otherwise, requiring any relocation of the
Network and the Product.
5.3 If any portion of the Network or the Product and/or the Authorizations in
or upon which the Product has been installed, become the subject of a
condemnation proceeding which is not dismissed within one hundred eighty
(180) days after the date of filing of such proceeding and which could
reasonably be expected to result in a taking by any governmental agency or
other party having the power of eminent domain for public purpose or use,
both Parties will be entitled, to the extent permitted under applicable
law, to participate in any condemnation proceedings for compensation by
either joint or separate awards for the economic value of their respective
interests in the Leased Fibers that are subject to such condemnation
proceeding.
6. WARRANTIES
6.1 MFN warrants to Carrier that upon the Service Date and/or over the Lease
Term the Product will operate in all material respects in accordance with
the Specifications related thereto.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, MFN
DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING ANY AND
ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE (i) NETWORK OR PRODUCT, (ii) THE LEASE GRANTED
PURSUANT HERETO, (iii) MAINTENANCE SERVICES (iv) CONSTRUCTION AND
INSTALLATION SERVICES, IF ANY, AND (v) ANY OTHER SERVICE(S)
(HEREINAFTER (iii) THROUGH (v) WILL COLLECTIVELY BE REFERRED TO AS
"SERVICES") PROVIDED BY OR ON BEHALF OF MFN HEREUNDER.
7. LIABILITY/INDEMNIFICATION
7.1 Except for the gross negligence or willful misconduct of a Party hereto and
except where a specific remedy is provided in this Agreement, the liability
of each Party to the other Party for damages will be limited to the total
Installation Charges and the Monthly Lease Payments paid or payable by
Carrier for the Lease Term during which the damages were incurred. In no
event will either Party be liable to the other Party for any incidental,
indirect, special, consequential, exemplary, or punitive damages arising
out of or relating to this Agreement, the lease granted hereunder, the
Network, Product or Services provided hereunder, including damages based on
loss of revenues, profits or lost business opportunities, regardless of
whether the respective Party had been advised of or could have foreseen the
possibility of such damages.
7.2 Each Party agrees to indemnify, defend and hold the other, its officers,
directors, employees, agents and contractors harmless from and against all
loss, damage, liability, cost and expense (including reasonable attorney's
fees and expenses) by reason of any claims or actions by third parties for
(i) bodily injury, including death, (ii) damage, loss or destruction of any
real or tangible personal property (including without limitation the
Network and Product) which third party claims arise out of or relate to (a)
any Product or Services provided by or on behalf of MFN hereunder, (b) a
Party's performance of or failure to perform any term, condition or
obligation under this Agreement, (c) any act or omission of a Party's
directors, agents, employees, contractors, representatives or invitees, or
(d) Carrier's or its customer's use of the Product and conduct of their
respective businesses including without limitation the content of any
video, voice or data carried by Carrier or its customers on the Product or
Network.
7.3 Except as otherwise set forth in this Agreement, nothing contained herein
will operate as a limitation on the right of either Party to bring an
action for damages against any third party based on any act or omission of
such third party as such act or omission may affect the construction,
operation, or use of the Product. Each Party agrees to execute such
documents and provide such commercially reasonable assistance, at the
claiming Party's sole expense, as may be reasonably necessary to enable the
claiming Party to pursue any such action against such third party.
8. CONFIDENTIALITY
8.1 The Parties acknowledge and agree that this Agreement and the information
each Party has provided or will provide in connection with this Agreement
or that the other Party learns or obtains from a source other than public
domain or from a source (including a Party) not in violation of any
obligation of confidentiality, are and will be confidential and proprietary
to the Party providing such information (the "Providing Party"). The Party
in receipt of or learning or obtaining the confidential information (the
"Receiving Party") agrees not to distribute, use or disclose to any third
party the confidential information of the Providing Party.
8.2 Except as may be required by applicable legal requirements in the course of
defending or prosecuting a legal, insurance or other claim or as required
by applicable law, rule or regulation, Receiving Party will restrict
dissemination of confidential information to only those persons who must
have access to such confidential information in order to perform their
respective rights or obligations hereunder (a) or otherwise to know such
confidential information in connection with such Party's business and (b)
the Party's legal tax and accounting personnel and advisors and investors.
The Receiving Party will promptly notify the Disclosing Party of any such
required disclosure to enable the Disclosing Party to seek protective
relief therefrom and shall cooperate as the Disclosing Party may request in
connection therewith.
8.3 Carrier may disclose the identity of MFN as a supplier of Carrier, and MFN
may disclose the identity of Carrier as customer of MFN, each with the
prior written consent from the other; which consent will not be
unreasonably withheld or delayed; provided, that no such disclosure shall
imply any endorsement of the disclosed Party or contain any misleading
reference to the nature of the relationship between the Parties. Each Party
may, in connection with a financing transaction, disclose confidential
information to an equity investor or a lending financial institution which
has executed an agreement with such Party to maintain the confidentiality
of this Agreement in a manner consistent with the terms of this Section 8.
Furthermore and notwithstanding anything contained herein to the contrary,
each Party may disclose the general nature of this Agreement to such third
parties PROVIDED THAT no such disclosure will indicate the pricing or
pricing terms under this Agreement without the prior written consent of the
other Party.
8.4 Each Party acknowledges and agrees that the information of the Disclosing
Party described in this Section 8 constitutes valuable property of the
Disclosing Party and that Disclosing Party will suffer irreparable injury
not compensable by money damages for which the Disclosing Party will not
have an adequate remedy at law in the event of a breach by the Receiving
Party of the provisions of this Section 8 and therefore the Disclosing
Party shall be entitled to injunctive relief to prevent or curtail any such
breach, threatened or actual. The foregoing shall be without prejudice to
or limitation on any other rights a Party may have under this Agreement, at
law or in equity.
9. NOTICES
Unless otherwise provided herein, all notices and communications concerning this
Agreement will be in writing and sent to the address (and contact person)
specified in the Product Order, or at such other address as may be designated in
writing by a Party. Unless otherwise provided herein, notices will be sent by
certified US Postal Service, return receipt requested, or by commercial
overnight delivery service, or by facsimile, and will be deemed delivered, if
sent by US Postal Service, five (5) days after deposit, if sent by facsimile,
upon verification or receipt or, if sent by commercial overnight delivery
service, one (1) business day after deposit therewith.
10. RENEWAL TERM
Provided that Carrier is not in breach of any of its material obligations under
this Agreement and subject to the conditions of this Agreement, Carrier may
renew the term of this Agreement for the Product for one (1) additional renewal
term upon the terms and conditions of this Agreement, except for the length of
such renewal term and the Installation and Lease Fee payments, which the Parties
will negotiate in good faith
following Carrier's written request for renewal delivered to MFN no earlier than
one year before the scheduled expiration date of the initial term and no later
that ninety (90) days before such expiration date.
11. TERMINATION/FORCE MAJEURE
11.1 If any of the following events of default occur, the non-breaching Party
(if MFN) will have the right to deny access by Carrier to the Product or
Network and (if either Party) to terminate this Agreement or, if
applicable, the affected Supplement, by written notice following the
expiration of any periods of time included in the following, such
termination to be effective in the on the date set forth in the written
notice of termination:
11.1 (a) If Carrier terminates any Supplement at any time before the
expiration of the Lease Term (whether before or after the Turnover
Date) or fails to make any payment hereunder within five (5) days or
receipt of written notice of late payment from MFN, MFN will have the
right to terminate such Supplement and/or deny access by Carrier to
the Product or Network immediately without further notice to Carrier.
11.1 (b) If a Party breaches any material term or condition of this
Agreement and such breach remains uncured thirty (30) days after
delivery to the breaching Party of written notice of such breach,
unless the breach is of a nature or involves circumstances requiring
more than thirty (30) days to cure, the time period may be extended
for such time as will be reasonably required, up to a maximum of one
hundred and twenty (120) days provided the defaulting party proceeds
diligently to cure the breach.
11.1 (c) A Party applies for or consents to the appointment of a receiver,
trustee or similar officer for it or any substantial part of its
property or assets, or any such appointment is made without such
application or consent by such Party and remains undischarged for a
period of sixty (60) days; or
11.1 (d) A Party consents to the institution of a petition, application,
answer, consent, default of otherwise of any bankruptcy, insolvency or
reorganization and any such proceeding as instituted against such
Party remains undischarged for a period of sixty (60) days.
11.2 In the event of termination of a Supplement by MFN pursuant to Section 11.1
hereof or by Carrier after execution of the Supplement or before the end of
the Lease Term (other than by Carrier for cause as provided in this Section
11), MFN will be entitled to receive, and Carrier will immediately pay, the
early termination charge ("Early Termination Charge") set forth in the
Product Order, and to offset any remaining portion of the Prepaid Lease
Payment against any sums otherwise due and payable by Carrier to MFN
pursuant to this Agreement.
11.3 If any Authorization is modified, terminated or discontinued and not
replaced as provided in Section 5.2 of these General Terms and Conditions,
and MFN has not notified Carrier in writing within sixty (60) days after
the occurrence of such modification, termination or discontinuance that MFN
will provide additional or substitute Product or capacity as provided in
Section 5.2, then and thereafter either party has the right, exercisable in
its sole discretion, to terminate the applicable Supplement with respect to
the affected Product upon thirty (30) days prior written notice (or such
other notice as is practicable under the circumstances) without liability
whatsoever by either Party to the other Party or any party claiming by,
through or under such other Party other than the return to Carrier, of the
unamortized portion of any Prepaid Lease Payment as of the date of such
termination as provided in Section 5.2.
11.4 Neither Party will be in breach of this Agreement resulting from delay or
prevention of performance of such Party which is caused by any act
attributable to an occurrence or an event of "Force Majeure" as defined
herein. Neither party will, however, be relieved of liability for failure
of 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 remedial causes that it fails to
remove or remedy using commercially reasonable efforts and within a
reasonable period of time.
11.5 The term "Force Majeure" will mean any cause beyond the control of Carrier
(or MFN, as applicable) which, by the exercise of due foresight, Carrier
(or MFN) could not reasonably have been expected to avoid, and which by the
exercise of reasonable diligence, Carrier (or MFN) will be unable to
overcome, including but not limited to action by governmental authority
including without limitation moratorium on any activities related to the
Agreement, third party labor dispute, flood, earthquake, fire, lightning,
epidemic war, riot, civil disturbance, sabotage and the like. The party
affected by an event of Force Majeure (the "Affected Party") will notify
the other party (the "Other Party") promptly of any occurrence or condition
which, in the Affected Party's reasonable opinion, warrants an extension of
time. Such notice will specify in detail the anticipated length of delay,
the cause of the delay and a timetable by which any remedial measures will
be implemented.
12. ASSIGNMENT; SUCCESSION
12.1 Carrier will not assign any right nor delegate any duty under this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of MFN, which shall not be unreasonably
withheld. Notwithstanding the foregoing, this Agreement may be assigned to
any entity controlling, controlled by or under common control with Carrier,
or who acquires all or substantially all of the assets or stock of Carrier,
or any entity surviving merger or consolidation of such party or entity
without the consent of MFN, provided that MFN is given prompt notice of
such assignment. Upon any permitted assignment (or delegation) hereunder,
Carrier will remain jointly and severally responsible for the performance
under this Agreement, unless released in writing by MFN. Any permitted
assignee will expressly assume all liabilities hereunder prior to the
effectiveness of such assignment. Any attempted assignment or delegation
without such consent will be null and void and may be deemed by MFN, in its
sole discretion, to constitute a material breach of this Agreement.
12.2 The Agreement and Product Order will be binding upon and inure to the
benefit of the Parties hereto and their respective successors and permitted
assigns.
13. GOVERNING LAW
13.1 THIS AGREEMENT WILL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE 0F
NEW YORK WITHOUT GIVING EFFECT TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
14. SURVIVAL
The Parties' respective representation, warranties, and covenants, together with
obligations of indemnification, confidentiality and limitations on liability
will survive the expiration, termination or rescission of this Agreement and
continue in full force and effect.
15. ENTIRE AGREEMENT
This Agreement, Product Order, Supplements, Exhibits and all addenda attached
hereto constitute the entire agreement between the parties hereto with respect
to the subject matter hereof and supersede any and all prior negotiations,
understandings, and agreement with respect hereto, whether oral or written.
16. REMEDIES CUMULATIVE
Except as otherwise expressly provided, the rights and remedies set forth in
this Agreement will be in addition to, and cumulative of, all other rights and
remedies at law or in equity.
17. REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Party represents, warrants and covenants to the other that (a) it is a
corporation, limited liability company, partnership, or other legal entity, duly
organized, validly existing and in good standing under the laws of the state of
its organization, (b) it has all requisite power and authority to enter into and
perform its obligations under this Agreement and Product Order and (c) this
Agreement, when executed, will become the legal, valid and binding obligation of
such Party.
18. NO AGENCY
Nothing in this Agreement shall be deemed to place the parties in the
relationship of employer-employee, principal-agent, or partners or joint
venturers.
19. MISCELLANEOUS
19.1 The covenants, undertakings, and agreements set forth in this Agreement
will be solely for the benefit of and will be enforceable only by the
Parties hereto or their respective successors or permitted assigns.
19.2 The headings of the Sections in this Agreement are strictly for convenience
and will not in any way be construed as amplifying or limiting any of the
terms, provisions or conditions thereof.
19.3 In the event any term of this Agreement will be held valid, illegal or
unenforceable, in whole or in part, neither the validity of the remaining
part of such term nor the validity of the remaining terms of this Agreement
will be in any way affected thereby.
19.4 This Agreement may be amended only by a written instrument executed by the
Parties.
19.5 No failure to exercise and no delay in exercising, on the part of either
Party hereunder, any right, power or privilege hereunder will operate as a
waiver hereof, except as expressly provided herein.
19.6 This Agreement may be executed in multiple counterparts, each of which will
constitute one and the same instrument.
METROMEDIA FIBER NETWORK SERVICES, INC. COGENT COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------- ---------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President Title: President
EXHIBITS
Exhibit A: Leased Fiber Specifications
Exhibit B: Initial Metropolitan Markets
Exhibit C: Target Building List
Exhibit D: Commercial Building Criteria
Exhibit E: Telecommunications License Agreement
EXHIBIT A
LEASED FIBER SPECIFICATIONS
AND
FIBER OPTIC CABLE SPLICING, TESTING AND ACCEPTANCE STANDARDS
MFN will perform fiber testing as described below on each Leased Fiber and will
provide the documentation (hard copy and/or diskette) of results to the
Customer. Each "span" will be defined in documentation included in the
Customer's package. Acceptance of a span by Customer will be an acknowledgement
by the Customer that all Leased Fiber complies with all performance criteria
contained herein.
1) POWER TESTING: this end-to-end loss measurement will be conducted for each
Leased Fiber in the span and from both directions using an
industry-accepted laser source and power meter. The b-directional average
will be used to determine the end-to-end loss of the span at each
appropriate wavelength. This test will be conducted at both 1310 nm and 150
nm for Standard Single Mode Fiber; Dispersion Shifted Fiber (True Wave
(TM), LEAF(TM), etc.) will be tested at 1550 nm only. In the event that a
span consists of both Standard Single Mode and Dispersion Shifted fiber
types, only 15450 nm testing will be conducted. This power testing will
ensure fiber continuity and the absence of crossed fibers in the span.
Power testing will only be conducted where the Leased Fiber is terminated
by MFN in fiber distribution panels at both ends of the span.
2) OTDR TESTING: All traces will be provided in hard copy and diskette form
using GR 196 format. This testing will be conducted at both 1310 nm and
1550 nm only if the Leased Fiber consists of either Dispersion Shifted
Fiber (True-Wave(TM), LEAF(TM), etc.) or a combination of Single Mode and
Dispersion Shifted fiber types.
OTDR testing will be conducted on a bi-directional basis for each Leased
Fiber in each span at the appropriate wavelengths for the Leased Fiber
described above. However, if due to length or attenuation reasons that the
Leased Fiber span exceeds the dynamic range of an OTDR, a portion or the
entire span may be tested on a unidirectional basis only. Alternatively,
the Leased Fiber span may be divided into shorter testing spans, to the
extent reasonably possible, in order to obtain bi-directional analysis.
Also, in instances where a Customer intends to accept Leased Fiber that is
not terminated at one end by MFN in a fiber distribution panel (such as in
a manhole or handhole) only unidirectional testing will be performed.
The turnover documentation package delivered to Customer will contain the
actual traces that detail the testing parameters (including pulse width,
averaging and range). The average bi-directional splice loss for all
splices within each span will be 0.15 dB or less while each connector pair
(such as at a FDP) will have an average bi-directional connector loss for
all splices within each span of 0.5 dB or less for all connectors within
each span. (Note that the front and end connector of the span can only be
measured uni-directionally and will also have a loss equal to or less than
0.5 dB). In the event that OTDR acceptance testing must be done on a
unidirectional basis (for reasons described above), an average per span
splice loss will be 0.30 dB.
All traces will be provided in hard copy and/or diskette form using GR 196
format. If the average bi-directional splice loss of each span exceeds 0.15
dB (or 0.30 dB uni-directionally), MFN will provide upon the Customer's
request documentation of at least three attempts to reduce this value to
below 0.15 dB dB (0.30 dB uni-directionally). The only exception to this
will be in the instance of splice between two different fiber types
(Standard Single-mode to Dispersion Shifted, Depressed-Clad, fibers with
different mode-field diameters).
Customer should also note that the loss and/or reflectance of the front-end
connector (as measured using a launch cord) is only an indicator of a
problem such as a defective port, bulkhead, or the like. Since a different
patch cord will be used by Customer (that connects to their equipment), for
example) to make to this connector, a different loss and/or the reflectance
may occur.
EXHIBIT B
o
New York City
o Northern New Jersey
o Philadelphia
o Chicago
o Dallas
o Washington, DC
EXHIBIT C
[*]
[*] Indicates confidential treatment requested.
EXHIBIT D
MFN'S COMMERCIAL BUILDING ACCESS CRITERIA
1. The building qualifies as a Class A commercial building.
2. The building is located within [*] mile of the Network.
3. The building has at least [*] square feet.
4. The building has a lest [*] tenants.
5. MFN obtains the following access rights for a minimum term of [*]
years after either (1) directly from the building owner or manager via a
Telecommunications License Agreement or (ii) through an existing Carrier's
arrangement with the building owner or manager (without MFN being subject
to any additional rent or exclusive dealing provisions):
a. May bring up to four hundred thirty two (432) fiber strands through
two (2) diverse locations and into MFN-installed distribution panels
or racks,
b. cross-connect and provide dark fiber services to MFN carrier clients
and tenants, with right, subject to availability, to fiber home run to
MFN private network customers,
c. install three-inch (3") conduits from up to two (2) diverse
points-of-entry to Carrier or MFN's space, and from Carrier or MFN's
space to riser access points.
d. Except for its pre-existing private network clients (for which there
shall be no by-pass fees), MFN will use Carrier's managed or other
building central distribution system (including, without limitation,
all internal conduit, risers, space and other building facilities)
("CDS") under "most favored nation" terms and conditions and without a
requirement for by-pass fees,
e. MFN retains all right, title and interest in and to the optical fiber
strands, equipment and interfaces (including, without limitation,
riser conduits) which MFN installs,
f. MFN's rights set forth above will survive the expiration or
termination of any agreement between MFN and Carrier or any agreement
between Carrier and the Building owner or manager, at no cost or
additional rent to MFN, and
g. if the Carrier's arrangement is terminated, then the Building owner or
manager will provide such rights to MFN for a total term of ten (10)
years with two (2) five (5) year renewal options for a charge
determined by the Building owner or manager but in accordance with the
applicable fair market value and agreed upon by MFN, provided MFN is
not in default.
6. MFN reserves the right to revise the foregoing criteria from time to time
in its sole discretion.
[*] Indicates confidential treatment requested.
EXHIBIT E
METROMEDIA FIBER NETWORK SERVICES, INC.
TELECOMMUNICATIONS LICENSE AGREEMENT
THIS TELECOMMUNICATIONS LICENSE AGREEMENT ("Agreement) is made as of this __ day
of __________ 2000 between("Licensor"), having an address of
____________________ and METROMEDIA FIBER NETWORK SERVICES, INC., its permitted
successors and/or assigns, having an address of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Licensee").
RECITAL
A. Licensor is the owner of certain lands as more particularly described on
Exhibit (the "Land") and a building on the Land (the "Building") commonly known
as
B. Licensor desires to give the Building access to telecommunications services
without restricting Licensor's or its tenants' choice of service providers,
C. Licensee desires to connect the Building to its fiber optic network (the
"Network") and to install certain telecommunications facilities on or in the
land and inside the Building so that the Licensor's tenants may obtain
telecommunications services over Licensee's network.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Grant of License Licensor hereby grants to Licensee the non-exclusive
right and license to do the following:
a. to install, maintain, operate, replace and remove cable and
optical fibers , junction boxes, hangers, pull boxes, splicing
boxes, ground wiring, racks, cabinets, vents, ducts, conduits,
pipes, equipment, supplemental HVAC and other facilities
(collectively. the "Telecommunications Facilities") as generally
described on Exhibit B;
b. to use any building entrance links, communications wiring and
other facilities, as presently exist or which may exist during
the License Term to the extent reasonably necessary in connection
with the Telecommunications Facilities and to connect Licensee's
present and future private customers and Service Providers to the
Network;
c. to install or construct additional Telecommunications Facilities
as may be reasonably necessary to connect Licensee's private
customers and/or Service Providers in the Building to the
Network, subject to Section 6 hereof.
2. EQUIPMENT ROOM. Licensee shall have, on an exclusive basis, the right to
occupy the space shown on Exhibit (the "Equipment Room") for any of the
foregoing purposes, and to install In the Equipment Room, in addition to
Telecommunications Facilities, equipment belonging to Licensee's private
customers and/or Service Providers.
3. TERM. The rights and obligations of Licensee hereunder shall be for a
term of ten (10) years. Provided Licensee is not then in default, Licensee shall
be entitled to an automatic renewal of the term for an additional ten (10) years
commencing on the expiration of the initial ten (10) year period. Thereafter,
provided Licensee is not then in default, Licensee shall be entitled to
successive one (1) year renewals on the same terms as are contained herein.
4. LICENSE FEE. Commencing on the date Licensee completes its installation,
Licensee shall pay Licensor the sum of Dollars ($) per month ("License Fee").
The License Fee shall be payable to Licensor, in advance, on the first day of
each calendar month. If the term commences on other than the first day of a
month, the License Fee shall be prorated for that first month for the number of
days from the Commencement Date to the end of the month.
5. INSTALLATION AND CONSTRUCTION. All work permitted pursuant to this
Agreement to be performed on the Land or in the Building shall be performed by
Licensee or its Approved Contractors (defined below), at Licensee's sole cost
and expense and in accordance with plans approved by Licensor in accordance with
this Agreement. The term "Approved Contractors" shall mean any contractor listed
on Exhibit Q annexed hereto or any other contractor approved by Licensor, such
approval not to be unreasonably withheld or delayed. All installations by
Licensee shall be made in compliance with applicable law. Prior to installing
any Telecommunications Facilities, Licensee shall submit detailed plans and
specifications of the planned installation to Licensor, for Licensor's approval,
which approval shall not be unreasonably withheld or delayed. Licensor shall
respond to Licensee's proposed plans within ton (10) business days after receipt
with either approval or the changes required for Licensor's approval. Licensor
shall cooperate with Licensee, at no cost to Licensor, in obtaining third party
permits, easements or agreements necessary for Licensee to exercise its rights
hereunder. During construction, Licensor shall permit Licensee to place a
40-yard rubbish container on the Land near the freight elevator or loading dock.
6. ACCESS. Licensee shall have 24 hour/day 365 days/year access to its
Telecommunications Facilities and Equipment Room.
7. UTILITIES. Licensee shall be responsible for procuring such utility
services as are necessary for the operation of the Telecommunications
Facilities, on a sub-metered basis. To the extent that Licensor offers
electrical service to tenants in the Building, Licensee shall purchase its
electricity from Licensor on a sub-metered basis, provided Licensor's charges
are no greater than those that Licensee would experience on the open market.
Licensee shall be responsible for the cost of any utilities consumed by it at
the Building together with any costs incurred to sub-meter the connections to
the Telecommunications Facilities.
8. ACCESS BY SERVICE PROVIDERS. Licensee shall have the right to enter into
agreements with third party Service Providers granting such providers the right,
on a non-exclusive basis, to provide services to tenants of the Building over
Licensee's Network and Telecommunications Facilities ("Service Providers"), and
where necessary
(in connection with the provision of such services) to install and maintain
equipment in Licensee's Equipment Room. The foregoing shall not prevent the
Licensor from requiring Service Providers to enter into separate license
agreements on mutually acceptable terms.
9. INSURANCE. Licensee shall, at its sole cost and expense, maintain
property insurance covering its Telecommunications Facilities and any other
personal property of Licensee located on the Land or in the Building and hereby
releases Licensor from any liability for damage to such personal property except
to the extent caused by Licensor's negligence or willful misconduct. Licensee
shall also maintain comprehensive general liability insurance in an amount not
less than $2,000,000 combined single limit and shall, upon request, furnish
Licensor with a certificate of insurance naming Licensor as an additional
insured, as its interest may appear. Licensee agrees to carry such other
insurance as it may be required to carry by law, such as worker's compensation
insurance coverage. Licensor and Licensee both hereby waive any property damage
claim which either party may in the future have against the other to the extent
such party's damages are covered by the waiving party's own-insurance. Each
party agrees to obtain, for the benefit of the other, a policy or endorsement
waiving such party's insurance carrier's right of subrogation
10. LIENS. Licensee shall not suffer or permit any mechanic's, laborer's or
materialman's lien to be filed against the Land or Building or any part thereof
by reason of work, labor, services or materials furnished to Licensee, and if
such lien shall be so filed, Licensee shall, following notice thereof, cause
such lien to be discharged of record or bonded during the continuance of any
dispute. The Telecommunications Facilities shall at all times remain the
property of Licensee and Licensee shall have the right to finance the
Telecommunications Facilities and to grant liens to its lenders against the
Telecommunications Facilities. Licensee shall have the right to record uniform
commercial code notice filings to give public notice of Licensee's ownership of
the Telecommunications Facilities.
11. CASUALTY AND CONDEMNATION. In the event that the Building, or any part
thereof is damaged by fire or other casualty, Licensor shall, at its expense,
cause the damage to be repaired to a condition as nearly as practicable to that
existing prior to the damage, with reasonable speed and diligence, subject to
delays in adjustment of loss under insurance policies, compliance with
applicable governmental requirements and other delays beyond the control of
Licensor. Notwithstanding the foregoing, in the event that the damage to the
Building is so severe that it results in the termination of leases such that
Licensee or any Service Provider no longer has any customers in the Building,
then Licensee shall have the right to terminate this Agreement. In the event
that the Building or Land is taken by eminent domain or deed in lieu thereof
such that Licensee is denied access to the Building, the Telecommunications
Facilities or the ability to remain connected to the end users in the Building,
then Licensee shall have the right to terminate this Agreement
12. SUBORDINATION AND NONDISTURBANCE. (a) Subject to compliance with
Section 12 (b), this Agreement Is and shall be subject and subordinate to all
ground or underlying leases of the entire Building and to all mortgages, deeds
of trust and similar security documents which may now or hereafter be secured
upon the Building, and to all renewals, modifications, consolidations,
replacements and extensions thereof.
(b) Licensor shall cause: (I) any party holding a mortgage or deed of trust on
any portion of the Building and (ii) the fee owner (if Licensor is a ground
lessee) and any other party having an interest that Is superior to Licensee's
interest in the Premises to execute and deliver to Licensee a non-disturbance,
subordination and attornment agreement on such mortgagee's trustee's or other
party's standard form within thirty (30) days of the date of this License (or
within thirty (30) day's after the execution of a mortgage or dead of trust or
conveyance that is entered Into after the date of this License).
13. TAXES. Licensee shall be responsible for any personal property taxes
levied or assessed against the Telecommunications Facilities owned by Licensee
and installed on the Land or in the Building. Licensee shall furnish Licensor
with evidence of payment of such taxes promptly following Licensors request
therefor.
14. REMOVAL OF TELECOMMUNICATIONS FACILITIES. At the termination of this
Agreement Licensee shall have the right to remove the Telecommunications
Facilities, provided Licensee restores any damage caused by such removal.
15. ATTORNEY'S FEES. The prevailing party shall be entitled to reasonable
attorneys' fees and disbursements incurred in connection with the institution of
any action or proceeding in court to enforce any provision hereof or for damages
by reason of any alleged breach or default of any provision of this Agreement or
for a declaration of either party's rights or obligations hereunder or for any
other judicial remedy, at law or in equity.
16. BIND AND INURE; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors and/or assigns.
This Agreement Is irrevocable, except in accordance with Its terms. This
Agreement and the rights of Licensee hereunder may be assigned without the prior
written consent of the Licensor in connection with a sale of all or
substantially all of the assets of Licensee, or to an entity controlling
Licensee, under common control with Licensee or controlled by Licensee. All
other assignments shall be subject to the prior written consent of the Licensor,
which consent shall not be unreasonably withheld, conditioned or delayed.
17. NO IMPLIED WAIVER. No delay or omission by a party in the exercise of
any right or remedy upon any breach by the other party shall impair such right
or remedy or be construed as a waiver.
18. NOTICES. Except in the case of emergencies, all notices and other
communications hereunder shall be in writing either personally delivered or
mailed, via certified mail, return receipt requested, or sent by overnight
courier to the parties at the address first set forth above or such other
address as is subsequently given by written notice in accordance with this
Section. Notices will be deemed to have been given upon receipt or rejection.
19. AUTHORITY; QUIET ENJOYMENT. Licensor represents and warrants to
Licenses that Licensor is the sole owner in fee of the Land and Building and has
full legal capacity, power and authority to grant the license created hereby.
Licensor covenants that Licensee shall and may peaceably and quietly have, hold
and enjoy the license hereby granted without interference by Licensor or anyone
claiming under Licensor.
20. SEVERABILITY; INTEGRATION. A determination by a court of competent
jurisdiction that any provision of this Agreement or any part thereof is illegal
or unenforceable shall not invalidate the remainder of this Agreement or such
provision, which shall continue to be in effect This Agreement represents the
entire agreement of
the parties with respect to the subject matter hereof and supersedes any prior
written or oral understandings. This Agreement cannot be modified except in a
writing signed by the party to be bound.
21. GOVERNING LAW. This Agreement and the rights and obligations of the
parties shall be governed and construed in accordance with the laws of the State
where the Building is located.
22. CONFIDENTIALITY. Licensor shall (1) treat as proprietary and
confidential to Licensee any plan, study, report or other data or material which
is designated as confidential or which from all circumstances, in good faith,
ought to be treated as confidential or which is not publicly available other
then through breach of this covenant, and (ii) not disclose or release the same
to any third party except with the prior written consent of Licensee. Licensor
agrees not to disclose any of the business terms of this Agreement to any third
parties without the prior consent of Licensee, except that Licensor shall have
the right without Licensee's consent, to disclose such information to
prospective purchasers, investors or mortgagees of the Building.
23. MASTER AGREEMENT. The parties intend this Agreement to be one of
several between them concerning the subject matter hereof. In the event that
Licensee identifies other properties owned or managed by Licensor, and to the
extent that (a) there are suitable premises available in such other properties,
and (b) Licensee desires to license such additional premises, then the parties
shall enter into a separate written license agreement substantially in the form
and content of this. Agreement.
24. NO PRICE DISCRIMINATION. Licensor agrees not to discriminate against
Licenses by offering more favorable licensing terms to third parties than are
offered to Licensee pursuant to this Agreement or offering more favorable
licensing terms to third parties than are offered to Licensee's customers
pursuant Section 9 of this Agreement, without, in each instance, offering the
same terms to Licensee or its customers, as the case may be.
[remainder of this page left blank]
26. LIMITATION ON LICENSOR'S LIABILITY. Licensor's liability hereunder
shall be limited to Licensor's interest in the Building or any proceeds thereof
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
[LICENSOR]
WITNESS: _____________________________
____________________ By:_______________________________
Name:_____________________________
Title:____________________________
WITNESS: METROMEDIA FIBER
NETWORK SERVICES, INC.
____________________ By:_______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, President
FIRST AMENDMENT TO FIBER OPTIC PRIVATE NETWORK AGREEMENT
This First Amendment to Fiber Optic Private Network Agreement ("AMENDMENT"),
dated July 19, 2001 ("EFFECTIVE Date"), is entered into by and between
Metromedia Fiber Network Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("MFN"), and Cogent Communications, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CARRIER"), and amends the Fiber Optic Private Network
Agreement ("AGREEMENT"), dated February 7, 2000, entered into by and between MFN
and Carrier. Unless otherwise provided, definitions of terms used in this
Amendment appear in the Agreement.
Notwithstanding any contrary provision contained in the Agreement, the following
shall apply:
1. CARRIER TARGET BUILDING LIST AND MFN TARGET BUILDING LIST.
1.1. Within fifteen (15) days following the execution of this Amendment by
both parties, Carrier shall supply to MFN a draft list of targeted
buildings (in both paper and electronic format) ("BUILDINGS" and
"CARRIER TARGET BUILDING LIST") to which Carrier seeks fiber optic
access. The Carrier Target Building List shall be subject to periodic
adjustment by Carrier not to exceed more than once per quarter. The
initial Carrier Target Building List shall be attached as EXHIBIT A to
this Amendment.
1.2. Carrier shall still have the obligation pursuant to Section 8.2 of the
Product Order of the Agreement to take at least [*]
Carrier Locations as per the Agreement Target Building List, provided,
however, that the charges for such Building Access will be set forth
in Sections 3, 4 and 5 of this Amendment. All Buildings connected to
MFN Network rings pursuant to the Agreement or this Amendment shall
count toward Carrier's [*] Carrier Locations
obligation, except for any Buildings contained in a Cancelled Product
Order which were already counted toward the obligation pursuant
Section 1.4 below.
1.3. Within fifteen (15) days following the execution of this Amendment by
both parties, MFN will supply to Carrier a draft list of targeted
buildings (in both paper and electronic format) ("MFN BUILDINGS" and
"MFN TARGET BUILDING LIST") to which MFN seeks fiber optic access. The
MFN Target Building List shall be subject to periodic adjustment by
MFN not to exceed more than once per quarter. The initial MFN Target
Building List shall be attached as EXHIBIT B to this Amendment.
1.4. The Parties acknowledge and agree that any and all product order
Supplements previously submitted which were accepted by MFN but
implementation and/or construction has not begun (collectively
referred to as "Cancelled Product Orders"), and are listed on EXHIBIT
C, are hereby considered (i) Carrier Building Access requests rejected
by MFN but will count toward Carrier's [*] Carrier
Location obligation, and (ii) null and void by both Parties. MFN shall
supply Carrier with a list of all such Cancelled Product Orders within
fifteen (15) days following the execution of this Amendment by both
parties, which list shall be attached as EXHIBIT C to this Amendment.
2. TELECOMMUNICATIONS LICENSE AGREEMENTS.
2.1. Carrier has no obligation to enter into telecommunications license
agreements ("TELECOMMUNICATIONS LICENSE AGREEMENTS") for any of the
Buildings on the Carrier Target Building List.
[*] Indicates confidential treatment requested.
2.2. Carrier will endeavor to include, within the Telecommunications
License Agreements into which it enters for any of the Buildings on
the Carrier Target Building List, the right for a fiber provider
("FIBER PROVIDER") (inclusive of MFN but not necessarily limited to
MFN) to (a) access the Building, including bringing fiber to a minimum
point of entry and terminating at a distribution panel/OCEF in
building; and (b) distribute dark fiber. Such access rights shall be
at no additional charge from the Building's owner to the Fiber
Provider.
3. BUILDINGS WHICH ARE ON-NET.
3.1. If Carrier submits a new product order Supplement or re-submits a
product order Supplement previously submitted which was either (i) a
Cancelled Product Order, or, (ii) not accepted by MFN, as of the date
of this Amendment, and the Supplement concerns a Building which is
On-Net, as defined below, Carrier shall obtain its fiber lateral
access into the Building through a lease commencing upon the
respective Service Date for the product order Supplement (and
co-terminating with such product order Supplement) for the same
Monthly Building Access Charge of [*] per
Building, as provided in Section 8.2.1 of the Product Order of the
Agreement. For purposes of this Amendment, a Building is considered
(i) "On-Net" if MFN has a conduit to the Building containing fibers
that are connected to a MFN fiber Network ring outside the Building
("MFN Lateral Extension"), MFN has general distribution rights within
the Building, the Building has physical fiber distribution capability
(E.G., a fiber distribution panel/OCEF) within the Building ("PHYSICAL
FIBER DISTRIBUTION CAPABILITY"), and fiber is available within the MFN
Lateral Extension, and (ii) "Off-Net" if it is not an On-Net Building.
3.2. MFN shall retain all right, title and interest to, and responsibility
for and cost of maintenance of the MFN Lateral Extensions, subject to
the grant of access and use provided to Carrier pursuant to the
Agreement and/or this Amendment.
4. BUILDINGS WHICH ARE OFF-NET AND ON BOTH THE CARRIER TARGET BUILDING LIST
AND MFN TARGET BUILDING LIST.
The following Section 4 will only apply if the Building is Off-Net and is
listed in both the Carrier Target Building List and the MFN Target Building
List.
4.1. MFN LATERAL EXTENSION EXISTS
4.1.1. If Carrier submits a new product order Supplement or
re-submits a product order Supplement previously submitted
which was either (i) a Cancelled Product Order, or (ii) not
accepted by MFN, as of the date of this Amendment, and the
Supplement concerns a Building which is Off-Net, however an MFN
Lateral Extension exists but MFN does not have general
distribution rights within the Building, then the following
shall apply:
a) If the Building has Physical Fiber Distribution Capability,
fiber is available within the MFN Lateral Extension, and
Carrier has obtained landlord consent to utilize such
Physical Fiber Distribution Capability, the Monthly Building
Access Charge will be [*] per
Building;
b) If the Building has Physical Fiber Distribution Capability,
fiber is available within the MFN Lateral Extension, and
Carrier's telecommunications license agreement for the
Building provides for the Fiber Provider access rights as
outlined in Section 2
[*] Indicates confidential treatment requested.
2
above, the [*] Monthly Building
Access Charge shall be waived;
c) If the Building has Physical Fiber Distribution Capability,
however, there is no fiber available within the MFN Lateral
Extension, the Parties will follow the process set forth in
Section 4.1.3 of this Amendment; or
d) If the Building does not have Physical Fiber Distribution
Capability, the Parties will follow the process set forth in
Section 4.1.3 of this Amendment.
4.1.2. If Carrier submits a new product order Supplement or
re-submits a product order Supplement previously submitted
which was either (i) a Cancelled Product Order, or (ii) not
accepted by MFN, as of the date of this Amendment, and the
Supplement concerns a Building which is Off-Net, however an MFN
Lateral Extension exists, MFN does have general distribution
rights within the Building, but there is no fiber available
within the MFN Lateral Extension, the Parties will follow the
process set forth in Section 4.1.3 of this Amendment.
4.1.3. For the Carrier product order Supplements which fall within
the scope of Sections 4.1.1.c, 4.1.1.d, and 4.1.2, MFN shall
provide to Carrier a fixed One Time Installation Charge not in
excess of MFN's cost for constructing, permitting, engineering
and installing the facilities necessary to accommodate
Carrier's order and a Monthly Building Access Charge calculated
as follows: If the One Time Installation Charge is less than or
equal to [*] the Monthly Building Access Charge shall be
[*] per month (as above). If the One Time Installation Charge
is greater than [*] and less than or equal to [*], the
Monthly Building Access Charge shall be [*] per month. If the
One Time Installation Charge is greater than [*] and less
than or equal to [*], the Monthly Building Access Charge
shall be [*] per month. If the One Time Installation Charge is
greater than [*], the Monthly Building Access Charge shall
be [*] per month. If Carrier accepts MFN's offer, Carrier
shall pay seventy-five percent (75%) of the One Time
Installation Charge within fifteen (15) days of execution of
the product order Supplement by MFN and Carrier. The balance of
the One Time Installation Charge shall be payable upon
completion of the installation (including connection to
Carrier's Network rings) and acceptance by Carrier.
4.2 MFN LATERAL EXTENSION DOES NOT EXIST.
4.2.1 If Carrier submits a new product order Supplement or
re-submits a product order Supplement previously submitted
which was either (i) a Cancelled Product Order, or (ii) not
accepted by MFN, as of the date of this Amendment, and the
Supplement concerns a Building which is Off-Net and to which
MFN has not constructed a MFN Lateral Extension, MFN will
supply Carrier with a construction estimate of actual
construction cost for a fiber lateral extension into each
Building covered by the product order Supplement ("CARRIER-MFN
LATERAL EXTENSION"). MFN and Carrier will use reasonable
efforts to reach an agreed-to estimated construction cost for
each Carrier-MFN Lateral Extension.
4.2.2 MFN and Carrier will have regular planning sessions, the
intervals to be mutually agreed upon, concerning the
construction of any buildings..
[*] Indicates confidential treatment requested.
3
4.2.3 Once MFN and Carrier have settled on an agreed-to estimated
construction cost for a Carrier-MFN Lateral Extension, either
Party may elect not to proceed with the Carrier-MFN Lateral
Extension. If neither Party makes such an election not to
proceed with the build, then the Parties will mutually agree to
either (a) use MFN to construct the Carrier-MFN Lateral
Extension at the agreed-to estimated construction cost; or (b)
use a third party to construct the Carrier-MFN Lateral
Extension if the estimated construction cost using such third
party (including splice fees) is lower than the Carrier-MFN
agreed-to construction estimate for the Carrier-MFN Lateral
Extension. Carrier and MFN shall share the construction
estimation costs on a fifty (50)/fifty (50) basis. If both
Parties elect to have a third party construct the Carrier-MFN
Lateral Extension, Carrier and MFN shall share the construction
costs on a fifty (50)/fifty (50) basis.
4.2.4 If MFN elects not to proceed with the Carrier-MFN Lateral
Extension, and Carrier still seeks the construction of a
lateral extension, Carrier can proceed with the construction of
its own lateral extension into the Building ("CARRIER LATERAL
EXTENSION") and shall be entitled to MFN's splicing of fiber
strands from the Carrier Lateral Extension into the MFN fiber
Network ring that will service the Carrier Lateral Extension at
a splice fee charge of MFN's actual cost to splice plus [*]
[*] ("MFN SPLICE COST"), with MFN to provide
reasonable cost assumptions upfront.
a) Carrier shall be the owner of the Carrier Lateral
Extension and is responsible for the maintenance of the
Carrier Lateral Extension at Carrier's sole cost and
expense.
b) Notwithstanding anything contrary in the General Terms and
Conditions, a service interruption experienced by Carrier
as a result of damage to Carrier Lateral Extension is not
an Outage as that term is defined, and Carrier is not
entitled to any Outage Credits or other remedies for such
interruptions.
4.2.5 If MFN elects to proceed with the Carrier-MFN Lateral
Extension, and the Carrier-MFN Lateral Extension requires
payment of any recurring charge or fee (I.E., utility monthly
conduit fee, etc.), Carrier and MFN shall share such recurring
charge or fee on a fifty (50)/fifty (50) basis.
4.2.6 Approvals for cost overruns, exceptions to the plan of work
and progress payments to cover the construction of the
Carrier-MFN Lateral Extension shall be made pursuant to MFN's
standard forms and rules where applicable, and/or MFN's
contractors standard forms.
4.2.7 Carrier will pay to MFN, [*]
[*] for each engineering study on each Building prior to
the performance of such engineering study, which will not
commence until Carrier and MFN mutually agree in writing on
undertaking any such study. Upon completion of such engineering
study, MFN will invoice Carrier for fifty percent (50%) of the
actual cost of the engineering study less the initial payment
of [*].
4.3 OWNERSHIP, OPERATION AND SALE OF CARRIER-MFN LATERAL EXTENSIONS.
4.3.1 MFN shall own title to the Carrier-MFN Lateral Extension, and
the fiber contained therein, and will provide Carrier with a
lease of a portion of the fiber strands contained therein.
[*] Indicates confidential treatment requested.
4
4.3.2 The Carrier-MFN Lateral Extension shall have single entry
penetration into the Building, contain no less than twenty four
(24) fiber strands and no more than one hundred forty four
(144) fiber strands, unless the Parties mutually agree to a
dual penetration and/or a different number of fiber strands.
4.3.3 Carrier and MFN shall share the responsibility for all taxes
and related surcharges or permit fees on the Carrier-MFN
Lateral Extension on a fifty (50)/fifty (50) basis.
4.3.4 Notwithstanding anything contained in the Agreement to the
contrary, Carrier may, without the consent of MFN, collaterally
assign this Agreement in whole but not in part to any or all
parties providing financing to Carrier or any other entity
controlled by or under common control with Carrier under a
collateral trust for the benefit of the entities providing such
financing or similar arrangement for the benefit of such
financing entities. Carrier will advise MFN in writing of the
assignment at the time of such assignment. If requested by
Carrier, MFN will within seven (7) days of such request provide
a written consent to any such permitted assignment; provided
that such consent will permit reassignment in accordance with
the terms of this Agreement if the financing parties exercise
their remedies under the documents for such financing upon
notice by the financing parties.
4.3.5 MFN will be responsible for providing all routine and
emergency maintenance, and obtaining necessary authorizations
and right of way on the Carrier-MFN Lateral Extension. Carrier
will not pay any charges for such maintenance. Such maintenance
will be provided in accordance with the terms and conditions of
the Agreement.
4.3.6 Carrier can lease from MFN, without additional Leased Fiber
charge, the number of dark fibers in the Carrier-MFN Lateral
Extension equal to (i) twice the number of Leased Fibers
Carrier has leased in the Network rings, provided such
Carrier-MFN Lateral Extension is the only Carrier-MFN Lateral
Extension existing into the same Building; or (ii) the same
number of Leased Fibers Carrier has leased in the Network rings
if more than one Carrier-MFN Lateral Extension exists into the
same Building.
4.3.7 Carrier-MFN Lateral Extensions can only be spliced into
Network rings. Carrier is permitted to request splicing of a
number of fibers from the Carrier-MFN Lateral Extension equal
to (i) twice the number of fibers in the Network rings,
provided such Carrier-MFN Lateral Extension is the only
Carrier-MFN Lateral Extension existing into the same Building,
or (ii) the same number of Leased Fibers Carrier has leased in
the Network rings if more than one Carrier-MFN Lateral
Extension exists into the same Building, in both cases, up to
one hundred forty four (144) fibers ("CARRIER FIBERS"). Whether
splicing is for Carrier or other party acquiring fiber strands
in the Carrier-MFN Lateral Extension, MFN shall be obligated to
splice fibers leased in the Carrier-MFN Lateral Extension at
MFN's Splice Cost, with MFN to provide reasonable cost
assumptions upfront.
4.3.8 If Carrier wants additional fibers in the Carrier-MFN Lateral
Extension, over and above (i) twice the number of fibers
Carrier has leased from MFN in the corresponding Network rings,
if such Carrier-MFN Lateral Extension is the only Carrier-MFN
Lateral Extension existing into the same Building, or (ii) the
same number of fibers Carrier has leased from MFN in the
corresponding Network rings if more than one Carrier-MFN
Lateral Extension exists into the same Building, in both cases,
to connect to such Network rings, such fibers are subject to
availability and shall be at the terms and conditions
(including
5
splice fees) as is provided below for third party acquisitions
of excess fibers in the Carrier-MFN Lateral Extension.
4.3.9 MFN may not construct additional Lateral Extensions into the
Building, or splice additional fiber from the Building into any
MFN Network rings until all fibers, over and above the Leased
Fiber leased by Carrier, in the Carrier-MFN Lateral Extension
("EXCESS CARRIER-MFN LATERAL FIBERS") are leased either to
Carrier or third parties ("DISPOSITION").
4.3.10 In the event Carrier has located a potential fiber customer
who desires to lease Excess Carrier-MFN Lateral Fibers in
Carrier-MFN Lateral Extensions, Carrier shall only promptly
notify MFN regarding the identity of such potential customer
("FIBER CUSTOMER") and will not, in any matter whatsoever,
attempt to negotiate terms of the Disposition with the Fiber
Customer. In such event, or in the event MFN has located a
potential Fiber Customer, MFN shall negotiate in good faith to
enter into the applicable Disposition documents with such
potential Fiber Customer. MFN's negotiations of the terms and
conditions of the Disposition documents with any potential
Fiber Customer shall be subject to the conditions contained in
this Amendment, including but not limited to:
a) MFN shall use its commercially reasonable efforts to
maximize the lease price payable thereunder, which in any
event shall be no less than the amount determined in
accordance with this Amendment.
b) The number of fiber strands which any Fiber Customer shall
be entitled to acquire hereunder shall be no greater than
(i) twice the number of fiber strands on the Network rings
that such Fiber Customer has acquired if such Carrier-MFN
Lateral Extension is the only Carrier-MFN Lateral
Extension existing into the same Building, or (ii) the
same number of fiber strands on the Network rings that
such Fiber Customer has acquired if more than one
Carrier-MFN Lateral Extension exists into the same
Building.
c) The Disposition documents shall prohibit the Fiber
Customer from selling, assigning, leasing, licensing,
granting an indefeasible right to use, or otherwise
transferring, the fiber strands at any time (but may
borrow against it or pledge its interest therein).
4.3.11 Dispositions of Excess Carrier-MFN Lateral Fibers can be made
at MFN's discretion for a lateral/building access fee
determined by MFN in its sole discretion. If Excess Carrier-MFN
Lateral Fibers are Disposed of at a lateral/building access
price less than the price set forth in the matrix attached as
EXHIBIT D to this Amendment ("MINIMUM BASE LATERAL/BUILDING
ACCESS PRICE"), then the Minimum Base Lateral/Building Access
Price will be used to calculate the Fiber Proceeds (as defined
in Section 4.3.13 below). If Excess Carrier-MFN Lateral Fibers
are Disposed of at a lateral/building access price more than
the price set forth in the matrix attached as EXHIBIT D to
this Amendment ("MAXIMUM BASE LATERAL/BUILDING ACCESS PRICE"),
then the Maximum Base Lateral/Building Access Price will be
used to calculate the Fiber Proceeds (as defined in
Section 4.3.13 below).
4.3.12 Any future Dispositions of Excess Carrier-MFN Lateral Fibers
for which an initial lease has terminated shall be done in
accordance with the terms and conditions of this Amendment, up
through and until such Excess Carrier-MFN Lateral Fibers are no
longer commercially viable.
6
4.3.13 Revenues received for lateral/building access fees in
connection with the Disposition of Excess Carrier-MFN Lateral
Fibers shall be split fifty (50)/fifty (50) between Carrier and
MFN ("FIBER PROCEEDS"). Only one-time/non-recurring fees (i.e.,
for installation, upfront costs, etc.) received in connection
with the Disposition of Excess Carrier-MFN Lateral Fibers,
which are over and above MFN's out-of pocket costs (for
splicing, etc. performed as part of the Disposition) plus
[*], shall be amortized over a period of
sixty (60) months for purposes of making the Exhibit D
calculations of the revenue received by MFN pursuant to this
Amendment; (but, they shall be paid out as received). MFN shall
remit to Carrier all Fiber Proceeds received during any
calendar quarter within forty-five (45) days from the end of
such quarter.
4.3.14 Carrier shall have the right, upon prior reasonable written
notice to MFN, to audit, MFN's accounting records and to
inspect fiber terminations at fiber distribution panels/OCEFs
in Buildings subject to this Amendment, to determine if MFN has
adhered to the terms of this Amendment with respect to the
sharing of the Fiber Proceeds. Such audit shall be conducted by
a mutually acceptable independent accounting firm, provided
that such accountant shall hold MFN's accounting records in
strictest confidence except as necessary to report to Carrier
on MFN's compliance with Section 4.3.13 of this Amendment. Such
audit and inspection shall be conducted during MFN's normal
business hours, with minimal interruption to MFN's business,
with reasonable prior notice to MFN, and may require MFN
personnel to be present at all times. Any sum owed by MFN to
the Carrier as a result of such audit shall be due and payable,
with annual interest thereon of twelve percent (12%) from the
date such sum should have been remitted to Carrier. Carrier
shall bear all expenses for the audit unless MFN is determined
to have underpaid Carrier by more than ten percent (10%) of the
sum due hereunder from Fiber Proceeds, in which case MFN shall
reimburse Carrier for the expenses of such audit.
5. BUILDINGS WHICH ARE OFF-NET AND ON THE CARRIER TARGET BUILDING LIST AND
BUT NOT ON THE MFN TARGET BUILDING LIST.
5.1 If the Building is Off-Net and is listed in the Carrier Target
Building List but not in the MFN Target Building List, MFN will
construct, upon Carrier's written request, a MFN Lateral Extension
for a charge of MFN's actual cost to construct plus [*]
[*] ("MFN CONSTRUCTION COST"). Carrier will pay seventy five
percent (75%) of the MFN Construction Cost upon execution of the
applicable product order Supplement and twenty five percent (25%)
upon MFN's completion of construction of the Carrier Lateral
Extension. Carrier will receive a credit equal to (i) twenty-five
(25%) of the MFN Construction Cost for the first new MFN customer
using such MFN Lateral Extension; (ii) twenty-five (25%) of the MFN
Construction Cost for the second new MFN customer using such MFN
Lateral Extension; and (iii) twenty-five (25%) of the MFN
Construction Cost for the third new MFN customer using such MFN
Lateral Extension. For the fourth and for each subsequent new MFN
customer using such MFN Lateral Extension, Carrier will receive
fifty (50%) of all amounts received by MFN from such customer for
use of such MFN Lateral Extension. Any such credit due hereunder
will be applied towards any monthly charges due pursuant to the
Agreement unless otherwise agreed by the Parties.
5.2 Carrier may also elect to construct its own lateral to the Building by
itself or through a third party. Any such lateral extensions
constructed under this Section 5.1 shall be Carrier's property, shall
be considered a Carrier Lateral Extension, and shall be subject to the
provisions of Section 4.2.4 of this Amendment, including MFN's splice
obligation.
[*] Indicates confidential treatment requested.
7
IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to
be signed and delivered as of the Effective Date.
Metromedia Fiber Network Services, Inc. Cogent Communications, Inc.
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------- -------------------------
Title President Carrier Services Title Chief Executive Officer
-------------------------------- -------------------------
Signature /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Signature /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- ---------------------
Date July 19, 2001 Date July 19, 2001
--------------------------------- --------------------------
8
EXHIBIT A
INITIAL CARRIER TARGET BUILDING LIST
[To be supplied by Carrier]
EXHIBIT B
INITIAL MFN TARGET BUILDING LIST
[To be supplied by MFN]
EXHIBIT C
REJECTED AND CANCELLED PRODUCT ORDER SUPPLEMENTS
[To be supplied by MFN]
EXHIBIT D
FIBER STRAND PRICING MATRIX
Minimum and Maximum Base Lateral/Building Access Price for Excess Carrier-MFN
Lateral Fibers Disposed of pursuant to this Amendment are as follows:
NUMBER OF FIBERS: MIN. BASE LATERAL/BUILDING MAXIMUM BASE LATERAL/BUILDING
----------------- -------------------------- -----------------------------
ACCESS PRICE ACCESS PRICE
------------ ------------
MONTHLY RECURRING ($) MONTHLY RECURRING ($)
--------------------- ---------------------
2 [***] [***]
4 [***] [***]
6 [***] [***]
8 [***] [***]
10 [***] [***]
12 [***] [***]
14 [***] [***]
16 [***] [***]
[*] Indicates confidential treatment requested.
