Fiber Optic Private Network Agreement Product Order Number Two
Product Order Number Two ("Product Order") together with Exhibits A-D, the
General Terms and Conditions, ("GTC") and all addenda attached hereto constitute
the Fiber Optic Private Network Agreement (collectively, together with any
amendments and supplements thereto, the "Agreement") dated as of September 30,
1999, by and between Metromedia Fiber Network Services, Inc. ("MFN"), 0 Xxxxx
Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, and WinStar Wireless,
Inc. ("Carrier"), 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxxx, XX 00000.
Definitions of capitalized terms used in this Agreement appear in the Product
Orders, the GTC and Exhibits A-D hereto.
WHEREAS, MFN has constructed or intends to construct certain fiber optic
networks;
WHEREAS, Carrier desires to obtain from MFN certain rights with respect to such
fiber optic networks, all in accordance with the terms and conditions of this
Agreement;
WHEREAS, Carrier intends to take the fiber from MFN, light such fiber with its
optronics and, subject to the terms and condition of this Agreement, resell such
fiber to its customers.
NOW, THEREFORE, in consideration of the mutual covenants contained in the
Agreement, the Parties agree as follows:
1. Carrier orders and MFN will provide certain fiber as follows:
1.1 Term: See Section 1.1 of the GTC.
1.2 Fiber Miles: The total number of fiber miles (including the agreed upon
Lateral Extensions) as provided in Exhibit B hereto. The total number of
fiber miles are subject to adjustment based upon the final as-built plans
for the applicable Segment delivered by MFN to Carrier and as otherwise
specified in Section 1.4 of this Product Order.
1.3 Fiber Specifications: See Exhibit C (the "Specifications").
1.4 Payments:
1.4(a) Subject to Exhibit B, Carrier shall commence making payments to
MFN in the amount of $40.20 per month per fiber mile for each
Segment of Fibers delivered to Carrier in accordance with the
terms of this Agreement ("Carrier Fibers"), as of the Service Date
for that Segment with the applicable Included Lateral Extensions
and other Lateral Extensions, if any, in accordance with Section
1.4(c) below (collectively, the "Fiber Payments"). Fifteen percent
(15%) of the Fiber Payments are for the included Maintenance
Services set forth in this Agreement.
1.4(b) All Applicable Taxes (as defined in the GTC), if any, shall be
paid as provided in the GTC. The total Fiber Payments are subject
to adjustment in the event that the actual fiber miles for a
Segment are adjusted based on the final as-built plans for the
applicable Segment delivered by MFN to Carrier as set forth on
Exhibit B.
1.4(c) As of the Service Date for the first Segment of Carrier Fibers
delivered to Carrier on each map attached as Exhibit A or to be
added to Exhibit A for those markets
for which there is no map as of the date of this Agreement, MFN
shall be required to deliver up to four of the Lateral Extensions
(associated with such first Segment) requested by Carrier for such
Segment (it being understood that (subject to the following
provisos) if there are more than four Lateral Extensions as to
which Carrier has given notice or which are listed in Exhibit E,
MFN shall be entitled to select three of the four to be delivered
with the first Segment and the fourth will be to Carrier's central
office as provided below); provided that Carrier has given written
notice to MFN of Carrier's request for such Lateral Extensions at
least 6 months prior to the completion of construction of such
first Segment or is listed in Exhibit E (and is associated with
the first Segment); and provided further that one of such Lateral
Extensions is to Carrier's central office, which central office is
identified in Exhibit A, Exhibit E or is otherwise specified by
Carrier at least 6 months prior to completion of such first
Segment. MFN shall be required to deliver the Included Lateral
Extensions (to the extent not delivered with the first Segment) as
well as other Lateral Extensions requested by Carrier; provided
that such Included Lateral Extensions and other Lateral Extensions
need not be delivered prior to the Service Date of the Segment to
which they relate; and provided further that Carrier shall comply
with the Lateral Extension Policy set forth in Exhibit D (save and
except any payment obligations with respect to the Included
Lateral Extensions). In no event will Carrier be obligated to take
delivery or accept any Segment in an Existing Market (as defined
in Exhibit B) or Potential Market (as defined in Exhibit B) prior
to the Service Date for the Segment containing the Lateral
Extension to Carrier's central office.
1.5 If Carrier requests that MFN construct Lateral Extensions (as defined in
Exhibit D) (e.g., Carrier designated buildings, ILEC locations for
interexchange) in addition to the Included Lateral Extensions identified
in Exhibit A or as otherwise identified by MFN in accordance with Section
1.5 of the GTC, Carrier shall, in addition to the Fiber Payments, pay for
all such Lateral Extensions off the Network Backbone (other than the
Included Laterals Extensions as defined in Section 1.5 of the GTC) in
accordance with the Lateral Extension Policy set forth in Exhibit D.
2. Estimated DeliveryDate: MFN shall use commercially reasonable efforts to
make available the Carrier Fibers to the Carrier in accordance with the
schedule attached hereto as Exhibit B. Each Segment of Carrier Fibers and
associated Lateral Extensions, if any, when such Lateral Extensions are
delivered by MFN and accepted by Carrier is referred to in this Agreement
as a "Segment" or "Segments of Carrier Fibers."
3. MFN address (and contact person) is as follows:
Metromedia Fiber Network Services, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, 0xx Floor
White Plains, New York 10601
Attn: Vice President - Marketing
If declaring a default or termination, a copy of the notice must be sent
to:
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Metromedia Fiber Network Services, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, 0xx Floor
White Plains, New York 10601
Attn: Vice President - Legal Affairs
4. Carrier address (and contact person) is as follows:
WinStar Wireless, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, EVP
with a copy to:
WinStar Communications, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: C.Z. Czerner
If declaring a default or termination, a copy of the notice must be sent
to:
WinStar Communications, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
General Counsel
5. Option to Extend/Purchase: See GTC Section 1.2.
6. MFN Construction Coordinator: Until such time as substantially all of the
Carrier Fibers that are the subject of this Product Order Two have been
Accepted, MFN shall, at its cost and expense, designate an MFN employee as
its"Construction Coordinator." The Construction Coordinator shall be fully
dedicated and on-site at Carrier's Northern Virginia office two days per
week. MFN agrees to use commercially reasonable efforts to hire an
individual as the Construction Coordinator, it being understood that it
may take several months after the Effective Date to do so.
The persons signing this Agreement are authorized by the respective Parties to
do so. Signature constitutes acceptance of all terms and conditions of this
Agreement.
WinStar Wireless, Inc. Metromedia Fiber Network Services, Inc.
By: By:
------------------------------------ ------------------------------------
Name: CZ Czerner Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior VP, Corporate Development Title: President
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Fiber Optic Private Network Agreement
General Terms and Conditions
Capitalized terms used in these General Terms and Conditions which are not
defined herein shall have the meaning given thereto in the Product Order and any
Exhibits or addenda thereto or hereto. All references herein to "Agreement"
shall mean the Agreement as defined in Product Order Number Two between
Metromedia Fiber Network Services, Inc. ("MFN") and WinStar Wireless, Inc.
("Carrier") to which these General Terms and Conditions are attached. The term
"Party" will refer, individually, to either MFN or Carrier and the term
"Parties" will refer to both of them.
1. TERM AND LEASE
1.1 Term. MFN hereby leases and grants to Carrier access to and use of optical
fiber specified in the Product Order ("Carrier Fiber") on MFN's fiber optic
cable network ("Network") and the exclusive right to use the Carrier Fiber as
provided in this Agreement. The Carrier Fiber leased by Carrier hereunder will
be referred to as the "Product" or "Carrier Fiber." The "Term" shall mean with
respect to each Segment of Carrier Fibers, as set forth on Exhibit B, the period
commencing on the Service Date (as defined in Section 1.4) for a Segment of
Carrier Fibers and ending twenty (20) years after the Service Date for such
Segment of Carrier Fibers (the "Initial Term") plus any extensions pursuant to
Section 1.2 hereof (the "Extended Term", and together with the Initial Term,
collectively hereinafter referred to as the "Term"). In addition Carrier shall
have access to and exclusive right to use all Carrier Fibers leased to Carrier
in accordance with the Lateral Extension Policy.
1.2 Extended Term/Purchase Option. At the end of the Initial Term (or the
Extended Term, as applicable), Carrier may extend the Initial Term or purchase
the Carrier Fibers as follows:
(a) Extended Term. If MFN, in its sole discretion, extends or renews all
applicable underlying Rights-of-Way relating to the Carrier Fibers in any
Segment beyond the Initial Term, Carrier shall have the right to extend the
Initial Term of the Lease, for a term corresponding to each such extension or
renewal (up to two additional ten-year periods). No later than one (1) year
prior to the end of the Initial Term, MFN shall give notice to Carrier advising
Carrier whether or not MFN intends to seek to renew any Rights-of-Way relevant
to this Agreement (the "Renewal Notice"). Within sixty (60) days after the date
of the Renewal Notice, if in such Renewal Notice MFN states that it intends to
seek to renew any Rights-of-Way relevant to this Agreement, Carrier shall give
notice to MFN (the "Extension Notice") whether or not Carrier intends to renew
the Term of this Lease as to the Carrier Fibers in the Segments covered by such
Rights-of-Way. If in Carrier's Extension Notice, Carrier advises MFN that it
intends to renew the Term of this Lease as aforesaid, the Parties shall meet and
negotiate in good faith the Extended Fiber Payments to be paid by Carrier during
the Extended Term as provided in Section 2.5.
(b) Purchase Option. As of the expiration date of the Initial Term or
Extended Term, if such Initial Term was extended pursuant to Section 1.2(a)
above, Carrier may elect to purchase all of the Carrier Fibers and an undivided
interest in the fiber optic cable containing the Carrier
Fibers ("Cable") and an undivided interest in the duct owned by MFN containing
Cable ("Duct"), in a Segment for $1.00 per fiber mile ("Purchase Option"). The
sale by MFN to Carrier, and the purchase by Carrier from MFN, of such Carrier
Fibers, Cable and Duct pursuant to the Purchase Option shall be without any
express or implied representations, warranties or continuing obligations or
covenants by MFN of any kind with respect to the Carrier Fibers, Cable, Duct or
any Rights-of-Way or otherwise except that MFN shall warrant its ownership in
the Carrier Fibers, Cable and Duct being sold. If Carrier elects to exercise the
Purchase Option at the end of the Initial Term, Carrier will give written notice
to MFN within sixty (60) days after the Renewal Notice pursuant to Section
1.2(a) above ("Purchase Option Notice"), which Purchase Option Notice shall be
in lieu of and not in combination with the Extension Notice. If Carrier elects
to exercise the Purchase Option at the end of the Extended Term, then Carrier
shall give the Purchase Option Notice to MFN within sixty (60) days before the
expiration date of the Extended Term. Neither the grant of the foregoing option
nor the exercise thereof shall not require MFN to breach any existing contract
or Right-of-Way or violate any law or regulation.
1.3 MFN will use commercially reasonable efforts to install the Product on or
about the Estimated Delivery Dates as shown on Exhibit B and provide Carrier
with access thereto. MFN shall test all Carrier Fibers (including the applicable
Included Lateral Extensions and other Lateral Extensions) in accordance with the
Specifications set forth in Exhibit C to this Agreement ("Acceptance Testing")
to verify that the Carrier Fibers are installed in compliance with such
Specifications. Acceptance Testing shall be conducted for each Segment. Where
practical, MFN shall provide Carrier at least ten (10) business days advance
notice, but in any case at least five (5) business days advance notice, of the
date and time of Acceptance Testing for each Segment (each of which shall take
place during normal business hours where practical) such that Carrier shall have
the right, but not the obligation, to have a person or persons present to
observe MFN's Acceptance Testing. When MFN has determined that the results of
the Acceptance Testing with respect to a particular Segment show that the
Carrier Fibers so tested are installed and in compliance with the applicable
Specifications, MFN shall promptly provide Carrier with a copy of such test
results and a completion notice (the "Completion Notice"). Carrier shall, within
fourteen (14) days of receipt of the Completion Notice, either reject the
Completion Notice specifying the defect or failure in such Acceptance Testing or
give MFN written notice of acceptance of such Acceptance Testing. (The period
from the date of Carrier's receipt of Completion Notice to the date of MFN's
receipt of Carrier's notice of rejection or acceptance being referred to herein
as the "Review Period"). In the event Carrier rejects the Completion Notice, MFN
shall promptly, and not later than fourteen (14) days after receipt of Carrier's
notice of rejection, and at no cost to Carrier, commence, and use commercially
reasonable efforts to promptly remedy the defect or failure. Thereafter, upon
completion of the remediation of the defect or failure, MFN shall again give
Carrier another Completion Notice. The foregoing procedure shall apply again and
successively thereafter until the Carrier Fibers in such Segment meet the
Specifications at which point Carrier shall give MFN written notice of
acceptance.
1.4 Service Date. The "Service Date" for the first Segment for each of the
Existing Markets (as defined in Exhibit B) referred to in Exhibit B and the
first Segment for each of the Potential Markets (as defined in Exhibit B) that
are identified following such Potential Market being Announced (as defined in
Exhibit B) (including with respect to the Existing Markets and
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Potential Markets the applicable Included Lateral Extensions and other Lateral
Extensions, if any, as identified by Carrier in accordance with Section 1.4(c)
of Product Order Two) will be the earlier of (i) completion of end-to-end
testing and acceptance of the applicable Segment by MFN and issuance by Carrier
of notice of acceptance, (ii) expiration of the Review Period if Carrier fails
to give notice of any deficiencies in the Carrier Fibers pursuant to Section
1.3, (iii) if Carrier has identified deficiencies as provided above, then the
first date upon which the Product comprising such Segment is in compliance with
the Specifications in accordance with Section 1.3, or (iv) use of the Carrier
Fibers by Carrier other than in connection with Acceptance Testing. The "Service
Date" for all subsequent Segments for each of the Existing Markets referred to
in Exhibit B and all subsequent Segments for each of the Potential Markets that
are identified following such Potential Markets being Announced will be the
earlier of (i) completion of end-to-end testing and acceptance of the applicable
Segment by MFN and issuance by Carrier of notice of acceptance, (ii) expiration
of the Review Period if Carrier fails to give notice of any deficiencies in the
Carrier Fibers pursuant to Section 1.3, (iii) if Carrier has identified
deficiencies as provided above, then the first date upon which the Product
comprising such Segment is in compliance with the Specifications in accordance
with Section 1.3, or (iv) use of the Carrier Fibers by Carrier other than in
connection with Acceptance Testing. In the event that the Service Date for any
Segment does not occur within 120 days after the Estimated Delivery Date,
Carrier, at its sole option, may terminate this Agreement in respect of such
Segment only by giving notice (the "Termination Notice") to MFN at any time
prior to MFN's issuance of a subsequent Completion Notice; provided, however,
Carrier may thereafter terminate this Agreement with respect to such Segment if
the Service Date does not occur after such subsequent Completion Notice. Except
as otherwise set forth in this Agreement, upon any such termination, neither
party shall have any further obligation to the other in respect of any such
terminated Segment.
1.5 For each Existing Market (other than those markets in which Carrier obtained
fiber from MFN under Product Order One dated July 22, 1998 between the parties)
and each Potential Market identified in Exhibit B, MFN shall provide to Carrier,
at no cost or expense to Carrier, Lateral Extensions to two buildings selected
by MFN (the "Included Lateral Extensions") to MFN's fiber panel in such
buildings; provided, however, Existing Markets and Potential Markets in which
MFN has Fiber to the building that contains the Xxxxxxxx Communications
point-of-presence and for which MFN has any required authorization needed to
make the Lateral Extension available, one of the Included Lateral Extensions
shall be to the building where Xxxxxxxx' point-of-presence is located in such
market. To the extent not included in the Included Lateral Extension (e.g.,
beyond MFN's fiber panel in the building) or as otherwise may be agreed to by
MFN in its sole discretion, Carrier shall use commercially reasonable efforts to
arrange for access into the buildings and for the use of any required building
riser conduit and all other facilities in the building required by MFN for the
Lateral Extensions. At any location where Carrier has requested MFN to build a
Lateral Extension where there is no existing external building access and/or
riser conduit, either occupied or unoccupied, the cost to construct and install
such access or conduit will be borne solely by Carrier except as set forth in
the Lateral Extension Policy. Carrier shall have the option to perform all
construction and installation of conduit and fiber or to request MFN to perform
such construction and installation by written notice to MFN in accordance with
the Lateral Extension Policy, attached hereto as Exhibit D. MFN shall construct
such Lateral Extensions as Carrier may request in accordance with such
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Policy within the time period that the Parties may agree. Any fiber included in
any Lateral Extensions constructed by MFN shall be owned by MFN and be deemed
Carrier Fiber for purposes of this Agreement. All Lateral Extensions will be
built with diverse routing into the building to the extent commercially
reasonable. If requested by Carrier, MFN will develop and deliver to Carrier
building plans for construction of the Lateral Extension. Carrier will
compensate MFN for such plans at mutually agreed upon rates if Carrier does not
engage MFN to construct the Lateral Extension.
1.6 Upon the expiration of the Term, or any earlier termination in accordance
with the terms of this Agreement, Carrier shall 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 shall complete such removal in a
manner that does not damage the Product or the Network, it being agreed that
Carrier may remove its optronics and electronics. Carrier shall be responsible
for and reimburse MFN for any damage caused by such removal. MFN shall cooperate
with Carrier in removal of any of Carrier's property. If Carrier fails to remove
its property within such period, such property will be deemed abandoned, and MFN
may make such disposition of the property as it deems necessary or advisable at
Carrier's sole expense.
1.7 MFN agrees that all installations will be grounded outside all applicable
buildings.
2. TERMS OF PAYMENT/TAXES
2.1 Within five (5) business days after the Service Date for a Segment, Carrier
shall commence payment of the Fiber Payments for such Carrier Fiber in
accordance with the Product Order (each a "Fiber Payment"). Together with each
Fiber Payment, the Carrier shall pay the Applicable Taxes, if any, then due and
payable by Carrier pursuant to this Agreement. MFN shall send Carrier an invoice
setting forth Applicable Taxes payable by Carrier in accordance with this
Agreement. As used herein Applicable Taxes shall mean all applicable sales, use
or other taxes assessed on the transactions contemplated by this Agreement
(other than taxes on or measured by MFN's income or capital and any franchise or
permit fees payable by MFN), unless otherwise subject to an exemption and an
exemption certificate or other documentation is provided by Carrier ("Applicable
Taxes"). All Fiber Payments hereunder due to MFN shall be made by wire transfer
to an account designated by MFN. All other payments shall be invoiced by MFN and
shall be accompanied by information in order for Carrier to verify the
calculation of any amounts due and shall be paid by Carrier by wire transfer or
check 30 days after invoice.
2.2 Carrier shall be responsible for, and shall timely pay, all Applicable Taxes
with respect to this Agreement which are imposed upon Carrier by applicable law.
MFN shall be responsible for, and shall timely pay, all Applicable Taxes with
respect to this Agreement which are imposed upon MFN by applicable law.
Notwithstanding the foregoing all sales and use taxes (other than taxes on or
measured by MFN's income or capital and any franchise or permit fees payable by
MFN) assessed with respect to use or maintenance of the Carrier Fiber by Carrier
shall be borne by Carrier.
2.3 If at any time any Applicable Tax is imposed on, assessed against or borne
by either Carrier or MFN with respect to this Agreement, Carrier or MFN, as the
case may be, shall have
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the right to protest, by appropriate proceedings, the imposition or assessment
of any such Applicable Tax. In such event, Carrier or MFN, as the case may be,
shall be responsible for such payments and shall indemnify and hold the other
Party harmless from and against any liability, expense, legal action or cost,
including reasonable attorney's fees, resulting from the exercise of its rights
under this Section 2.3. In the event of any refund, rebate, reduction or
abatement of any such Applicable Tax, the Party who was responsible for paying
such tax shall be entitled to receive the entire benefit of such refund, rebate,
reduction or abatement.
2.4 If Carrier fails to pay to MFN any sum within ten (10) days after the date
when due pursuant to this Agreement if MFN has provided the information with
respect thereto required by Section 2.1, then, in addition to such sum and to
any other rights or remedies that MFN may have, Carrier shall 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 (1.5%) per month. Notwithstanding the
foregoing, no interest shall accrue on any payment which is disputed in good
faith by Carrier while such dispute is pending. If such dispute is resolved in
favor of MFN, interest shall be paid on the amount due from the due date
thereof.
2.5 In the event that the Term is extended in accordance with Section 1.2
hereof, the Fiber Payments for the Extended Term ("Extended Fiber Payments")
shall be the fair market value of the Carrier Fibers as of the commencement of
the Extended Term. The fair market value of the Carrier Fibers shall mean the
amount that a willing lessee would pay and a willing lessor would accept for
fibers of the age and quality of the Carrier Fibers. The Parties shall negotiate
in good faith to determine the Extended Fiber Payments as provided in this
Section 2.5. Among other things the Parties shall negotiate in good faith
whether or not the Extended Fiber Payments shall be paid as a lump sum or shall
be paid on a monthly basis. In the event that the Parties agree that the
Extended Fiber Payments will be paid on a lump sum basis during the Extended
Term, the Parties shall negotiate in good faith any terms of this Agreement that
must be modified in order to take account of such lump sum payments.
3. MAINTENANCE, RESTORATION AND REPAIR OF THE PRODUCTS ("MAINTENANCE SERVICE")
3.1 Except for any maintenance or repair required solely as a result of the
fault of Carrier, MFN, at its sole cost and expense, shall be responsible for
maintenance and repair of the Network and the Product in a good and workmanlike
manner, in accordance with the same maintenance procedures that MFN utilizes for
its other customers in order that the Product will meet the Specifications at
all times during the Term. MFN shall use commercially reasonable efforts to
cause the Network and the Product to remain in good working order and condition.
No charge shall be made by MFN for maintenance, surveillance, general system
redundancy or repair on the MFN Network. MFN agrees that it shall at all times
maintain remote monitoring of the Product for surveillance purposes in
accordance with its standard procedures. Any maintenance or repair required
solely as a result of the fault of Carrier shall be performed by MFN at the cost
and expense of Carrier, such cost to be MFN's standard costs for its customers
who pay therefor. If such maintenance and repair is required as a result of the
fault of Carrier and MFN, the costs shall be apportioned in accordance with
their respective responsibility therefor. Any scheduled maintenance
(non-emergency) shall be performed at such times so as to
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minimize any disruption of Carrier's service and operations. MFN shall cooperate
with Carrier in scheduling any such maintenance. Where practicable, any
scheduled maintenance that is expected to produce any signal discontinuity shall
be scheduled after midnight and before 6:00 a.m. local time. MFN shall to the
extent practical notify Carrier in advance of the date and time of any scheduled
maintenance and as soon as practicable after becoming aware of the need for any
non-routine maintenance.
3.2 In the event of an interruption of service for one or more of Carrier's
fiber rings, or if not in a ring format then of one or more of Carrier's Fibers
hereunder, resulting from physical damage to, or severance of, or a break in, or
other failure of any Product or otherwise ("Outage"), Carrier shall notify MFN
by telephone at (000) 000-0000 or through such other notification procedure as
the Parties may establish. Provided that MFN personnel or contractors have
access to affected Carrier facilities immediately upon notification, if
necessary, MFN shall respond and commence work within two (2) hours from
notification by Carrier and use commercially reasonable efforts to restore
effective use of the Product as expeditiously as practicable, with a goal of no
more than four (4) hours from receipt by MFN of Carrier's notification or from
the time MFN otherwise becomes aware of such interruption. Maintenance Service
will be provided on a seven (7) days per week, twenty-four (24) hours per day
basis. If MFN establishes a priority customer group for emergency maintenance,
MFN shall include Carrier in the highest priority in such group, which priority
customer group shall receive whenever possible, priority in the restoration of
any Outage affecting Carrier's use of the Carrier Fibers or such other treatment
as MFN establishes from time to time for such priority customer group. MFN will
provide remote monitoring of the Network and Product in accordance with its
standard policy.
3.3 In the event of an interruption of service for one or more of Carrier's
fiber rings, or if not in ring format then of one or more of Carrier's Fibers
hereunder resulting from damage to, or severance of, or a breach in, or other
failure of any Product or otherwise that affect Carrier or its customers ("Total
Outage"), Carrier shall receive from MFN a credit ("Outage Credit") calculated
at 16.67% of the monthly Fiber Payment for the affected Segment, for each four
(4) hours of Total Outage, up to a maximum Outage Credit equal to the monthly
Fiber Payment in respect of each Total Outage or series of related Total
Outages. Outage Credits will not be payable for the applicable Total Outage for
any period during which MFN personnel or contractors are denied access to
Carrier facilities to remedy an Total Outage. The foregoing states the sole and
exclusive remedy of Carrier, and liability of MFN, for any Total Outages.
3.4 If all or part of the Product requires restoration, replacement or repair
during the Term solely as a result of an act, or solely as a result of any
failure to act on the part of Carrier as required hereunder, including without
limitation, the negligence or willful misconduct of Carrier, its officers,
employees, agents, contractors, subcontractors, invitees or representatives,
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
resulting from the foregoing. If any such restoration, replacement or repair is
required as a result of the act, or as a result of any failure to act as
required hereunder, by Carrier and MFN, the costs shall be apportioned in
accordance with their respective responsibility therefor.
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3.5 MFN may assign or subcontract to any third party any or all of its duties to
Carrier (including Maintenance Service) under this Agreement and Product Order
at any time, without the consent of Carrier, provided that MFN shall continue to
remain responsible for any such duties.
3.6 It is specifically acknowledged and agreed by Carrier that MFN will have the
right to inspect Carrier's use of the Product during normal business hours upon
at least one (1) day's prior notice by MFN. Any such inspection shall be
conducted in a way that will minimize any disruption in Carrier's business or
its service to its customers.
3.7 MFN agrees that at all times during the Term it or its contractors will
maintain an inventory of cable which is at least equal to the largest fiber
count and longest span between two splice points.
4. USE AND OWNERSHIP OF THE PRODUCT
4.1 Carrier shall not, by itself or through any agent or contractor, make any
repair to, or replacement of, the Product or any other equipment provided by MFN
in connection with the Product or otherwise. Subject to the right of Carrier to
add optronics and to otherwise make the Carrier Fibers operational, Carrier
shall not use the Product in any manner which damages or interferes with the
Product or the Network.
4.2 Carrier shall use the Product in material compliance with all material
applicable federal, state and local codes, ordinances, laws, rules and
regulations and all material requirements of all applicable franchises, rights
of way, leases, licenses and other obligations with respect to the Network or
Product to which Carrier is a party or of which it has been advised in writing.
Carrier shall be responsible for the obtaining of any permits, licenses or
governmental or other approvals necessary for Carrier's or any other customer of
Carrier's use of the Product hereunder but not for the construction, operation
or maintenance thereof.
4.3 Certain Resale Restrictions. Carrier shall not, directly or indirectly,
lease, sublease, license, sublicense, sell, condo, wholesale or otherwise
transfer the Carrier Fibers (i.e., dark fibers or windows (wave division
multiplexing, that is, a transfer of dark fiber or a window of dark fiber on
which the transferee places its optronics) as provided in the Product Order) to
any third party other than a Permitted Assignee (as defined in Section 20.2
hereof) unless such fiber optic capacity is distributed through Carrier's or a
Permitted Assignee's transmission system. Nothing in this Section 4.3 shall
restrict or limit Carrier from entering into agreements for the use of capacity
and/or services which utilize the Product after Carrier has added optronics
and/or otherwise made the Product operational by lighting the Carrier Fibers.
Any breach of this Section 4.3 shall be deemed to be a material breach of this
Agreement and the lease granted hereunder and in the event of such material
breach MFN shall have, in addition to any and all rights and remedies, the right
to terminate this Agreement and Carrier's access to the Carrier Fibers, in each
case only with respect to the Segment affected, if such breach is not cured
within 60 days after notice from MFN to Carrier.
4.4 MFN represents and warrants that it holds and will hold during the Term all
right, title and interest in and to the Product and the Network up to the points
at which MFN's facilities end
-7-
and Carrier's facilities begin, subject only to the grant of access and use
provided to Carrier under the terms of this Agreement, and subject to the terms
of Section 12.2.
4.5 MFN reserves the right, consistent with applicable leases or Rights-of-Way,
to utilize unused external building access and space within the conduit(s)
occupied by the Product provided that such use does not interfere with or hinder
Carrier's use of its Product as permitted hereunder or cause Carrier to have to
pay money for such use.
5. APPROVALS
5.1 Carrier Approvals. During the Term of this Agreement, Carrier shall secure
and maintain in full force and effect any and all necessary approvals, consents,
Rights-of-Way, permits, licenses, easements and leases ("Carrier Approvals") as
may be necessary (a) for Carrier's use of the Product (but not the construction,
operation or maintenance thereof) for the purpose intended by the Carrier and
(b) to endeavor to provide all requisite access to MFN to Carrier's buildings
and/or facilities in order for MFN to perform its construction, installation,
maintenance and other obligations hereunder, twenty-four (24) hours per
day/seven (7) days per week. Carrier shall provide all electricity and other
utilities available to Carrier at Carrier's locations as MFN may require to
fulfill its obligations hereunder.
5.2 MFN Approvals. During the Term, MFN shall be in material compliance with all
material applicable federal, state and local codes, ordinances, laws, rules and
regulations and, subject to Section 12.2 all agreements, licenses, easements,
Rights-of-Way, franchises, permits, orders and consents applicable to the
construction, operation and maintenance of the Network and the Product and the
transactions contemplated by this Agreement.
6. WARRANTIES
6.1 Compliance with Specifications. MFN warrants to Carrier that when first put
into Service the Network and Product will operate in accordance with the
Specifications related thereto. MFN warrants that during the Term it shall
maintain the Network and the Product so that it will comply with and operate in
accordance with the Specifications.
6.2 Disclaimer. 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 SERVICE, AND (iv) CONSTRUCTION AND INSTALLATION SERVICES, IF ANY,
RELATING TO ANY LATERALS CONSTRUCTED OR OTHER CONSTRUCTION PERFORMED BY MFN FOR
CARRIER.
7. LIABILITY/INDEMNIFICATION
7.1 Liability. In no event shall either Party be liable to the other 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 Maintenance Service provided
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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 Indemnity. Each Party agrees to indemnify, defend and hold the other Party,
the other Party's 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 personal injury or other tortious act including
death, 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 any act or omission to act by such indemnifying party,
its officers, directors, agents, employees, contractors, representatives or
invitees in connection with such indemnifying party's performance or failure to
perform any term, condition or obligation under this Agreement. Carrier agrees
to so indemnify MFN from and against Carrier's use of the Product and conduct of
its business including the content of any video, voice or data carried by
Carrier or its customers through the Network and the Product.
7.3 Third Parties. Nothing contained herein shall operate as a limitation on the
right of either Party hereto to bring an action for damages of any kind against
any third party (other than the other Party's officers, directors, employees,
agents, contractors, representatives or invitees) based on any act or omission
of such third party. Each Party agrees to execute such documents and provide
such commercially reasonable assistance, at the injured Party's sole expense, as
may be reasonably necessary to enable the injured Party to pursue any such
action against such third party.
8. CONFIDENTIALITY
The Parties acknowledge and agree that certain information that each Party has
provided or will provide to the other in connection with this Agreement,
including, without limitation, the financial terms of this Agreement, the number
of fiber miles and the specific fiber routes showing the specific location of
the fiber cables within a Segment (the "Confidential Agreement Terms"), are and
will be confidential and proprietary (the "Confidential Information") to the
Party providing such information (the "Providing Party"). The Party in receipt
of the Confidential Information (the "Receiving Party") agrees not to
distribute, use or disclose to any third party the Confidential Information of
the Providing Party. Each Party will restrict dissemination of Confidential
Information to only (a) those persons who must have access to such Confidential
Information in order to perform their respective rights or obligations hereunder
or who otherwise need 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 those potential and existing strategic partners who have signed
a nondisclosure agreement. Notwithstanding anything herein to the contrary, the
provisions of this Section 8 shall not apply to any Confidential Information
which (a) is or becomes available to the public through no breach of this
Agreement; (b) was previously known by the Receiving Party without an obligation
to hold it in confidence; (c) is received from a third party without
restrictions regarding disclosure; or (d) is required be disclosed by applicable
law, rule, regulation, court order or legal process. Except as required by law,
rule, regulation, court or legal process or except as otherwise permitted by
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this Section 8, neither Party shall disclose any of the Confidential Agreement
Terms without the prior written consent of other Party. MFN may disclose the
identity of Carrier as a customer of MFN and Carrier may disclose the identity
of MFN as a supplier of Carrier, in each case without any additional consent
from the other Party. Carrier may also disclose to any of its customers or
potential customers Confidential Information consisting of the beginning and
ending points of the Segments of fiber routes that are the subject of this
Agreement, provided that Carrier will not disclose the specific fiber routes
showing the specific location of the fiber cables within a Segment unless
Carrier and such customer or potential customer have signed a non-disclosure
agreement agreeing not to disclose such fiber routes to others. MFN agrees not
to disclose Carrier's hub sites or collocation sites to any third party except
that MFN may disclose such hub sites or collocation sites to an assignee or
subcontractor pursuant to Section 3.5 only to the extent necessary for such
assignee or subcontractor to perform duties hereunder on behalf of MFN and
provided that such assignee or subcontractor enters into a nondisclosure
agreement with respect thereto.
9. NOTICES
9.1 Unless otherwise provided herein, all notices and communications concerning
this Agreement shall 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 shall be sent by
certified US Mail, return receipt requested, or by a commercial overnight
delivery service for next business day delivery, and will be deemed delivered,
if sent by certified US Mail return receipt requested, five (5) days after
deposit; or, if sent by commercial overnight delivery service, one (1) business
day after deposit with such service.
10. TRANSITION
10.1 For a period of 180 days prior to the expiration or termination of the Term
("Transition Period"), MFN will cooperate with Carrier in effecting the orderly
and efficient transfer to another network or transmission system of Carrier or a
third party designated by Carrier and perform such services as may be reasonably
requested by, and at the expense of, Carrier in connection with such transfer.
The terms and conditions of this Agreement shall apply to the Transition Period.
11. TERMINATION/REMEDIES/FORCE MAJEURE
11.1 Defaults. The occurrence and continuance of one or more of the following
events shall constitute a default ("Default") under this Agreement:
(a) A Party breaches any material term or condition of this Agreement (other
than a breach by MFN of Section 3.3 for which the exclusive remedy is provided
in Section 3.3 and other than a breach by Carrier specified in Section 11.1(b)
for which the remedy is provided in Section 11.1(b)) and such breach remains
uncured thirty (30) days after giving written notice of such breach to the
defaulting party by the non-defaulting; provided, however, that if the breach is
of a nature or involves circumstances taking more than thirty (30) days to cure,
the time period shall
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be extended for as long as may be reasonably necessary to cure such breach up to
a maximum of 120 days as long as the defaulting party proceeds diligently to
cure same;
(b) If Carrier fails to make any Fiber Payment when due in accordance with this
Agreement within ten (10) days of receipt of written notice of late payment from
MFN, then during the continuance of such Default MFN shall have the right to
terminate this Agreement with respect to the Segment for which the Fiber Payment
has not been made immediately without further notice to Carrier and thereafter
deny access to the applicable Segment to the Carrier.
(c) If at any time prior to the payment of all Fiber Payments, 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
(d) If at any time prior to the payment of all Fiber Payments, a Party consents
to the institution of a petition, application, answer, or 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 (a) Except in the case of the gross negligence or willful misconduct of a
Party hereto, and except where a specific remedy is herein provided, the sole
and exclusive liability of each Party to the other Party for any Default
pursuant to Section 11.1 (a) shall be limited to seeking damages caused by such
Default subject to the limitations set forth in this Agreement.
(b) Upon and during the continuance of a Default pursuant to Section
11.1(b) or in the event of a breach by Carrier of Section 4.3 of this Agreement
which is not cured as provided in Section 4.3, MFN shall have the right to
terminate this Agreement with respect to the Segment for which payment has not
been made or the Segment which was transferred in violation of Section 4.3, as
applicable, immediately upon notice to Carrier and thereafter to deny access to
the applicable Segment to Carrier. Notwithstanding anything in this Agreement to
the contrary, MFN shall not be entitled to terminate this Agreement or use of
any of the Carrier Fibers for any reason other than as provided in the
immediately preceding sentence.
11.3 (a) If a Default on the part of MFN has occurred and is continuing for a
period of 120 days after Carrier has given notice thereof to MFN, Carrier shall
have the right, in its sole discretion, to take such action as it may determine
to be necessary to cure the Default in the case of a Default under Section
11.1(a) or to terminate this Agreement with respect to the Segment(s) adversely
affected by such Default, subject to the limitations set forth in this
Agreement.
(b) If a Default (other than pursuant to Section 11.1 (b)) on the part of
Carrier has occurred and is continuing for a period of 120 days after MFN has
given notice thereof to Carrier, MFN shall have the right, in its sole
discretion, to take such action as it may determine to be necessary to cure the
Default, subject to the limitations set forth in this Agreement.
11.4 Intentionally Omitted.
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11.5 In the event any law, statute, ordinance, decision, order, regulation or
opinion letter issued by a governmental (federal, state or local) agency,
regulatory body, or otherwise, causes (i) material loss to MFN as a consequence
of modification to any of the terms of any material Rights-of-Way; (ii)
impairment, of MFN's control, possession and/or effective use of the Network or
ability to lease Product on a commercially reasonable basis; or (iii) a loss or
impairment of MFN's operating authority, MFN shall have the right, exercisable
in its sole discretion, to terminate the Product Order upon a minimum of 180
days prior written notice (or such longer period of notice as is practicable
under the circumstances) without liability whatsoever to Carrier or any party
claiming by, through or under Carrier other than to return to Carrier a pro rata
portion of the relevant Fiber Payment paid (if any) for the remainder of the
Initial Term or Extended Term, as applicable, as to such Segment, in proportion
to the number of fiber miles affected and shall provide the Transition Services
provided for in Section 10.
11.6 Neither Party shall be considered in breach of this Agreement resulting
from delay or prevention of such Party's performance caused by any act
attributable to an occurrence of an event of Force Majeure.
11.7 The term "Force Majeure" shall mean any cause beyond the reasonable control
of Carrier (or MFN, as applicable) including but not limited to action by
governmental authority including without limitation moratorium on any activities
related to this 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") shall give
notice to the other party (the "Other Party") promptly of any occurrence or
condition which, in the Affected Party's opinion, warrants an extension of time.
Such notice 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. RIGHTS-OF-WAY; RELOCATION OF NETWORK
12.1 Rights-of-Way. "Rights-of-Way" shall mean all licenses, easements and
rights-of-way either by contract or through a franchise, approvals (regulatory
or otherwise), permits, orders, consents, franchises and all other rights
(governmental or otherwise) required to be obtained by MFN to enable it to
operate the Network, provide the Product or provide access to the Product to
Carrier under the Agreement.
12.2 MFN Warranties. MFN represents and warrants that it has, or shall use
commercially reasonable efforts to obtain by the Service Date, all Rights-of-Way
needed in order to operate the Network and to provide the Product or access
thereto to Carrier. MFN shall use commercially reasonable efforts to cause all
such Rights-of-Way to remain in effect through the Initial Term and shall use
commercially reasonable efforts to replace such Rights-of-Way, if any expire or
are terminated or discontinued during the Initial Term, with suitable
replacement Rights-of-Way including, but not limited to, Rights-of-Way
connecting the points shown on Exhibit A, but not necessarily following the same
route as followed with the prior Right-of-Way. In the event that any
Rights-of-Way are terminated or discontinued and not replaced and the loss of
such Rights-of-Way materially adversely affects the use by Carrier of the
Product, then MFN and Carrier shall mutually agree whether MFN shall either (i)
provide Carrier with additional or substitute
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fiber optic capacity on comparable portions of MFN's then existing Network
(and/or other MFN Networks, including networks belonging to or controlled by
MFN's Affiliates) equivalent to the aggregate number of fiber miles lost as a
result of loss of such Rights-of-Way, or (ii) to issue a rebate to Carrier which
rebate shall represent the pro rata portion of the Fiber Payment allocable to
the remainder of the Term in proportion to the number of fiber miles affected.
The foregoing shall be MFN's sole and exclusive liability and Carrier's sole and
exclusive remedy therefor.
12.3 If MFN receives notice of any request, intent, or plan by any third party,
including, but not limited to, a governmental entity, to relocate any portion of
MFN's Network used in the provision of the Product, MFN shall promptly notify
Carrier of such request, intent, or plan. If MFN is required by any such third
party to relocate any portion of MFN's Network used in providing the Product,
MFN shall 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 shall provide an
estimate of the cost of such relocation. MFN shall relocate the Carrier Fibers,
and, to the extent MFN is not reimbursed for the cost of such relocation by a
third party, governmental entity or otherwise, Carrier shall pay its pro rata
share (i.e., Carriers' number of Carrier Fibers in the affected Network divided
by the total number of fibers in the affected Network) of the costs associated
with the relocation of the Product; except, however, to the extent that the
factors causing such relocation are under MFN's control. MFN shall 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.
12.4 Participation in Condemnation Proceeding. In the event any portion of the
Network or the Product and/or the Rights-of-Way 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 of the date of filing of such
proceeding and which could reasonably be expected to result in a taking by any
governmental agency or other party having the power of eminent domain for public
purpose or use, both Parties shall be entitled, to the extent permitted under
applicable law, to participate any condemnation proceedings to seek to obtain
compensation by either joint or separate awards for the economic value of their
respective interests in the Carrier Fibers that are subject to such condemnation
proceeding.
12.5 Notice of Condemnation Proceedings. Upon receipt by MFN of a formal notice
of condemnation or taking, affecting the Product, the Network or any Carrier
Fibers included in any Lateral Extension, or any Right-of-Way, MFN shall give
notice to Carrier. MFN shall also notify Carrier of any similar threatened
condemnation proceeding and agrees not to sell the Carrier Fibers and/or
Rights-of-Way to such acquiring agency, authority or other party in lieu of
condemnation without prior written notice to Carrier.
12.6 Except as specifically provided in this Section 12, MFN shall not be
required to obtain, extend or renew any Rights-of-Way during the Term of this
Agreement.
13. INSTALLATION OF DARK FIBER OPTIC CABLE
MFN shall terminate the fiber at an MFN Point of Presence or at the end of a
Lateral Extension provided by MFN to Carrier under the terms of this Agreement.
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14. INSURANCE.
Each of MFN, any contractor and any subcontractor shall procure and maintain, at
its own cost and expense, the following types of insurance and coverage during
the Term of this Agreement:
Type of Insurance Minimum Amount
----------------- --------------
(1) Worker's compensation and all occupational As required by State law
disease
(2) Employer's liability including all $100,000 per occurrence
occupational disease when not so covered by
Worker's compensation above
(3) Commercial General Liability (comprehensive) $1,000,000 per
including contractual liability, product and occurrence and annual
completed operations, business interruption, bodily aggregate
injury and property damage combined
(4) Automobile liability (comprehensive), bodily $1,000,000 per
injury and property damage combined occurrence
(5) Umbrella liability $10,000,000 per
occurrence and annual
aggregate
MFN shall issue to Carrier an insurance certificate and a copy of
such policies, naming Carrier as an additional insured as to (3) and (5) above.
All such insurance policies shall be issued by an insurer duly licensed and
authorized to conduct insurance business in New York and having a policyholder's
and financial rate of "AIX" or better. At least thirty (30) days prior to the
expiration of any policy, MFN shall furnish paid receipts and other evidence
satisfactory to Carrier that such policy has been renewed or replaced. In
addition, all policies shall be written so as to require ten (10) days' prior
written notice delivered to Carrier for any cancellation or termination.
Carrier shall maintain Commercial General Liability Insurance
(comprehensive) of at least $3,000,000 per occurrence and annual aggregate,
which shall name MFN as an additional insured. MFN and Carrier shall comply with
the insurance requirements, if any, in any Right-of-Way agreements applicable to
the Network. The undertakings of MFN with respect to insurance shall not relieve
MFN of its obligations in this Agreement, including without limitation, Section
7.2 hereof or Carrier of any of its obligations contained in this Agreement.
15. GOVERNING LAW
15.1 THIS AGREEMENT WILL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS PRINCIPLES
OF CONFLICTS OF LAWS.
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16. SURVIVAL
The Parties' respective representations, 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.
17. ENTIRE AGREEMENT
This Agreement constitutes 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.
18. REMEDIES CUMULATIVE
Except as otherwise expressly provided, the rights and remedies set forth in
this Agreement shall be in addition to, and cumulative of, all other rights and
remedies at law or in equity.
19. REPRESENTATIONS, WARRANTIES AND COVENANTS
19.1 Representations, Warranties and Covenants. Each Party represents, warrants
and covenants to the other that (a) it is a corporation, 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, (c) this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on its part, and (d) this Agreement, when executed,
will become the legal, valid and binding obligation of such Party.
19.2 Subject to the terms and conditions of this Agreement, MFN represents,
warrants and covenants that during the Term, Carrier will have quiet enjoyment
of the Product without any interruption or disturbances from MFN or anyone
claiming by, through or under MFN (including, without limitation, any Permitted
Assignee).
19.3 No Rejection. In the context of any potential bankruptcy, insolvency or
other similar proceeding relating to MFN, it is the position of the Parties that
upon payment by Carrier of the total Fiber Payments (or any portion thereof then
due), and any Applicable Taxes then due, Carrier will have then fully performed
this Agreement and MFN shall have no right to, and MFN agrees that it shall not,
take any action seeking to reject this Agreement for any reason whatsoever, in
any bankruptcy, insolvency or similar proceeding.
20. ASSIGNMENT
20.1 Except as otherwise provided in Section 20.2, neither MFN nor Carrier may
assign this Agreement, in whole or in part except by operation of law, without
prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed, and except as consistent with regulatory
authorizations.
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20.2 Either Party may assign this Agreement in whole, but not in part, to a
Permitted Assignee. As used herein the term "Permitted Assignee" shall mean (a)
any Affiliate (as hereinafter defined) of either Party, (b) any Person which
purchases all or substantially all the assets of Party, or any Person formed by
or surviving the merger or consolidation of Party and any other person or (c)
any institutional creditor to whom this Agreement is assigned as collateral
security for any indebtedness of either Party or any Affiliate of such Party,
provided that such collateral assignment is subject to the terms of this
Agreement. Upon any assignment hereunder the assignor shall remain responsible
for performance under this Agreement. Any Permitted Assignee pursuant to
subparagraph (a) or (b) of this Section 20.2 shall expressly assume all
obligations and liabilities with respect to the Agreement which arise after the
effective date of assignment or transfer prior to or upon the effectiveness of
such assignment and, in the case of an assignment as provided in subparagraph
(c) of this Section 20.2, in the event the institutional creditor exercises its
rights with respect to this Agreement it shall expressly assume all obligations
and liabilities with respect to the Agreement which arise thereafter. As used
herein, the term Affiliate shall mean, with respect to any Person, any other
Person who, directly or indirectly, controls, is controlled by, or is under
common control with that Person. As used in this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether by way of equity
ownership, contract or otherwise.
21. MISCELLANEOUS
21.1 The covenants, undertakings, and agreements set forth in this Agreement
shall be binding upon and solely for the benefit of and will be enforceable only
by the Parties hereto or their respective successors or permitted assigns.
21.2 The headings of the Sections in this Agreement are strictly for convenience
and shall not in any way be construed as amplifying or limiting any of the
terms, provisions or conditions thereof.
21.3 In the event any term of this Agreement is held invalid, illegal or
unenforceable, in whole or in part, neither the validity of the remaining part
of such term nor the validity of the remaining terms of this Agreement will be
in any way affected thereby.
21.4 This Agreement may be amended only by a written instrument executed by the
Parties.
21.5 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.
21.6 This Agreement may be executed in multiple counterparts, all of which taken
together will constitute one and the same instrument.
21.7 No Brokers. MFN and Carrier each represent and warrant to the other that it
has not retained any broker, finder, investment banker or other similar person
or entity who is entitled to any brokerage fee, finder's fee or other similar
fee or commission in connection with the transactions contemplated in this
Agreement.
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21.8 Relationship of the Parties. Nothing in this Agreement shall constitute the
Parties as partners or joint ventures or otherwise related in any way, and
neither Party has any right under this Agreement to bind or commit the other in
any way to any third party.
21.9 Most Favored Nations. MFN agrees to treat Carrier on a Most Favored Nations
basis for the period of 18 months from the date of this Agreement. MFN warrants
that all financial terms, warranties, provisions regarding duration, termination
or expiration and other terms and conditions contained in this Agreement, taken
as a whole, are equivalent to or better than the terms and provisions offered by
MFN to its current customers (excluding any Federal, state or local government
or agency thereof who is given more favorable terms as part of the granting of a
franchise or if such terms are specifically required by applicable procurement
laws or regulations). If during said 18 month period MFN enters into any other
agreement(s) with any other customer(s) (excluding any Federal, state or local
government or agency thereof who is given more favorable terms as part of the
granting of a franchise or if such terms are specifically required by applicable
procurement laws or regulations) providing such customer(s) with more favorable
terms, taken as a whole, then this Agreement shall be deemed appropriately
amended to provide such more favorable terms to Carrier, unless Carrier elects,
in writing, to reject such new term(s) or provision(s). MFN shall promptly
provide Carrier with any refund or credits thereby created.
IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement as of the day and year first above written.
WINSTAR WIRELESS, INC.
By: ___________________________________
Name: CZ Czerner
Title: Senior VP, Corporate Development
METROMEDIA FIBER NETWORK SERVICES,
INC.
By: ___________________________________
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
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