<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 5, 1998
REGISTRATION NO. 333-50049
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DTI HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
MISSOURI
(State or Other Jurisdiction of
Incorporation or Organization)
4813
(Primary Standard Industrial
Classification Code Number)
43-1674259
(I.R.S. Employer
Identification Number)
------------------------
11111 DORSETT ROAD
ST. LOUIS, MISSOURI 63043
(314) 253-6600
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
------------------------
RICHARD D. WEINSTEIN
PRESIDENT, CHIEF EXECUTIVE OFFICER AND SECRETARY
11111 DORSETT ROAD
ST. LOUIS, MISSOURI 63043
(314) 253-6600
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
------------------------
Copy to:
J. MARK KLAMER, ESQ.
BRYAN CAVE LLP
211 NORTH BROADWAY, SUITE 3600
ST. LOUIS, MISSOURI 63102
(314) 259-2000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned thereunto duly authorized, in the City
of St. Louis, State of Missouri on August 5, 1998.
DTI HOLDINGS, INC.
By: /s/ RICHARD D. WEINSTEIN
------------------------------------
Richard D. Weinstein
President, Chief Executive Officer
and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated on August 5, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ RICHARD D. WEINSTEIN President, Chief Executive Officer Secretary
- --------------------------------------------- and Director (Principal Executive Officer)
Richard D. Weinstein
/s/ GARY W. DOUGLASS Senior Vice President and Chief Financial
- --------------------------------------------- Officer (Principal Financial and Accounting
Gary W. Douglass Officer)
/s/ JEROME W. SHEEHY* Vice President -- Regulatory Affairs and
- --------------------------------------------- Director
Jerome W. Sheehy
/s/ R. G. WASSON* Director
- ---------------------------------------------
Ronald G. Wasson
/s/ B. J. BEAUDOIN* Director
- ---------------------------------------------
Bernard J. Beaudoin
/s/ JAMES V. O'DONNELL* Director
- ---------------------------------------------
James V. O'Donnell
/s/ KENNETH V. HAGER* Director
- ---------------------------------------------
Kenneth V. Hager
*By: /s/ RICHARD D. WEINSTEIN
- ---------------------------------------------
Attorney- in-Fact
</TABLE>
II-3
<PAGE> 3
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
*2.1 Stock Purchase Agreement by and between KLT Telecom Inc. and
Digital Teleport, Inc., dated December 31, 1996.
*2.2 Amendment No. 1 to Stock Purchase Agreement between KLT
Telecom Inc. and Digital Teleport, Inc. dated February 12,
1998.
*3.1 Restated Articles of Incorporation of the Registrant.
*3.2 Restated Bylaws of the Registrant.
*4.1 Indenture by and between the Registrant and The Bank of New
York, as Trustee, for the Registrant's 12 1/2% Senior
Discount Notes due 2008, dated February 23, 1998 (the
"Indenture") (including form of the Company's 12 1/2% Senior
Discount Note due 2008 and 12 1/2% Series B Senior Discount
Note due 2008).
*4.2 Note Registration Rights Agreement by and among the
Registrant and the Initial Purchasers named therein, dated
as of February 23, 1998.
*4.3 Warrant Agreement by and between the Registrant and The Bank
of New York, as Warrant Agent, dated February 23, 1998.
*4.4 Warrant Registration Rights Agreement by and among the
Registrant and the Initial Purchasers named therein, dated
February 23, 1998.
*4.5 Digital Teleport, Inc. Shareholders' Agreement between
Richard D. Weinstein and KLT Telecom Inc., dated March 12,
1997.
*4.6 Amendment No. 1 to the Digital Teleport, Inc. Shareholders'
Agreement, dated November 7, 1997.
*4.7 Amendment No. 2 to the Digital Teleport, Inc. Shareholders'
Agreement, dated December 18, 1997.
*4.8 Amendment No. 3 to the Digital Teleport, Inc. Shareholders'
Agreement, dated February 12, 1998.
*4.9 Stock Pledge Agreement between Richard D. Weinstein and KLT
Telecom Inc., dated March 12, 1997, securing the performance
of Digital Teleport, Inc.'s obligations under that certain
Stock Purchase Agreement dated as of December 31, 1996, as
amended.
*4.10 Amendment No. 1 to Stock Pledge Agreement between Richard D.
Weinstein and KLT Telecom Inc., dated December 18, 1997.
*4.11 Amendment No. 2 to Stock Pledge Agreement between Richard D.
Weinstein and KLT Telecom Inc., dated February 12, 1998.
*4.12 Subordination Agreement, by and among the Registrant,
Digital Teleport, Inc., KLT Telecom Inc. and Richard D.
Weinstein, dated February 12, 1998.
*5.1 Legal Opinion of Bryan Cave LLP (Missouri).
*8.1 Tax Opinion of Bryan Cave LLP (Missouri) (included in its
opinion filed as Exhibit 5.1 hereto).
*10.1 Employment Agreement between Digital Teleport, Inc. and
Richard D. Weinstein, dated December 31, 1996.
*10.2 Director Indemnification Agreement between the Registrant
and Richard D. Weinstein, dated December 23, 1997.
*10.3 Director Indemnification Agreement between the Registrant
and Jerome W. Sheehy, dated December 23, 1997.
</TABLE>
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<TABLE>
<C> <S>
* Previously filed.
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
*10.4 Director Indemnification Agreement between the Registrant
and Bernard J. Beaudoin, dated December 23, 1997.
*10.5 Director Indemnification Agreement between the Registrant
and Ronald G. Wasson, dated December 23, 1997.
*10.6 Director Indemnification Agreement between the Registrant
and James V. O'Donnell, dated December 23, 1997.
*10.7 Director Indemnification Agreement between the Registrant
and Kenneth V. Hager, dated December 23, 1997.
*10.8 1997 Long-Term Incentive Award Plan of the Registrant.
*10.9 Employment Agreement between Digital Teleport, Inc. and
Robert F. McCormick, dated September 9, 1997.
*10.10 Amendment No. 1 to the Employment Agreement between Digital
Teleport, Inc. and Robert F. McCormick, dated January 28,
1998.
*10.11 Amendment No. 2 to the Employment Agreement between Digital
Teleport, Inc. and Robert F. McCormick, dated January 28,
1998.
*++10.12 Product Attachment -- Carrier Networks Products Agreement
between Digital Teleport, Inc. and Northern Telecom, Inc.,
effective October 23, 1997.
*10.13 Agreement re: Fiber Optic Cable on Freeways in Missouri,
between the Missouri Highway and Transportation Commission
and Digital Teleport, Inc., effective July 29, 1994.
*10.14 First Amendment to Agreement re: Fiber Optic Cable on
Freeways in Missouri, between the Missouri Highway and
Transportation Commission and Digital Teleport, Inc.,
effective September 22, 1994.
*10.15 Second Amendment to Agreement re: Fiber Optic Cable on
Freeways in Missouri, between the Missouri Highway and
Transportation Commission and Digital Teleport, Inc.,
effective November 7, 1994.
*10.16 Third Amendment to Agreement re: Fiber Optic Cable on
Freeways in Missouri, between the Missouri Highway and
Transportation Commission and Digital Teleport, Inc.,
effective October 9, 1996.
*10.17 Contract Extension to Agreement re: Fiber Optic Cable on
Freeways in Missouri, between the Missouri Department of
Transportation (as successor to the Missouri Highway and
Transportation Commission) and Digital Teleport, Inc., dated
February 7, 1997.
*10.18 Fiber Optic Cable Agreement, between the Arkansas State
Highway and Transportation Department and Digital Teleport,
Inc., dated May 29, 1997.
*10.19 Missouri Interconnection Agreement between Southwestern Bell
Telephone Company and Digital Teleport, Inc., executed July
1, 1997.
*10.20 Arkansas Interconnection Agreement between Southwestern Bell
Telephone Company and Digital Teleport, Inc., executed
August 21, 1997.
*10.21 Kansas Interconnection Agreement between Southwestern Bell
Telephone Company and Digital Teleport, Inc., executed
August 21, 1997.
*10.22 Oklahoma Interconnection Agreement between Southwestern Bell
Telephone Company and Digital Teleport, Inc., executed
August 21, 1997.
*10.23 Missouri Interconnection, Resale and Unbundling Agreement
between GTE Midwest Incorporated, GTE Arkansas Incorporated
and Digital Teleport, Inc. executed November 7, 1997.
</TABLE>
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* Previously filed.
++ Confidential treatment has been requested with respect to certain portions of
this Exhibit.
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
*10.24 Arkansas Interconnection, Resale and Unbundling Agreement
between GTE Southwest Incorporated, GTE Midwest
Incorporated, GTE Arkansas Incorporated and Digital
Teleport, Inc., executed November 7, 1997.
*10.25 Oklahoma Interconnection, Resale and Unbundling Agreement
between GTE Southwest Incorporated, GTE Arkansas
Incorporated, GTE Midwest and Digital Teleport, Inc.,
executed November 7, 1997.
*10.26 Texas Interconnection, Resale and Unbundling Agreement
between GTE Southwest Incorporated and Digital Teleport,
Inc., executed November 18, 1997.
*10.27 Kansas Master Resale Agreement between United Telephone
Company of Kansas (Sprint) and Digital Teleport, Inc., dated
September 30, 1997.
*10.28 Commercial Lease between Richard D. Weinstein and Digital
Teleport, Inc., dated December 31, 1996.
*10.29 Commercial Lease Extension Agreement between Richard D.
Weinstein and Digital Teleport, Inc., dated December 31,
1997.
*10.30 Purchase Agreement by and between the Registrant and the
Initial Purchasers named therein, dated as of February 13,
1998.
++10.31 IRU and Maintenance Agreement between Digital Teleport, Inc.
and IXC Communications Services, Inc., executed July 30,
1998 (Greenwood, Indiana to New York City, New York).
++10.32 IRU and Maintenance Agreement between Digital Teleport, Inc.
and IXC Communications Services, Inc., executed July 30,
1998 (Chicago, Illinois to Hudson, Ohio).
*10.33 Consulting Agreement between Digital Teleport, Inc. and H.P.
Scott, dated May 4, 1998.
*10.34 Employment Agreement between Digital Teleport, Inc. and Gary
W. Douglass, dated July 20, 1998.
*++10.35 Agreement for Purchase and Sale of Equipment between Digital
Teleport, Inc. and Pirelli Cables and Systems LLC, dated as
of June 26, 1998.
*12.1 Statement re Computation of Ratio of Earnings to Fixed
Charges.
*21.1 Subsidiaries of the Registrant.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Bryan Cave LLP (Missouri) (included in its
opinion filed as Exhibit 5.1 hereto).
*24.1 Power of Attorney (contained in signature page).
*25.1 Statement of Eligibility and Qualification on Form T-1 under
the Trust Indenture Act of 1939 of The Bank of New York, as
Trustee under the Indenture.
*27.1 Financial Data Schedule
*99.1 Form of Letter of Transmittal.
*99.2 Form of Notice of Guaranteed Delivery.
*99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
*99.4 Form of Letter to Clients.
*99.5 Guidelines for Certification of Taxpayer Identification
Number on Form W-9 (included in the Form of Letter of
Transmittal filed as Exhibit 99.1 herein).
*99.6 Form of Exchange Agent Agreement.
</TABLE>
- -------------------------
* Previously filed.
++ Confidential treatment has been requested with respect to certain portions of
this Exhibit.
<PAGE> 1
EXHIBIT 10.31
IRU AND MAINTENANCE AGREEMENT
(GREENWOOD, INDIANA TO NEW YORK CITY, NEW YORK)
BETWEEN
IXC COMMUNICATIONS SERVICES, INC.
AND
DIGITAL TELEPORT, INC.
Effective July ___, 1998
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
1. Definitions..................................................................................................2
2. Construction and Connection of DTI Fibers....................................................................4
3. Acceptance and Testing of DTI Fibers.........................................................................7
4. System Documentation.........................................................................................7
5. Payment Terms................................................................................................8
6. Grant of IRU.................................................................................................8
7. Connection of DTI Fibers.....................................................................................9
8. Consideration................................................................................................9
9. Term and Renewal............................................................................................10
10. Operation, Maintenance and Repair of the DTI Fibers......................................................10
11. Permits; Physical Plant and Required Rights..............................................................11
12. Relocation...............................................................................................11
13. Adjustments to Maintenance Payments......................................................................12
14. Use of the DTI Fibers and DTI Building Spaces............................................................12
15. Indemnification..........................................................................................13
16. Insurance................................................................................................14
17. Taxes and Franchise, License and Permit Fees.............................................................15
18. Disclaimer of Warranty...................................................................................16
19. Warranty.................................................................................................16
20. Limitation of Liability..................................................................................16
21. Notice..................................................................................................16
22. Confidentiality..........................................................................................17
23. Default..................................................................................................17
24. Termination..............................................................................................18
25. Survival.................................................................................................18
26. Force Majeure............................................................................................18
27. Arbitration..............................................................................................19
28. Waiver...................................................................................................19
29. Governing Law............................................................................................19
30. Rules of Construction....................................................................................20
31. Assignment...............................................................................................20
32. Representations and Warranties...........................................................................21
33. Entire Agreement; Amendment..............................................................................21
34. No Personal Liability....................................................................................21
35. Conflicts of Interest....................................................................................21
36. Relationship of the Parties..............................................................................22
37. Severability.............................................................................................22
38. Counterparts.............................................................................................23
</TABLE>
i
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 3
IRU AND MAINTENANCE AGREEMENT
THIS IRU AND MAINTENANCE AGREEMENT (the "Agreement") is made as of the
___ day of July, 1998 (the "Effective Date"), by and between Digital Teleport,
Inc. ("DTI"), a Missouri corporation located at 11111 Dorsett Road, St. Louis,
Missouri 63043, and IXC Communications Services, Inc. ("IXC"), a Delaware
corporation located at 1122 Capital of Texas Highway South, Austin, Texas 78746.
Each of DTI and IXC may hereinafter be referred to individually as a "Party" and
together as the "Parties."
BACKGROUND
A. IXC has constructed a fiber optic telecommunications system (the
"IXC System") from Greenwood, Indiana to New York City, New York along the route
as set forth in Exhibit A hereto (the "System Route"), including certain fibers
intended for the use of IXC (the "IXC Fibers") and certain fibers intended for
the use of DTI (the "DTI Fibers") as set forth below.
B. IXC desires to receive from DTI, and DTI is willing to pay IXC,
payments as set forth below for the DTI Fibers (as defined herein) and DTI
Building Spaces along the System Route, all upon the terms and conditions set
forth below.
C. DTI desires to obtain from IXC an Indefeasible Right to Use (an
"IRU") the DTI Fibers and DTI Building Spaces and DTI Building Spaces along the
System Route, and DTI desires IXC to provide the maintenance and repair services
necessary to maintain such IRU, the DTI Fibers, and DTI Building Spaces.
D. IXC, by way of this IRU Agreement, desires to grant DTI an IRU in
the DTI Fibers and DTI Building Spaces. In addition, IXC desires to provide DTI
with maintenance of the DTI Fibers and DTI Building Spaces, all upon the terms
and conditions set forth below.
TERMS OF AGREEMENT
Accordingly, in consideration of the foregoing and of the mutual
promises set forth below, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
definitions set forth below:
1.1 "Acceptance Date" has the meaning set forth in Section 3.
1.2 "Cable" shall mean the fiber optic cable and the fibers contained
therein, and associated splicing connections, splice boxes and vaults, and
conduit, which are to be installed
2
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 4
and constructed pursuant hereto and which are described and specified on the
Exhibits hereto.
1.3 "Connecting Point" shall mean an existing splice point or
distribution panel.
1.4 "Costs" shall mean actual and related costs including, without
limitation, the following: (1) labor costs, including wages and salaries, and
benefits and overhead allocable to such labor costs (overhead allocation
percentage shall not exceed the lesser of (x) the percentage IXC allocates to
its internal projects, or (y) one hundred and thirty percent (130%) of wages and
salaries, and (2) other direct costs and out-of-pocket expenses on a
pass-through basis (e.g., equipment, materials, supplies, contract services,
etc.).
1.5 "DTI Building Spaces" shall mean building space along the system
for (i) eight (8) 26" wide by 18" deep by 84" high telecommunications component
racks ("Racks") in all junction buildings, (ii) two (2) Racks in all optical
amplifier building locations, and (iii) four (4) Racks in all regeneration
building sites, in reasonably secure and private building spaces along the route
of the DTI Fibers (provided that the foregoing shall not restrict the
interconnections made by IXC at such points) for the placement by DTI of optical
line amplifiers, regenerators, terminal and related equipment.
1.6 "Impositions" shall mean all taxes, fees, levies, imposts, duties,
charges or withholdings of any nature (including, without limitation, property,
franchise, license and permit fees), together with any penalties, fines or
interest thereon arising out of the transactions contemplated by this Agreement
and imposed upon the IXC System by any federal, state or local government or
other public taxing authority. "Impositions" shall not include any sales, income
or gross receipts tax.
1.7 "Indefeasible Right to Use" or "IRU" shall mean (i) the exclusive,
unrestricted, and indefeasible right to use the DTI Fibers and DTI Building
Spaces for any legal purpose, and (ii) an associated, non-exclusive,
indefeasible right of use in the IXC Associated Property for the purpose of
enjoying the rights granted in (i), all as granted in the section entitled
"Grant of IRU." The granting of such IRU does not convey title or ownership of
any fibers or buildings along the System Route, nor does it include a conveyance
of any interest in real or personal property except the right to use individual
optical fibers or building spaces as set forth herein. The IRU granted to DTI
shall represent a power coupled with an interest.
1.8 "DTI Fibers" shall mean those certain six (6) SMF-LS fibers along
the System Route which IXC is to install for DTI hereunder.
1.9 "IXC Associated Property" shall mean the tangible and intangible
property needed for the operation of the DTI Fibers and DTI Building Spaces,
including, but not limited to, the associated System rights-of-way, easements
and conduit, subject to underlying real property and contractual limitations and
restrictions, but in any event excluding any electronic or optronic equipment.
1.10 "IXC Fibers" shall mean all fibers in the System which are not DTI
Fibers.
1.11 "Scheduled Delivery Date" shall mean the date scheduled for the
completion of
3
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 5
all construction, installation, testing and hand-over of the DTI Fibers and DTI
Building Spaces.
1.12 "System" or "IXC System" shall mean the fiber optic communication
system between such pair cities identified in Exhibit A.
1.13 "System Route" shall mean the route of approximately 1,064 miles,
as set forth in Exhibit A.
2. CONSTRUCTION AND CONNECTION OF DTI FIBERS.
2.1 IXC shall design, engineer, install, construct and test the DTI
Fibers and DTI Building Spaces: (i) in accordance with the terms and subject to
the conditions set forth in this Agreement; (ii) in compliance with any and all
applicable building, construction and safety codes for such construction and
installation, as well as any and all other applicable governmental laws, codes,
ordinances, statutes and regulations; and (iii) in accordance with the
specifications set forth in Exhibits B-1, B-2 and C.
2.2 IXC shall perform complete detailed engineering and design
including development of system performance criteria and preparation of
construction drawings, bills of materials, materials specifications and
materials requisitions. IXC shall also complete specifications covering the
construction and testing of the DTI Fibers and DTI Building Spaces.
2.3 IXC shall perform all necessary surveying and mapping including,
without limitation:
2.3.1 Performing a complete locations survey of the IXC
System, including staking and marking of the System Route, in accordance with
standard telecommunication industry engineering practices.
2.3.2 Preparing field alignment maps showing the System Route
and property ownership, terrain description, and applicable construction
materials.
2.3.3 Surveying and staking the location of sites for
regeneration stations, (except as expressly set forth herein, for purposes of
this Agreement, no distinction shall be made between regenerator sites,
regenerator station sites and line amplifier sites) and other facilities.
2.3.4 Preparing railroad, highway and water crossing permit
drawings.
2.3.5 Conducting and evaluating as-built surveys of
installations and revising records and drawings accordingly.
2.4 IXC shall perform all necessary actions regarding acquisition of
land and easements, including, without limitation:
2.4.1 Performing limited title searches to ascertain the
validity of title in present landowners along the System Route.
4
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 6
2.4.2 Acquiring necessary easements, rights-of-way and fee
interests, all of which shall be recorded in the Office of the Recorder of Deeds
of the appropriate county or in such other offices as may be appropriate,
securing permits for highway, railroad and waterway crossings as well as
securing any and all other permits necessary and requisite to the construction
of the IXC System and the installation, testing and delivery of the DTI Fibers
and DTI Building Spaces in accordance with the provisions hereof free from
interference by, or infringement of the rights of, third Parties.
2.5 At its sole cost, IXC shall procure all materials to be
incorporated in and to become a permanent part of the IXC System, excluding
electronics, optronics and other equipment to be used by DTI in connection with
the DTI Fibers and DTI Building Spaces.
2.6 IXC shall perform supervisory and inspection services, including,
without limitation:
2.6.1 Performing construction inspection prior to completion
of the DTI Fibers and DTI Building Spaces to assure that all construction shall
be in accordance with the specifications, drawings, easement provisions,
provisions of this Agreement, applicable codes, and in accordance with standard
practices prevailing in the telecommunications industry for similar
construction. DTI shall have the right, but not the obligation, to inspect all
right-of-way documents, installation, splicing and testing of the DTI Fibers.
2.7 The Scheduled Delivery Date for completion of all construction,
installation, Fiber Acceptance Testing (defined below), and hand-over to DTI of
the DTI Fibers and DTI Building Spaces shall be December 31, 1998. IXC shall use
its commercially reasonable efforts to complete all construction, installation
and testing obligations by such date.
2.8 Building Spaces.
(a) At all DTI Building Spaces, IXC shall provide building entry,
interior equipment spaces and termination connections for the DTI Fibers. IXC
shall not be required to provide to DTI any customer connections within such DTI
Building Spaces. DTI will be given interior space within the DTI Building Spaces
and 24-hour, 365-day access to each such DTI Building Space for the Term of this
Agreement.
(b) DTI may use its space in the DTI Building Spaces for the
installation, maintenance and operation of its relay racks, equipment and other
property used to connect its customers to its network, but shall not otherwise
have the right to make any alterations, additions or improvements in or to the
DTI Building Spaces. Such connection of DTI customers shall be at IXC's then
current ancillary pricing for cross-connect charges, as set forth in Attachment
1. DTI shall at all times have the right, at its own expense, to remove from any
DTI Building Space all relay racks, equipment and other property originally
furnished or installed by DTI. Such relay racks, equipment and other property
shall not become part of the DTI Building Space, no matter how affixed, but
shall at all times be and remain DTI's personalty.
(c) DTI shall provide ordinary maintenance and repair of its relay
racks, equipment and other property, shall maintain its space in each DTI
Building Space in a safe, neat, clean,
5
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 7
orderly and sanitary condition, and shall not cause unsafe, unclean, disorderly
or unsanitary conditions elsewhere in the DTI Building Spaces. DTI shall comply
with all laws, ordinances and regulations applicable to the use of each DTI
Building Space. DTI shall comply with all rules of which it receives notice
reasonably established by IXC for the safety, care, cleanliness, preservation of
good order and operation of each DTI Building Space and shall maintain the entry
and interior areas to the DTI Building Spaces free of ice, water, pests, rubbish
and other obstructions, and in a safe, neat, clean, orderly and sanitary
condition.
(d) IXC shall: (i) maintain, repair and replace, as necessary, all
structural elements of each DTI Building Space, including the exterior walls and
roof thereof; (ii) cause the electrical power utility at each DTI Building Space
to be maintained, repaired and replaced, as necessary; (iii) maintain the DTI
Building Spaces (excluding relay racks, equipment and other property furnished
or installed by DTI) in compliance with all laws, ordinances and regulations;
and (iv) maintain the entry and interior areas to the DTI Building Spaces free
of ice, water, pests, rubbish and other obstructions, and in a safe, neat,
clean, orderly and sanitary condition.
(e) IXC shall provide emergency maintenance and repair of the DTI
Fibers and the DTI Building Spaces twenty-four (24) hours a day, 365 days a
year, pursuant to the attached operations and specifications, so as to ensure
continuing conformity of the DTI Fibers with their respective specifications,
including replacement of individual fibers and any maintenance as is reasonably
necessary for normal operation of the DTI Fibers. IXC agrees to respond to any
failure, interruption or impairment in the operation of the DTI Fibers within
five (5) hours after receiving a report of any such failure, interruption or
impairment. IXC shall use its commercially reasonable efforts to perform
maintenance and repair to correct any failure, interruption or impairment in the
operation of the DTI Fibers, provided however, that in the event such failure,
interruption, or impairment is caused by a Force Majeure event, repairs will be
made as expeditiously as possible.
(f) As a consequence of DTI's planned 24-hour, 365-day operation, IXC
shall give to DTI reasonable advance notice of any planned shutdowns in a DTI
Building Space of the electrical power for maintenance and repairs, or
alterations, additions or improvements in or to a DTI Building Space. IXC shall
make every reasonable effort to minimize inconvenience to DTI by changing the
times for the performance of such work upon the reasonable request of DTI,
provided that any increase in costs incurred by IXC as a result of such
rescheduling shall be paid for by DTI.
(g) If any mechanics', laborers' or materialmen's lien is filed against
a DTI Building Space based upon the actions of the contractors or agents of IXC,
IXC shall, at its own expense, cause the same to be discharged, by payment,
bonding or otherwise, within thirty (30) days after it receives notice of such
lien. IXC shall have the right to contest in good faith and with reasonable
diligence the validity of such lien or claimed lien. DTI shall not allow any
mechanics', laborers' or materialmen's lien to be filed against DTI Fiber or DTI
Building Space or against IXC Fibers or IXC Building Space. In the event that
any such lien is filed, DTI shall promptly have such lien discharged or removed.
(h) At the end of the Term, DTI shall remove all relay racks, equipment
and other property furnished or installed in a DTI Building Space, and shall
repair, or reimburse IXC for
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the costs of repairing any damage to a DTI Building Space arising from such
removal, and shall surrender its space in the DTI Building Spaces in broom clean
condition, but shall have no other obligation to restore the DTI Building
Spaces.
3. ACCEPTANCE AND TESTING OF DTI FIBERS.
3.1 IXC shall test the DTI Fibers in accordance with the procedures
specified in Exhibit C (Fiber Cable Splicing, Testing and Acceptance Standards)
("Fiber Acceptance Testing") to verify that the DTI Fibers are operating in
accordance with the specifications in Exhibit C. Fiber Acceptance Testing shall
progress span by span along the IXC System as cable splicing progresses, so that
test results may be reviewed in a timely manner. DTI shall have the right, but
not the obligation, to have a person or persons present to observe such Fiber
Acceptance Testing. Within fourteen (14) days of the conclusion of the Fiber
Acceptance Testing of the DTI Fibers, IXC shall provide DTI with a copy of the
test results.
3.2 Upon the receipt by DTI from IXC of the initial test results
referred to above or of the results of re-testing as set forth below, DTI shall
have the right, but not the obligation, at its sole expense, to conduct its own
Fiber Acceptance Testing of the DTI Fibers to verify that they are operating in
accordance with specifications in Exhibit C. DTI shall commence any such Fiber
Acceptance Testing of the DTI Fibers within fourteen (14) days of receiving such
results and complete such testing within fourteen (14) days thereafter. IXC
shall have the right, but not the obligation, to have a person or persons
present to observe DTI's Fiber Acceptance Testing. Within seven (7) days of the
conclusion of DTI's Fiber Acceptance Testing of the DTI Fibers, DTI shall
provide IXC with a copy of the test results.
3.3 In the event the results of the tests of the DTI Fibers show the
DTI Fibers not to be operating within the parameters of the applicable
specifications, DTI shall notify IXC that some or all portions of the DTI Fibers
are unacceptable. Thereupon, IXC shall expeditiously take such action as shall
be reasonably necessary, with respect to such portion of the DTI Fibers as do
not operate within the parameters of the applicable specifications, to bring the
operating standards of such portion of the DTI Fibers within such parameters.
After taking such actions and re-testing of the DTI Fibers, IXC shall provide
DTI with a copy of the new test results and DTI shall again have the right to
conduct its own Fiber Acceptance Testing as set forth above. The cycle described
above of testing, taking corrective action and retesting shall take place as
many times as necessary to ensure that the DTI Fibers operate within the
parameters of the applicable specifications.
3.4 DTI shall be deemed to have accepted the DTI Fibers unless it
notifies IXC within seven (7) days of receipt of IXC's Fiber Acceptance Testing
results that such results are unacceptable. If the test results of DTI's Fiber
Acceptance Testing are within the parameters of the specifications in Exhibit C,
DTI shall, within seven (7) days of receipt of the test results, provide IXC
with a written notice accepting the DTI Fibers. The date of this notice or the
date of deemed acceptance of the DTI Fibers, as the case may be, shall be the
"Acceptance Date."
4. SYSTEM DOCUMENTATION.
After the Acceptance Date and upon thirty (30) days' request, but in
any event, not later
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than one hundred eighty (180) days subsequent to the Acceptance Date, IXC shall
provide DTI with documentation ("Deliverables") which shall consist of the
following:
4.1 As-built drawings as set forth in Exhibit D (As-Built Drawing
Specifications) for the DTI Fibers and DTI Building Spaces.
4.2 Technical specifications of the Cable and associated splices.
5. PAYMENT TERMS.
5.1 IRU PAYMENT AMOUNT. DTI shall pay IXC *** Dollars ($***) (the "IRU
Payment"), per fiber mile for the DTI Fibers. IXC reserves the right to change
the route distance and the route location (as specified in Exhibit A) during
the construction of the DTI Fibers and up until the Acceptance Date. The IRU
Payment shall be payable as follows: (i) twenty percent (20%) shall be due and
payable upon the date this Agreement is signed; and (ii) eighty percent (80%)
shall be due and payable upon the Acceptance Date. In addition DTI shall pay
*** Dollars (***) due payable upon the date this Agreement is signed. IXC shall
allocate one percent (1%) of the IRU Payment to administrative costs.
5.2 MAINTENANCE PAYMENT AMOUNT. DTI shall pay IXC *** Dollars ($***) per
mile each month (the "Maintenance Payment") as the recurring cost for routine
fiber maintenance. Such Maintenance Payment will be adjusted from time to time
as set forth below in the section entitled "Adjustments to Maintenance
Payments."
5.3 DTI BUILDING SPACES FEE. DTI shall pay to IXC *** dollars ($***) per
rack, per month (the "Building Space Fee") for the use of the DTI Building
Spaces. No additional payment shall be required by DTI for inner duct,
handholes, manholes, bridge attachments, rock sawing and boring, engineering,
construction supervision, as-builts and similar items related to the
installation of the DTI Fibers.
5.4 ADDITIONAL COSTS. DTI shall pay a proportional amount (according to
the number of DTI fibers relative to the total fibers in the IXC System) of any
Additional Costs in excess of $*** incurred due to damage to, or deterioration
of, the IXC System or the fibers therein.
5.5 LATE PAYMENTS. Notwithstanding any other provisions of this
Agreement, in the event DTI fails to make any payment owed to IXC under this
Agreement when due, such amounts shall accrue interest against the unpaid
balance from the date such payment is due until paid, including accrued
interest, at a rate equal to 18% per annum or, if lower, the highest percentage
allowed by law.
6. GRANT OF IRU.
6.1 IXC shall grant to DTI an IRU (the "DTI IRU") in the DTI Fibers and
the DTI Building Spaces for the Term defined below, subject to the terms and
conditions herein. Such IRU is granted to DTI effective upon receipt of the IRU
Payment. Such IRU does not include any rights of access to the DTI Fibers or DTI
Building Spaces or the applicable rights-of-way
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other than as are specifically permitted by the terms of this Agreement (which
in any case are limited by the terms of the underlying right-of-way agreements
that IXC has entered into or may enter into relating to the System Route.)
6.2 DTI shall not violate the terms of any right-of-way agreement
relating to the System Route relating to physical presence on the applicable
right-of-way or required notification of entry and agrees to be bound by such
limitations and restrictions on IXC under any right-of-way or real property
agreement that IXC has entered or will enter relating to the System Route, or
DTI Building Spaces, or in its use of the right-of-way set forth in, or implied
by, such right-of-way agreements, provided, however, that IXC has provided to
DTI a copy of such restrictions or limitations.
7. CONNECTION OF DTI FIBERS.
7.1 Subject to the provisions herein, DTI shall be responsible for all
costs to connect its existing telecommunications system to the DTI Fibers. When
connection is made in an existing building, the connecting point will be at the
fiber optic patch panel. DTI may, at its sole option, and at any time during the
Term, connect its system with the DTI Fibers, at its sole cost, at any
Connecting Point along the System Route as to which IXC is permitted to allow
such connection under any right-of-way agreement that IXC has or may enter
relating to the System Route. Each connection requiring a Cable or a splice to
be entered will be performed by IXC at DTI's sole expense. In order to schedule
a connection of this type, DTI shall coordinate the work at least thirty (30)
days in advance of the date the connection is requested to be completed. IXC
will use its best efforts to accommodate the request. Such work will be
restricted to IXC's planned system work period weekends unless otherwise agreed
to in writing for specific projects. DTI shall also be provided reasonable
access by IXC to any Connecting Point.
7.2 No connection will be allowed that IXC reasonably determines is
likely to materially and adversely affect the System Route or any of the fibers
therein. Neither IXC nor DTI shall have any limitations on the types of
electronics or technologies employed to utilize the IXC Fibers or DTI Fibers and
DTI Building Spaces, respectively, subject to mutually agreeable safety
procedures and so long as such electronics or technologies do not interfere with
the use of the remaining fibers or present a risk of damage to the fibers in the
IXC System.
8. CONSIDERATION.
8.1 IXC shall provide to DTI the following:
8.1.1 The IRU in the DTI Fibers and DTI Building Spaces commencing
upon the Acceptance Date.
8.1.2 Maintenance and repair as set forth herein.
8.2 DTI shall provide to IXC the following:
8.2.1 The compensation described in the section entitled "Payment
Terms."
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9. TERM AND RENEWAL.
9.1 The initial term of this Agreement shall begin on the Effective
Date hereof and end upon the termination of the IRU granted herein, unless
earlier terminated pursuant to the terms of this Agreement.
9.2 This Agreement, including the IRU granted under this Agreement, may
be renewed for three (3) renewal terms of five (5) years each (a "Renewal Term")
only upon approval by IXC. DTI may request renewal of this Agreement at the end
of the Initial Term or any Renewal Term by giving written notice to IXC during
the period between March 31 and July 1 of the calendar year preceding the
calendar year of the expiration of the Initial Term or the then effective
Renewal Term. All terms and conditions of this Agreement shall be applicable to
any Renewal Terms, with the exception of Section 5, which will be subject to
negotiation between the Parties at IXC's then prevailing rates. The Initial Term
and any Renewal Term exercised under this Agreement shall be collectively
referred to as the "Term." Any Term is subject to termination by IXC without
liability of either Party: (i) due to the termination of any right-of-way
agreements relating to the System Route, or (ii) otherwise pursuant to the terms
of this Agreement.
10. OPERATION, MAINTENANCE AND REPAIR OF THE DTI FIBERS.
10.1 After the Acceptance Date, operation of each Party's fibers shall
be in accordance with the following:
10.1.1 Each Party shall have full and complete control and
responsibility for determining any network and service configuration or designs,
or routing configurations, regrooming, rearrangement or consolidation or
channels or circuits and all related functions with regard to the use of that
Party's fiber.
10.1.2 Except as set forth in Section 7, neither Party hereto
is supplying or is obligated to supply to the other Party any optronics or
electronics or optical or electrical equipment or other facilities, including,
without limitation, fire protection and monitoring and testing equipment, nor is
either Party responsible for performing any work other than as specified in this
Agreement.
10.2 Upon completion of the IXC System and delivery of the DTI Fibers
and DTI Building Spaces and during the Term hereof, IXC shall, at no additional
charge to DTI above the Maintenance Fee, maintain and repair the DTI Fibers and
DTI Building Spaces pursuant to the operations specifications set forth in
Exhibit E (Operations Specifications) so as to assure continuing conformity of
the DTI Fibers and DTI Building Spaces with their respective specifications.
Notwithstanding any provision in this Agreement to the contrary, the costs of
procurement, installation, splicing, splice testing and other costs associated
with the replacement or restoration of the Cable shall be shared by the Parties
pro-rata according to the total number of fibers each user has in the same route
as the Cable which is to be restored or replaced. IXC, at DTI's sole expense and
at IXC's then prevailing rates, shall perform maintenance and repair
necessitated by DTI's negligence or willful misconduct or DTI's elective
maintenance or repair requests. IXC shall not be responsible for any maintenance
or repair of any DTI equipment
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except as set forth above.
10.3 IXC may subcontract for maintenance and restoration services
hereunder. Notwithstanding any other provisions of this Agreement, IXC shall
require any such subcontractor(s) to meet maintenance and repair standards for
the DTI Fibers and DTI Building Spaces which shall be at least as high as the
highest standards utilized by IXC for the maintenance and repair of other
portions of its communications systems. IXC shall be responsible for splicing of
the cables in the DTI Fibers so as to assure continuing conformity with their
respective specifications, including, without limitation, conducting continual
monitoring of the IXC System, location of faults, splicing and splice testing
associated with any restoration, and procurement of replacement cable used in
restoration. IXC shall, at no additional charge to DTI above the Maintenance
Fee, perform or cause its subcontractor(s) to perform routine inspections of the
DTI Fibers and DTI Building Spaces and routine right-of-way maintenance in
accordance with its standard maintenance procedures, including, without
limitation, any flights that may be made over the routes where the DTI Fibers
are located. The use of any such subcontractor shall not relieve IXC of its
obligations hereunder. In the event IXC determines to subcontract greater than
fifty percent (50%) of its maintenance and/or restoration work on the DTI
Fibers, it shall give DTI the opportunity to perform such work if DTI agrees to
match the best rates offered for such work by a third Party.
10.4 DTI will perform all maintenance on DTI equipment, however, in the
event DTI requests IXC to perform and IXC agrees to perform repair or
maintenance with respect to such DTI equipment, DTI shall pay for all repair and
maintenance of such equipment performed by IXC at IXC's then prevailing rates.
IXC shall, on or before March 1 of each year during the Term, provide DTI notice
of IXC's rates for repair and maintenance for such calendar year. DTI reserves
the right to perform maintenance on any of its own equipment wherever such
equipment may be located.
10.5 IXC shall respond to any interruption of service or failure of the
DTI Fibers and DTI Building Spaces to operate in accordance with this Agreement
in accordance with the procedures set forth in Exhibit E.
10.6 IXC shall perform repair and maintenance pursuant to this
Agreement in a manner which equals or exceeds that which is normal and customary
in the telecommunications industry.
11. PERMITS; PHYSICAL PLANT AND REQUIRED RIGHTS.
IXC shall obtain (and cause to remain effective throughout the Term of
this Agreement) all rights, licenses, authorizations, rights-of-way and other
agreements necessary for the use of poles, conduit, cable, wire or other
physical plant facilities, as well as any other such rights, licenses,
authorizations (including any necessary state, tribal or federal authorizations
such as environmental permits), rights-of-way and other agreements necessary for
the installation and use of the DTI Fibers and DTI Building Spaces hereunder.
12. RELOCATION.
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If, for any reason, IXC is required to relocate any of the facilities
used or required in providing the DTI Fibers or DTI Building Spaces, IXC shall
give DTI sixty (60) days prior notice of any such relocation, if possible and
shall have the obligation to proceed with such relocation, including, but not
limited to, the right to determine the extent of, the timing of, and methods to
be used for such relocation; provided that any such relocation (i) shall be
constructed and tested in accordance with the specifications and requirements
set forth in Exhibits B1, B2 and C, and (ii) shall not result in an adverse
change to the operations, performance, connection points with the network of
DTI, or end points of the IXC System. IXC shall relocate the affected portion of
the IXC System and, so long as such relocation is not necessitated by a breach
of IXC's obligations under this Agreement, including, without limitation, under
Section 11, DTI shall reimburse IXC for its proportionate share of (i) all Costs
of fiber acquisition, splicing and testing, pro-rated based on the total number
of fibers as so relocated, and (ii) all other Costs associated with the
relocation of the Cable, pro-rated based on the total number of fibers or ducts
each user has in the affected fiber optic cable or other facilities as so
relocated. IXC shall deliver to DTI updated As-Builts with respect to any
relocated portion of the IXC System not later than one hundred eighty (180) days
following the completion of such relocation.
13. ADJUSTMENTS TO MAINTENANCE PAYMENTS.
Upon the second anniversary of this Agreement and on the fifth
anniversary thereafter, the Maintenance Fees for the following five (5) years
shall be determined by multiplying the initial Maintenance Fees set forth in
Section 5.2 by a fraction (the "Fraction"), the numerator of which shall be the
average of the monthly Consumer Price Indices for the twelve (12) months
immediately preceding the date on which the Maintenance Fees are to be adjusted
and the denominator of which shall be the average of the monthly Consumer Price
Indices for the twelve (12) months immediately preceding the date hereof.
"Consumer Price Index" shall mean the Consumer Price Index published by the
Bureau of Labor Statistics of the United States Department of Labor for Urban
Wage Earners and Clerical Workers for the smallest geographical area for All
Commodities, or any successor index thereto.
14. USE OF THE DTI FIBERS AND DTI BUILDING SPACES.
14.1 DTI warrants that its use of the DTI Fibers and DTI Building
Spaces shall comply with all applicable government codes, ordinances, laws,
rules, regulations and/or restrictions.
14.2 DTI shall have the right to abandon its IRU in the DTI Fibers
and/or DTI Building Spaces at which time DTI shall have no further rights with
respect to its IRU and the right to use the DTI Fibers and/or DTI Building
Spaces shall revert to IXC. Such abandonment shall release DTI from the
obligation to pay the fees set forth in this Agreement, except any such fees
accruing prior to the date of such abandonment.
14.3 DTI may use its IRU for any lawful purpose. IXC agrees and
acknowledges that it has no right to use the DTI Fibers and DTI Building Spaces
during the term hereof unless DTI abandons the DTI Fibers and DTI Building
Spaces.
14.4 DTI and IXC shall promptly notify each other of any matters
pertaining to any damage or impending damage to or loss of any fibers along the
System Route, that are known to
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such Party.
14.5 IXC shall respect DTI's right to its use of the DTI Fibers and DTI
Building Spaces. DTI and IXC shall each take all reasonable precautions against,
and shall assume liability, subject to the terms herein, for, any damage caused
by it to the IXC System and any fibers therein.
14.6 Neither Party shall use its fibers in any way that interferes
with or adversely affects the use of the fibers of the other Party.
14.7 DTI and IXC each agree to cooperate with and support the other in
complying with any requirements set forth by any governmental agency or
authority, including, but not limited to any such agency that enters into a
right-of-way agreement with IXC that relates to the System Route.
14.8 Except as otherwise explicitly set forth herein, IXC shall not
charge DTI any maintenance or right-of-way charges.
15. INDEMNIFICATION.
15.1 Each Party hereby releases and agrees to indemnify, defend,
protect and hold harmless (the "Indemnifying Party") the other Party, its
employees, officers, directors, agents, shareholders and affiliates, from and
against, and assumes liability for:
15.1.1 Any injury, loss or damage to any person, tangible
property or facilities of any person or entity (including reasonable attorneys'
fees and costs), to the extent any such injury, loss or damage arises out of or
results from the acts or omissions, due to the gross negligence of the
Indemnifying Party, its officers, employees, servants, affiliates, agents or
contractors in connection with its performance under this Agreement; and
15.1.2 Any claims, liabilities or damages arising out of any
violation by the Indemnifying Party of regulations, rules, statutes or court
orders of any local, state or federal governmental agency, court or body in
connection with its performance under this Agreement.
15.2 IXC hereby releases and agrees to indemnify, defend, protect and
hold harmless DTI, its employees, officers, directors, agents, shareholders and
affiliates, from and against, and assumes liability for any claim, liability or
damages arising out of a breach of IXC's obligations pursuant to Section 11,
subject to the limitations of Section 20.
15.3 The Parties hereby expressly recognize and agree that each Party's
obligation to indemnify, defend, protect and save the other harmless is not a
prerequisite to the continuing performance of the Party's other obligations, if
any, hereunder. In the event that a Party shall fail for any reason to so
indemnify, defend, protect and save the other harmless, the injured Party hereby
expressly recognizes that its sole remedy in such event shall be the right to
bring an arbitration proceeding pursuant to the terms of this Agreement against
the other Party for its damages as a result of the other Party's said failure to
indemnify, defend, protect and save harmless. These obligations shall survive
the expiration or termination of this Agreement.
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15.4 Nothing contained herein shall operate as a limitation on the
right of either Party hereto to bring an action for damages against any third
Party, including indirect, special or consequential damages, based on any acts
or omissions of such third Party as such acts or omissions may affect the
operation or use of the System Route or any fibers or buildings therein;
provided, however, that each Party hereto shall assign such rights of claims,
execute such documents and do whatever else may be reasonably necessary to
enable the other Party to pursue any such action against such third Party.
16. INSURANCE.
16.1 During the Term of this Agreement, each Party shall obtain and
maintain, and shall require any of its permitted subcontractors to obtain and
maintain, the following insurance, naming the other Party as an additional
insured:
16.1.1 Not less than $5,000,000 combined single limit liability
insurance for personal injury and property damage; and
16.1.2 Worker's Compensation Insurance in amounts required by
applicable law. Such coverage is required in all states except Washington,
Nevada, Wyoming, West Virginia, Ohio and North Dakota. If work is performed in
any of the above excepted states, the Party responsible for such work shall be
required to participate in the excepted state's fund and provide to the other
Party evidence of stop gap coverage.
16.1.3 Automobile liability insurance covering death or injury
to any person or persons, or damage to property arising from the operation of
vehicles or equipment, with limits of not less than one million dollars
($1,000,000) per occurrence;
16.1.4 "All Risk" property insurance in an amount equal to the
replacement cost of the property of such Party subject to the IRUs granted
hereunder; and
16.1.5 Any other insurance coverages required pursuant to
IXC's right-of-way agreements with railroads or other third Parties.
16.2 Maintenance of an approved self-insurance program providing for a
retention of up to $1,000,000 shall be deemed to be in compliance with the
provisions of this Section except subsection 16.1.2.
16.3 Unless otherwise agreed, both Parties' insurance policies required
pursuant to this Section 16 shall be obtained and maintained with companies
rated A or better by Best's Key Rating Guide and the other Party shall be
expressly named as an additional insured on all of the insuring Party's
insurance policies providing the required coverage, or any portion thereof,
described in this Section, and the insuring Party shall provide the other Party
with an insurance certificate confirming compliance with this requirement for
each policy providing such required coverage. The insurance certificate shall
indicate that the additional insured Party shall be notified not less than
thirty (30) days prior to any cancellation of or material change in coverage.
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16.4 In the event either Party fails to obtain the required insurance
or to obtain the required certificates from any contractor and a claim is made
or suffered, such Party shall indemnify and hold harmless the other Party from
any and all claims for which the required insurance would have provided
coverage. Further, in the event of any such failure which continues after seven
(7) days written notice thereof by the other Party, such other Party may, but
shall not be obligated to, obtain such insurance and will have the right to be
reimbursed for the cost of such insurance by the Party failing to obtain such
insurance.
16.5 In the event coverage is denied or reimbursement of a properly
presented claim is disputed by the carrier for insurance provided above, the
Party carrying such coverage shall make good faith efforts to pursue such claim
with its carrier.
16.6 DTI and IXC shall each obtain from the insurance companies
providing the coverages required by this Agreement, the permission of such
insurers to allow such Party to waive all rights of subrogation. In addition,
each insuring Party hereby waives all rights of said insurance companies to
subrogation against the other Party, its parent corporation, affiliates,
subsidiaries, assignees, officers, directors and employees or any other Party
entitled to indemnity under this Agreement.
17. TAXES AND FRANCHISE, LICENSE AND PERMIT FEES.
17.1 IXC shall be responsible for and shall timely pay all (i)
Impositions or fees which are based on the physical location of the IXC System
and/or the respective construction thereof in or on public roads, highways or
rights-of-way; and (ii) right of way payments on the System Route. Failure by
IXC to pay such taxes, Impositions or payments which continues after seven (7)
days written notice thereof by DTI, shall authorize, but not obligate, DTI to
make such payments and DTI shall then have the right to be reimbursed for such
payments by IXC. DTI shall reimburse IXC for all such Impositions and fees
pro-rata according to the total number of fibers each user has in the same build
as the Cable which are to be relocated.
17.2 DTI shall be responsible for any and all sales, use, income or
other taxes assessed on the basis of revenues received by DTI due to its use of
the DTI Fibers and DTI Building Spaces.
17.3 Notwithstanding any provision herein to the contrary, DTI shall
have the right to protest by appropriate proceedings the Imposition and/or
amount of any taxes or franchise, license or permit fees imposed on or assessed
against DTI, including, but not limited to, any taxes or franchise, license or
permit fees assessed on the basis of revenues received by DTI due to its use of
the DTI Fibers and DTI Building Spaces and/or based on the physical location of
the System and/or the construction thereof. In such event, DTI shall indemnify
and hold IXC harmless from any expense, legal action or cost, including
reasonable attorneys' fees, resulting from DTI's exercise of its rights
hereunder. In the event of any refund, rebate, reduction or abatement to DTI of
such taxes or franchise, license or permit fees, DTI shall be entitled to
receive the entire benefit of such refund, rebate, reduction or abatement
attributable to DTI's use of the DTI Fibers and DTI Building Spaces.
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18. DISCLAIMER OF WARRANTY.
IXC MAKES NO WARRANTY OTHER THAN AS EXPRESSLY SET FORTH HEREIN TO DTI
OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE
DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY
PARTICULAR PURPOSE OF ANY CABLE OR FIBERS OR ANY SERVICE PROVIDED HEREUNDER OR
DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY
EXCLUDED AND DISCLAIMED.
19. WARRANTY.
In the event any maintenance or repairs to the DTI Fibers or DTI
Building Spaces are required during the term of this Agreement, as a result of a
breach of any warranty made by any manufacturer, contractor or vendor which
supplied materials used in the construction or installation of the DTI Fibers or
DTI Building Spaces, IXC shall pursue any remedies it may have against such
manufacturer, contractor or vendor.
20. LIMITATION OF LIABILITY.
Notwithstanding any provision of this Agreement to the contrary, in no
event shall any Party to this Agreement be liable to any other Party for any
special, incidental, indirect, punitive, reliance or consequential damages,
whether foreseeable or not, arising out of, or in connection with, transmission
interruptions or problems, including but not limited to, damage or loss of
property or equipment, loss of profits or revenue, cost of capital, cost of
replacement services, or claims of customers, whether occasioned by any repair
or maintenance performed by, or failed to be performed by, any Party to this
Agreement, or any other cause whatsoever, including, without limitation, breach
of contract, breach of warranty, negligence, or strict liability. No claims for
damages with respect to this Agreement may be made more than five (5) years
after the date that the event giving rise to such claim is known or reasonably
should have been known to the person or entity making such claim; and no claim
for indemnity under the provisions of the section entitled "Indemnification"
hereof may be made more than five (5) years after the first notice of any claim
received by the Party claiming under such indemnity provision.
21. NOTICE
21.1 Unless otherwise provided herein, all notices and communications
concerning this Agreement shall be addressed to the other Party as follows:
If to DTI: Digital Teleport, Inc.
11111 Dorsett Road
St. Louis, Missouri 63043
Attn: President
with a copy to: Digital Teleport, Inc.
11111 Dorsett Road
St. Louis, Missouri 63043
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Attn: Vice President-Corporate Legal
If to IXC: IXC Communications Services, Inc.
Attn: Executive V.P. Eng. & Operations
1122 Capital of Texas Highway South
Austin, TX 78746
with a copy to: IXC Communications Services, Inc.
Attn: General Counsel
1122 Capital of Texas Highway South
Austin, TX 78746
or at such other address as may be designated in writing to the other Party.
21.2 Unless otherwise provided herein, notices shall be sent by
registered or certified U.S. Mail, postage prepaid, or by commercial overnight
delivery service, and shall be deemed served or delivered to the addressee or
its office on the date of receipt acknowledgment.
22. CONFIDENTIALITY.
The Parties understand and agree that the terms and conditions of this
Agreement, all documents referenced herein, communications between the Parties
regarding this Agreement or the service to be provided hereunder, as well as any
financial or business information of either Party are confidential
("Confidential Information"). Such Confidential Information shall not be
disclosed by either Party to any individual other than the directors, officers
and employees of such Party or agents of such Party who have been made aware of
the confidentiality restrictions herein. However, neither Party shall be
required to keep confidential any information that (i) becomes publicly
available other than through the receiving Party; (ii) is required to be
disclosed pursuant to a governmental or judicial rule, order or regulation;
(iii) the disclosing Party independently develops; (iv) becomes available from
the third Party to the disclosing Party without confidentiality restrictions; or
(v) is required by its lender and is given to such lender on a confidential
basis.
23. DEFAULT.
23.1 DTI shall not be in default under this Agreement herein unless and
until IXC shall have given DTI written notice of such default and DTI shall have
failed to cure the same within ten (10) days in the case of a Payment and within
thirty (30) days for all other events of default, after receipt of such notice;
provided, however, that where such default, other than Payment, cannot
reasonably be cured within such thirty (30) day period, if DTI shall proceed
promptly to cure the same and prosecute such curing with due diligence, the time
for curing such default (except for payment defaults and Insolvency Defaults, as
defined below) shall be extended for such period of time as may be necessary to
complete such curing. Events of default shall include, but not be limited to,
the making by DTI of a general assignment for the benefit of its creditors, the
filing of a voluntary petition in bankruptcy or the filing of a petition in
bankruptcy or other insolvency protection against DTI which is not dismissed
within ninety (90) days thereafter, or the filing by DTI of any petition or
answer seeking, consenting to, or acquiescing in
17
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 19
reorganization, arrangement, adjustment, composition, liquidation, dissolution,
or similar relief (collectively, an "Insolvency Default"). Any event of default
by DTI may be waived under the terms of this Agreement at IXC's option. Upon the
failure by DTI to timely cure any such default after notice thereof from IXC,
IXC may (i) take such action as it determines, in its sole discretion, to be
necessary to correct the default, (ii) terminate this agreement, and (iii)
pursue any legal remedies it may have under applicable law or principles of
equity relating to such breach. Notwithstanding the above, if DTI certifies to
IXC in writing that a default has been cured, such default shall be deemed to be
cured unless IXC otherwise notifies DTI in writing within fifteen (15) days of
receipt of such notice from IXC.
23.2 IXC shall not be in default under this Agreement herein unless and
until DTI shall have given IXC written notice of such default and IXC shall have
failed to cure the same within thirty (30) days after receipt of such notice;
provided, however, that where such default cannot reasonably be cured within
such thirty (30) day period, if IXC shall proceed promptly to cure the same and
prosecute such curing with due diligence, the time for curing such default
(except for payment defaults and Insolvency Defaults, as defined below) shall be
extended for such period of time as may be necessary to complete such curing.
Events of default shall include, but not be limited to, the making by IXC of a
general assignment for the benefit of its creditors, the filing of a voluntary
petition in bankruptcy or the filing of a petition in bankruptcy or other
insolvency protection against IXC which is not dismissed within ninety (90) days
thereafter, or the filing by IXC of any petition or answer seeking, consenting
to, or acquiescing in reorganization, arrangement, adjustment, composition,
liquidation, dissolution or similar relief (collectively, an "Insolvency
Default"). Any event of default by IXC may be waived under the terms of this
Agreement at DTI's option. Upon the failure by IXC to timely cure any such
default after notice thereof from DTI, DTI may (i) take such action as it
determines, in its sole discretion, to be necessary to correct the default, (ii)
terminate this Agreement, and (iii) pursue any legal remedies it may have under
applicable law or principles of equity relating to such breach. Notwithstanding
the above, if IXC certifies to DTI in writing that a default has been cured,
such default shall be deemed to be cured unless DTI otherwise notifies IXC in
writing within fifteen (15) days of receipt of such notice from IXC.
24. TERMINATION.
Upon the expiration of the Term of this Agreement or termination, DTI's
IRU shall immediately terminate and all rights of DTI to use the DTI Fibers and
DTI Building Spaces, or any part thereof, shall cease and IXC shall owe DTI no
additional duties or consideration. Under IXC's supervision, DTI shall remove
all of its electronics and equipment from any IXC facilities at DTI's sole cost.
25. SURVIVAL.
Notwithstanding the foregoing, no termination of this Agreement shall
affect the rights or obligations of either Party with respect to any payment
relating to the period prior to the date of termination or pursuant to the
section entitled "Indemnification."
26. FORCE MAJEURE.
18
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 20
Neither Party shall be in default under this Agreement with respect to
any delay in such Party's performance caused by any of the following conditions:
act of God, fire, flood, material shortage or unavailability, lack of
transportation, government codes, ordinances, laws, rules, regulations or
restrictions, war or civil disorder, or any other cause beyond the reasonable
control of such Party, provided that the Party claiming relief under this
Section shall promptly notify the other Party in writing of the occurrence of
the event relied on and the cessation or termination of said event. The Party
claiming relief under this Section shall exercise reasonable efforts to minimize
the time for any such delay.
27. ARBITRATION.
27.1 Any dispute or disagreement arising between IXC and DTI in
connection with this Agreement which is not settled to the mutual satisfaction
of IXC and DTI within thirty (30) days from the date that either Party informs
the other in writing that such dispute or disagreement exists, shall be settled
by arbitration in Austin, Texas if brought by DTI and in St. Louis, Missouri if
brought by IXC, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association in effect on the date that such notice is
given. If the Parties are unable to agree on a single arbitrator within fifteen
(15) days, each Party shall select an independent arbitrator and the two
arbitrators shall select a third arbitrator.
The Parties shall be permitted to present such evidence and witnesses
as they may choose, with or without counsel. The decision of the arbitrator(s)
shall be final and binding upon the Parties and shall include written findings
of law and fact. Any judgment pursuant to arbitration may be obtained and
enforced by either Party in a court of competent jurisdiction. Each Party shall
bear the cost of preparing and presenting its own case. The cost of the
arbitration, including the fees and expenses of the arbitrator(s), shall be
shared equally by the Parties hereto unless the award otherwise provides. During
the pendency of a Dispute, the Parties shall continue to satisfy all of their
obligations pursuant to this Agreement.
27.2 The obligation herein to arbitrate shall not be binding upon any
Party with respect to requests for preliminary injunctions, temporary
restraining orders or other procedures in a court of competent jurisdiction to
obtain interim relief when deemed necessary by such court to preserve the status
quo or prevent irreparable injury pending resolution by arbitration of the
actual dispute.
28. WAIVER.
The failure of either Party hereto to enforce any of the provisions of
this Agreement, or the waiver thereof in any instance, shall not be construed as
a general waiver or relinquishment on its part of any such provision, but the
same shall nevertheless be and remain in full force and effect.
29. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of Texas without reference to its choice of law
principles.
19
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 21
30. RULES OF CONSTRUCTION.
30.1 The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement or as
amplifying or limiting any of its content. Words in this Agreement which import
the singular connotation shall be interpreted as plural, and words which import
the plural connotation shall be interpreted as singular, as the identity of the
Parties or objects referred to may require.
30.2 Unless expressly defined herein, words having well known technical
or trade meanings shall be so construed. All listing of items shall not be taken
to be exclusive, but shall include other items, whether similar or dissimilar to
those listed, as the context reasonably requires.
30.3 Except as set forth to the contrary herein, any right or remedy of
DTI or IXC shall be cumulative and without prejudice to any other right or
remedy, whether contained herein or not.
30.4 Nothing in this Agreement is intended to provide any legal rights
to anyone not an executing Party of this Agreement.
30.5 This Agreement has been fully negotiated between and jointly
drafted by the Parties.
30.6 In the event of a conflict between the provisions of this
Agreement and those of any Exhibit, the provisions of this Agreement shall
prevail and such Exhibits shall be corrected accordingly.
30.7 All actions, activities, consents, approvals and other
undertakings of the Parties in this Agreement shall be performed in a reasonable
and timely manner. Except as specifically set forth herein, for the purpose of
this Section the normal standards of performance within the telecommunications
industry in the relevant market shall be the measure of whether a Party's
performance is reasonable and timely.
31. ASSIGNMENT.
31.1 DTI shall not assign or otherwise transfer this Agreement or its
rights or obligations hereunder or grant an IRU or lease or similar rights in
the DTI Fibers to any third Party for one (1) year from the Acceptance Date.
Except as provided below, neither Party shall assign or otherwise transfer this
Agreement or its rights or obligations hereunder to any third Party without the
prior written consent of the other Party, which will not be unreasonably
withheld or delayed. Notwithstanding the above, at any time both Parties shall
have the right, without the other Party's consent, to assign or otherwise
transfer this Agreement or any rights thereunder to any parent, subsidiary or
affiliate of itself or any corporation into which it may be merged or
consolidated or which purchases all or substantially all of its assets, or as
collateral to any lender; provided, however, that any such assignment or
transfer shall be subject to the other Party's rights under this Agreement and
any assignee or transferee shall continue to perform the assigning Party's
obligations to the other Party under the terms and conditions of this
20
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 22
Agreement.
31.2 This Agreement and each of the Parties' respective rights and
obligations under this Agreement, shall be binding upon and shall inure to the
benefit of the Parties hereto and each of their respective permitted successors
and assigns.
32. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants that:
32.1 It has the full right and authority to enter into, execute,
deliver and perform its obligations under this Agreement;
32.2 It has taken all requisite corporate action to approve the
execution, delivery and performance of this Agreement;
32.3 This Agreement constitutes a legal, valid and binding obligation
enforceable against such Party in accordance with its terms; and
32.4 Its execution of and performance under this Agreement shall not
violate any applicable existing regulations, rules, statutes or court orders of
any local, state or federal government agency, court or body.
33. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire and final agreement and
understanding between the Parties with respect to the subject matter hereof and
supersedes all prior agreements relating to the subject matter hereof, which are
of no further force or effect. The Exhibits referred to herein are integral
parts hereof and are hereby made a part of this Agreement. This Agreement may
only be modified or supplemented by an instrument in writing executed by a duly
authorized representative of each Party.
34. NO PERSONAL LIABILITY.
Each action or claim against any Party arising under or relating to
this Agreement shall be made only against such Party as a corporation, and any
liability relating thereto shall be enforceable only against the corporate
assets of such Party. No Party shall seek to pierce the corporate veil or
otherwise seek to impose any liability relating to, or arising from, this
Agreement against any shareholder, employee, officer or director of the other
Party. Each of such persons is an intended beneficiary of the mutual promises
set forth in this Section and shall be entitled to enforce the obligations of
this Section.
35. CONFLICTS OF INTEREST.
Neither Party shall use any funds received under this Agreement for
illegal or otherwise "improper" purposes. Neither Party shall pay any
commission, fees or rebates to any employee of the other Party, or favor any
employee of such other Party with gifts or entertainment of
21
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 23
significant cost or value. If either Party has reasonable cause to believe that
one of the provisions in this Article has been violated, it, or its
representative, may audit the books and records of the other Party for the sole
purpose of establishing compliance with such provisions.
36. RELATIONSHIP OF THE PARTIES.
The relationship between DTI and IXC shall not be that of partners,
agents, or joint venturers for one another, and nothing contained in this
Agreement shall be deemed to constitute a partnership or agency agreement
between them for any purposes, including but not limited to federal income tax
purposes. DTI and IXC, in performing any of their obligations hereunder, shall
be independent contractors or independent Parties and shall discharge their
contractual obligations at their own risk.
37. SEVERABILITY.
If any term, covenant or condition contained herein shall, to any
extent, be invalid or unenforceable in any respect under the laws governing this
Agreement, the remainder of this Agreement shall not be affected thereby, and
each term, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
22
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 24
38. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument.
In confirmation of their consent to the terms and conditions contained
in this Agreement and intending to be legally bound hereby, the Parties have
executed this IRU and Maintenance Agreement on the dates shown below, but
effective for all purposes as of the Effective Date.
IXC Communications Services, Inc.
By: /s/ Michael W. Vent
------------------------------------
Name: Michael W. Vent
-----------------------------
Title: Exec. V. P. Eng. & Operations
-----------------------------
Date:
-----------------------------
Digital Teleport, Inc.
By: /s/ Richard D. Weinstein
----------------------------------
Name: Richard D. Weinstein
-----------------------------
Title: President
-----------------------------
Date: 7/30/98
-----------------------------
23
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 25
EXHIBITS
Exhibit A: System Route:
Exhibit B1: Buried Cable Specifications
Exhibit B2: Fiber Specifications
Exhibit C: Fiber Cable Splicing, Testing and Acceptance Standards
Exhibit D: As-Built Drawing Specifications
Exhibit E: Operations Specifications
24
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 26
EXHIBIT A
SYSTEM ROUTE
Route map to be provided later.
1
<PAGE> 27
EXHIBIT B-1
BURIED CABLE SPECIFICATIONS
1. General
The intent of this document is to outline the specifications for
construction of a fiber optic cable system. In all cases the standards
contained in this document, or the standards of the federal, state, local
or private agency having jurisdiction, whichever is stricter, shall be
followed.
2. Material
Steel or PVC conduit shall be minimum schedule 40 wall thickness.
Any exposed steel conduit, brackets or hardware (i.e., bridge
attachments) shall be hot-dipped galvanized after fabrication.
All split steel shall be flanged.
Handholes shall have a minimum H-15 loading rating.
Manholes shall have a minimum H-20 loading rating.
Buried cable warning tape shall be a minimum of three inches (3") wide
and display "Warning-Buried Fiber Optic Cable," a company name, logo and
emergency One Call 800 number repeated every twenty-four inches (24").
Warning signs will display universal do not dig symbol, "Warning-Buried
Fiber Optic Cable," company name and logo, local and emergency One Call
800 numbers.
3. Minimum Depths
Minimum cover required in the placement conduit/cable shall be forty-two
inches (42"), except in the following instances:
The minimum cover in ditches adjacent to roads, highways, railroads
and interstates is forty-eight inches (48") below the clean out
line or existing grade, whichever is greater.
The minimum cover across streams, river washes, and other waterways
is sixty inches (60") below the clean out line or existing grade,
whichever is greater.
At locations where fiber optic cable cross other subsurface
utilities or other structures, the fiber optic cable/conduit shall
be installed to provide a minimum of
twelve inches (12") of vertical clearance from utility/obstacle.
The fiber optic cable/conduit can be placed above the
utility/obstacle, provided the minimum
1
<PAGE> 28
clearance and applicable minimum depth can be maintained; otherwise
the fiber optic cable/conduit will be installed under the existing
utility or other structure.
In rock, the cable/conduit shall be placed to provide a minimum of
eighteen inches (18") below the surface of the solid rock, or
provide a minimum of forty-two (42") of total cover, whichever
requires the least rock excavation.
Where existing pipe is used, current depth is sufficient. However,
either party will exercise commercially reasonable efforts to lower
any exposed pipe to avoid damage to the pipe, innerduct and fiber
cable due to foreseeable operations over the affected right-of-way.
4. Buried Cable Warning Tape
All cable/conduit will be installed with buried cable warning tape. The
warning tape shall be laid a minimum of twelve inches (12") above the
cable/conduit. The warning tape shall generally be placed at a depth of
twenty-four (24") below grade and directly above the cable/conduit.
5. Conduit Construction
Conduits may be placed by means of trenching, plowing, jack and bore,
mini-directional bore or directional bore. Conduits will generally be
placed on a level grade parallel to the surface, with only gradual
changes in grade elevation.
Steel conduit will be joined with threaded collars, Zap-Lok or welding.
(Welding is the preferred method.)
All paved city, county, state, federal and interstate highways, and
railroad crossings will be encased in steel conduit, where required by
permitting agency only.
All longitudinal cable run under paved streets will be placed in steel or
concrete encased PVC conduit, where required by permitting agency only.
All cable placed in metro areas will be placed in steel or concrete PVC
conduit, where required by permitting agency only.
Metro areas shall be defined as areas where either of the following
conditions exist:
1) Developed and improved areas.
2) High growth areas.
All crossings of major streams, rivers, bays and navigable waterways will
be placed in HDPE, PVC or steel conduit.
2
<PAGE> 29
At all foreign utility/underground obstacle crossings, steel conduit will
be placed and will extend at least five feet (5') beyond the outer limits
of the obstacle in both directions, where required by permitting agency
only.
All jack and bores will use steel conduit.
All directional and mini-directional bores will use HDPE or steel
conduit.
Any cable placed in swamp or wetland areas will be placed in HDPE, PVC or
steel conduit.
All conduits placed on bridges will be steel.
All conduits placed on bridges shall have an expansion joint placed at
each structural (bridge) expansion joint or at least every
one-hundred-fifty feet (150'), whichever is the shorter distance.
6. Innerduct Installation
Innerduct(s) shall be installed in all steel conduits. No cable will be
placed directly in any split/solid conduit without innerduct.
Innerduct(s) shall extend beyond the end of all conduits a minimum of
eighteen inches (18").
7. Cable Installation in Conduit
The fiber optic cable shall be installed using a power pulling winch and
hydraulic powered assist pulling wheels. The maximum pulling force to be
applied to the fiber optic cable shall be six hundred pounds (600 lbs.).
Sufficient pulling assists will be available and used to insure the
maximum pulling force is not exceeded at any point along the pull.
The cable shall be lubricated at the reel and all pulling assist
locations.
A pulling swivel breakaway rated at six hundred pounds (600 lbs.) shall
be used at all times.
Splices will only be allowed at planned junctions and reel ends. The
cable will not be cut and spliced for the contractor's convenience during
the cable pulling operation.
All splices will be contained in handhole or manhole.
A minimum of twenty meters (20m) of slack cable will be left in all
intermediate handholes and manholes.
A minimum of thirty meters (30m) of slack cable will be left in all
splice locations.
3
<PAGE> 30
A minimum of fifty meters (50m) of slack cable will be left in all
facility locations, i.e., POP sites, switch sites, regens or CEV's.
8. Manholes and Handholes
Manholes shall be placed in traveled surface streets, and shall have
locking lids.
Handholes shall be placed in all other areas, and be installed with a
minimum of eighteen (18") of soil covering lid.
9. EMS Markers
EMS Markers shall be placed directly above the lid of all buried
handholes. EMS markers fabricated into the lids of the handholes are
acceptable.
10. Cable Markers (Warning Signs)
Cable markers shall be installed at all changes in cable running line
direction, splices, pull boxes, assist pulling locations, and at both
sides of street, highway or railroad crossings. At no time shall any
markers be spaced more than five hundred feet (500') apart in metro areas
or within line of site exceeding one thousand feet (1,000') in non-metro
areas. Markers shall be positioned so that they can be seen from the
location of the cable and generally set facing perpendicular to the cable
running line.
Splices and pull boxes shall be marked on the cable market post.
11. Safety and Environmental
All work will be done in strict accordance with federal, state, and local
applicable private rules and laws regarding safety and environmental
issues, including those set forth by OSHA and EPA.
4
<PAGE> 31
EXHIBIT B-2
FIBER SPECIFICATIONS
1
<PAGE> 32
CORNING OPTICAL FIBER
PRODUCT INFORMATION
PI1044 Corning(R) SMF-28(TM)
ISSUED: 4/96 SINGLE-MODE OPTICAL FIBER
SUPERSEDES: 11/94
ISO 9001 REGISTERED
GENERAL
Corning(R) SMP-28(TM) single-mode fiber has come to be considered as the
"standard" optical fiber for telephony, cable television, submarine and private
network applications in the transmission of voice, data and/or video services.
Corning SMF-28 fiber is manufactured to the most demanding specifications in
the industry.
SMF-28 fiber is optimized or use in the 1310 nm wavelength region. The
information-carrying capacity of the fiber is at its highest in this
transmission window, and it is also where dispersion is the lowest. SMF-28
fiber also can be effectively used in the 1550 nm wavelength region.
Corning fiber is protected for long-term performance and reliability by the CPC
coating system. Corning's enhanced, dual acrylate CPC coatings provide
excellent fiber protection and are easy to work with. CPC coatings are
designed to be mechanically stripped and have an outside diameter of 245 mm.
CPC coatings are optimized for use in many single and multi-fiber cable designs
including loose tube, ribbon, slotted core and tight buffer cables.
SMF-28 fiber is manufactured using the Outside Vapor Deposition (OVD) process,
which produces a totally synthetic, ultra-pure fiber. As a result, Corning
SMF-28 fiber has consistent geometric properties, high strength and low
attenuation. Corning SMF-28 fiber can be counted on to deliver excellent
performance and high reliability, reel after reel.
FEATURES & BENEFITS
- - Versatility in 1310 nm and 1550 nm applications.
- - Outstanding geometrical properties or low splice loss and high
splice yields.
- - OVD manufacturing reliability and product consistency.
- - Optimized for use in loose tube, ribbon and other common cable
designs.
OPTICAL SPECIFICATIONS
- - Attenuation
Uncabled Fiber Attenuation Cells Point Discontinuity
Attenuation Cells (dB/km) No point discontinuity greater than
0.10 dB at either 1310 nm or
1550 nm.
Wavelength
(nm) Premium* Standard Attenuation at the Water Peak
1310 <0.35 <0.40
- -
1550 <0.25 <0.30 The attenuation at 1383 + 3 nm
- - -
shall not exceed 2.1 dB/km.
* Lower attenuation available in limited quantities.
1
<PAGE> 33
OPTICAL SPECIFICATIONS, (continued)
<TABLE>
<S> <C> <C> <C>
Attenuation vs Wavelength - The attenuation in a given wavelength range
Range Ref. lambda Max Increase does not exceed the attenuation of the reference
(nm) (nm) alpha (dB/km) wavelength (lambda) by more than the value alpha.
1285 - 1330 1310 0.05
1525 - 1575 1550 0.05
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
Attenuation With Bending
Mandrel Number Wavelength Induced - The induced attenuation due to
Diameter (mm) of Turns (nm) Attenuation (dB) fiber wrapped around a mandrel
32 1 1550 <0.50 of a specified diameter.
-
75 100 1310 <0.05
-
75 100 1550 <0.10
-
- - CABLE CUTOFF WAVELENGTH (lambda) - MODE-FIELD DIAMETER
ccf
lambda< 1260 nm 9.30 + 0.50 microns at 1310 nm
ccf -
10.50 + 1.00 microns at 1550 nm
-
- - DISPERSION
Zero Dispersion Wavelength (lambda): 1301.5 nm < lambda < 1321.5 nm
o - o -
2
Zero Dispersion Slope (So): < 0.092 ps/(nm *km)
-
Fiber Polarization Mode Dispersion Coefficient (PMD): < 0.5 psec/sq.rt.(km)
-
</TABLE>
Dispersion Calculation
4 3
Dispersion = D(lambda): = So/4 [lambda-lambdao /lambda ] ps/nm*km), for
1200 nm < lambda < 1600 nm lambda = Operating Wavelength
- -
<TABLE>
<S> <C> <C> <C>
ENVIRONMENTAL SPECIFICATIONS
Environmental Test Condition Induced Operating Temperature Range
Attenuation (dB/km) -60 degrees C to +85 degrees C
1310 nm 1550 nm
Temperature Dependence
- -60 degrees C to +85 degrees C < 0.05 < 0.05
- -
Temperature-Humidity Cycling
- -10 degrees C to +85 degrees C, < 0.05 < 0.05
up to 98% RH - -
</TABLE>
2
<PAGE> 34
Water Immersion, 23 degrees C < 0.05 < 0.05
- -
Heat Aging, 85 degrees C < 0.05 < 0.05
- -
DIMENSIONAL SPECIFICATIONS
STANDARD LENGTH (km/reel): 2.2 - 25.2*
*Longer lengths available at a premium.
GLASS GEOMETRY COATING GEOMETRY
Fiber Curl: > 2.0 m radius of curvature Coating Diameter: 245 + 10
- microns -
Cladding Diameter: 125.0 + 1.0 microns Coating-Cladding Concentricity:
<12 microns -
Core-Clad Concentricity: < 0.8 microns
-
Cladding Non-Circularity: < 1.0%
-
Defined as: [1 - Min. Cladding Diameter/Max. Cladding Diameter] x 100
MECHANICAL SPECIFICATIONS
PROOF TEST:
The entire length of fiber is subjected to a tensile proof stress > 100 kpsi
2 -
(0.7 GN/m )*.
*Higher proof test levels available at a premium.
PERFORMANCE CHARACTERIZATIONS
Characterized parameters are typical values.
CORE DIAMETER: REFRACTIVE INDEX DIFFERENCE:
8.3 microns 0.36%
NUMERICAL APERTURE: EFFECTIVE GROUP INDEX OF
REFRACTION (Neff):
0.13 1.4675 at 1310 nm
1.4681 at 1550 nm
NA was measured at the one percent power angle of a one-dimensional far-field
scan at 1310 nm.
3
<PAGE> 35
FATIGUE RESISTANCE PARAMETER: (nd)
ZERO DISPERSION WAVELENGTH (lambdao): > 20
-
1312 nm
ZERO DISPERSION SLOPE (So):
2
0.090 ps/(nm x km)
Refractive Index Profile (typical fiber) Spectral Attenuation (typical fiber)
[GRAPH] [GRAPH]
Ordering Information
To order Corning(R) SMF-28(TM) optical fiber, contact your sales
representative, or call the Telecommunications Products Division Sales
Department at (607) 974-4270. Please specify the following parameters when
ordering.
Fiber Type: Corning(R) SMF-28(TM)
Coating: 245 micron O.D.
fiber Attenuation Cell: dB/km
Fiber Quantity: kms Corning fiber is made in the
USA.
Other: (Requested ship date, etc.)
[CORNING LOGO]
Corning Incorporated
Opto-Electronics Group
Corning, NY 14831 USA
Tel: 800-525-2524
Fax: 607-754-7517
4
<PAGE> 36
[AT&T NETWORK SYSTEMS LOGO]
TRUEWAVE(TM) SINGLE MODE FIBER
DESCRIPTION
TrueWave(TM) Single Mode Fiber is designed for systems operating in the 1550 nm
transmission window. The refractive index profile has been selected to provide
non-zero dispersion over the Erbium-doped fiber amplifier (EDFA) passband
region. This non-zero dispersion feature is important for system performance
in amplified Wave Division Multiplex (WDM) applications.
The fiber has a germanium-doped silica core surrounded by two synthetic silica
cladding layers having different refractive indices. A D-LUX(R) dual coating
is applied over the cladding to protect the fiber. Each fiber is proof tested
so that it will survive installation loads and associated long-term residual
stresses, even under extreme environmental conditions. The optical and
dimensional properties of all fibers are measured for compliance to
specifications.
SPECIFICATIONS
Attenuation (Customer specifies
maximum value within range): 0.22 x 0.25 dB/km at 1550 nm
Dispersion in non-zero region 1.0 < |D| < 4.0 ps/nm-km
- -
Polarization Mode Dispersion < 0.5 ps/sq.rt.(km) at 1550 nm
Coefficient -
(in AT&T cable)*
Mode Field Diameter 8.4 + 0.5 microns
-
Cladding Diameter 125 + 1.0 microns
-
Core/Cladding Concentricity
Error < 0.8 microns
-
Fiber Cutoff Wavelength (lambda ) < 1450 nm
c -
Cabled Cutoff
Wavelength (lambda ) < 1260 nm
cc -
Coating Diameter (uncolored) 245 + 10 microns
-
Proof Test Levels 100 kpsi minimum (or as specified)
*Check with your cable manufacturer or specific PMD limits in cable form.
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<PAGE> 37
USE/APPLICATION
- - Fiber optic systems operating in the 1550 nm window requiring low
attenuation and chromatic dispersion.
- - Optimal design for systems transmitting over long distances using
WDM with optical amplifiers.
FEATURES
- - Low intrinsic loss and chromatic dispersion for transmission
capability in the 1550 nm window.
- - Non-zero dispersion in the EDFA passband to permit WDM operation in
long, amplified spans.
- - Excellent geometrical properties for low splice loss.
- - D-LUX(R) coating for excellent environmental performance and long
term reliability.
- - Excellent polarization mode dispersion (PMD) performance.
PRODUCT DESCRIPTION
TrueWave(TM) optical fiber is specially designed for use in WDM applications
using amplification. Although dispersion-shifted fibers are commonly used for
amplified systems, their ability to support transmission at closely-spaced
wavelengths between 1530 and 1560 nm is limited by nonlinear fiber effects such
as four-wave mixing. This phenomenon occurs when two or more wavelengths mix
with one another to produce new wavelengths which may interfere with signal
wavelengths. The non-zero dispersion characteristic of TrueWave(TM) fiber
discourages phasematching between the various signal wavelengths, reducing the
efficiency of the mixing. The dispersion value is still small enough to allow
single-channel data rates up to 10 Gb/s without dispersion compensation.
TrueWave(TM) fiber uses a triangular refractive index profile in the
core to achieve low attenuation and dispersion in the 1550 nm region. The
fiber has a nominal mode field diameter of 8.4 microns and cladding diameter of
125 microns. The excellent geometrical characteristics of the fiber permit
low loss splicing where required. The fiber has a standard proof test level of
100 kpsi with higher levels available on request.
TrueWave(TM) fiber features the D-LUX(R) dual coating system which provides
unparalleled performance in a wide range of environmental conditions. The
coatings are mechanically strippable and have a nominal outside diameter of 245
microns.
TrueWave(TM) fibers are suitable for use in a variety of cable designs,
including central tube, loose tube, slotted core and ribbon cable designs.
Applications include amplified and unamplified single channel systems at 1550
microns and amplified dense WDM systems at 1550 microns.
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<PAGE> 38
GEOMETRICAL CHARACTERISTICS
Glass Geometry:
Cladding Diameter: 125 + 1.0 microns
-
Core/Clad Concentricity Error. < 0.8 microns
-
Cladding Noncircularity: < 1%
-
Coating Geometry:
coating Diameter (uncolored): 245 + 10 microns
-
Coating/Cladding Concentricity Error: < 12 microns
-
Length:
Standard spool lengths are: 4.4, 6.4, 12.6, 19.2 and 25 km
Lengths cut to specific customer request are also available.
OTHER PERFORMANCE CHARACTERIZATIONS
(Values stated are typical values)
The nominal attenuation at 1310 nm is: < 0.5 dB/km
-
Index of refraction difference between
core and cladding: 0.75%
Typical Core Diameter. 6.0 microns
Effective Group Index of Refraction:
1310 nm 1.4738
1550 nm 1.4732
Rayleigh Backscattering Coefficient: for 1 microsecond pulse width)
1310 nm -46.2 dB
1550 nm -49.8 dB
Dynamic Fatigue Parameter (na) >20
Static Fatigue Parameter (nd) >20
Weight Per Unit Length: 64 grams/km
3
<PAGE> 39
MECHANICAL CHARACTERISTICS
Proof Test: 100 kpsi (0.7 GPa)
Higher proof test levels are available upon request.
Coating (Performance Characterization):
Coating Strip Force:
The force to mechanically strip the dual coating is > 1.3 (0.3 lbf.) and <
8.9 N (2.0 lbf.). -
Coating Appearance:
The dual coating layers are free of voids or entrapped bubbles.
Pullout Force (Adhesion of Coating to Glass Surface):
The pullout force is > 6.2 N (1.4 lbf.) and < 22.2 N (4.9 lbf.).
Fiber Curl:
The fiber curl is > 2m.
-
MECHANICAL CHARACTERISTICS (CONTINUED)
Fiber Shipping Spool Mechanical Specifications:
A B
Flange Diameter. 9.25 in. (23.50 cm.) 9.25 in. (23.50 cm.)
Barrel Diameter. 6.00 in. (15.24 cm.) 6.00 in. (15.24 cm.)
Traverse Width: 3.39 in. (8.61 cm.) 4.70 in. (11.94 cm.)
Weight: 1.22 lbs. (0.46 kg.) 1.36 lbs. (0.51 kg.)
Note: Spool A is used for shipped lengths of fiber < 15 km
Spool B is used for shipped lengths of fiber > 15 km
-
ENVIRONMENTAL CHARACTERISTICS
Operating Temperature Range: -60 degrees C to
+85 degrees C
Temperature Dependence of Attenuation:
Induced Attenuation, -60 degrees C to +85 degrees C
at 1550 nm: <0.05 dB/km
-
4
<PAGE> 40
Temperature - Humidity Cycling:
Induced Attenuation, -10 degrees C to +85 degrees
C and 95% relative humidity at 1550 nm: < 0.05 dB/km
-
Water Immersion, 23 degrees C:
Induced Attenuation due to Water Immersion at
23 + 2 degrees C at 1550 nm: < 0.05 dB/km
- -
AT&T TRUEWAVE(TM) FIBER
[GRAPH]
ENVIRONMENTAL CHARACTERISTICS (CONTINUED)
Accelerated Aging (Temperature), 85 degrees C:
Induced Attenuation due to Temperature Aging at
85 + 2 degrees C at 1550 nm: < 0.05 db/km
- -
Retention of Coating Color:
D-LUX(R) coated fiber shows no discernable change in color when aged.
- for 30 days at 95 degrees C and 95% relative humidity.
- for 20 days in dry heat, 125 degrees C.
AT&T TrueWave(TM) Fiber Nominal Refractive Index Profile
[GRAPH]
Spectral Attenuation Curve of a Typical Fiber
[GRAPH]
TRUEWAVE(TM) SINGLE MODE FIBER
TEST METHODS
The following industry-accepted test methods are used to characterize fibers
described herein.
Fiber Parameter EIA/TIA Test Method IEC Test Method
Attenuation EIA/TIA-455-78 IEC 793-1-C1A,
IEC 793-1-C1C
Point Discontinuity EIA/TIA-455-59 IEC 793-1-C1C
5
<PAGE> 41
Macrobending Attenuation EIA/TIA-455-62 IEC 793-1-C11
Fiber Cutoff Wavelength EIA/TIA-455-80 IEC 793-1-C7A
Cable Cutoff Wavelength EIA/TIA-455-170 IEC 793-1-C7B
Chromatic Dispersion EIA/TIA-455-175 IEC 793-1-C5C
Mode Field Diameter EIA/TIA-455-164 or IEC 793-1-C9A or
EIA/TIA-455-167 IEC 793-1-C9B
Cladding Diameter EIA/TIA-455-176 IEC 793-1-A2
Cladding Non-circularity EIA/TIA-455-176 IEC 793-1-A2
Core/Cladding
Concentricity Error EIA/TIA-455-176 IEC 793-1-A2
Coating Geometry EIA/TIA-455-173 IEC 793-1-A2
Coating Strip Force EIA/TIA-455-178 see note 1
Proof Test EIA/TIA-455-31 IEC 793-1-B1
Fiber Curl EIA/TIA-455-111 see note 1
Length EIA/TIA-455-60 IEC 793-1-C1C
Operating Temperature Range EIA/TIA-455-69 see note 1
Temperature Cycling EIA/TIA-455-3 IEC 793-1-D1
Temperature/Humidity Cycling EIA/TIA-455-72 & -73 see note 1
Fluid Immersion EIA/TIA-455-74 & -75 see note 1
High Temperature Aging EIA/TIA-455-67 & -70 see note 1
Dynamic Fatigue EIA/TIA-455-76 see note 1
Static Fatigue EIA/TIA-455-97 see note 1
Note 1: There is currently no equivalent IEC test procedure for this
parameter.
6
<PAGE> 42
ORDERING INFORMATION
Fiber Type: AT&T TrueWave(TM) Single Mode Fiber
Coating: D-LUX(R) Coating Series
Attenuation: 1550 nm maximum dB/km
Length: meters
Proof Test Level: kpsi
Number/Color of Spools: # spools
ORDERING INFORMATION
To order AT&T optical fiber, please contact your AT&T sales representative, or
the AT&T optical fiber sales representative at (404) 446-4700. For technical
questions on optical fiber, please call our AT&T Technical Information Number
1-800-344-0223, ext. 3500.
AT&T fiber is available natural (uncolored) or with distinctive color inks
applied to the fiber coating.
The following colors are available:
1. Blue 7. Red
2. Orange 8. Black
3. Green 9. Yellow
4. Brown 10. Violet
5. Slate 11. Rose
6. White 12. Aqua
Fibers are also available with 900 micron PVC buffer.
For more information, please contact your AT&T sales representative.
For Fiber Optics Products assistance, please call 1-800-344-0228, ext. 3043
D-LUX is a registered trademark of AT&T.
TrueWave is a trademark of AT&T.
The specifications stated herein apply to AT&T optical fiber in its uncabled
form. Although many of these requirements apply to cabled fiber, some
characteristics may change as a result of the cabling process.
7
<PAGE> 43
No warranty is expressed or implied by these specifications, and this document
may be superseded by other specific agreements with users of this product.
Copyright (c) 1994 AT&T
All Rights Reserved
Printed in USA
AT&T Network Systems
Marketing
4694FS-KAC-5/94
8
<PAGE> 44
[LOGO]
CORNING Corning Incorporated CORNING(R) Optical Fiber
Telecommunications Products Division
Corning, N.Y. 14831
Tel: (910) 395-7659
(910) 395-7789 PRODUCT INFORMATION
Fax: (910) 395-7286
PI1050 CORNING(R) SMF-LS(TM) CPC6 SINGLE-MODE
Issued: 4/97 NON-ZERO DISPERSION-SHIFTED OPTICAL FIBER
Supersedes: 2/95
ISO 9001 Registered
GENERAL
Corning(R) SMF-LS(TM) single-mode fiber is designed for use in both single and
multiple channel systems operating in the 1550 nm window. This product has
been developed to meet emerging 1550 nm network design requirements, including
the use of erbium-doped fiber amplifiers (EDFAs) and multiple-channel "Dense
WDM" technology. The fiber is optimized to handle multiple high-bit-rate
wavelength channels in the 1550 nm window over long system lengths. Other uses
include medium to long-distance, single and multi-channel 1550 nm systems for
interoffice and long-distance applications.
SMF-LS fiber is optimized for use in the 1550 nm wavelength region. With low
dispersion in this operating window, fiber information-carrying capacity is at
its highest. The patented segmented core design has achieved low dispersion,
attenuation, and bend loss at the 1550 nm operating wavelength. In addition,
non-linear effects such as four-wave mixing, which might otherwise limit
multiple channel operation at 1550 nm, are suppressed by ensuring non-zero
dispersion across the 1530-1560 nm operating band.
Corning fiber is protected for long-term performance and reliability by CPC6
coating. Corning's enhanced dual acrylate CPC6 coating provides excellent
fiber protection and is easy to work with. CPC6 can be mechanically stripped
and has an outside diameter of 245 microns. CPC6 is optimized for use in many
single and multi-fiber cable designs.
SMF-LS fiber is manufactured using the Outside Vapor Depositing (OVD) process,
which produces a totally synthetic, ultra-pure fiber. As a result, Corning
SMF-LS fiber has consistent geometric properties, high strength and low
attenuation. Corning SMF-LS fiber can be counted on to deliver excellent
performance and high reliability, reel after reel.
1
<PAGE> 45
FEATURES & BENEFITS
- - Designed for use in multi-channel high-bit-rate applications.
- - Patented segmented core design provides low dispersion,
attenuation, and bend loss at 1550 nm.
- - Outstanding geometrical properties for low splice loss and high
splice yields.
- - OVD manufacturing reliability and product consistency.
OPTICAL SPECIFICATIONS
- - ATTENUATION
Attenuation Cell: Point Discontinuity:
< 0.25 dB/km at 1550 nm No point discontinuity greater than 0.10 dB at
- - 1550 nm
< 0.50 dB/km at 1310 nm
- -
Attenuation at the Water Peak:
The attenuation at 1383 + 3 nm shall not exceed 2.0
dB/km. -
Attenuation vs Wavelength
Range Ref. lambda Max Increase - The attenuation in a given
(nm) (nm) alpha (dB/km) wavelength range does not
exceed the attenuation
of the reference
wavelength (lambda) by more
than the value alpha
1525-1575 1550 0.05
OPTICAL SPECIFICATIONS, (CONTINUED)
Attenuation With Bending
Mandrel Number Wavelength Induced - The induced attenuation
Diameter (mm) of Turns (nm) Attenuation (dB) due to fiber wrapped
around a mandrel of a
specified diameter.
32 1 1550 < 0.50
-
75 100 1550 < 0.05
-
- - CABLE CUTOFF WAVELENGTH (lambda) -MODE-FIELD DIAMETER
ccf
lambda < 1260 nm 8.40 + 0.50 microns at 1550 nm
ccf - -
2
<PAGE> 46
- - DISPERSION*
Total Dispersion: -3.5 to -0.1 psec/(nm x km) over the range 1530 to
2560 nm
Fiber Polarization Mode Dispersion Coefficient (PMD): L. 0.5 psec/
sq.rt.(km)
*Check with Corning regarding availability of alternative chromatic dispersion
specifications.
Dispersion Calculation
Dispersion = D (lambda) = (D(1560 nm) - D(1530 nm)/30 = (lambda -1560)) +
D(1560 nm) lambda = Operating Wavelength
ENVIRONMENTAL SPECIFICATIONS
Induced Operating Temperature Range
Environmental Test Condition Attenuation (dB/km) -60 C to +85 C
1550 nm
Temperature Dependence <0.05
- -60 degrees C to +85 degrees C -
Temperature-Humidity Cycling <0.05
- -10 degrees C to +85 degrees -
C and 4% to 98% RH
Water Immersion, 23 degrees C <0.05
-
Heat Aging, 85 degrees C <0.05
-
- - Reference temperature = +23 C
DIMENSIONAL SPECIFICATIONS
STANDARD LENGTH (km/reel): 4.4 - 25.2*
*Longer spliced lengths available at a premium.
GLASS GEOMETRY COATING GEOMETRY
Fiber Curl: > 2.0 m radius of curvature Coating Diameter: 245 + 10
- microns -
Cladding Diameter: 125.0 + 1.0 micron Coating-Cladding Concentricity:
- <12 microns
Core-Clad Concentricity: < 1.0 micron
-
3
<PAGE> 47
Cladding Non-Circularity: < 1.0%
Defined as: [1 - Min. Cladding Diameter/Max. Cladding Diameter] x 100
MECHANICAL SPECIFICATIONS
PROOF TEST:
The entire length of fiber is subjected to a tensile proof stress > 100 kpsi
2 -
(0.7 GN/m )*.
*Higher proof test available at a premium.
PERFORMANCE CHARACTERIZATIONS
Characterized parameters are typical values.
NUMERICAL APERTURE: EFFECTIVE GROUP INDEX OF REFRACTION (Neff):
0.16 1.471 at 1310 nm
1.470 at 1550 nm
NA was measured at the one percent power angle
of a one-dimensional far-field scan at 1550 nm.
FATIGUE RESISTANCE PARAMETER (Nd):
MODE FIELD DIAMETER AT 1310 NM: >20
-
6.6 microns
NON-ZERO DISPERSION REGION: COATING STRIP FORCE:
Dry 0.7 lbs. (3.2 N)
> 1530 nm Wet, 14 days room temperature: 0.7 lbs. (3.2 N)
-
< 1560 nm
-
TYPICAL DISPERSION:
-2.9 at 1530 nm
-0.7 at 1560 nm
PERFORMANCE CHARACTERIZATIONS, (CONTINUED)
Refractive Index Profile (typical fiber) Spectral Attenuation (typical fiber)
[GRAPH] [GRAPH]
Ordering Information
<PAGE> 48
To order Corning(R) SMF-LS(TM) CPC6 optical fiber, contact your sales
representative, or call the Telecommunications Products Division Customer
Service Department at (910) 395-7659. Please specify the following parameters
when ordering.
Fiber Type: Corning(R) SMF-LS(TM) non-zero dispersion-shifted single-mode fiber
Coating: CPC6 (245 micron outside diameter)
Fiber Attenuation Cell: dB/km
Fiber Quantity: kms
Other: (Requested ship date, etc.)
CORNING
Corning Incorporated Corning Fiber is
Telecommunications Products Division Made in the USA.
Corning, NY 14831 USA
Tel: (800) 525-2524
Fax: (607) FAX-CORNING
5
<PAGE> 49
TRUEWAVE(TM) SINGLE MODE FIBER
TRANSMISSION CHARACTERISTICS
Attenuation:
The maximum attenuation (loss) in dB/km may be specified within the range
indicated in the table below:
Wavelength (nm) Maximum Attenuation (dB/km)
1550 0.22 - 0.25
Attenuation vs. Wavelength:
The maximum attenuation in the wavelength region from 1525 nm to 1575 nm is no
more than 0.05 dB/km greater than the attenuation at 1550 nm.
Attenuation at Water Peak:
The attenuation at the OH-absorption peak (1383 + 3 nm) is less than or equal
to 2.0 dB/km. -
Macrobending Attenuation:
The maximum attenuation with bending does not exceed the specified values with
the following deployment conditions:
Deployment Condition Wavelength Induced Attenuation
1 turn, 32 mm (1.2 inch) diameter 1550 nm < 0.5 dB
-
100 turns, 75 mm (3 inch) diameter 1550 nm < 0.05 dB
-
Point Discontinuities:
There are no attenuation discontinuities greater than 0.1 dB at 1550 nm.
Chromatic dispersion:
Non-zero dispersion region 1540 to 1565 nm
Dispersion (D) at any wavelength in the range 1540 to 1565 nm satisfies the
following relation:
1.0< =|D| < 4.0 ps/nm-km
- -
2
The maximum dispersion slope (S(o)) at lambda: 0.095 ps/nm -km
o
Mode Field Diameter:
at 1550 nm: 8.4 + 0.6 microns
-
<PAGE> 50
Cutoff Wavelength:
Fiber Cutoff Wavelength (lambda): < 1450 nm
cf -
Cable Cutoff Wavelength (lambda): < 1260 nm
cc -
2
<PAGE> 51
EXHIBIT C
FIBER CABLE SPLICING, TESTING AND ACCEPTANCE STANDARDS
1. IXC (the "Constructing Party"), will perform all tests, provide
documentation, and meet the standards identified in this exhibit.
Analysis of final bi-directional OTDR data will be the tool used to make
final acceptance of the fibers.
2. ACCEPTANCE STANDARDS
A. PIGTAIL TRACES
When pigtails are attached to the end of the cable, the pigtail
test will be performed for that site. A 1-km launch reel that
matches the backbone cable will be attached between the OTDR and
the pigtail. The loss of the pigtail splice and connector will be
measured and recorded at 1550 nm. The Constructing Party will
provide the other party with a copy of the OTDR traces of all
pigtail splices stored on diskette.
The loss value of the pigtail connector and its associated splice
with matching mode field diameters will not exceed .5dB at 1550 nm.
The loss value of the pigtail connector and its associated splice
with mismatched mode field diameters should not exceed .8 dB.
B. BI-DIRECTIONAL TRACES
Bi-directional OTDR traces will be taken without a launch reel.
OTDR traces should be taken in both directions at 1550 nm. Loss
measurements for each splice point should be measured and recorded
in both directions. These loss values should then be averaged.
The traces for all fibers should be recorded on diskette and
provided to the other party.
NOTE: These measurements MUST BE MADE AFTER THE SPLICE
HANDHOLE OR MANHOLE IS CLOSED in order to check for
macro-bending problems.
1. FIELD SPLICES
The objective for each splice is an averaged loss value of
0.15 dB or less when measured bi-directionally with an OTDR
at 1550 nm. If after 3 attempts, the Constructing Party is
not able to produce a loss value of 0.15 dB or less
bi-directionally at 1550 nm, then 0.3 dB or less
bi-directionally at 1550 nm will be acceptable. Fibers not
meeting the .15dB or less specification will be identified as
Out Of Specification (OOS). Documentation of the three
attempts (reburns) to bring the OOS fiber within
specification will be provided.
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<PAGE> 52
C. LIGHT SOURCE AND POWER METER TEST
A bi-directional End to End test will be performed on each fiber in
a span at 1550 nm with a Light Source and Power Meter. The purpose
of this test is to determine actual span loss and to prove there is
a one-to-one correspondence of all fibers. It is the Constructing
Party's responsibility to insure proper continuity of all fibers at
the fiber level, not just the pigtail level. Any "frogs" or fibers
that cross in the route will be remedied by the Constructing Party.
The following span loss calculation will be used:
(A * L) + (0.1 * N) + C = Acceptable Span Loss
A = Attenuation per KM at 1550 nm
L = Optical length of cable measured in kilometers (from OTDR
Trace)
N = Number of splices in a span
C = Connector loss. The connector loss will not
exceed .5dB. The section test will have (2) pigtail
connectors/splices under test, so 1.0dB will be allowed for
this loss.
NOTE: IXC CABLE ACCEPTANCE CAN PROVIDE AN EXCEL SPREADSHEET
FORMATTED ON DISK FOR ENTRY OF DATA
3. NAMING OF TRACES
OTDR traces taken for bi-directional testing, and the OTDR traces of the
pigtail splice must be recorded on floppy diskette and provided to the
other party. To name the traces, each party will provide alpha
abbreviations for the sites. The 8-character file name plus 3-character
file extension name should follow this example:
First four letters = source point
Letters 5, 6, 7 = Destination point
8th letter = wavelength
Extension = fiber number
Examples:
Springfield to Lebanon at 1550 nm, fiber 96 = sgfdlbn5.096
Springfield to Monett pigtail trace on fiber 1 = sgfdmntp.001
NOTE: ALL HEADER INFORMATION ON OTDR TRACE MUST BE COMPLETED.
2
<PAGE> 53
4. OTDR SETUP
NOTE: BEFORE THE START ANY TESTING , ALL CONNECTORS WILL BE
CLEANED WITH A CONNECTOR CLEANER.
A. The OTDRs that are acceptable for testing are the Laser
Precision TD3000 and CMA 4000. These must have a floppy disk drive
for storing the trace files. Again, it should be noted that it is
vital that during all tests (OTDR, power meter, etc.), that all
connectors are clean. This can dramatically affect test results.
The following settings should be used.
Index of Refraction
Fiber type 15500 nm
AT&T Tru Wavae 1.4700
AT&T Depress Clading 1.4670
Corning SMF-28 1.4684
Sumitomo 1.4670
Corning SFM-LS 1.4700
LEAF 1.4690
OTDR PARAMETERS TD3000 TD4000
1550 nm 1550 nm
Pigtail 8 km range 4 km Range
50 ns pulse 50 ns pulse
1 m resolution .5 resolution
10 Seconds 30 Seconds
NOTE: INSURE NOTE: INSURE
VERTICAL AND VERTICAL AND
HORIZONTAL HORIZONTAL
OFFSETS ARE OFFSETS ARE
SET AT 0 SET AT 0
Bi-directional 1550 nm 1550 nm
64 km range 64 km range
500 ns pulse 1001 ns pulse
4 m resolution 4 m resolution
Medium averaging Time: 1.5 min.
NOTE: FOR NOTE: FOR
SPANS LONGER SPANS LONGER
THAN 64 KM, THAN 64 KM, SET
SET AT 128 KM AT 128 KM
SETTING SETTING
3
<PAGE> 54
2000 ns 2500 ns
4 m resolution 4 m resolution
Time: 1.5 min Time: 1.5 min
5. NAMING OF TRACES
OTDR traces taken for bi-directional testing, and the OTDR traces of the
pigtail splice must be recorded on floppy diskette and provided to the
other party. To name the traces, each party will provide alpha
abbreviations for the sites. The 8-character file name plus 3-character
file extension name should follow this example:
First four letters = source point
Letters 5, 6, 7 = Destination point
8th letter = wavelength
Extension = fiber number
Examples:
Springfield to Lebanon at 1550 nm, fiber 96 = sgfdlbn5.096
Springfield to Monett pigtail trace on fiber 1 = sgfdmntp.001
NOTE: ALL HEADER INFORMATION ON OTDR TRACE MUST BE COMPLETED.
6. TEST PACKAGES
The Constructing Party shall provide a package containing the following
test data for each fiber. All data provided should be saved on diskette.
A. OTDR span traces taken at 1550 nm.
B. Pigtail traces taken for each fiber.
C. An Excel spreadsheet containing the power meter and light
source data for both directions at 1550 nm. Should also include the
average for each fiber.
D. A document identifying splice points with OOS test results.
Should also include documentation supporting the three reburn
attempts.
4
<PAGE> 55
EXHIBIT D
AS-BUILT DRAWING SPECIFICATIONS
As-Built Alignment Sheets
- Survey information (either form existing data or new
information) will be put on drawings.
- Drawings will contain cable information, splice information,
assist 1"=200'
- Cable information shall include manufacturer and type of
fiber and manufacturer and style of cable.
1
<PAGE> 56
EXHIBIT E
OPERATIONS SPECIFICATIONS
These operations specifications specify terms and conditions for the
maintenance and repair of the cable and the Fiber Facility. Defined terms used
herein and not otherwise defined shall have the meaning set forth in the IRU
and Maintenance Agreement between IXC and DTI and dated July _____, 1998.
Service Provider is defined as the party responsible for operating and
maintaining the system. Service Recipient is defined as the party receiving
benefit from the Service Provider.
1. General
a. Service Provider shall operate and maintain a Network Control
Center ("NCC") staffed twenty-four (24) hours a day, seven days a
week, by trained and qualified personnel. Service Provider shall
maintain a toll-free number to contact personnel at NCC. Service
Provider's NCC personnel shall dispatch maintenance and repair
personnel along the system to handle and repair problems detected
through the NCC's remote surveillance equipment, by the Service
Recipient, or otherwise.
b. Service Provider's maintenance employees shall be available
for dispatch twenty-four (24) hours a day, seven (7) days a week.
Service Provider shall use reasonable efforts to have its first
maintenance employee at the site requiring an emergency maintenance
activity within two (2) hours from the time alarm of identification
by Service Provider's NCC or notification by the Service Recipient.
Emergency maintenance is defined as any service affecting situations
requiring an immediate response.
c. Service Recipient shall utilize the attached Operations
Escalation List, to report and seek immediate initial redress of
exceptions noted in the performance of Service Provider in meeting
maintenance service objectives.
d. In performing its services hereunder, Service Provider shall
take workmanlike care to prevent impairment to the signal continuity
and performance of the system. The precautions to be taken by
Service Provider shall include notification to Service Recipient.
In addition, Service Provider shall reasonably cooperate with
Service Recipient in sharing information and analyzing the
disturbances regarding the cable and/or Fiber Facility.
e. Service Provider shall use his best effort to notify Service
Recipient seven (7) days prior to the date of any planned
non-emergency fiber activity. In the event that a Service Provider
planned activity is canceled or delayed for whatever reason as
previously notified, Service Provider shall notify Service Recipient
at Service Provider's earliest opportunity and will comply with the
provisions of the previous sentence to reschedule and delayed
activity.
1
<PAGE> 57
f. The Service Provider shall provide Service Recipient upon
request new or updated as-built drawings within one hundred eighty
(180) days of completion for any cable relocation or other
engineering changes affecting the cable.
g. Service Provider and Service Recipient will maintain an
updated list of local area qualified maintenance support contractors
equipped with the necessary equipment and personnel.
2. Facilities
a. Service Provider shall maintain the system in a manner which
will permit the normal operation of the equipment associated with
the system.
b. Service Provider shall perform appropriate Routine
Maintenance on the Cable and Equipment in accordance with Service
Provider's then current preventive maintenance procedures which
shall not substantially deviate from industry practice and shall be
responsible for correcting dysfunction. Service Provider shall
notify SR in advance of Routine Maintenance procedure.
c. At a minimum, Service Providers NCC shall monitor the same
Housekeeping alarms attached to this exhibit as it does for the rest
of the Network. Service Recipient may monitor SP's Housekeeping
Alarms. In such cases, SR will receive reasonable support from SP
to attach such alarms. Any additional cost apart from this support
incurred by SR for alarm attachment shall be born by SP. Upon
receipt of an alarm, Service Provider shall take appropriate action
and notify Service Recipient of a major service jeopardy situation.
d. Service provider shall use reasonable efforts to provide at a
site emergency generators with sufficient capability to restore one
(1) unit of all redundant HVAC systems and a sufficient number of
rectifiers to carry the site load and recharge batteries within (49
hours after a power outage).
3. Cable Fibers
a. Subject to the provisions of paragraph 3.b., hereof, Service
Provider shall maintain the Cable in good and operable condition and
shall repair the cable in workmanlike manner pursuant to paragraph
3.d., hereof.
b. Service Provider shall patrol the route of cable on a
reasonable, routine basis and shall perform all required locates.
Service Provider shall have qualified representatives on site at any
time another company is crossing the cable or digging within (1.52)
meters of the cable.
2
<PAGE> 58
c. Service Provider maintenance employees shall be responsible
for correcting or repair Cable discontinuity or damage, including,
but not limited to, the emergency repair of the Cable. Service
provider shall use reasonable efforts to repair Cable traffic
affecting discontinuity within four (4) hours after the Service
Provider maintenance employee's arrival at the problem site.
Service Provider shall maintain sufficient capability to
teleconference with Service Recipient during an emergency repair in
order to provide continuous communication. Within twenty-four (24)
hours after completion of an emergency repair, Service provider
shall commence its planning for permanent repair, shall notify
Service Recipient of such plans, and shall implement such permanent
repair within an appropriate time thereafter. Restoration of open
fibers on fiber strands not immediately required for service, the
repair shall be scheduled for the next available PSWP.
d. Service Provider shall comply with the Splicing
Specifications as provided in Exhibit C. Service Provider shall
provide to Service Recipient any modifications to these
specifications for Service Recipient's approval, which shall not be
unreasonably withheld. The Service Recipient shall have the right
but not the obligation at its sole expense to conduct its own fiber
acceptance testing to verify that they are operating in accordance
with the test specifications.
e. The Service Recipient will not install or connect additional
fiber optic cables or equipment in transmission sites without first
notifying the Service Provider in advance. Such notification will
include, but not limited to, engineering plans, drawings, schedules,
equipment detail and layouts, power and HVAC requirements, and other
such information as may be necessary. Service Provider shall
approve, or request modifications of the plans. Additionally,
Service Provider will inform the recipient as to the availability of
resources to accommodate the request, and any additional recurring
or non-recurring charges which may be necessary.
4. Planned Service Work Period (PWSP)
Non-emergency work which is reasonably expected to produce any signal
discontinuity must be coordinated between parties. Generally, this work should
be scheduled after midnight and before 6:00 a.m., local time. Major system
work such as fiber rolls and hot cuts will be scheduled for PSWP.
5. Restoration
a. When restoring a cut cable, the parties agree to work
together to restore all traffic as quickly as possible. The Service
Provider, immediately upon arriving on the site of the cut, shall
determine the best course of action to be taken to restore the cable
and shall begin restoration efforts.
3
<PAGE> 59
b. Emergency restoration splicing has its goal to get service up
as quickly as possible. This requires the use of some type of
mechanical splice such as the "3M fiber Lock" to complete the
temporary restorations.
c. If at any time it becomes apparent that the service outage is
going to extend beyond eight (8) hours, the corresponding Vice
Presidents of each company will work together to determine a plan to
restore the cable.
d. It will be the responsibility of the Service Provider and the
Service Recipient to report to one another respectively of any known
environmental hazards which would restrict or jeopardize any
maintenance work activities in shelters or right of ways areas of
operations.
e. Service Provider's representatives that are responsible for
initial restorations of a cut cable shall carry on their vehicles
the appropriate equipment to be usable to quickly put the cable back
together using a temporary splice. Service Provider shall also
maintain an emergency restoration plan and an inventory of spare
cable at strategic locations to facilitate timely restoration.
f. Upon a system's emergency restoration event, the Service
Provider will notify the Service Recipient at (1) hour intervals
until the emergency event or restoration is completed.
4
<PAGE> 1
EXHIBIT 10.32
IRU AND MAINTENANCE AGREEMENT
(CHICAGO, ILLINOIS TO HUDSON, OHIO)
BETWEEN
IXC COMMUNICATIONS SERVICES, INC.
AND
DIGITAL TELEPORT, INC.
Effective July ___, 1998
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 2
TABLE OF CONTENTS
1. Definitions..............................................................2
------------
2. Construction and Connection of DTI Fibers................................4
------------------------------------------
3. Acceptance and Testing of DTI Fibers.....................................7
-------------------------------------
4. System Documentation.....................................................8
--------------------
5. Payment Terms............................................................8
-------------
6. Grant of IRU.............................................................9
------------
7. Connection of DTI Fibers.................................................9
------------------------
8. Consideration............................................................9
-------------
9. Term and Renewal........................................................10
----------------
10. Operation, Maintenance and Repair of the DTI Fibers..................10
---------------------------------------------------
11. Permits; Physical Plant and Required Rights..........................11
-------------------------------------------
12. Relocation...........................................................12
----------
13. Adjustments to Maintenance Payments..................................12
-----------------------------------
14. Use of the DTI Fibers and DTI Building Spaces........................12
---------------------------------------------
15. Indemnification........................................ .............13
---------------
16. Insurance............................................................14
---------
17. Taxes and Franchise, License and Permit Fees.........................15
--------------------------------------------
18. Disclaimer of Warranty...............................................16
----------------------
19. Warranty.............................................................16
--------
20. Limitation of Liability..............................................16
-----------------------
21. Notice..............................................................16
------
22. Confidentiality......................................... ............17
---------------
23. Default..............................................................17
-------
24. Termination..........................................................18
-----------
25. Survival.............................................................19
--------
26. Force Majeure........................................................19
-------------
27. Arbitration..........................................................19
-----------
28. Waiver................................................... ...........19
------
29. Governing Law........................................................20
-------------
30. Rules of Construction................................................20
---------------------
31. Assignment...........................................................20
----------
32. Representations and Warranties.......................................21
------------------------------
33. Entire Agreement; Amendment..........................................21
---------------------------
34. No Personal Liability................................................21
---------------------
35. Conflicts of Interest................................................22
---------------------
36. Relationship of the Parties..........................................22
---------------------------
37. Severability.........................................................22
------------
38. Counterparts.........................................................23
------------
i
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 3
IRU AND MAINTENANCE AGREEMENT
THIS IRU AND MAINTENANCE AGREEMENT (the "Agreement") is made as of the
___ day of July, 1998 (the "Effective Date"), by and between Digital Teleport,
Inc. ("DTI"), a Missouri corporation located at 11111 Dorsett Road, St. Louis,
Missouri 63043, and IXC Communications Services, Inc. ("IXC"), a Delaware
corporation located at 1122 Capital of Texas Highway South, Austin, Texas 78746.
Each of DTI and IXC may hereinafter be referred to individually as a "Party" and
together as the "Parties."
BACKGROUND
A. IXC is planning to construct a fiber optic telecommunications system
(the "IXC System") from Chicago, Illinois to Hudson, Ohio along the route as set
forth in Exhibit A hereto (the "System Route"), including certain fibers
intended for the use of IXC (the "IXC Fibers") and certain fibers intended for
the use of DTI (the "DTI Fibers") as set forth below.
B. IXC desires to receive from DTI, and DTI is willing to pay IXC,
payments as set forth below for the DTI Fibers (as defined herein) and DTI
Building Spaces along the System Route, all upon the terms and conditions set
forth below.
C. DTI desires to obtain from IXC an Indefeasible Right to Use (an
"IRU") the DTI Fibers and DTI Building Spaces and DTI Building Spaces along the
System Route, and DTI desires IXC to provide the maintenance and repair services
necessary to maintain such IRU, the DTI Fibers, and DTI Building Spaces.
D. IXC, by way of this IRU Agreement, desires to grant DTI an IRU in
the DTI Fibers and DTI Building Spaces. In addition, IXC desires to provide DTI
with maintenance of the DTI Fibers and DTI Building Spaces, all upon the terms
and conditions set forth below.
E. IXC, by way of a separate IRU Agreement, desires to simultaneously
grant DTI an IRU from Hudson, Ohio to Cleveland, Ohio, under the terms and
conditions set forth therein.
TERMS OF AGREEMENT
Accordingly, in consideration of the foregoing and of the mutual
promises set forth below, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
definitions set forth below:
1.1 "Acceptance Date" has the meaning set forth in Section 3.
2
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 4
1.2 "Cable" shall mean the fiber optic cable and the fibers contained
therein, and associated splicing connections, splice boxes and vaults, and
conduit, which are to be installed and constructed pursuant hereto and which are
described and specified on the Exhibits hereto.
1.3 "Connecting Point" shall mean an existing splice point or
distribution panel.
1.4 "Costs" shall mean actual and related costs including, without
limitation, the following: (1) labor costs, including wages and salaries, and
benefits and overhead allocable to such labor costs (overhead allocation
percentage shall not exceed the lesser of (x) the percentage IXC allocates to
its internal projects, or (y) one hundred and thirty percent (130%) of wages and
salaries, and (2) other direct costs and out-of-pocket expenses on a
pass-through basis (e.g., equipment, materials, supplies, contract services,
etc.).
1.5 "DTI Building Spaces" shall mean building space along the system
for (i) eight (8) 26" wide by 18" deep by 84" high telecommunications component
racks ("Racks") in all junction buildings, (ii) two (2) Racks in all optical
amplifier building locations, and (iii) four (4) Racks in all regeneration
building sites, in reasonably secure and private building spaces along the route
of the DTI Fibers (provided that the foregoing shall not restrict the
interconnections made by IXC at such points) for the placement by DTI of optical
line amplifiers, regenerators, terminal and related equipment.
1.6 "Impositions" shall mean all taxes, fees, levies, imposts, duties,
charges or withholdings of any nature (including, without limitation, property,
franchise, license and permit fees), together with any penalties, fines or
interest thereon arising out of the transactions contemplated by this Agreement
and imposed upon the IXC System by any federal, state or local government or
other public taxing authority. "Impositions" shall not include any sales, income
or gross receipts tax.
1.7 "Indefeasible Right to Use" or "IRU" shall mean (i) the exclusive,
unrestricted, and indefeasible right to use the DTI Fibers and DTI Building
Spaces for any legal purpose, and (ii) an associated, non-exclusive,
indefeasible right of use in the IXC Associated Property for the purpose of
enjoying the rights granted in (i), all as granted in the section entitled
"Grant of IRU." The granting of such IRU does not convey title or ownership of
any fibers or buildings along the System Route, nor does it include a conveyance
of any interest in real or personal property except the right to use individual
optical fibers or building spaces as set forth herein. The IRU granted to DTI
shall represent a power coupled with an interest.
1.8 "DTI Fibers" shall mean those certain twelve (12) SMF-28 fibers
along the System Route which IXC is to install for DTI hereunder.
1.9 "IXC Associated Property" shall mean the tangible and intangible
property needed for the operation of the DTI Fibers and DTI Building Spaces,
including, but not limited to, the associated System rights-of-way, easements
and conduit, subject to underlying real property and contractual limitations and
restrictions, but in any event excluding any electronic or optronic equipment.
3
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 5
1.10 "IXC Fibers" shall mean all fibers in the System which are not DTI
Fibers.
1.11 "Scheduled Delivery Date" shall mean the date scheduled for the
completion of all construction, installation, testing and hand-over of the DTI
Fibers and DTI Building Spaces.
1.12 "System" or "IXC System" shall mean the fiber optic
communication system between such pair cities identified in Exhibit A.
1.13 "System Route" shall mean the route of approximately 676 miles, as
set forth in Exhibit A.
2. CONSTRUCTION AND CONNECTION OF DTI FIBERS.
2.1 IXC shall design, engineer, install, construct and test the DTI
Fibers and DTI Building Spaces: (i) in accordance with the terms and subject to
the conditions set forth in this Agreement; (ii) in compliance with any and all
applicable building, construction and safety codes for such construction and
installation, as well as any and all other applicable governmental laws, codes,
ordinances, statutes and regulations; and (iii) in accordance with the
specifications set forth in Exhibits B-1, B-2 and C.
2.2 IXC shall perform complete detailed engineering and design
including development of system performance criteria and preparation of
construction drawings, bills of materials, materials specifications and
materials requisitions. IXC shall also complete specifications covering the
construction and testing of the DTI Fibers and DTI Building Spaces.
2.3 IXC shall perform all necessary surveying and mapping including,
without limitation:
2.3.1 Performing a complete locations survey of the IXC System,
including staking and marking of the System Route, in accordance with
standard telecommunication industry engineering practices.
2.3.2 Preparing field alignment maps showing the System Route and
property ownership, terrain description, and applicable construction materials.
2.3.3 Surveying and staking the location of sites for
regeneration stations, (except as expressly set forth herein, for purposes of
this Agreement, no distinction shall be made between regenerator sites,
regenerator station sites and line amplifier sites) and other facilities.
2.3.4 Preparing railroad, highway and water crossing permit
drawings.
2.3.5 Conducting and evaluating as-built surveys of
installations and revising records and drawings accordingly.
2.4 IXC shall perform all necessary actions regarding acquisition of
land and easements, including, without limitation:
4
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 6
2.4.1 Performing limited title searches to ascertain the
validity of title in present landowners along the System Route.
2.4.2 Acquiring necessary easements, rights-of-way and fee
interests, all of which shall be recorded in the Office of the Recorder of Deeds
of the appropriate county or in such other offices as may be appropriate,
securing permits for highway, railroad and waterway crossings as well as
securing any and all other permits necessary and requisite to the construction
of the IXC System and the installation, testing and delivery of the DTI Fibers
and DTI Building Spaces in accordance with the provisions hereof free from
interference by, or infringement of the rights of, third Parties.
2.5 At its sole cost, IXC shall procure all materials to be
incorporated in and to become a permanent part of the IXC System, excluding
electronics, optronics and other equipment to be used by DTI in connection with
the DTI Fibers and DTI Building Spaces.
2.6 IXC shall perform supervisory and inspection services, including,
without limitation:
2.6.1 Performing construction inspection prior to completion
of the DTI Fibers and DTI Building Spaces to assure that all construction shall
be in accordance with the specifications, drawings, easement provisions,
provisions of this Agreement, applicable codes, and in accordance with standard
practices prevailing in the telecommunications industry for similar
construction. DTI shall have the right, but not the obligation, to inspect all
right-of-way documents, installation, splicing and testing of the DTI Fibers.
2.6.2 Preparing and presenting to DTI bi-monthly engineering
progress reports and weekly construction progress reports.
2.7 The Scheduled Delivery Date for completion of all construction,
installation, Fiber Acceptance Testing (defined below), and hand-over to DTI of
the DTI Fibers and DTI Building Spaces shall be March 31, 1999. IXC shall use
its commercially reasonable efforts to complete all construction, installation
and testing obligations by such date.
2.8 Building Spaces.
(a) At all DTI Building Spaces, IXC shall provide building entry,
interior equipment spaces and termination connections for the DTI Fibers. IXC
shall not be required to provide to DTI any customer connections within such DTI
Building Spaces. DTI will be given interior space within the DTI Building Spaces
and 24-hour, 365-day access to each such DTI Building Space for the Term of this
Agreement.
(b) DTI may use its space in the DTI Building Spaces for the
installation, maintenance and operation of its relay racks, equipment and other
property used to connect its customers to its network, but shall not otherwise
have the right to make any alterations, additions or improvements in or to the
DTI Building Spaces. Such connection of DTI customers shall be at IXC's then
current ancillary pricing for cross-connect charges, as set forth in Attachment
1. DTI shall at all times have the right, at its own expense, to remove from any
DTI Building Space
5
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 7
all relay racks, equipment and other property originally furnished or installed
by DTI. Such relay racks, equipment and other property shall not become part of
the DTI Building Space, no matter how affixed, but shall at all times be and
remain DTI's personalty.
(c) DTI shall provide ordinary maintenance and repair of its relay
racks, equipment and other property, shall maintain its space in each DTI
Building Space in a safe, neat, clean, orderly and sanitary condition, and shall
not cause unsafe, unclean, disorderly or unsanitary conditions elsewhere in the
DTI Building Spaces. DTI shall comply with all laws, ordinances and regulations
applicable to the use of each DTI Building Space. DTI shall comply with all
rules of which it receives notice reasonably established by IXC for the safety,
care, cleanliness, preservation of good order and operation of each DTI Building
Space and shall maintain the entry and interior areas to the DTI Building Spaces
free of ice, water, pests, rubbish and other obstructions, and in a safe, neat,
clean, orderly and sanitary condition.
(d) IXC shall: (i) maintain, repair and replace, as necessary, all
structural elements of each DTI Building Space, including the exterior walls and
roof thereof; (ii) cause the electrical power utility at each DTI Building Space
to be maintained, repaired and replaced, as necessary; (iii) maintain the DTI
Building Spaces (excluding relay racks, equipment and other property furnished
or installed by DTI) in compliance with all laws, ordinances and regulations;
and (iv) maintain the entry and interior areas to the DTI Building Spaces free
of ice, water, pests, rubbish and other obstructions, and in a safe, neat,
clean, orderly and sanitary condition.
(e) IXC shall provide emergency maintenance and repair of the DTI
Fibers and the DTI Building Spaces twenty-four (24) hours a day, 365 days a
year, pursuant to the attached operations and specifications, so as to ensure
continuing conformity of the DTI Fibers with their respective specifications,
including replacement of individual fibers and any maintenance as is reasonably
necessary for normal operation of the DTI Fibers. IXC agrees to respond to any
failure, interruption or impairment in the operation of the DTI Fibers within
five (5) hours after receiving a report of any such failure, interruption or
impairment. IXC shall use its commercially reasonable efforts to perform
maintenance and repair to correct any failure, interruption or impairment in the
operation of the DTI Fibers, provided however, that in the event such failure,
interruption, or impairment is caused by a Force Majeure event, repairs will be
made as expeditiously as possible.
(f) As a consequence of DTI's planned 24-hour, 365-day operation, IXC
shall give to DTI reasonable advance notice of any planned shutdowns in a DTI
Building Space of the electrical power for maintenance and repairs, or
alterations, additions or improvements in or to a DTI Building Space. IXC shall
make every reasonable effort to minimize inconvenience to DTI by changing the
times for the performance of such work upon the reasonable request of DTI,
provided that any increase in costs incurred by IXC as a result of such
rescheduling shall be paid for by DTI.
(g) If any mechanics', laborers' or materialmen's lien is filed
against a DTI Building Space based upon the actions of the contractors or
agents of IXC, IXC shall, at its own expense, cause the same to be discharged,
by payment, bonding or otherwise, within thirty (30) days after it receives
notice of such lien. IXC shall have the right to contest in good faith and with
6
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 8
reasonable diligence the validity of such lien or claimed lien. DTI shall not
allow any mechanics', laborers' or materialmen's lien to be filed against DTI
Fiber or DTI Building Space or against IXC Fibers or IXC Building Space. In the
event that any such lien is filed, DTI shall promptly have such lien discharged
or removed.
(h) At the end of the Term, DTI shall remove all relay racks,
equipment and other property furnished or installed in a DTI Building Space,
and shall repair, or reimburse IXC for the costs of repairing any damage to a
DTI Building Space arising from such removal, and shall surrender its space in
the DTI Building Spaces in broom clean condition, but shall have no other
obligation to restore the DTI Building Spaces.
3. ACCEPTANCE AND TESTING OF DTI FIBERS.
3.1 IXC shall test the DTI Fibers in accordance with the procedures
specified in Exhibit C (Fiber Cable Splicing, Testing and Acceptance Standards)
("Fiber Acceptance Testing") to verify that the DTI Fibers are operating in
accordance with the specifications in Exhibit C. Fiber Acceptance Testing shall
progress span by span along the IXC System as cable splicing progresses, so that
test results may be reviewed in a timely manner. DTI shall have the right, but
not the obligation, to have a person or persons present to observe such Fiber
Acceptance Testing. Within fourteen (14) days of the conclusion of the Fiber
Acceptance Testing of the DTI Fibers, IXC shall provide DTI with a copy of the
test results.
3.2 Upon the receipt by DTI from IXC of the initial test results
referred to above or of the results of re-testing as set forth below, DTI shall
have the right, but not the obligation, at its sole expense, to conduct its own
Fiber Acceptance Testing of the DTI Fibers to verify that they are operating in
accordance with specifications in Exhibit C. DTI shall commence any such Fiber
Acceptance Testing of the DTI Fibers within fourteen (14) days of receiving such
results and complete such testing within fourteen (14) days thereafter. IXC
shall have the right, but not the obligation, to have a person or persons
present to observe DTI's Fiber Acceptance Testing. Within seven (7) days of the
conclusion of DTI's Fiber Acceptance Testing of the DTI Fibers, DTI shall
provide IXC with a copy of the test results.
3.3 In the event the results of the tests of the DTI Fibers show the
DTI Fibers not to be operating within the parameters of the applicable
specifications, DTI shall notify IXC that some or all portions of the DTI Fibers
are unacceptable. Thereupon, IXC shall expeditiously take such action as shall
be reasonably necessary, with respect to such portion of the DTI Fibers as do
not operate within the parameters of the applicable specifications, to bring the
operating standards of such portion of the DTI Fibers within such parameters.
After taking such actions and re-testing of the DTI Fibers, IXC shall provide
DTI with a copy of the new test results and DTI shall again have the right to
conduct its own Fiber Acceptance Testing as set forth above. The cycle described
above of testing, taking corrective action and retesting shall take place as
many times as necessary to ensure that the DTI Fibers operate within the
parameters of the applicable specifications.
3.4 DTI shall be deemed to have accepted the DTI Fibers unless it
notifies IXC within seven (7) days of receipt of IXC's Fiber Acceptance Testing
results that such results are
7
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 9
unacceptable. If the test results of DTI's Fiber Acceptance Testing are within
the parameters of the specifications in Exhibit C, DTI shall, within seven (7)
days of receipt of the test results, provide IXC with a written notice accepting
the DTI Fibers. The date of this notice or the date of deemed acceptance of the
DTI Fibers, as the case may be, shall be the "Acceptance Date."
4. SYSTEM DOCUMENTATION.
After the Acceptance Date and upon thirty (30) days' request, but in
any event, not later than one hundred eighty (180) days subsequent to the
Acceptance Date, IXC shall provide DTI with documentation ("Deliverables") which
shall consist of the following:
4.1 As-built drawings as set forth in Exhibit D (As-Built Drawing
Specifications) for the DTI Fibers and DTI Building Spaces.
4.2 Technical specifications of the Cable and associated splices.
5. PAYMENT TERMS.
5.1 IRU PAYMENT AMOUNT. DTI shall pay IXC *** Dollars ($***) (the "IRU
Payment"), per route mile, currently estimated to be approximately six hundred
and seventy six (676) miles, for the construction of the DTI Fibers. IXC
reserves the right to change the route distance and the route location (as
specified in Exhibit A) during the construction of the DTI Fibers and up until
the Acceptance Date. The "IRU Payment" shall be payable as follows: (i) twenty
percent (20%) shall be due and payable upon the date this Agreement is signed;
and (ii) eighty percent (80%) shall be due and payable upon the Acceptance
Date. IXC shall allocate one percent (1%) of the IRU Payment to administrative
costs.
5.2 MAINTENANCE PAYMENT AMOUNT. DTI shall pay IXC *** Dollars ($***)
per mile, per month (the "Maintenance Payment") as the recurring cost for
routine fiber maintenance. Such Maintenance Payment will be adjusted from time
to time as set forth below in the section entitled "Adjustments to Maintenance
Payments."
5.3 DTI BUILDING SPACES FEE. DTI shall pay to IXC *** Dollars ($***)
per rack, per month (the "Building Space Fee") for the use of the DTI Building
Spaces. No additional payment shall be required by DTI for inner duct,
handholes, manholes, bridge attachments, rock sawing and boring, engineering,
construction supervision, as-builts and similar items related to the
installation of the DTI Fibers.
5.4 ADDITIONAL COSTS. DTI shall pay a proportional amount (according
to the number of DTI fibers relative to the total fibers in the IXC System) of
any additional Costs in excess of $*** incurred due to damage to, or
deterioration of, the IXC System or the fibers therein.
5.5 LATE PAYMENTS. Notwithstanding any other provisions of this
Agreement, in the event DTI fails to make any payment owed to IXC under this
Agreement when due, such amounts shall accrue interest against the unpaid
balance from the date such payment is due until
8
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Exchange Commission. Asterisks denote omissions.
<PAGE> 10
paid, including accrued interest, at a rate equal to 18% per annum or, if
lower, the highest percentage allowed by law.
6. GRANT OF IRU.
6.1 IXC shall grant to DTI an IRU (the "DTI IRU") in the DTI Fibers
and the DTI Building Spaces for the Term defined below, subject to the terms and
conditions herein. Such IRU is granted to DTI effective upon receipt of the IRU
Payment. Such IRU does not include any rights of access to the DTI Fibers or DTI
Building Spaces or the applicable rights-of-way other than as are specifically
permitted by the terms of this Agreement (which in any case are limited by the
terms of the underlying right-of-way agreements that IXC has entered into or may
enter into relating to the System Route.)
6.2 DTI shall not violate the terms of any right-of-way agreement
relating to the System Route relating to physical presence on the applicable
right-of-way or required notification of entry and agrees to be bound by such
limitations and restrictions on IXC under any right-of-way or real property
agreement that IXC has entered or will enter relating to the System Route, or
DTI Building Spaces, or in its use of the right-of-way set forth in, or implied
by, such right-of-way agreements, provided, however, that IXC has provided to
DTI a copy of such restrictions or limitations.
7. CONNECTION OF DTI FIBERS.
7.1 Subject to the provisions herein, DTI shall be responsible for all
costs to connect its existing telecommunications system to the DTI Fibers. When
connection is made in an existing building, the connecting point will be at the
fiber optic patch panel. DTI may, at its sole option, and at any time during the
Term, connect its system with the DTI Fibers, at its sole cost, at any
Connecting Point along the System Route as to which IXC is permitted to allow
such connection under any right-of-way agreement that IXC has or may enter
relating to the System Route. Each connection requiring a Cable or a splice to
be entered will be performed by IXC at DTI's sole expense. In order to schedule
a connection of this type, DTI shall coordinate the work at least thirty (30)
days in advance of the date the connection is requested to be completed. IXC
will use its best efforts to accommodate the request. Such work will be
restricted to IXC's planned system work period weekends unless otherwise agreed
to in writing for specific projects. DTI shall also be provided reasonable
access by IXC to any Connecting Point.
7.2 No connection will be allowed that IXC reasonably determines is
likely to materially and adversely affect the System Route or any of the fibers
therein. Neither IXC nor DTI shall have any limitations on the types of
electronics or technologies employed to utilize the IXC Fibers or DTI Fibers and
DTI Building Spaces, respectively, subject to mutually agreeable safety
procedures and so long as such electronics or technologies do not interfere with
the use of the remaining fibers or present a risk of damage to the fibers in the
IXC System.
8. CONSIDERATION.
8.1 IXC shall provide to DTI the following:
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<PAGE> 11
8.1.1 The IRU in the DTI Fibers and DTI Building Spaces
commencing upon the Acceptance Date.
8.1.2 Maintenance and repair as set forth herein.
8.2 DTI shall provide to IXC the following:
8.2.1 The compensation described in the section entitled
"Payment Terms."
9. TERM AND RENEWAL.
9.1 The initial term of this Agreement shall begin on the Effective
Date hereof and end upon the termination of the IRU granted herein, unless
earlier terminated pursuant to the terms of this Agreement.
9.2 This Agreement, including the IRU granted under this Agreement,
may be renewed for three (3) renewal terms of five (5) years each (a "Renewal
Term") only upon approval by IXC. DTI may request renewal of this Agreement at
the end of the Initial Term or any Renewal Term by giving written notice to IXC
during the period between March 31 and July 1 of the calendar year preceding
the calendar year of the expiration of the Initial Term or the then effective
Renewal Term. All terms and conditions of this Agreement shall be applicable to
any Renewal Terms, with the exception of Section 5, which will be subject to
negotiation between the Parties at IXC's then prevailing rates. The Initial
Term and any Renewal Term exercised under this Agreement shall be collectively
referred to as the "Term." Any Term is subject to termination by IXC without
liability of either Party: (i) due to the termination of any right-of-way
agreements relating to the System Route, or (ii) otherwise pursuant to the
terms of this Agreement.
10. OPERATION, MAINTENANCE AND REPAIR OF THE DTI FIBERS.
10.1 After the Acceptance Date, operation of each Party's fibers shall
be in accordance with the following:
10.1.1 Each Party shall have full and complete control and
responsibility for determining any network and service configuration or designs,
or routing configurations, regrooming, rearrangement or consolidation or
channels or circuits and all related functions with regard to the use of that
Party's fiber.
10.1.2 Except as set forth in Section 7, neither Party hereto
is supplying or is obligated to supply to the other Party any optronics or
electronics or optical or electrical equipment or other facilities, including,
without limitation, fire protection and monitoring and testing equipment, nor is
either Party responsible for performing any work other than as specified in this
Agreement.
10.2 Upon completion of the IXC System and delivery of the DTI
Fibers and DTI Building Spaces and during the Term hereof, IXC shall, at no
additional charge to DTI above the Maintenance Fee, maintain and repair the DTI
Fibers and DTI Building Spaces pursuant to the
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operations specifications set forth in Exhibit E (Operations Specifications) so
as to assure continuing conformity of the DTI Fibers and DTI Building Spaces
with their respective specifications. Notwithstanding any provision in this
Agreement to the contrary, the costs of procurement, installation, splicing,
splice testing and other costs associated with the replacement or restoration of
the Cable shall be shared by the Parties pro-rata according to the total number
of fibers each user has in the same route as the Cable which is to be restored
or replaced. IXC, at DTI's sole expense and at IXC's then prevailing rates,
shall perform maintenance and repair necessitated by DTI's negligence or willful
misconduct or DTI's elective maintenance or repair requests. IXC shall not be
responsible for any maintenance or repair of any DTI equipment except as set
forth above.
10.3 IXC may subcontract for maintenance and restoration services
hereunder. Notwithstanding any other provisions of this Agreement, IXC shall
require any such subcontractor(s) to meet maintenance and repair standards for
the DTI Fibers and DTI Building Spaces which shall be at least as high as the
highest standards utilized by IXC for the maintenance and repair of other
portions of its communications systems. IXC shall be responsible for splicing of
the cables in the DTI Fibers so as to assure continuing conformity with their
respective specifications, including, without limitation, conducting continual
monitoring of the IXC System, location of faults, splicing and splice testing
associated with any restoration, and procurement of replacement cable used in
restoration. IXC shall, at no additional charge to DTI above the Maintenance
Fee, perform or cause its subcontractor(s) to perform routine inspections of the
DTI Fibers and DTI Building Spaces and routine right-of-way maintenance in
accordance with its standard maintenance procedures, including, without
limitation, any flights that may be made over the routes where the DTI Fibers
are located. The use of any such subcontractor shall not relieve IXC of its
obligations hereunder. In the event IXC determines to subcontract greater than
fifty percent (50%) of its maintenance and/or restoration work on the DTI
Fibers, it shall give DTI the opportunity to perform such work if DTI agrees to
match the best rates offered for such work by a third Party.
10.4 DTI will perform all maintenance on DTI equipment, however, in the
event DTI requests IXC to perform and IXC agrees to perform repair or
maintenance with respect to such DTI equipment, DTI shall pay for all repair and
maintenance of such equipment performed by IXC at IXC's then prevailing rates.
IXC shall, on or before March 1 of each year during the Term, provide DTI notice
of IXC's rates for repair and maintenance for such calendar year. DTI reserves
the right to perform maintenance on any of its own equipment wherever such
equipment may be located.
10.5 IXC shall respond to any interruption of service or failure of the
DTI Fibers and DTI Building Spaces to operate in accordance with this Agreement
in accordance with the procedures set forth in Exhibit E.
10.6 IXC shall perform repair and maintenance pursuant to this
Agreement in a manner which equals or exceeds that which is normal and customary
in the telecommunications industry.
11. PERMITS; PHYSICAL PLANT AND REQUIRED RIGHTS.
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<PAGE> 13
IXC shall obtain (and cause to remain effective throughout the Term of
this Agreement) all rights, licenses, authorizations, rights-of-way and other
agreements necessary for the use of poles, conduit, cable, wire or other
physical plant facilities, as well as any other such rights, licenses,
authorizations (including any necessary state, tribal or federal authorizations
such as environmental permits), rights-of-way and other agreements necessary for
the installation and use of the DTI Fibers and DTI Building Spaces hereunder.
12. RELOCATION.
If, for any reason, IXC is required to relocate any of the facilities
used or required in providing the DTI Fibers or DTI Building Spaces, IXC shall
give DTI sixty (60) days prior notice of any such relocation, if possible and
shall have the obligation to proceed with such relocation, including, but not
limited to, the right to determine the extent of, the timing of, and methods to
be used for such relocation; provided that any such relocation (i) shall be
constructed and tested in accordance with the specifications and requirements
set forth in Exhibits B1, B2 and C, and (ii) shall not result in an adverse
change to the operations, performance, connection points with the network of
DTI, or end points of the IXC System. IXC shall relocate the affected portion of
the IXC System and, so long as such relocation is not necessitated by a breach
of IXC's obligations under this Agreement, including, without limitation, under
Section 11, DTI shall reimburse IXC for its proportionate share of (i) all Costs
of fiber acquisition, splicing and testing, pro-rated based on the total number
of fibers as so relocated, and (ii) all other Costs associated with the
relocation of the Cable, pro-rated based on the total number of fibers or ducts
each user has in the affected fiber optic cable or other facilities as so
relocated. IXC shall deliver to DTI updated As-Builts with respect to any
relocated portion of the IXC System not later than one hundred eighty (180) days
following the completion of such relocation.
13. ADJUSTMENTS TO MAINTENANCE PAYMENTS.
Upon the second anniversary of this Agreement and on the fifth
anniversary thereafter, the Maintenance Fees for the following five (5) years
shall be determined by multiplying the initial Maintenance Fees set forth in
Section 5.2 by a fraction (the "Fraction"), the numerator of which shall be the
average of the monthly Consumer Price Indices for the twelve (12) months
immediately preceding the date on which the Maintenance Fees are to be adjusted
and the denominator of which shall be the average of the monthly Consumer Price
Indices for the twelve (12) months immediately preceding the date hereof.
"Consumer Price Index" shall mean the Consumer Price Index published by the
Bureau of Labor Statistics of the United States Department of Labor for Urban
Wage Earners and Clerical Workers for the smallest geographical area for All
Commodities, or any successor index thereto.
14. USE OF THE DTI FIBERS AND DTI BUILDING SPACES.
14.1 DTI warrants that its use of the DTI Fibers and DTI Building
Spaces shall comply with all applicable government codes, ordinances, laws,
rules, regulations and/or restrictions.
14.2 DTI shall have the right to abandon its IRU in the DTI Fibers
and/or DTI Building Spaces at which time DTI shall have no further rights with
respect to its IRU and the right to use the DTI Fibers and/or DTI Building
Spaces shall revert to IXC. Such abandonment
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<PAGE> 14
shall release DTI from the obligation to pay the fees set forth in this
Agreement, except any such fees accruing prior to the date of such abandonment.
14.3 DTI may use its IRU for any lawful purpose. IXC agrees and
acknowledges that it has no right to use the DTI Fibers and DTI Building Spaces
during the term hereof unless DTI abandons the DTI Fibers and DTI Building
Spaces.
14.4 DTI and IXC shall promptly notify each other of any matters
pertaining to any damage or impending damage to or loss of any fibers along the
System Route, that are known to such Party.
14.5 IXC shall respect DTI's right to its use of the DTI Fibers and DTI
Building Spaces. DTI and IXC shall each take all reasonable precautions against,
and shall assume liability, subject to the terms herein, for, any damage caused
by it to the IXC System and any fibers therein.
14.6 Neither Party shall use its fibers in any way that interferes
with or adversely affects the use of the fibers of the other Party.
14.7 DTI and IXC each agree to cooperate with and support the other in
complying with any requirements set forth by any governmental agency or
authority, including, but not limited to any such agency that enters into a
right-of-way agreement with IXC that relates to the System Route.
14.8 Except as otherwise explicitly set forth herein, IXC shall not
charge DTI any maintenance or right-of-way charges.
15. INDEMNIFICATION.
15.1 Each Party hereby releases and agrees to indemnify, defend,
protect and hold harmless (the "Indemnifying Party") the other Party, its
employees, officers, directors, agents, shareholders and affiliates, from and
against, and assumes liability for:
15.1.1 Any injury, loss or damage to any person, tangible
property or facilities of any person or entity (including reasonable attorneys'
fees and costs), to the extent any such injury, loss or damage arises out of or
results from the acts or omissions, due to the gross negligence of the
Indemnifying Party, its officers, employees, servants, affiliates, agents or
contractors in connection with its performance under this Agreement; and
15.1.2 Any claims, liabilities or damages arising out of any
violation by the Indemnifying Party of regulations, rules, statutes or court
orders of any local, state or federal governmental agency, court or body in
connection with its performance under this Agreement.
15.2 IXC hereby releases and agrees to indemnify, defend, protect and
hold harmless DTI, its employees, officers, directors, agents, shareholders and
affiliates, from and against, and assumes liability for any claim, liability or
damages arising out of a breach of IXC's obligations pursuant to Section 11,
subject to the limitations of Section 20.
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15.3 The Parties hereby expressly recognize and agree that each Party's
obligation to indemnify, defend, protect and save the other harmless is not a
prerequisite to the continuing performance of the Party's other obligations, if
any, hereunder. In the event that a Party shall fail for any reason to so
indemnify, defend, protect and save the other harmless, the injured Party hereby
expressly recognizes that its sole remedy in such event shall be the right to
bring an arbitration proceeding pursuant to the terms of this Agreement against
the other Party for its damages as a result of the other Party's said failure to
indemnify, defend, protect and save harmless. These obligations shall survive
the expiration or termination of this Agreement.
15.4 Nothing contained herein shall operate as a limitation on the
right of either Party hereto to bring an action for damages against any third
Party, including indirect, special or consequential damages, based on any acts
or omissions of such third Party as such acts or omissions may affect the
operation or use of the System Route or any fibers or buildings therein;
provided, however, that each Party hereto shall assign such rights of claims,
execute such documents and do whatever else may be reasonably necessary to
enable the other Party to pursue any such action against such third Party.
16. INSURANCE.
16.1 During the Term of this Agreement, each Party shall obtain and
maintain, and shall require any of its permitted subcontractors to obtain and
maintain, the following insurance, naming the other Party as an additional
insured:
16.1.1 Not less than $5,000,000 combined single limit
liability insurance for personal injury and property damage; and
16.1.2 Worker's Compensation Insurance in amounts required by
applicable law. Such coverage is required in all states except Washington,
Nevada, Wyoming, West Virginia, Ohio and North Dakota. If work is performed in
any of the above excepted states, the Party responsible for such work shall be
required to participate in the excepted state's fund and provide to the other
Party evidence of stop gap coverage.
16.1.3 Automobile liability insurance covering death or injury
to any person or persons, or damage to property arising from the operation of
vehicles or equipment, with limits of not less than one million dollars
($1,000,000) per occurrence;
16.1.4 "All Risk" property insurance in an amount equal to the
replacement cost of the property of such Party subject to the IRUs granted
hereunder; and
16.1.5 Any other insurance coverages required pursuant to
IXC's right-of-way agreements with railroads or other third Parties.
16.2 Maintenance of an approved self-insurance program providing for a
retention of up to $1,000,000 shall be deemed to be in compliance with the
provisions of this Section except subsection 16.1.2.
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16.3 Unless otherwise agreed, both Parties' insurance policies required
pursuant to this Section 16 shall be obtained and maintained with companies
rated A or better by Best's Key Rating Guide and the other Party shall be
expressly named as an additional insured on all of the insuring Party's
insurance policies providing the required coverage, or any portion thereof,
described in this Section, and the insuring Party shall provide the other Party
with an insurance certificate confirming compliance with this requirement for
each policy providing such required coverage. The insurance certificate shall
indicate that the additional insured Party shall be notified not less than
thirty (30) days prior to any cancellation of or material change in coverage.
16.4 In the event either Party fails to obtain the required insurance
or to obtain the required certificates from any contractor and a claim is made
or suffered, such Party shall indemnify and hold harmless the other Party from
any and all claims for which the required insurance would have provided
coverage. Further, in the event of any such failure which continues after seven
(7) days written notice thereof by the other Party, such other Party may, but
shall not be obligated to, obtain such insurance and will have the right to be
reimbursed for the cost of such insurance by the Party failing to obtain such
insurance.
16.5 In the event coverage is denied or reimbursement of a properly
presented claim is disputed by the carrier for insurance provided above, the
Party carrying such coverage shall make good faith efforts to pursue such claim
with its carrier.
16.6 DTI and IXC shall each obtain from the insurance companies
providing the coverages required by this Agreement, the permission of such
insurers to allow such Party to waive all rights of subrogation. In addition,
each insuring Party hereby waives all rights of said insurance companies to
subrogation against the other Party, its parent corporation, affiliates,
subsidiaries, assignees, officers, directors and employees or any other Party
entitled to indemnity under this Agreement.
17. TAXES AND FRANCHISE, LICENSE AND PERMIT FEES.
17.1 IXC shall be responsible for and shall timely pay all (i)
Impositions or fees which are based on the physical location of the IXC System
and/or the respective construction thereof in or on public roads, highways or
rights-of-way; and (ii) right of way payments on the System Route. Failure by
IXC to pay such taxes, Impositions or payments which continues after seven (7)
days written notice thereof by DTI, shall authorize, but not obligate, DTI to
make such payments and DTI shall then have the right to be reimbursed for such
payments by IXC. DTI shall reimburse IXC for all such Impositions and fees
pro-rata according to the total number of fibers each user has in the same route
which is subject to any such imposition of fees.
17.2 DTI shall be responsible for any and all sales, use, income or
other taxes assessed on the basis of revenues received by DTI due to its use of
the DTI Fibers and DTI Building Spaces.
17.3 Notwithstanding any provision herein to the contrary, DTI shall
have the right to protest by appropriate proceedings the Imposition and/or
amount of any taxes or franchise, license or permit fees imposed on or assessed
against DTI, including, but not limited to, any taxes or franchise, license or
permit fees assessed on the basis of revenues received by DTI due
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<PAGE> 17
to its use of the DTI Fibers and DTI Building Spaces and/or based on the
physical location of the System and/or the construction thereof. In such event,
DTI shall indemnify and hold IXC harmless from any expense, legal action or
cost, including reasonable attorneys' fees, resulting from DTI's exercise of its
rights hereunder. In the event of any refund, rebate, reduction or abatement to
DTI of such taxes or franchise, license or permit fees, DTI shall be entitled to
receive the entire benefit of such refund, rebate, reduction or abatement
attributable to DTI's use of the DTI Fibers and DTI Building Spaces.
18. DISCLAIMER OF WARRANTY.
IXC MAKES NO WARRANTY OTHER THAN AS EXPRESSLY SET FORTH HEREIN TO DTI
OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE
DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY
PARTICULAR PURPOSE OF ANY CABLE OR FIBERS OR ANY SERVICE PROVIDED HEREUNDER OR
DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY
EXCLUDED AND DISCLAIMED.
19. WARRANTY.
In the event any maintenance or repairs to the DTI Fibers or DTI
Building Spaces are required during the term of this Agreement, as a result of a
breach of any warranty made by any manufacturer, contractor or vendor which
supplied materials used in the construction or installation of the DTI Fibers or
DTI Building Spaces, IXC shall pursue any remedies it may have against such
manufacturer, contractor or vendor.
20. LIMITATION OF LIABILITY.
Notwithstanding any provision of this Agreement to the contrary, in no
event shall any Party to this Agreement be liable to any other Party for any
special, incidental, indirect, punitive, reliance or consequential damages,
whether foreseeable or not, arising out of, or in connection with, transmission
interruptions or problems, including but not limited to, damage or loss of
property or equipment, loss of profits or revenue, cost of capital, cost of
replacement services, or claims of customers, whether occasioned by any repair
or maintenance performed by, or failed to be performed by, any Party to this
Agreement, or any other cause whatsoever, including, without limitation, breach
of contract, breach of warranty, negligence, or strict liability. No claims for
damages with respect to this Agreement may be made more than five (5) years
after the date that the event giving rise to such claim is known or reasonably
should have been known to the person or entity making such claim; and no claim
for indemnity under the provisions of the section entitled "Indemnification"
hereof may be made more than five (5) years after the first notice of any claim
received by the Party claiming under such indemnity provision.
21. NOTICE
21.1 Unless otherwise provided herein, all notices and communications
concerning this Agreement shall be addressed to the other Party as follows:
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If to DTI: Digital Teleport, Inc.
11111 Dorsett Road
St. Louis, Missouri 63043
Attn: President
with a copy to: Digital Teleport, Inc.
11111 Dorsett Road
St. Louis, Missouri 63043
Attn: Vice President-Corporate Legal
If to IXC: IXC Communications Services, Inc.
Attn: Executive V.P. Eng. & Operations
1122 Capital of Texas Highway South
Austin, TX 78746
with a copy to: IXC Communications Services, Inc.
Attn: General Counsel
1122 Capital of Texas Highway South
Austin, TX 78746
or at such other address as may be designated in writing to the other Party.
21.2 Unless otherwise provided herein, notices shall be sent by
registered or certified U.S. Mail, postage prepaid, or by commercial overnight
delivery service, and shall be deemed served or delivered to the addressee or
its office on the date of receipt acknowledgment.
22. CONFIDENTIALITY.
The Parties understand and agree that the terms and conditions of this
Agreement, all documents referenced herein, communications between the Parties
regarding this Agreement or the service to be provided hereunder, as well as any
financial or business information of either Party are confidential
("Confidential Information"). Such Confidential Information shall not be
disclosed by either Party to any individual other than the directors, officers
and employees of such Party or agents of such Party who have been made aware of
the confidentiality restrictions herein. However, neither Party shall be
required to keep confidential any information that (i) becomes publicly
available other than through the receiving Party; (ii) is required to be
disclosed pursuant to a governmental or judicial rule, order or regulation;
(iii) the disclosing Party independently develops; (iv) becomes available from
the third Party to the disclosing Party without confidentiality restrictions; or
(v) is required by its lender and is given to such lender on a confidential
basis.
23. DEFAULT.
23.1 DTI shall not be in default under this Agreement herein unless and
until IXC shall have given DTI written notice of such default and DTI shall have
failed to cure the same within ten (10) days in the case of a Payment and within
thirty (30) days for all other events of default, after receipt of such notice;
provided, however, that where such default, other than Payment,
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cannot reasonably be cured within such thirty (30) day period, if DTI shall
proceed promptly to cure the same and prosecute such curing with due diligence,
the time for curing such default (except for payment defaults and Insolvency
Defaults, as defined below) shall be extended for such period of time as may be
necessary to complete such curing. Events of default shall include, but not be
limited to, the making by DTI of a general assignment for the benefit of its
creditors, the filing of a voluntary petition in bankruptcy or the filing of a
petition in bankruptcy or other insolvency protection against DTI which is not
dismissed within ninety (90) days thereafter, or the filing by DTI of any
petition or answer seeking, consenting to, or acquiescing in reorganization,
arrangement, adjustment, composition, liquidation, dissolution, or similar
relief (collectively, an "Insolvency Default"). Any event of default by DTI may
be waived under the terms of this Agreement at IXC's option. Upon the failure by
DTI to timely cure any such default after notice thereof from IXC, IXC may (i)
take such action as it determines, in its sole discretion, to be necessary to
correct the default, (ii) terminate this agreement, and (iii) pursue any legal
remedies it may have under applicable law or principles of equity relating to
such breach. Notwithstanding the above, if DTI certifies to IXC in writing that
a default has been cured, such default shall be deemed to be cured unless IXC
otherwise notifies DTI in writing within fifteen (15) days of receipt of such
notice from IXC.
23.2 IXC shall not be in default under this Agreement herein unless and
until DTI shall have given IXC written notice of such default and IXC shall have
failed to cure the same within thirty (30) days after receipt of such notice;
provided, however, that where such default cannot reasonably be cured within
such thirty (30) day period, if IXC shall proceed promptly to cure the same and
prosecute such curing with due diligence, the time for curing such default
(except for payment defaults and Insolvency Defaults, as defined below) shall be
extended for such period of time as may be necessary to complete such curing.
Events of default shall include, but not be limited to, the making by IXC of a
general assignment for the benefit of its creditors, the filing of a voluntary
petition in bankruptcy or the filing of a petition in bankruptcy or other
insolvency protection against IXC which is not dismissed within ninety (90) days
thereafter, or the filing by IXC of any petition or answer seeking, consenting
to, or acquiescing in reorganization, arrangement, adjustment, composition,
liquidation, dissolution or similar relief (collectively, an "Insolvency
Default"). Any event of default by IXC may be waived under the terms of this
Agreement at DTI's option. Upon the failure by IXC to timely cure any such
default after notice thereof from DTI, DTI may (i) take such action as it
determines, in its sole discretion, to be necessary to correct the default, (ii)
terminate this Agreement, and (iii) pursue any legal remedies it may have under
applicable law or principles of equity relating to such breach. Notwithstanding
the above, if IXC certifies to DTI in writing that a default has been cured,
such default shall be deemed to be cured unless DTI otherwise notifies IXC in
writing within fifteen (15) days of receipt of such notice from IXC.
24. TERMINATION.
Upon the expiration of the Term of this Agreement or termination, DTI's
IRU shall immediately terminate and all rights of DTI to use the DTI Fibers and
DTI Building Spaces, or any part thereof, shall cease and IXC shall owe DTI no
additional duties or consideration. Under IXC's supervision, DTI shall remove
all of its electronics and equipment from any IXC facilities at DTI's sole cost.
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25. SURVIVAL.
Notwithstanding the foregoing, no termination of this Agreement shall
affect the rights or obligations of either Party with respect to any payment
relating to the period prior to the date of termination or pursuant to the
section entitled "Indemnification."
26. FORCE MAJEURE.
Neither Party shall be in default under this Agreement with respect to
any delay in such Party's performance caused by any of the following conditions:
act of God, fire, flood, material shortage or unavailability, lack of
transportation, government codes, ordinances, laws, rules, regulations or
restrictions, war or civil disorder, or any other cause beyond the reasonable
control of such Party, provided that the Party claiming relief under this
Section shall promptly notify the other Party in writing of the occurrence of
the event relied on and the cessation or termination of said event. The Party
claiming relief under this Section shall exercise reasonable efforts to minimize
the time for any such delay.
27. ARBITRATION.
27.1 Any dispute or disagreement arising between IXC and DTI in
connection with this Agreement which is not settled to the mutual satisfaction
of IXC and DTI within thirty (30) days from the date that either Party informs
the other in writing that such dispute or disagreement exists, shall be settled
by arbitration in Austin, Texas if brought by DTI and in St. Louis, Missouri if
brought by IXC, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association in effect on the date that such notice is
given. If the Parties are unable to agree on a single arbitrator within fifteen
(15) days, each Party shall select an independent arbitrator and the two
arbitrators shall select a third arbitrator.
The Parties shall be permitted to present such evidence and witnesses
as they may choose, with or without counsel. The decision of the arbitrator(s)
shall be final and binding upon the Parties and shall include written findings
of law and fact. Any judgment pursuant to arbitration may be obtained and
enforced by either Party in a court of competent jurisdiction. Each Party shall
bear the cost of preparing and presenting its own case. The cost of the
arbitration, including the fees and expenses of the arbitrator(s), shall be
shared equally by the Parties hereto unless the award otherwise provides. During
the pendency of a Dispute, the Parties shall continue to satisfy all of their
obligations pursuant to this Agreement.
27.2 The obligation herein to arbitrate shall not be binding upon any
Party with respect to requests for preliminary injunctions, temporary
restraining orders or other procedures in a court of competent jurisdiction to
obtain interim relief when deemed necessary by such court to preserve the status
quo or prevent irreparable injury pending resolution by arbitration of the
actual dispute.
28. WAIVER.
The failure of either Party hereto to enforce any of the provisions of
this Agreement, or the waiver thereof in any instance, shall not be construed as
a general waiver or relinquishment
19
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 21
on its part of any such provision, but the same shall nevertheless be and remain
in full force and effect.
29. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of Texas without reference to its choice of law
principles.
30. RULES OF CONSTRUCTION.
30.1 The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement or as
amplifying or limiting any of its content. Words in this Agreement which import
the singular connotation shall be interpreted as plural, and words which import
the plural connotation shall be interpreted as singular, as the identity of the
Parties or objects referred to may require.
30.2 Unless expressly defined herein, words having well known technical
or trade meanings shall be so construed. All listing of items shall not be taken
to be exclusive, but shall include other items, whether similar or dissimilar to
those listed, as the context reasonably requires.
30.3 Except as set forth to the contrary herein, any right or remedy of
DTI or IXC shall be cumulative and without prejudice to any other right or
remedy, whether contained herein or not.
30.4 Nothing in this Agreement is intended to provide any legal rights
to anyone not an executing Party of this Agreement.
30.5 This Agreement has been fully negotiated between and jointly
drafted by the Parties.
30.6 In the event of a conflict between the provisions of this
Agreement and those of any Exhibit, the provisions of this Agreement shall
prevail and such Exhibits shall be corrected accordingly.
30.7 All actions, activities, consents, approvals and other
undertakings of the Parties in this Agreement shall be performed in a reasonable
and timely manner. Except as specifically set forth herein, for the purpose of
this Section the normal standards of performance within the telecommunications
industry in the relevant market shall be the measure of whether a Party's
performance is reasonable and timely.
31. ASSIGNMENT.
31.1 DTI shall not assign or otherwise transfer this Agreement or its
rights or obligations hereunder or grant an IRU or lease or similar rights in
the DTI Fibers to any third Party for one (1) year from the Acceptance Date.
Except as provided below, neither Party shall assign or otherwise transfer this
Agreement or its rights or obligations hereunder to any third
20
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 22
Party without the prior written consent of the other Party, which will not be
unreasonably withheld or delayed. Notwithstanding the above, at any time both
Parties shall have the right, without the other Party's consent, to assign or
otherwise transfer this Agreement or any rights thereunder to any parent,
subsidiary or affiliate of itself or any corporation into which it may be merged
or consolidated or which purchases all or substantially all of its assets, or as
collateral to any lender; provided, however, that any such assignment or
transfer shall be subject to the other Party's rights under this Agreement and
any assignee or transferee shall continue to perform the assigning Party's
obligations to the other Party under the terms and conditions of this Agreement.
31.2 This Agreement and each of the Parties' respective rights and
obligations under this Agreement, shall be binding upon and shall inure to the
benefit of the Parties hereto and each of their respective permitted successors
and assigns.
32. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants that:
32.1 It has the full right and authority to enter into, execute,
deliver and perform its obligations under this Agreement;
32.2 It has taken all requisite corporate action to approve the
execution, delivery and performance of this Agreement;
32.3 This Agreement constitutes a legal, valid and binding obligation
enforceable against such Party in accordance with its terms; and
32.4 Its execution of and performance under this Agreement shall not
violate any applicable existing regulations, rules, statutes or court orders of
any local, state or federal government agency, court or body.
33. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire and final agreement and
understanding between the Parties with respect to the subject matter hereof and
supersedes all prior agreements relating to the subject matter hereof, which are
of no further force or effect. The Exhibits referred to herein are integral
parts hereof and are hereby made a part of this Agreement. This Agreement may
only be modified or supplemented by an instrument in writing executed by a duly
authorized representative of each Party.
34. NO PERSONAL LIABILITY.
Each action or claim against any Party arising under or relating to
this Agreement shall be made only against such Party as a corporation, and any
liability relating thereto shall be enforceable only against the corporate
assets of such Party. No Party shall seek to pierce the corporate veil or
otherwise seek to impose any liability relating to, or arising from, this
Agreement against any shareholder, employee, officer or director of the other
Party. Each of
21
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 23
such persons is an intended beneficiary of the mutual promises set forth in this
Section and shall be entitled to enforce the obligations of this Section.
35. CONFLICTS OF INTEREST.
Neither Party shall use any funds received under this Agreement for
illegal or otherwise "improper" purposes. Neither Party shall pay any
commission, fees or rebates to any employee of the other Party, or favor any
employee of such other Party with gifts or entertainment of significant cost or
value. If either Party has reasonable cause to believe that one of the
provisions in this Article has been violated, it, or its representative, may
audit the books and records of the other Party for the sole purpose of
establishing compliance with such provisions.
36. RELATIONSHIP OF THE PARTIES.
The relationship between DTI and IXC shall not be that of partners,
agents, or joint venturers for one another, and nothing contained in this
Agreement shall be deemed to constitute a partnership or agency agreement
between them for any purposes, including but not limited to federal income tax
purposes. DTI and IXC, in performing any of their obligations hereunder, shall
be independent contractors or independent Parties and shall discharge their
contractual obligations at their own risk.
37. SEVERABILITY.
If any term, covenant or condition contained herein shall, to any
extent, be invalid or unenforceable in any respect under the laws governing this
Agreement, the remainder of this Agreement shall not be affected thereby, and
each term, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
22
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 24
38. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument.
In confirmation of their consent to the terms and conditions contained
in this Agreement and intending to be legally bound hereby, the Parties have
executed this IRU and Maintenance Agreement on the dates shown below, but
effective for all purposes as of the Effective Date.
IXC Communications Services, Inc.
By: /s/ Michael W. Vent
-------------------------------------
Name: Michael W. Vent
-----------------------------------
Title: Exec. V. P. Eng. & Operations
Date:
Digital Teleport, Inc.
By: /s/ Richard D. Weinstein
-------------------------------------
Name: Richard D. Weinstein
Title: President
Date: 7/30/98
23
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 25
EXHIBITS
Exhibit A: System Route:
Exhibit B1: Buried Cable Specifications
Exhibit B2: Fiber Specifications
Exhibit C: Fiber Cable Splicing, Testing and Acceptance Standards
Exhibit D: As-Built Drawing Specifications
Exhibit E: Operations Specifications
24
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<PAGE> 26
EXHIBIT A
SYSTEM ROUTE
Route map to be provided later.
1
<PAGE> 27
EXHIBIT B-1
BURIED CABLE SPECIFICATIONS
1. General
The intent of this document is to outline the specifications for
construction of a fiber optic cable system. In all cases the standards
contained in this document, or the standards of the federal, state, local
or private agency having jurisdiction, whichever is stricter, shall be
followed.
2. Material
Steel or PVC conduit shall be minimum schedule 40 wall thickness.
Any exposed steel conduit, brackets or hardware (i.e., bridge
attachments) shall be hot-dipped galvanized after fabrication.
All split steel shall be flanged.
Handholes shall have a minimum H-15 loading rating.
Manholes shall have a minimum H-20 loading rating.
Buried cable warning tape shall be a minimum of three inches (3") wide
and display "Warning-Buried Fiber Optic Cable," a company name, logo and
emergency One Call 800 number repeated every twenty-four inches (24").
Warning signs will display universal do not dig symbol, "Warning-Buried
Fiber Optic Cable," company name and logo, local and emergency One Call
800 numbers.
3. Minimum Depths
Minimum cover required in the placement conduit/cable shall be forty-two
inches (42"), except in the following instances:
The minimum cover in ditches adjacent to roads, highways, railroads
and interstates is forty-eight inches (48") below the clean out
line or existing grade, whichever is greater.
The minimum cover across streams, river washes, and other waterways
is sixty inches (60") below the clean out line or existing grade,
whichever is greater.
At locations where fiber optic cable cross other subsurface
utilities or other structures, the fiber optic cable/conduit shall
be installed to provide a minimum of
twelve inches (12") of vertical clearance from utility/obstacle.
The fiber optic cable/conduit can be placed above the
utility/obstacle, provided the minimum
1
<PAGE> 28
clearance and applicable minimum depth can be maintained; otherwise
the fiber optic cable/conduit will be installed under the existing
utility or other structure.
In rock, the cable/conduit shall be placed to provide a minimum of
eighteen inches (18") below the surface of the solid rock, or
provide a minimum of forty-two (42") of total cover, whichever
requires the least rock excavation.
Where existing pipe is used, current depth is sufficient. However,
either party will exercise commercially reasonable efforts to lower
any exposed pipe to avoid damage to the pipe, innerduct and fiber
cable due to foreseeable operations over the affected right-of-way.
4. Buried Cable Warning Tape
All cable/conduit will be installed with buried cable warning tape. The
warning tape shall be laid a minimum of twelve inches (12") above the
cable/conduit. The warning tape shall generally be placed at a depth of
twenty-four (24") below grade and directly above the cable/conduit.
5. Conduit Construction
Conduits may be placed by means of trenching, plowing, jack and bore,
mini-directional bore or directional bore. Conduits will generally be
placed on a level grade parallel to the surface, with only gradual
changes in grade elevation.
Steel conduit will be joined with threaded collars, Zap-Lok or welding.
(Welding is the preferred method.)
All paved city, county, state, federal and interstate highways, and
railroad crossings will be encased in steel conduit, where required by
permitting agency only.
All longitudinal cable run under paved streets will be placed in steel or
concrete encased PVC conduit, where required by permitting agency only.
All cable placed in metro areas will be placed in steel or concrete PVC
conduit, where required by permitting agency only.
Metro areas shall be defined as areas where either of the following
conditions exist:
1) Developed and improved areas.
2) High growth areas.
All crossings of major streams, rivers, bays and navigable waterways will
be placed in HDPE, PVC or steel conduit.
2
<PAGE> 29
At all foreign utility/underground obstacle crossings, steel conduit will
be placed and will extend at least five feet (5') beyond the outer limits
of the obstacle in both directions, where required by permitting agency
only.
All jack and bores will use steel conduit.
All directional and mini-directional bores will use HDPE or steel
conduit.
Any cable placed in swamp or wetland areas will be placed in HDPE, PVC or
steel conduit.
All conduits placed on bridges will be steel.
All conduits placed on bridges shall have an expansion joint placed at
each structural (bridge) expansion joint or at least every
one-hundred-fifty feet (150'), whichever is the shorter distance.
6. Innerduct Installation
Innerduct(s) shall be installed in all steel conduits. No cable will be
placed directly in any split/solid conduit without innerduct.
Innerduct(s) shall extend beyond the end of all conduits a minimum of
eighteen inches (18").
7. Cable Installation in Conduit
The fiber optic cable shall be installed using a power pulling winch and
hydraulic powered assist pulling wheels. The maximum pulling force to be
applied to the fiber optic cable shall be six hundred pounds (600 lbs.).
Sufficient pulling assists will be available and used to insure the
maximum pulling force is not exceeded at any point along the pull.
The cable shall be lubricated at the reel and all pulling assist
locations.
A pulling swivel breakaway rated at six hundred pounds (600 lbs.) shall
be used at all times.
Splices will only be allowed at planned junctions and reel ends. The
cable will not be cut and spliced for the contractor's convenience during
the cable pulling operation.
All splices will be contained in handhole or manhole.
A minimum of twenty meters (20m) of slack cable will be left in all
intermediate handholes and manholes.
A minimum of thirty meters (30m) of slack cable will be left in all
splice locations.
3
<PAGE> 30
A minimum of fifty meters (50m) of slack cable will be left in all
facility locations, i.e., POP sites, switch sites, regens or CEV's.
8. Manholes and Handholes
Manholes shall be placed in traveled surface streets, and shall have
locking lids.
Handholes shall be placed in all other areas, and be installed with a
minimum of eighteen (18") of soil covering lid.
9. EMS Markers
EMS Markers shall be placed directly above the lid of all buried
handholes. EMS markers fabricated into the lids of the handholes are
acceptable.
10. Cable Markers (Warning Signs)
Cable markers shall be installed at all changes in cable running line
direction, splices, pull boxes, assist pulling locations, and at both
sides of street, highway or railroad crossings. At no time shall any
markers be spaced more than five hundred feet (500') apart in metro areas
or within line of site exceeding one thousand feet (1,000') in non-metro
areas. Markers shall be positioned so that they can be seen from the
location of the cable and generally set facing perpendicular to the cable
running line.
Splices and pull boxes shall be marked on the cable market post.
11. Safety and Environmental
All work will be done in strict accordance with federal, state, and local
applicable private rules and laws regarding safety and environmental
issues, including those set forth by OSHA and EPA.
4
<PAGE> 31
EXHIBIT B-2
FIBER SPECIFICATIONS
1
<PAGE> 32
CORNING OPTICAL FIBER
PRODUCT INFORMATION
PI1044 Corning(R) SMF-28(TM)
ISSUED: 4/96 SINGLE-MODE OPTICAL FIBER
SUPERSEDES: 11/94
ISO 9001 REGISTERED
GENERAL
Corning(R) SMP-28(TM) single-mode fiber has come to be considered as the
"standard" optical fiber for telephony, cable television, submarine and private
network applications in the transmission of voice, data and/or video services.
Corning SMF-28 fiber is manufactured to the most demanding specifications in
the industry.
SMF-28 fiber is optimized or use in the 1310 nm wavelength region. The
information-carrying capacity of the fiber is at its highest in this
transmission window, and it is also where dispersion is the lowest. SMF-28
fiber also can be effectively used in the 1550 nm wavelength region.
Corning fiber is protected for long-term performance and reliability by the CPC
coating system. Corning's enhanced, dual acrylate CPC coatings provide
excellent fiber protection and are easy to work with. CPC coatings are
designed to be mechanically stripped and have an outside diameter of 245 mm.
CPC coatings are optimized for use in many single and multi-fiber cable designs
including loose tube, ribbon, slotted core and tight buffer cables.
SMF-28 fiber is manufactured using the Outside Vapor Deposition (OVD) process,
which produces a totally synthetic, ultra-pure fiber. As a result, Corning
SMF-28 fiber has consistent geometric properties, high strength and low
attenuation. Corning SMF-28 fiber can be counted on to deliver excellent
performance and high reliability, reel after reel.
FEATURES & BENEFITS
- - Versatility in 1310 nm and 1550 nm applications.
- - Outstanding geometrical properties or low splice loss and high
splice yields.
- - OVD manufacturing reliability and product consistency.
- - Optimized for use in loose tube, ribbon and other common cable
designs.
OPTICAL SPECIFICATIONS
- - Attenuation
Uncabled Fiber Attenuation Cells Point Discontinuity
Attenuation Cells (dB/km) No point discontinuity greater than
0.10 dB at either 1310 nm or
1550 nm.
Wavelength
(nm) Premium* Standard Attenuation at the Water Peak
1310 <0.35 <0.40
- -
1550 <0.25 <0.30 The attenuation at 1383 + 3 nm
- - -
shall not exceed 2.1 dB/km.
* Lower attenuation available in limited quantities.
1
<PAGE> 33
OPTICAL SPECIFICATIONS, (continued)
<TABLE>
<S> <C> <C> <C>
Attenuation vs Wavelength - The attenuation in a given wavelength range
Range Ref. lambda Max Increase does not exceed the attenuation of the reference
(nm) (nm) alpha (dB/km) wavelength (lambda) by more than the value alpha.
1285 - 1330 1310 0.05
1525 - 1575 1550 0.05
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
Attenuation With Bending
Mandrel Number Wavelength Induced - The induced attenuation due to
Diameter (mm) of Turns (nm) Attenuation (dB) fiber wrapped around a mandrel
32 1 1550 <0.50 of a specified diameter.
-
75 100 1310 <0.05
-
75 100 1550 <0.10
-
- - CABLE CUTOFF WAVELENGTH (lambda) - MODE-FIELD DIAMETER
ccf
lambda< 1260 nm 9.30 + 0.50 microns at 1310 nm
ccf -
10.50 + 1.00 microns at 1550 nm
-
- - DISPERSION
Zero Dispersion Wavelength (lambda): 1301.5 nm < lambda < 1321.5 nm
o - o -
2
Zero Dispersion Slope (So): < 0.092 ps/(nm *km)
-
Fiber Polarization Mode Dispersion Coefficient (PMD): < 0.5 psec/sq.rt.(km)
-
</TABLE>
Dispersion Calculation
4 3
Dispersion = D(lambda): = So/4 [lambda-lambdao /lambda ] ps/nm*km), for
1200 nm < lambda < 1600 nm lambda = Operating Wavelength
- -
<TABLE>
<S> <C> <C> <C>
ENVIRONMENTAL SPECIFICATIONS
Environmental Test Condition Induced Operating Temperature Range
Attenuation (dB/km) -60 degrees C to +85 degrees C
1310 nm 1550 nm
Temperature Dependence
- -60 degrees C to +85 degrees C < 0.05 < 0.05
- -
Temperature-Humidity Cycling
- -10 degrees C to +85 degrees C, < 0.05 < 0.05
up to 98% RH - -
</TABLE>
2
<PAGE> 34
Water Immersion, 23 degrees C < 0.05 < 0.05
- -
Heat Aging, 85 degrees C < 0.05 < 0.05
- -
DIMENSIONAL SPECIFICATIONS
STANDARD LENGTH (km/reel): 2.2 - 25.2*
*Longer lengths available at a premium.
GLASS GEOMETRY COATING GEOMETRY
Fiber Curl: > 2.0 m radius of curvature Coating Diameter: 245 + 10
- microns -
Cladding Diameter: 125.0 + 1.0 microns Coating-Cladding Concentricity:
<12 microns -
Core-Clad Concentricity: < 0.8 microns
-
Cladding Non-Circularity: < 1.0%
-
Defined as: [1 - Min. Cladding Diameter/Max. Cladding Diameter] x 100
MECHANICAL SPECIFICATIONS
PROOF TEST:
The entire length of fiber is subjected to a tensile proof stress > 100 kpsi
2 -
(0.7 GN/m )*.
*Higher proof test levels available at a premium.
PERFORMANCE CHARACTERIZATIONS
Characterized parameters are typical values.
CORE DIAMETER: REFRACTIVE INDEX DIFFERENCE:
8.3 microns 0.36%
NUMERICAL APERTURE: EFFECTIVE GROUP INDEX OF
REFRACTION (Neff):
0.13 1.4675 at 1310 nm
1.4681 at 1550 nm
NA was measured at the one percent power angle of a one-dimensional far-field
scan at 1310 nm.
3
<PAGE> 35
FATIGUE RESISTANCE PARAMETER: (nd)
ZERO DISPERSION WAVELENGTH (lambdao): > 20
-
1312 nm
ZERO DISPERSION SLOPE (So):
2
0.090 ps/(nm x km)
Refractive Index Profile (typical fiber) Spectral Attenuation (typical fiber)
[GRAPH] [GRAPH]
Ordering Information
To order Corning(R) SMF-28(TM) optical fiber, contact your sales
representative, or call the Telecommunications Products Division Sales
Department at (607) 974-4270. Please specify the following parameters when
ordering.
Fiber Type: Corning(R) SMF-28(TM)
Coating: 245 micron O.D.
fiber Attenuation Cell: dB/km
Fiber Quantity: kms Corning fiber is made in the
USA.
Other: (Requested ship date, etc.)
[CORNING LOGO]
Corning Incorporated
Opto-Electronics Group
Corning, NY 14831 USA
Tel: 800-525-2524
Fax: 607-754-7517
4
<PAGE> 36
[AT&T NETWORK SYSTEMS LOGO]
TRUEWAVE(TM) SINGLE MODE FIBER
DESCRIPTION
TrueWave(TM) Single Mode Fiber is designed for systems operating in the 1550 nm
transmission window. The refractive index profile has been selected to provide
non-zero dispersion over the Erbium-doped fiber amplifier (EDFA) passband
region. This non-zero dispersion feature is important for system performance
in amplified Wave Division Multiplex (WDM) applications.
The fiber has a germanium-doped silica core surrounded by two synthetic silica
cladding layers having different refractive indices. A D-LUX(R) dual coating
is applied over the cladding to protect the fiber. Each fiber is proof tested
so that it will survive installation loads and associated long-term residual
stresses, even under extreme environmental conditions. The optical and
dimensional properties of all fibers are measured for compliance to
specifications.
SPECIFICATIONS
Attenuation (Customer specifies
maximum value within range): 0.22 x 0.25 dB/km at 1550 nm
Dispersion in non-zero region 1.0 < |D| < 4.0 ps/nm-km
- -
Polarization Mode Dispersion < 0.5 ps/sq.rt.(km) at 1550 nm
Coefficient -
(in AT&T cable)*
Mode Field Diameter 8.4 + 0.5 microns
-
Cladding Diameter 125 + 1.0 microns
-
Core/Cladding Concentricity
Error < 0.8 microns
-
Fiber Cutoff Wavelength (lambda ) < 1450 nm
c -
Cabled Cutoff
Wavelength (lambda ) < 1260 nm
cc -
Coating Diameter (uncolored) 245 + 10 microns
-
Proof Test Levels 100 kpsi minimum (or as specified)
*Check with your cable manufacturer or specific PMD limits in cable form.
1
<PAGE> 37
USE/APPLICATION
- - Fiber optic systems operating in the 1550 nm window requiring low
attenuation and chromatic dispersion.
- - Optimal design for systems transmitting over long distances using
WDM with optical amplifiers.
FEATURES
- - Low intrinsic loss and chromatic dispersion for transmission
capability in the 1550 nm window.
- - Non-zero dispersion in the EDFA passband to permit WDM operation in
long, amplified spans.
- - Excellent geometrical properties for low splice loss.
- - D-LUX(R) coating for excellent environmental performance and long
term reliability.
- - Excellent polarization mode dispersion (PMD) performance.
PRODUCT DESCRIPTION
TrueWave(TM) optical fiber is specially designed for use in WDM applications
using amplification. Although dispersion-shifted fibers are commonly used for
amplified systems, their ability to support transmission at closely-spaced
wavelengths between 1530 and 1560 nm is limited by nonlinear fiber effects such
as four-wave mixing. This phenomenon occurs when two or more wavelengths mix
with one another to produce new wavelengths which may interfere with signal
wavelengths. The non-zero dispersion characteristic of TrueWave(TM) fiber
discourages phasematching between the various signal wavelengths, reducing the
efficiency of the mixing. The dispersion value is still small enough to allow
single-channel data rates up to 10 Gb/s without dispersion compensation.
TrueWave(TM) fiber uses a triangular refractive index profile in the
core to achieve low attenuation and dispersion in the 1550 nm region. The
fiber has a nominal mode field diameter of 8.4 microns and cladding diameter of
125 microns. The excellent geometrical characteristics of the fiber permit
low loss splicing where required. The fiber has a standard proof test level of
100 kpsi with higher levels available on request.
TrueWave(TM) fiber features the D-LUX(R) dual coating system which provides
unparalleled performance in a wide range of environmental conditions. The
coatings are mechanically strippable and have a nominal outside diameter of 245
microns.
TrueWave(TM) fibers are suitable for use in a variety of cable designs,
including central tube, loose tube, slotted core and ribbon cable designs.
Applications include amplified and unamplified single channel systems at 1550
microns and amplified dense WDM systems at 1550 microns.
2
<PAGE> 38
GEOMETRICAL CHARACTERISTICS
Glass Geometry:
Cladding Diameter: 125 + 1.0 microns
-
Core/Clad Concentricity Error. < 0.8 microns
-
Cladding Noncircularity: < 1%
-
Coating Geometry:
coating Diameter (uncolored): 245 + 10 microns
-
Coating/Cladding Concentricity Error: < 12 microns
-
Length:
Standard spool lengths are: 4.4, 6.4, 12.6, 19.2 and 25 km
Lengths cut to specific customer request are also available.
OTHER PERFORMANCE CHARACTERIZATIONS
(Values stated are typical values)
The nominal attenuation at 1310 nm is: < 0.5 dB/km
-
Index of refraction difference between
core and cladding: 0.75%
Typical Core Diameter. 6.0 microns
Effective Group Index of Refraction:
1310 nm 1.4738
1550 nm 1.4732
Rayleigh Backscattering Coefficient: for 1 microsecond pulse width)
1310 nm -46.2 dB
1550 nm -49.8 dB
Dynamic Fatigue Parameter (na) >20
Static Fatigue Parameter (nd) >20
Weight Per Unit Length: 64 grams/km
3
<PAGE> 39
MECHANICAL CHARACTERISTICS
Proof Test: 100 kpsi (0.7 GPa)
Higher proof test levels are available upon request.
Coating (Performance Characterization):
Coating Strip Force:
The force to mechanically strip the dual coating is > 1.3 (0.3 lbf.) and <
8.9 N (2.0 lbf.). -
Coating Appearance:
The dual coating layers are free of voids or entrapped bubbles.
Pullout Force (Adhesion of Coating to Glass Surface):
The pullout force is > 6.2 N (1.4 lbf.) and < 22.2 N (4.9 lbf.).
Fiber Curl:
The fiber curl is > 2m.
-
MECHANICAL CHARACTERISTICS (CONTINUED)
Fiber Shipping Spool Mechanical Specifications:
A B
Flange Diameter. 9.25 in. (23.50 cm.) 9.25 in. (23.50 cm.)
Barrel Diameter. 6.00 in. (15.24 cm.) 6.00 in. (15.24 cm.)
Traverse Width: 3.39 in. (8.61 cm.) 4.70 in. (11.94 cm.)
Weight: 1.22 lbs. (0.46 kg.) 1.36 lbs. (0.51 kg.)
Note: Spool A is used for shipped lengths of fiber < 15 km
Spool B is used for shipped lengths of fiber > 15 km
-
ENVIRONMENTAL CHARACTERISTICS
Operating Temperature Range: -60 degrees C to
+85 degrees C
Temperature Dependence of Attenuation:
Induced Attenuation, -60 degrees C to +85 degrees C
at 1550 nm: <0.05 dB/km
-
4
<PAGE> 40
Temperature - Humidity Cycling:
Induced Attenuation, -10 degrees C to +85 degrees
C and 95% relative humidity at 1550 nm: < 0.05 dB/km
-
Water Immersion, 23 degrees C:
Induced Attenuation due to Water Immersion at
23 + 2 degrees C at 1550 nm: < 0.05 dB/km
- -
AT&T TRUEWAVE(TM) FIBER
[GRAPH]
ENVIRONMENTAL CHARACTERISTICS (CONTINUED)
Accelerated Aging (Temperature), 85 degrees C:
Induced Attenuation due to Temperature Aging at
85 + 2 degrees C at 1550 nm: < 0.05 db/km
- -
Retention of Coating Color:
D-LUX(R) coated fiber shows no discernable change in color when aged.
- for 30 days at 95 degrees C and 95% relative humidity.
- for 20 days in dry heat, 125 degrees C.
AT&T TrueWave(TM) Fiber Nominal Refractive Index Profile
[GRAPH]
Spectral Attenuation Curve of a Typical Fiber
[GRAPH]
TRUEWAVE(TM) SINGLE MODE FIBER
TEST METHODS
The following industry-accepted test methods are used to characterize fibers
described herein.
Fiber Parameter EIA/TIA Test Method IEC Test Method
Attenuation EIA/TIA-455-78 IEC 793-1-C1A,
IEC 793-1-C1C
Point Discontinuity EIA/TIA-455-59 IEC 793-1-C1C
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<PAGE> 41
Macrobending Attenuation EIA/TIA-455-62 IEC 793-1-C11
Fiber Cutoff Wavelength EIA/TIA-455-80 IEC 793-1-C7A
Cable Cutoff Wavelength EIA/TIA-455-170 IEC 793-1-C7B
Chromatic Dispersion EIA/TIA-455-175 IEC 793-1-C5C
Mode Field Diameter EIA/TIA-455-164 or IEC 793-1-C9A or
EIA/TIA-455-167 IEC 793-1-C9B
Cladding Diameter EIA/TIA-455-176 IEC 793-1-A2
Cladding Non-circularity EIA/TIA-455-176 IEC 793-1-A2
Core/Cladding
Concentricity Error EIA/TIA-455-176 IEC 793-1-A2
Coating Geometry EIA/TIA-455-173 IEC 793-1-A2
Coating Strip Force EIA/TIA-455-178 see note 1
Proof Test EIA/TIA-455-31 IEC 793-1-B1
Fiber Curl EIA/TIA-455-111 see note 1
Length EIA/TIA-455-60 IEC 793-1-C1C
Operating Temperature Range EIA/TIA-455-69 see note 1
Temperature Cycling EIA/TIA-455-3 IEC 793-1-D1
Temperature/Humidity Cycling EIA/TIA-455-72 & -73 see note 1
Fluid Immersion EIA/TIA-455-74 & -75 see note 1
High Temperature Aging EIA/TIA-455-67 & -70 see note 1
Dynamic Fatigue EIA/TIA-455-76 see note 1
Static Fatigue EIA/TIA-455-97 see note 1
Note 1: There is currently no equivalent IEC test procedure for this
parameter.
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<PAGE> 42
ORDERING INFORMATION
Fiber Type: AT&T TrueWave(TM) Single Mode Fiber
Coating: D-LUX(R) Coating Series
Attenuation: 1550 nm maximum dB/km
Length: meters
Proof Test Level: kpsi
Number/Color of Spools: # spools
ORDERING INFORMATION
To order AT&T optical fiber, please contact your AT&T sales representative, or
the AT&T optical fiber sales representative at (404) 446-4700. For technical
questions on optical fiber, please call our AT&T Technical Information Number
1-800-344-0223, ext. 3500.
AT&T fiber is available natural (uncolored) or with distinctive color inks
applied to the fiber coating.
The following colors are available:
1. Blue 7. Red
2. Orange 8. Black
3. Green 9. Yellow
4. Brown 10. Violet
5. Slate 11. Rose
6. White 12. Aqua
Fibers are also available with 900 micron PVC buffer.
For more information, please contact your AT&T sales representative.
For Fiber Optics Products assistance, please call 1-800-344-0228, ext. 3043
D-LUX is a registered trademark of AT&T.
TrueWave is a trademark of AT&T.
The specifications stated herein apply to AT&T optical fiber in its uncabled
form. Although many of these requirements apply to cabled fiber, some
characteristics may change as a result of the cabling process.
7
<PAGE> 43
No warranty is expressed or implied by these specifications, and this document
may be superseded by other specific agreements with users of this product.
Copyright (c) 1994 AT&T
All Rights Reserved
Printed in USA
AT&T Network Systems
Marketing
4694FS-KAC-5/94
8
<PAGE> 44
[LOGO]
CORNING Corning Incorporated CORNING(R) Optical Fiber
Telecommunications Products Division
Corning, N.Y. 14831
Tel: (910) 395-7659
(910) 395-7789 PRODUCT INFORMATION
Fax: (910) 395-7286
PI1050 CORNING(R) SMF-LS(TM) CPC6 SINGLE-MODE
Issued: 4/97 NON-ZERO DISPERSION-SHIFTED OPTICAL FIBER
Supersedes: 2/95
ISO 9001 Registered
GENERAL
Corning(R) SMF-LS(TM) single-mode fiber is designed for use in both single and
multiple channel systems operating in the 1550 nm window. This product has
been developed to meet emerging 1550 nm network design requirements, including
the use of erbium-doped fiber amplifiers (EDFAs) and multiple-channel "Dense
WDM" technology. The fiber is optimized to handle multiple high-bit-rate
wavelength channels in the 1550 nm window over long system lengths. Other uses
include medium to long-distance, single and multi-channel 1550 nm systems for
interoffice and long-distance applications.
SMF-LS fiber is optimized for use in the 1550 nm wavelength region. With low
dispersion in this operating window, fiber information-carrying capacity is at
its highest. The patented segmented core design has achieved low dispersion,
attenuation, and bend loss at the 1550 nm operating wavelength. In addition,
non-linear effects such as four-wave mixing, which might otherwise limit
multiple channel operation at 1550 nm, are suppressed by ensuring non-zero
dispersion across the 1530-1560 nm operating band.
Corning fiber is protected for long-term performance and reliability by CPC6
coating. Corning's enhanced dual acrylate CPC6 coating provides excellent
fiber protection and is easy to work with. CPC6 can be mechanically stripped
and has an outside diameter of 245 microns. CPC6 is optimized for use in many
single and multi-fiber cable designs.
SMF-LS fiber is manufactured using the Outside Vapor Depositing (OVD) process,
which produces a totally synthetic, ultra-pure fiber. As a result, Corning
SMF-LS fiber has consistent geometric properties, high strength and low
attenuation. Corning SMF-LS fiber can be counted on to deliver excellent
performance and high reliability, reel after reel.
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<PAGE> 45
FEATURES & BENEFITS
- - Designed for use in multi-channel high-bit-rate applications.
- - Patented segmented core design provides low dispersion,
attenuation, and bend loss at 1550 nm.
- - Outstanding geometrical properties for low splice loss and high
splice yields.
- - OVD manufacturing reliability and product consistency.
OPTICAL SPECIFICATIONS
- - ATTENUATION
Attenuation Cell: Point Discontinuity:
< 0.25 dB/km at 1550 nm No point discontinuity greater than 0.10 dB at
- - 1550 nm
< 0.50 dB/km at 1310 nm
- -
Attenuation at the Water Peak:
The attenuation at 1383 + 3 nm shall not exceed 2.0
dB/km. -
Attenuation vs Wavelength
Range Ref. lambda Max Increase - The attenuation in a given
(nm) (nm) alpha (dB/km) wavelength range does not
exceed the attenuation
of the reference
wavelength (lambda) by more
than the value alpha
1525-1575 1550 0.05
OPTICAL SPECIFICATIONS, (CONTINUED)
Attenuation With Bending
Mandrel Number Wavelength Induced - The induced attenuation
Diameter (mm) of Turns (nm) Attenuation (dB) due to fiber wrapped
around a mandrel of a
specified diameter.
32 1 1550 < 0.50
-
75 100 1550 < 0.05
-
- - CABLE CUTOFF WAVELENGTH (lambda) -MODE-FIELD DIAMETER
ccf
lambda < 1260 nm 8.40 + 0.50 microns at 1550 nm
ccf - -
2
<PAGE> 46
- - DISPERSION*
Total Dispersion: -3.5 to -0.1 psec/(nm x km) over the range 1530 to
2560 nm
Fiber Polarization Mode Dispersion Coefficient (PMD): L. 0.5 psec/
sq.rt.(km)
*Check with Corning regarding availability of alternative chromatic dispersion
specifications.
Dispersion Calculation
Dispersion = D (lambda) = (D(1560 nm) - D(1530 nm)/30 = (lambda -1560)) +
D(1560 nm) lambda = Operating Wavelength
ENVIRONMENTAL SPECIFICATIONS
Induced Operating Temperature Range
Environmental Test Condition Attenuation (dB/km) -60 C to +85 C
1550 nm
Temperature Dependence <0.05
- -60 degrees C to +85 degrees C -
Temperature-Humidity Cycling <0.05
- -10 degrees C to +85 degrees -
C and 4% to 98% RH
Water Immersion, 23 degrees C <0.05
-
Heat Aging, 85 degrees C <0.05
-
- - Reference temperature = +23 C
DIMENSIONAL SPECIFICATIONS
STANDARD LENGTH (km/reel): 4.4 - 25.2*
*Longer spliced lengths available at a premium.
GLASS GEOMETRY COATING GEOMETRY
Fiber Curl: > 2.0 m radius of curvature Coating Diameter: 245 + 10
- microns -
Cladding Diameter: 125.0 + 1.0 micron Coating-Cladding Concentricity:
- <12 microns
Core-Clad Concentricity: < 1.0 micron
-
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<PAGE> 47
Cladding Non-Circularity: < 1.0%
Defined as: [1 - Min. Cladding Diameter/Max. Cladding Diameter] x 100
MECHANICAL SPECIFICATIONS
PROOF TEST:
The entire length of fiber is subjected to a tensile proof stress > 100 kpsi
2 -
(0.7 GN/m )*.
*Higher proof test available at a premium.
PERFORMANCE CHARACTERIZATIONS
Characterized parameters are typical values.
NUMERICAL APERTURE: EFFECTIVE GROUP INDEX OF REFRACTION (Neff):
0.16 1.471 at 1310 nm
1.470 at 1550 nm
NA was measured at the one percent power angle
of a one-dimensional far-field scan at 1550 nm.
FATIGUE RESISTANCE PARAMETER (Nd):
MODE FIELD DIAMETER AT 1310 NM: >20
-
6.6 microns
NON-ZERO DISPERSION REGION: COATING STRIP FORCE:
Dry 0.7 lbs. (3.2 N)
> 1530 nm Wet, 14 days room temperature: 0.7 lbs. (3.2 N)
-
< 1560 nm
-
TYPICAL DISPERSION:
-2.9 at 1530 nm
-0.7 at 1560 nm
PERFORMANCE CHARACTERIZATIONS, (CONTINUED)
Refractive Index Profile (typical fiber) Spectral Attenuation (typical fiber)
[GRAPH] [GRAPH]
Ordering Information
<PAGE> 48
To order Corning(R) SMF-LS(TM) CPC6 optical fiber, contact your sales
representative, or call the Telecommunications Products Division Customer
Service Department at (910) 395-7659. Please specify the following parameters
when ordering.
Fiber Type: Corning(R) SMF-LS(TM) non-zero dispersion-shifted single-mode fiber
Coating: CPC6 (245 micron outside diameter)
Fiber Attenuation Cell: dB/km
Fiber Quantity: kms
Other: (Requested ship date, etc.)
CORNING
Corning Incorporated Corning Fiber is
Telecommunications Products Division Made in the USA.
Corning, NY 14831 USA
Tel: (800) 525-2524
Fax: (607) FAX-CORNING
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<PAGE> 49
TRUEWAVE(TM) SINGLE MODE FIBER
TRANSMISSION CHARACTERISTICS
Attenuation:
The maximum attenuation (loss) in dB/km may be specified within the range
indicated in the table below:
Wavelength (nm) Maximum Attenuation (dB/km)
1550 0.22 - 0.25
Attenuation vs. Wavelength:
The maximum attenuation in the wavelength region from 1525 nm to 1575 nm is no
more than 0.05 dB/km greater than the attenuation at 1550 nm.
Attenuation at Water Peak:
The attenuation at the OH-absorption peak (1383 + 3 nm) is less than or equal
to 2.0 dB/km. -
Macrobending Attenuation:
The maximum attenuation with bending does not exceed the specified values with
the following deployment conditions:
Deployment Condition Wavelength Induced Attenuation
1 turn, 32 mm (1.2 inch) diameter 1550 nm < 0.5 dB
-
100 turns, 75 mm (3 inch) diameter 1550 nm < 0.05 dB
-
Point Discontinuities:
There are no attenuation discontinuities greater than 0.1 dB at 1550 nm.
Chromatic dispersion:
Non-zero dispersion region 1540 to 1565 nm
Dispersion (D) at any wavelength in the range 1540 to 1565 nm satisfies the
following relation:
1.0< =|D| < 4.0 ps/nm-km
- -
2
The maximum dispersion slope (S(o)) at lambda: 0.095 ps/nm -km
o
Mode Field Diameter:
at 1550 nm: 8.4 + 0.6 microns
-
<PAGE> 50
Cutoff Wavelength:
Fiber Cutoff Wavelength (lambda): < 1450 nm
cf -
Cable Cutoff Wavelength (lambda): < 1260 nm
cc -
2
<PAGE> 51
EXHIBIT C
FIBER CABLE SPLICING, TESTING AND ACCEPTANCE STANDARDS
1. IXC (the "Constructing Party"), will perform all tests, provide
documentation, and meet the standards identified in this exhibit.
Analysis of final bi-directional OTDR data will be the tool used to make
final acceptance of the fibers.
2. ACCEPTANCE STANDARDS
A. PIGTAIL TRACES
When pigtails are attached to the end of the cable, the pigtail
test will be performed for that site. A 1-km launch reel that
matches the backbone cable will be attached between the OTDR and
the pigtail. The loss of the pigtail splice and connector will be
measured and recorded at 1550 nm. The Constructing Party will
provide the other party with a copy of the OTDR traces of all
pigtail splices stored on diskette.
The loss value of the pigtail connector and its associated splice
with matching mode field diameters will not exceed .5dB at 1550 nm.
The loss value of the pigtail connector and its associated splice
with mismatched mode field diameters should not exceed .8 dB.
B. BI-DIRECTIONAL TRACES
Bi-directional OTDR traces will be taken without a launch reel.
OTDR traces should be taken in both directions at 1550 nm. Loss
measurements for each splice point should be measured and recorded
in both directions. These loss values should then be averaged.
The traces for all fibers should be recorded on diskette and
provided to the other party.
NOTE: These measurements MUST BE MADE AFTER THE SPLICE
HANDHOLE OR MANHOLE IS CLOSED in order to check for
macro-bending problems.
1. FIELD SPLICES
The objective for each splice is an averaged loss value of
0.15 dB or less when measured bi-directionally with an OTDR
at 1550 nm. If after 3 attempts, the Constructing Party is
not able to produce a loss value of 0.15 dB or less
bi-directionally at 1550 nm, then 0.3 dB or less
bi-directionally at 1550 nm will be acceptable. Fibers not
meeting the .15dB or less specification will be identified as
Out Of Specification (OOS). Documentation of the three
attempts (reburns) to bring the OOS fiber within
specification will be provided.
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<PAGE> 52
C. LIGHT SOURCE AND POWER METER TEST
A bi-directional End to End test will be performed on each fiber in
a span at 1550 nm with a Light Source and Power Meter. The purpose
of this test is to determine actual span loss and to prove there is
a one-to-one correspondence of all fibers. It is the Constructing
Party's responsibility to insure proper continuity of all fibers at
the fiber level, not just the pigtail level. Any "frogs" or fibers
that cross in the route will be remedied by the Constructing Party.
The following span loss calculation will be used:
(A * L) + (0.1 * N) + C = Acceptable Span Loss
A = Attenuation per KM at 1550 nm
L = Optical length of cable measured in kilometers (from OTDR
Trace)
N = Number of splices in a span
C = Connector loss. The connector loss will not
exceed .5dB. The section test will have (2) pigtail
connectors/splices under test, so 1.0dB will be allowed for
this loss.
NOTE: IXC CABLE ACCEPTANCE CAN PROVIDE AN EXCEL SPREADSHEET
FORMATTED ON DISK FOR ENTRY OF DATA
3. NAMING OF TRACES
OTDR traces taken for bi-directional testing, and the OTDR traces of the
pigtail splice must be recorded on floppy diskette and provided to the
other party. To name the traces, each party will provide alpha
abbreviations for the sites. The 8-character file name plus 3-character
file extension name should follow this example:
First four letters = source point
Letters 5, 6, 7 = Destination point
8th letter = wavelength
Extension = fiber number
Examples:
Springfield to Lebanon at 1550 nm, fiber 96 = sgfdlbn5.096
Springfield to Monett pigtail trace on fiber 1 = sgfdmntp.001
NOTE: ALL HEADER INFORMATION ON OTDR TRACE MUST BE COMPLETED.
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<PAGE> 53
4. OTDR SETUP
NOTE: BEFORE THE START ANY TESTING , ALL CONNECTORS WILL BE
CLEANED WITH A CONNECTOR CLEANER.
A. The OTDRs that are acceptable for testing are the Laser
Precision TD3000 and CMA 4000. These must have a floppy disk drive
for storing the trace files. Again, it should be noted that it is
vital that during all tests (OTDR, power meter, etc.), that all
connectors are clean. This can dramatically affect test results.
The following settings should be used.
Index of Refraction
Fiber type 15500 nm
AT&T Tru Wavae 1.4700
AT&T Depress Clading 1.4670
Corning SMF-28 1.4684
Sumitomo 1.4670
Corning SFM-LS 1.4700
LEAF 1.4690
OTDR PARAMETERS TD3000 TD4000
1550 nm 1550 nm
Pigtail 8 km range 4 km Range
50 ns pulse 50 ns pulse
1 m resolution .5 resolution
10 Seconds 30 Seconds
NOTE: INSURE NOTE: INSURE
VERTICAL AND VERTICAL AND
HORIZONTAL HORIZONTAL
OFFSETS ARE OFFSETS ARE
SET AT 0 SET AT 0
Bi-directional 1550 nm 1550 nm
64 km range 64 km range
500 ns pulse 1001 ns pulse
4 m resolution 4 m resolution
Medium averaging Time: 1.5 min.
NOTE: FOR NOTE: FOR
SPANS LONGER SPANS LONGER
THAN 64 KM, THAN 64 KM, SET
SET AT 128 KM AT 128 KM
SETTING SETTING
3
<PAGE> 54
2000 ns 2500 ns
4 m resolution 4 m resolution
Time: 1.5 min Time: 1.5 min
5. NAMING OF TRACES
OTDR traces taken for bi-directional testing, and the OTDR traces of the
pigtail splice must be recorded on floppy diskette and provided to the
other party. To name the traces, each party will provide alpha
abbreviations for the sites. The 8-character file name plus 3-character
file extension name should follow this example:
First four letters = source point
Letters 5, 6, 7 = Destination point
8th letter = wavelength
Extension = fiber number
Examples:
Springfield to Lebanon at 1550 nm, fiber 96 = sgfdlbn5.096
Springfield to Monett pigtail trace on fiber 1 = sgfdmntp.001
NOTE: ALL HEADER INFORMATION ON OTDR TRACE MUST BE COMPLETED.
6. TEST PACKAGES
The Constructing Party shall provide a package containing the following
test data for each fiber. All data provided should be saved on diskette.
A. OTDR span traces taken at 1550 nm.
B. Pigtail traces taken for each fiber.
C. An Excel spreadsheet containing the power meter and light
source data for both directions at 1550 nm. Should also include the
average for each fiber.
D. A document identifying splice points with OOS test results.
Should also include documentation supporting the three reburn
attempts.
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<PAGE> 55
EXHIBIT D
AS-BUILT DRAWING SPECIFICATIONS
As-Built Alignment Sheets
- Survey information (either form existing data or new
information) will be put on drawings.
- Drawings will contain cable information, splice information,
assist 1"=200'
- Cable information shall include manufacturer and type of
fiber and manufacturer and style of cable.
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<PAGE> 56
EXHIBIT E
OPERATIONS SPECIFICATIONS
These operations specifications specify terms and conditions for the
maintenance and repair of the cable and the Fiber Facility. Defined terms used
herein and not otherwise defined shall have the meaning set forth in the IRU
and Maintenance Agreement between IXC and DTI and dated July _____, 1998.
Service Provider is defined as the party responsible for operating and
maintaining the system. Service Recipient is defined as the party receiving
benefit from the Service Provider.
1. General
a. Service Provider shall operate and maintain a Network Control
Center ("NCC") staffed twenty-four (24) hours a day, seven days a
week, by trained and qualified personnel. Service Provider shall
maintain a toll-free number to contact personnel at NCC. Service
Provider's NCC personnel shall dispatch maintenance and repair
personnel along the system to handle and repair problems detected
through the NCC's remote surveillance equipment, by the Service
Recipient, or otherwise.
b. Service Provider's maintenance employees shall be available
for dispatch twenty-four (24) hours a day, seven (7) days a week.
Service Provider shall use reasonable efforts to have its first
maintenance employee at the site requiring an emergency maintenance
activity within two (2) hours from the time alarm of identification
by Service Provider's NCC or notification by the Service Recipient.
Emergency maintenance is defined as any service affecting situations
requiring an immediate response.
c. Service Recipient shall utilize the attached Operations
Escalation List, to report and seek immediate initial redress of
exceptions noted in the performance of Service Provider in meeting
maintenance service objectives.
d. In performing its services hereunder, Service Provider shall
take workmanlike care to prevent impairment to the signal continuity
and performance of the system. The precautions to be taken by
Service Provider shall include notification to Service Recipient.
In addition, Service Provider shall reasonably cooperate with
Service Recipient in sharing information and analyzing the
disturbances regarding the cable and/or Fiber Facility.
e. Service Provider shall use his best effort to notify Service
Recipient seven (7) days prior to the date of any planned
non-emergency fiber activity. In the event that a Service Provider
planned activity is canceled or delayed for whatever reason as
previously notified, Service Provider shall notify Service Recipient
at Service Provider's earliest opportunity and will comply with the
provisions of the previous sentence to reschedule and delayed
activity.
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<PAGE> 57
f. The Service Provider shall provide Service Recipient upon
request new or updated as-built drawings within one hundred eighty
(180) days of completion for any cable relocation or other
engineering changes affecting the cable.
g. Service Provider and Service Recipient will maintain an
updated list of local area qualified maintenance support contractors
equipped with the necessary equipment and personnel.
2. Facilities
a. Service Provider shall maintain the system in a manner which
will permit the normal operation of the equipment associated with
the system.
b. Service Provider shall perform appropriate Routine
Maintenance on the Cable and Equipment in accordance with Service
Provider's then current preventive maintenance procedures which
shall not substantially deviate from industry practice and shall be
responsible for correcting dysfunction. Service Provider shall
notify SR in advance of Routine Maintenance procedure.
c. At a minimum, Service Providers NCC shall monitor the same
Housekeeping alarms attached to this exhibit as it does for the rest
of the Network. Service Recipient may monitor SP's Housekeeping
Alarms. In such cases, SR will receive reasonable support from SP
to attach such alarms. Any additional cost apart from this support
incurred by SR for alarm attachment shall be born by SP. Upon
receipt of an alarm, Service Provider shall take appropriate action
and notify Service Recipient of a major service jeopardy situation.
d. Service provider shall use reasonable efforts to provide at a
site emergency generators with sufficient capability to restore one
(1) unit of all redundant HVAC systems and a sufficient number of
rectifiers to carry the site load and recharge batteries within (49
hours after a power outage).
3. Cable Fibers
a. Subject to the provisions of paragraph 3.b., hereof, Service
Provider shall maintain the Cable in good and operable condition and
shall repair the cable in workmanlike manner pursuant to paragraph
3.d., hereof.
b. Service Provider shall patrol the route of cable on a
reasonable, routine basis and shall perform all required locates.
Service Provider shall have qualified representatives on site at any
time another company is crossing the cable or digging within (1.52)
meters of the cable.
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<PAGE> 58
c. Service Provider maintenance employees shall be responsible
for correcting or repair Cable discontinuity or damage, including,
but not limited to, the emergency repair of the Cable. Service
provider shall use reasonable efforts to repair Cable traffic
affecting discontinuity within four (4) hours after the Service
Provider maintenance employee's arrival at the problem site.
Service Provider shall maintain sufficient capability to
teleconference with Service Recipient during an emergency repair in
order to provide continuous communication. Within twenty-four (24)
hours after completion of an emergency repair, Service provider
shall commence its planning for permanent repair, shall notify
Service Recipient of such plans, and shall implement such permanent
repair within an appropriate time thereafter. Restoration of open
fibers on fiber strands not immediately required for service, the
repair shall be scheduled for the next available PSWP.
d. Service Provider shall comply with the Splicing
Specifications as provided in Exhibit C. Service Provider shall
provide to Service Recipient any modifications to these
specifications for Service Recipient's approval, which shall not be
unreasonably withheld. The Service Recipient shall have the right
but not the obligation at its sole expense to conduct its own fiber
acceptance testing to verify that they are operating in accordance
with the test specifications.
e. The Service Recipient will not install or connect additional
fiber optic cables or equipment in transmission sites without first
notifying the Service Provider in advance. Such notification will
include, but not limited to, engineering plans, drawings, schedules,
equipment detail and layouts, power and HVAC requirements, and other
such information as may be necessary. Service Provider shall
approve, or request modifications of the plans. Additionally,
Service Provider will inform the recipient as to the availability of
resources to accommodate the request, and any additional recurring
or non-recurring charges which may be necessary.
4. Planned Service Work Period (PWSP)
Non-emergency work which is reasonably expected to produce any signal
discontinuity must be coordinated between parties. Generally, this work should
be scheduled after midnight and before 6:00 a.m., local time. Major system
work such as fiber rolls and hot cuts will be scheduled for PSWP.
5. Restoration
a. When restoring a cut cable, the parties agree to work
together to restore all traffic as quickly as possible. The Service
Provider, immediately upon arriving on the site of the cut, shall
determine the best course of action to be taken to restore the cable
and shall begin restoration efforts.
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<PAGE> 59
b. Emergency restoration splicing has its goal to get service up
as quickly as possible. This requires the use of some type of
mechanical splice such as the "3M fiber Lock" to complete the
temporary restorations.
c. If at any time it becomes apparent that the service outage is
going to extend beyond eight (8) hours, the corresponding Vice
Presidents of each company will work together to determine a plan to
restore the cable.
d. It will be the responsibility of the Service Provider and the
Service Recipient to report to one another respectively of any known
environmental hazards which would restrict or jeopardize any
maintenance work activities in shelters or right of ways areas of
operations.
e. Service Provider's representatives that are responsible for
initial restorations of a cut cable shall carry on their vehicles
the appropriate equipment to be usable to quickly put the cable back
together using a temporary splice. Service Provider shall also
maintain an emergency restoration plan and an inventory of spare
cable at strategic locations to facilitate timely restoration.
f. Upon a system's emergency restoration event, the Service
Provider will notify the Service Recipient at (1) hour intervals
until the emergency event or restoration is completed.
4
