SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 2
TO FORM 8-K
ON
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) November 9, 1998
WINSTAR COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware 1-10726 13-3585278
- ---------------------------- ---------- -----------------
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
230 Park Avenue, New York, New York 10169
- ---------------------------------------- -------------
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 584-4000
Not Applicable
------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
Exhibit Index -- Page 4
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ITEM 5. OTHER EVENTS
Purchase of IRU from Williams. On December 17, 1998, our subsidiary,
WinStar Wireless, Inc., entered into an agreement with Williams Communications,
Inc. to purchase from Williams a 25-year indefeasible right of use ("IRU") for
four strands of fiber optic cable on a national route of 14,684 miles (58,736
fiber miles) and a seven-year option to purchase two additional strands over the
same route (29,638 fiber miles). This fiber capacity is being delivered as
routes are built and is expected to be completely available by the end of 2001,
until which time Williams will fulfill substantially all of our long-haul
transport requirements at no additional cost to us. We will pay Williams
approximately $640 million over the next seven years for the IRU, the capacity
option, certain long-haul transport and other network assets. We can exercise
the capacity option for approximately $51 million payable in cash and/or
services.
Sale of IRU to Williams. On December 17, 1998, WinStar Wireless, Inc.
and Williams entered into an agreement providing for the sale by us to Williams
of a 25-year IRU for up to 2% of our current and future local Wireless FiberK
capacity in the United States. Williams will pay us $400 million for this IRU,
with payments due ratably as we construct up to 270 hub sites. We expect to
complete construction of at least 270 hub sites over the next four years.
Williams will also pay us at least $45.6 million over a ten-year period for
network maintenance services that we will provide over the term of the IRU.
Purchase of Spectrum from CellularVision. On November 9, 1998, pursuant
to an Agreement to Purchase LMDS License ("Purchase Agreement") with
CellularVision USA, Inc. ("CVUSA") and CellularVision of New York, L.P.
("CVNY"), dated July 10, 1998, we purchased from CVNY 850 MHz of the spectrum
covered by the LMDS A Block License issued to CVNY by the Federal Communications
Commission for the New York Primary Metropolitan Statistical Area for a purchase
price of $32,500,000, payable in cash. The 850 MHz portion of spectrum was
disaggregated by CVNY from the remaining spectrum covered by its license.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) EXHIBITS:
10.1 IRU Agreement between WinStar Wireless, Inc. and Williams
Communications, Inc. Dated December 17, 1998 (Long-Haul).
10.2 Wireless Fiber/sm IRU Agreement By and Between WinStar Wireless,
Inc. and Williams Communications, Inc. Effective as of December
17, 1998.
10.3 Agreement to Purchase LMDS License dated July 10, 1998 by and
between WinStar Communications, Inc., CellularVision USA, Inc.
and CellularVision of New York, L.P.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: February 2, 1999
WINSTAR COMMUNICATIONS, INC.
/s/ Timothy R. Graham
By: ____________________________
Timothy R. Graham
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EXHIBIT INDEX
Exhibit Document
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10.1 IRU Agreement between WinStar Wireless, Inc. and Williams
Communications, Inc. Dated December 17, 1998 (Long-Hand).
10.2 Wireless Fiber/sm IRU Agreement By and Between WinStar Wireless, Inc.
and Williams Communications, Inc. Effective as of December 17, 1998.
10.3 Agreement to Purchase LMDS License dated July 10, 1998 by and between
WinStar Communications, Inc., CellularVision USA, Inc. and
CellularVision of New York, L.P.
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Confidential - WinStar/Williams
IRU AGREEMENT
BETWEEN
WINSTAR WIRELESS, INC.
AND
WILLIAMS COMMUNICATIONS, INC.
Dated December 17, 1998
(Long-Haul)
<PAGE>
TABLE OF CONTENTS
1. DEFINITIONS...........................................................1
2. CONVEYANCE OF DARK FIBER IRUS AND GRANT OF OPTION.....................7
2.1. Grant of Network IRU................................................7
2.2. Option..............................................................8
2.3. Financing Arrangements..............................................8
2.4. Preferred Provider Status...........................................8
2.5. Most Favored Customer Provision.....................................9
2.6. No Title to Realty or Personalty....................................9
3. CONSIDERATION FOR IRUS................................................10
3.1. Contract Price......................................................10
3.2. Exercise Price......................................................10
4. CONSTRUCTION..........................................................10
4.1. Construction Representations, Warranties and Covenants..............10
4.2. Delivery of System Segments.........................................10
4.3. Renewal of Required Rights..........................................11
4.4. As-Built Drawings...................................................11
4.5. Third-Party Consents................................................11
5. ORDERING AND PROVISIONING.............................................12
5.1. Provision of Interim Service........................................12
5.2. Service Orders for Interim Services.................................12
5.3. Changes in Service Parameters.......................................14
5.4. Assignment and Assumption of Backbone Agreements....................15
6. CONNECTION TO THE SYSTEM AND COLLOCATION..............................17
6.1. Collocation.........................................................17
6.2. Interconnection.....................................................17
6.3. Ancillary Services..................................................18
7. ACCEPTANCE AND TESTING OF FIBERS......................................18
7.1. Overview............................................................18
7.2. SSPFAT by Williams..................................................19
7.3. SSPFAT by WinStar...................................................19
7.4. Failure Notice......................................................20
7.5. Correction..........................................................20
7.6. Testing by Third Party..............................................20
7.7. System Segment Fiber Acceptance Testing and Acceptance Date.........21
7.8. Testing of Option Fibers............................................21
8. USE OF THE SYSTEM.....................................................21
8.1. Use of WinStar Fibers...............................................21
8.2. Notice of Damage....................................................21
8.3. Precautions.........................................................21
8.4. Use of Equipment....................................................22
8.5. Liens...............................................................22
9. TERM..................................................................22
9.1. Agreement Term......................................................22
9.2. IRU Terms...........................................................22
9.3. Effect of Termination...............................................22
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10. OPERATION, MAINTENANCE, AND REPAIR OF THE SYSTEM......................23
10.1. Routine Maintenance.................................................23
10.2. Non-Routine Maintenance.............................................23
10.3. Subcontractors......................................................23
10.4. Continued Breach of Routine Maintenance Obligations................23
10.5. WinStar Equipment...................................................23
10.6 Access to Systems...................................................23
11. RELOCATION............................................................24
11.1. Relocation..........................................................24
11.2. Cost of Relocation..................................................24
11.3. Updated As-Built Drawings...........................................24
12. INVOICING AND PAYMENT.................................................25
12.1. Due Date and Invoice................................................25
12.2. Form of Payment.....................................................25
12.3. Disputed Charges....................................................25
12.4. Late Interest.......................................................26
12.5. Adjustments.........................................................26
13. DISCLAIMER OF WARRANTIES..............................................26
13.1. Parties.............................................................26
13.2. Facility Owners/Lenders.............................................26
14. AUDIT RIGHTS..........................................................26
15. INDEMNIFICATION.......................................................27
15.1. Indemnification.....................................................27
15.2. Third Party Claims..................................................27
15.3. Indemnification of Providers........................................28
15.4. WinStar Customers...................................................28
16. LIMITATION OF LIABILITY...............................................28
16.1. General Intent......................................................28
16.2. Liability Restrictions..............................................28
16.3. Released Parties....................................................29
17. INSURANCE.............................................................29
17.1. Insurance...........................................................29
17.2. Documentation.......................................................30
17.3. Certificates........................................................30
17.4. Blanket Policies....................................................30
18. TAXES AND GOVERNMENTAL FEES...........................................30
18.1. Payment by WinStar..................................................30
18.2. Payment by Williams.................................................31
18.3. Reimbursement.......................................................31
18.4. Cooperation.........................................................31
18.5. Services............................................................31
19. NOTICE................................................................31
20. CONFIDENTIALITY.......................................................32
20.1. Confidential Information............................................32
20.2. Obligations.........................................................32
20.3. Exclusions..........................................................33
20.4. No Implied Rights...................................................34
21. DEFAULT...............................................................34
22. FORCE MAJEURE.........................................................34
22.1. Excusable Delay.....................................................34
22.2. Notice and Remedy...................................................35
<PAGE>
23. REMEDIES AND DISPUTE RESOLUTION.......................................35
23.1. Dispute Resolution..................................................35
23.2. Cumulative Remedies.................................................35
23.3. Informal Dispute Resolution.........................................35
23.4. Arbitration.........................................................36
23.5. Continued Performance...............................................38
23.6. Immediate Injunctive Relief.........................................38
24. GENERAL...............................................................38
24.1. Rules of Construction...............................................38
24.2. Assignment..........................................................40
24.3. Relationship of the Parties.........................................42
24.4. Prohibition on Improper Payments....................................42
24.5. Entire Agreement; Amendment; Execution..............................42
25. REPRESENTATIONS, WARRANTIES AND COVENANTS.............................43
25.1. Representations and Warranties......................................43
25.2. Additional Williams Covenants.......................................43
25.3. Infringement of Intellectual Property Rights........................44
26. USE OF TELECOMMUNICATIONS AND OTHER SERVICES..........................44
26.1. Condition to Provision of Services..................................44
26.2. Intrastate Interexchange Services...................................44
26.3. WinStar Responsibilities............................................45
26.4. Consents............................................................45
26.5. Restriction of Transmissions........................................45
26.6. Reasonableness, Consents and Approval...............................45
EXHIBITS
Exhibit A Williams System
Part 1 -- Route Map
Part 2 -- System Segments
Exhibit B Williams Network Pricing Schedules and Technical Specifications
Exhibit C Collocation Provisions
Part 1 - Transmission Sites
Part 2 - POPs
Exhibit D Fiber Splicing, Testing, and Acceptance Standards
Exhibit E Fiber Specifications
Exhibit F Cable Installation Specifications
Exhibit G Transmission Site Specifications
Exhibit H As-Built Drawing Specifications
Exhibit I Operations Specifications
Exhibit J Intentionally omitted
Exhibit K Payment Terms
Exhibit L Intentionally Omitted
Exhibit M Intentionally Omitted
Exhibit N Intentionally Omitted
Exhibit O Williams Cities and Location of POPs
<PAGE>
IRU AGREEMENT
(Long-Haul)
THIS IRU AGREEMENT (including the Exhibits and Schedules attached
hereto, this "Agreement") is made as of the Effective Date (hereafter defined)
by and between WINSTAR WIRELESS, INC. ("WinStar"), a Delaware corporation having
its principal office at 230 Park Avenue, New York City, New York, and WILLIAMS
COMMUNICATIONS, INC. ("Williams"), a Delaware corporation, having its principal
office at One Williams Center, Tulsa, Oklahoma 74172.
W I T N E S S E T H:
WHEREAS, Williams has constructed or will construct or obtain rights of
use in a fiber optic communication system (the "System") located approximately
along the routes depicted in Exhibit A, Part 1 (the "Route") and consisting of
the System Segments, as defined below; and
WHEREAS, WinStar desires to acquire from Williams, and Williams desires
to provide to WinStar, the Network IRU as defined below upon the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the mutual promises set forth below
and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS
Capitalized terms and phrases used in this Agreement shall have the
following meanings:
(a) "Acceptance Date" means the date defined in Section 7.7 below.
(b) "Acceptance Standards" means the standards set forth in Exhibit D
with respect to the testing of the WinStar Fibers.
(c) "Additional Services" means telecommunications services in excess
of the Minimum Commitment, such excess is not included in the
Contract Price.
(d) "Affiliate" means, with respect to any entity, any other entity
Controlling, Controlled by or under common Control with such
entity, whether directly or indirectly through one or more
intermediaries.
(e) "Agreement" has the meaning set forth in the preamble to this
document.
(f) "Ancillary Collocation Services" has the meaning set forth in
Exhibit C, Part 1, Section 1(d).
(g) "Ancillary Services" has the meaning set forth in Section 6.3.
(h) "Assignment Agreement Effective Date" has the meaning set forth
in Section 5.4(a).
(i) "Assumed Backbone Agreement" means a Backbone Agreement that
WinStar assigns to Williams in accordance with Section 5.4.
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(j) "Backbone Agreements" means the agreements designated by WinStar
that WinStar is a party to as of the Effective Date and which
WinStar intends to assign to Williams or have Williams act as a
payment agent.
(k) "Backbone Agreement Service Provider" means each provider of
telecommunications services (other than WinStar) who is a party
to a Backbone Agreement.
(l) "Cable" means fiber optic cable installed pursuant to this
Agreement as part of the System (including any replacement cable)
and fibers contained therein, including the WinStar Fibers, and
associated splicing connections, splice boxes and vaults, and
conduit.
(m) "Circuit" means a communications path with a specified bandwidth.
(n) "Claim" means any claim, action, dispute, or proceeding of any
kind between WinStar (or any of its Affiliates, successors or
assigns) and Williams (or any of its Affiliates, successors, or
assigns) and any other claim, transaction, occurrence, loss,
liability, expense or other matter arising out of, in connection
with, or in any way related to, the Network IRU, the System, this
Agreement or any other instrument, arrangement or understanding
related to the Network IRU.
(o) "Claimant" has the meaning set forth in Section 15.1.
(p) "Collocation Service" has the meaning set forth in Exhibit C,
Part 2.
(q) "Connecting Point" means a point where the network or facilities
of WinStar will connect to the System.
(r) "Contract Price" has the meaning set forth in Section 3.1.
(s) "Control" and its derivatives mean legal, beneficial or equitable
ownership, directly or indirectly, of more than fifty percent
(50%) of the outstanding voting capital stock (or other ownership
interest, if not a corporation) of an entity or management or
operational control over such entity.
(t) "Costs" means actual, direct costs incurred and computed in
accordance with the established accounting procedures used by
Williams to bill third parties for reimbursable projects. All
Costs shall be computed in accordance with generally accepted
accounting principles. Such actual, direct costs include the
following:
(i) Labor costs, including wages and salaries, and benefits,
plus the overhead allocable to such labor costs (overhead
allocation percentage shall not exceed the lesser of: (i)
the percentage Williams allocates to its internal projects;
or (ii) thirty percent (30%)); and
(ii) Other direct costs and out-of-pocket expenses on a
pass-through basis (such as equipment, materials, supplies,
contract services, costs of capital, Required Rights, sales,
use or similar taxes, etc.) plus ten percent (10%) of such
expenses; but,
(iii) Less any cost or expense reimbursed by a third party.
(u) "CPNIP" has the meaning set forth in Part I, Section 2.1 of
Schedule B, Williams Network Technical Specifications.
(v) "Deadline Date" has the meaning set forth in Section 4.2.
(w) "Deduction Sections" has the meaning set forth in Section
24.1(l).
(x) "Dispute Notice" has the meaning set forth in Section 23.4(a).
(y) "Disputing Party" has the meaning set forth in Section 23.4.
(z) "Due Date" has the meaning set forth in Section 12.1.
(aa) "Effective Date" means December 17, 1998.
(bb) "Equipment" has the meaning set forth in Section 1.1 of Schedule
C, Part 2.
(cc) "Exercise Date" means the date on which WinStar exercises its
Option in accordance with Section 2.2.
(dd) "Exercise Price" has the meaning set forth in Section 3.2.
(ee) "Facility Owners/Lenders" means any entity (other than Williams)
that: (a) owns any portion of the System or any property or
security interest therein, (b) leases to Williams, or provides an
IRU to Williams in, any portion of the System, or (c) is a Lender
with respect to Williams or any Affiliates of Williams.
(ff) "FCC" means the Federal Communications Commission.
(gg) "Fiber Acceptance Testing" means the fiber acceptance testing
described in Exhibit D and in Article 7.
(hh) "Fiber Collocation Provisions" means the provisions set forth in
Exhibit C, Part 1.
(ii) "Fibers" means any optical fibers contained in the System
including the WinStar Fibers, the fibers of Williams and the
fibers of any third party in the System excluding, however, any
fibers granted (whether through ownership, IRU, lease, or
otherwise) to governmental entities in exchange for the use of
streets, rights of way, or other property under the jurisdiction
of such entity.
(jj) "Force Majeure Events" has the meaning set forth in Article 22.
(kk) "Indefeasible Right of Use" or "IRU" means an exclusive,
indefeasible right to use the specified property or capacity in
the manner contemplated by this Agreement; provided, however,
that the grant of an IRU shall not convey title, ownership, or
rights of possession in the System, the WinStar Fibers, the
Cable, the Right-of-Way Agreements, or any other real or personal
property.
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(ll) "Indemnitor" has the meaning set forth in Section 15.1.
(mm) "Initial WinStar Fibers" has the meaning set forth in Section
2.1.
(nn) "Intellectual Property Rights" means patent, copyright,
trademark, trade secret or other proprietary rights with respect
to any work product in which such rights could inure.
(oo) "Interconnect/Collocation Notice" has the meaning set forth in
Exhibit C, Part 1, Section 3.
(pp) "Interconnect Facility" has the meaning set forth in Exhibit C,
Part 1, Section 2(a).
(qq) "Interconnection" has the meaning set forth in Section 6.2.
(rr) "Interim IRU" has the meaning set forth in Section 2.1(b).
(ss) "IRU Term" has the meaning set forth in Section 9.2.
(tt) "LEC" means a local exchange carrier.
(uu) "Lender" has the meaning set forth in Section 2.3.
(vv) "Losses" means all liabilities, damages and related costs and
expenses (including fines, levies, assessments, reasonable legal
fees and disbursements and costs of investigation, litigation,
settlement, judgment, interest and penalties) directly incurred
by a party.
(ww) "Material Improvements" has the meaning set forth in Section 10
of Exhibit C, Part 2.
(xx) "Mean Time to Restore" has the meaning set forth in Exhibit B.
(yy) "Minimum Commitment" means One Hundred Twenty Million Dollars
($120,000,000), which is the minimum amount of On-Net
Telecommunications Services in United States dollars to be
purchased by WinStar pursuant to the terms hereof prior to the
expiration of the fifth anniversary of the Effective Date. Such
amount is included in the Contract Price.
(zz) "Minimum Term Liability" has the meaning set forth in Section
5.3(b).
(aaa)"NCC" means Network Control Center, as set forth in Exhibit I,
Section 1(A).
(bbb) "Network IRU" has the meaning set forth in Section 2.1.
(ccc)"Notice of Election" has the meaning set forth in Section
15.2(a).
(ddd)"OOS" means Out-of-Spec, as set forth in Exhibit D, Section
1(B).
(eee) "Off Net" means a Circuit that is not On Net.
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(fff)"On Net" means a Circuit traversing the Williams Network between
two Williams points of presence.
(ggg) "Option Fibers" has the meaning set forth in Section 2.1.
(hhh) "Option" has the meaning set forth in Section 2.2.
(iii)"OTDR" means optical time domain reflectometer, as set forth in
Exhibit D, Section 1(A).
(jjj)"Other Services" means local access, Interconnection, Ancillary
Services and Collocation Services.
(kkk)"Payment Deductions" has the meaning set forth in Section
24.1(l).
(lll) "Payment Terms" has the meaning set forth in Section 3.1.
(mmm)"Point of Presence" means a specified location at which Williams
originates or terminates services.
(nnn) "Premises" has the meaning set forth in Exhibit C, Part 2.
(ooo)"Prime Rate" means, with respect of any period, the rate
published as Chase Manhattan's prime rate in the Wall Street
Journal, or any successor publication thereto, from time to time
during such period.
(ppp)"Pro-Rata Share" means a proportion equal to a fraction, the
numerator of which is the number of WinStar Fibers and the
denominator of which is all Fibers in the relevant System Segment
Portion(s). If this fraction varies over different System Segment
Portions, then the Pro Rata Share shall be equal to the weighted
average (weighted by length as set forth in Williams' as-built
drawings) of the relevant System Segment Portions. For example,
if the fraction for 100 feet of the relevant System Segment
Portion is 0.1 and the fraction for the remaining 50 feet of the
relevant System Segment Portion is 0.07, the weighted average for
the entire System Segment Portion would be 0.09.
(qqq)"Released Party" means each of the following (but excludes
Williams and WinStar):
(i) Any Affiliates or Lenders of the other party and any
Facility Owners/Lenders;
(ii) Any employee, officer, director, stockholder, partner,
member, or trustee of the other party or of its Affiliates,
Lenders, or Facility Owners/Lenders; or
(iii)Assignees of the entities included in the above
subparagraphs (a) or (b) and any employee, officer,
director, stockholder, partner, member, or trustee of such
assignees.
(rrr)"Renegotiated Backbone Agreement" means an Assumed Backbone
Agreement that Williams has renegotiated as set forth in Section
5.4(b).
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(sss) "Representatives" has the meaning set forth in Section 20.2.
(ttt)"Requested Start Date" has the meaning set forth in Section
5.2(b).
(uuu) "Required Rights" has the meaning set forth in Section 4.1.
(vvv) "Restricted Fiber" has the meaning set forth in Section 26.1.
(www)"Right-of-Way Agreements" means rights, licenses,
authorizations, easements, leases, fee interests, or agreements
that provide for the occupancy by the System of real property or
fixtures (such as conduit, bridges, river crossings, or
transmission towers).
(xxx) "Route" has the meaning set forth in the Recitals above.
(yyy) "Routine Maintenance" has the meaning set forth in Section 10.1.
(zzz)"Service Orders" has the meaning set forth in Section 5.2(a).
(aaaa) "Service Term" means with respect to the provision of
Telecommunications Services, Additional Services or Other
Services, the length of time specified in the applicable Service
Order during which Williams will provide such Telecommunications
Services, Additional Services or Other Services.
(bbbb) "Space" has the meaning set forth in Section 1.1 of Schedule C,
Part 2.
(cccc) "Start Date" means, with respect to any Telecommunications
Services or Other Services WinStar requests Williams to provide
hereunder, the first day on which such services are provided.
(dddd) "Start of Service Notice" or "SOSN" has the meaning set forth
in Section 5.2(e) .
(eeee) "System" shall have the meaning set forth in the Recitals
above.
(ffff) "System Segment" means one of the System Segment Portions
identified as a System Segment in Exhibit A, Part 2.
(gggg) "System Segment Portion" means a discrete portion of the System
and may refer to a span (a portion of the System between two
Transmission Sites or between a Transmission Site and a point of
presence or System end point), a portion between two points of
presence or a point of presence and a System end point, or a
portion of the System affected by a relocation or other
circumstance.
(hhhh) "Telecommunications Services" means interexchange
telecommunications capacity on Williams' Network (or third
parties' telecommunications facilities) at the DS-3, OC-3, OC-12
and OC-48 levels but excluding Other Service.
(iiii) "Term" has the meaning set forth in Section 9.1.
(jjjj) "Third Party Service Provider" means any third party provider,
operator or maintenance repair contractor of facilities employed
by Williams in connection with the provision of the Network IRU,
Telecommunications Services or Other Services.
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(kkkk) "Transmission Sites" means the optical amplifier, regenerator,
and junction sites along each System Segment.
(llll) "Williams" means Williams Communications, Inc., a Delaware
corporation, formerly known as Vyvx, Inc.
(mmmm) "Williams Network" means the telecommunications facilities
owned or operated by Williams and used to provide services
between the cities listed on Exhibit O, as such may be added to
as Williams grows its network during the Term.
(nnnn) "WinStar" has the meaning set forth in the first paragraph of
this document.
(oooo) "WinStar Equipment" means optronic (opto-electrical),
electronic, or optical equipment, or materials, facilities, or
other equipment (other than the System) owned, possessed, or
utilized by WinStar.
(pppp) "WinStar Facilities" has the meaning set forth in Section 26.3.
(qqqq) "WinStar Fibers" means the Initial WinStar Fibers and, upon
WinStar's exercise of the Option in accordance with Section 2.2,
the Option Fibers.
(rrrr) "WinStar IRU" has the meaning set forth in Section 2.1.
2. CONVEYANCE OF DARK FIBER IRUS AND GRANT OF OPTION
2.1. Grant of Network IRU.
Williams hereby grants the "Network IRU" to WinStar for the purposes
described herein and on the terms and subject to the conditions set forth
herein. The Network IRU comprises:
(a) An exclusive Indefeasible Right of Use (the "WinStar IRU"), effective
as of the Acceptance Date for each System Segment, in:
(i) Four (4) strands of optical fiber (the "Initial WinStar Fibers"),
as identified by Williams in each System Segment, throughout the
length of the Route; and
(ii) If the Exercise Date occurs, two (2) additional strands of
optical fiber (the "Option Fibers"), as identified by Williams in
each System Segment, throughout the length of the Route; and
(b) An exclusive Indefeasible Right of Use in On-Net Telecommunications
Services (the "Interim IRU"), effective as of the Effective Date,
which is further defined in Article 5.
2.2. Option.
(a) WinStar is hereby granted an option (the "Option") to an exclusive
Indefeasible Right of Use in the Option Fibers in all System Segments.
The Option is not divisible (i.e. it may not be exercised in part) by
System Segment or strand of Option Fiber. If not exercised, the Option
shall expire on the seventh (7th) anniversary of the Effective Date.
(b) WinStar may exercise the Option only by delivery of an irrevocable
written notice to that effect by an authorized representative. If
WinStar so exercises the Option:
(i) The Option Fibers will be deemed to be WinStar Fibers (except for
purposes of Article 7, for which separate treatment is indicated
in Section 7.8) and will be deemed to be subject to the WinStar
IRU; and
(ii) WinStar's rights to use the Option Fibers shall begin upon the
initial payment of the Exercise Price (or, if later, the
Acceptance Date for each System Segment) and shall continue until
the last day of the IRU Term of the corresponding System Segment.
2.3. Financing Arrangements.
Each party may, directly or through an Affiliate, enter into financing
arrangements (including secured loans, leases, sales with lease-back,
leases with lease-back arrangements, purchase-money or vendor financing,
conditional sales transactions or other arrangements) with one or more
financial institutions, vendors, suppliers or other financing sources (each
a "Lender"), that, with respect to Williams, relate to the System and, with
respect to WinStar, relate to the Network IRU (and not to any physical
property right in the System), subject to Williams' rights pursuant to the
Payment Terms.
2.4. Preferred Provider Status.
(a) During the Term, WinStar shall first seek to obtain its domestic
interexchange telecommunications requirements (including dark fiber,
data, voice and video circuits) from Williams. WinStar will fulfill
such requirements with Williams' telecommunications products if
Williams is responsive to WinStar's requests and those products, when
compared to similar offerings in the marketplace, are of equivalent or
better quality, availability and price.
(b) Within 180 days after the Effective Date, the parties will jointly
establish a benchmarking measurement and comparison process (the
"Benchmarking Process") designed to objectively evaluate whether the
Williams Telecommunications Services, Additional Services or Other
Services, as applicable, are of equivalent or better quality,
availability and price as compared to similar services generally
available in the market for similar size and scope requirements
("Market Level Charges"). The Benchmarking Process will take into
consideration relevant factors such as quality and delivery terms.
2.5. Most Favored Customer Provision.
During the Term, if Williams sells On-Net Telecommunications Services,
On-Net Additional Services, and/or Other Services (but not including any
local access or dark/dim fiber) to a third party on Financial Terms (as
hereinafter defined) that are not Comparable (as hereinafter defined) to
those provided hereunder, WinStar shall be entitled to an adjustment of the
amounts paid with regard to the On-Net Telecommunications Services, On-Net
Additional Services, and/or Other Services in question. Williams shall
promptly notify WinStar in writing of such more favorable Financial Terms.
Williams shall be under no obligation to disclose to WinStar the identity
of any such third party or any other provisions of such a contract that are
not more favorable than those provided to WinStar. Such adjustment shall be
equal to the aggregate amount necessary to make the Financial Terms
Comparable (pro rated to follow the cash timing of this Agreement). Upon
payment or credit of such adjustment to WinStar, the Financial Terms of
this Agreement shall be deemed to be those more favorable Financial Terms
for the purpose of future applications of this Section. Nothing in this
Section shall be deemed to require Williams to sell more than the Minimum
Commitment contained herein. "Comparable" means not less than the price,
after adjustments to take into account all differences attributable to
volume, terms and conditions, advances in technology, passage of time,
market conditions or strategic relationship value. "Financial Terms" means
the overall pricing of services to the third-party.
2.6 No Title to Realty or Personalty.
Neither this Agreement nor the grant of the Network IRU effected hereby
conveys any form or type of title in any real or personal property,
including the System or any portion thereof or in any transmission or other
facilities and equipment related to the provision of Telecommunications
Services, Other Services, or Additional Services. Williams and WinStar
intend that this Agreement constitutes a true lease of the WinStar Fibers
and not a sale of the WinStar Fibers. Notwithstanding such express intent
of the parties, if a court of competent jurisdiction determines that this
Agreement is not a true lease, but a security interest in the WinStar
Fibers, then solely in that event and solely for the limited purpose
thereof, WinStar shall be deemed to have granted Williams a security
interest as described in Section 7 of Exhibit K hereto. WinStar shall
provide an inventory of any equipment to be located on Williams' sites.
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3. CONSIDERATION FOR IRUS
3.1. Contract Price.
As consideration for the Network IRU, WinStar shall pay Williams Five
Hundred and Fifty Million Dollars ($550,000,000) (the "Contract Price") in
accordance with the payment and other terms set forth in Exhibit K hereto
(the "Payment Terms"), plus the Exercise Price if the Option is exercised.
3.2. Exercise Price.
The price payable if WinStar exercises the Option (the "Exercise Price")
shall be Fifty-One Million Eight Hundred Thirty-Four Thousand One Hundred
Dollars ($51,834,100), allocated to each System Segment as set forth in
Exhibit A, Part 2. The Exercise Price for each System Segment shall be
chargeable upon the later of (a) the date WinStar exercises the Option or
(b) the Acceptance Date of that System Segment.
4. CONSTRUCTION
4.1. Construction Representations, Warranties and Covenants.
(a) Williams represents, warrants and covenants that, as of the Acceptance
Date for each System Segment, it (or the underlying facility owner on
Williams' behalf) shall have obtained the following rights
(collectively, the "Required Rights"):
(i) All Right-of-Way Agreements necessary for the installation and
use of that System Segment;
(ii) The rights to use those System Segment Portions it does not own
and the right to grant the Network IRU with respect to such
System Segment Portions;
(b) Williams represents, warrants and covenants that, for each System
Segment,
(i) That System Segment has been designed, engineered, installed, and
constructed in accordance with the specifications set forth in
Exhibits D, E, F and G; and
(ii) Throughout the relevant IRU Term, the exercise of rights by or on
behalf of Williams' Facilities Owners/Lenders shall not deprive
WinStar of the peaceful and quiet enjoyment of the WinStar IRU in
that System Segment.
4.2. Delivery of System Segments.
(a) Deadline Date. The planned Acceptance Date for each System Segment
shall be the date sixty (60) days after the Planned Construction Date
set forth as such in Exhibit A, Part 2. The "Deadline Date" shall be
sixty (60) days after the later of (a) such planned Acceptance Date or
(b) the planned Acceptance Date as extended due to unforseen events
not in the reasonable control of Williams (other than as due to
Williams' negligence), Force Majeure Events or as expressly permitted
by this Agreement. Williams shall implement each System Segment so
that it achieves its Acceptance Date by the Deadline Date. Williams
shall give WinStar as much prior notice as reasonably possible if , to
the best of Williams' knowledge, there is a forseeable risk that it
may miss a Deadline Date for any System Segment.
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(b) Failure to Meet Deadline Date. If Williams does not meet the Deadline
Date for any System Segment, and the parties are unable, in good
faith, to agree to an alternative Deadline Date, WinStar's sole and
exclusive monetary remedy for such failure shall be to obtain Cover
(as hereinafter defined) beginning on the Deadline Date for the System
Segments not made available. Such "Cover" shall be satisfied by
Williams' providing, at Williams' expense: (a) such capacity as is
required for WinStar to carry those Circuits it would have migrated to
the WinStar Fibers, and (b) such other capacity as is needed to
fulfill WinStar's increase in usage (based on actual orders of its
customers), until Williams delivers the WinStar Fibers. In any event,
Williams will provide such Cover capacity in ATM, private line, or
frame relay formats, at WinStar's option.
4.3. Renewal of Required Rights.
Williams shall renew or replace existing Required Rights for each
System Segment through at least the applicable IRU Term.
4.4. As-Built Drawings.
Within six (6) months after the Acceptance Date for any System
Segment, Williams shall provide WinStar with as-built drawings for
that System Segment, in compliance with the specifications for
as-built drawings set forth in Exhibit H.
4.5. Third-Party Consents.
WinStar acknowledges that Williams requires the consent of a third
party in order to grant WinStar an IRU with respect to the
Washington-Houston and Houston-Dallas System Segments. WinStar shall
not unreasonably withhold consent to changes to this Agreement
required by such third party that do not adversely affect WinStar's
rights and obligations under this Agreement and do not require payment
of additional consideration by WinStar. If WinStar consents to such
changes, the parties shall execute an appropriate amendment. If
WinStar does not consent to such changes, or the Required Consents
cannot be obtained for other reasons, then the Contract Price and
Exercise Price shall each be reduced by the corresponding amount
allocated to the affected System Segment(s) in Exhibit A, Part 2.
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5. ORDERING AND PROVISIONING
5.1. Provision of Interim Service.
(a) Inasmuch as the deployment of the System does not currently reach all
locations set forth in Part 1 of Exhibit A, Williams shall provide,
subject to availability and on a non-discriminatory basis,
Telecommunications Services on the Williams Network in accordance with
the terms of this Agreement. Such Telecommunications Services may be
part of the Minimum Commitment or may be Additional Services.
(b) At the request of Williams, WinStar shall pay for Other Services or
Additional Services requested by WinStar in accordance with the terms
of this Agreement.
(c) Within ninety (90) days after each of the first five (5) anniversaries
of the Effective Date, Williams shall determine WinStar's actual use
of Minimum Commitment for the year ending on such anniversary and
shall send such information to WinStar for review. Irrespective of any
shortfall in Minimum Commitment actually used by WinStar during any
period, in no event shall any refund, rebate or reduction in the
Contract Price be granted or paid to WinStar as a result of any such
shortfall. Williams shall be obligated to accept any conforming
Service Orders issued by WinStar for On-Net Telecommunications
Services up to the Minimum Commitment during the first five
anniversaries of the Effective Date. Williams shall permit WinStar to
take up to two (2) months beyond the fifth anniversary beyond the
Effective Date to use Telecommunications Services requested and paid
for under a Service Order for On-Net Telecommunications Services
issued prior to the end of the fifth anniversary of the Effective Date
to enable WinStar to meet the Minimum Commitment. Notwithstanding the
foregoing, WinStar shall have additional time beyond the foregoing
five year period to meet the Minimum Commitment to the extent
WinStar's failure to meet the Minimum Commitment is due to delays by
Williams' in providing any of the On-Net Telecommunications Services
by the firm order commitment date issued by Williams during such five
year period.
5.2. Service Orders for Interim Services.
(a) Telecommunications Services, Additional Services, and Other Services
requested by WinStar hereunder shall be requested on Williams Service
Order forms in effect from time to time ("Service Orders"). Each
Service Order shall reference this Agreement. Williams reserves the
right not to accept a Service Order that does not conform with the
terms and conditions of this Agreement and such non-conforming Service
Order shall have no force or effect hereunder.
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(b) Each Service Order will indicate a requested due date (the "Requested
Start Date") for the Circuit, the desired term of the Circuit,
specific city pairs, applicable bandwidth, whether the Circuit(s) are
to be expedited or provided in normal intervals and any other
parameters required. Williams shall acknowledge receipt of the Service
Order, on average, within forty-eight (48) hours (an
"Acknowledgement"). Within four (4) business days of the
Acknowledgement, Williams will advise WinStar as to network
availability. With respect to On-Net Circuits, when WinStar requests
to order its own local loops Williams will provide a Letter of Agency
within seven to ten business days after Williams' receipt of the
Service Order. Within twenty-four (24) hours after Williams' receipt
of the Design Layout Record (as provided by the applicable local
access provider), Williams will provide a firm order commitment for
On-Net Circuits. All Service Order intervals for Off-net Circuits or
Backbone Agreement Circuits are on an individual case basis. Williams
will use reasonable efforts to assist WinStar in obtaining a Letter of
Agency and delivering service from a Third-Party Provider. All On-Net
DS-3/OC-3 Circuits ordered by WinStar pursuant to Service Orders under
this Agreement will be provisioned by Williams within a target
timeframe of forty-five (45) days from the date of the Service Order
for POP to POP service.
(c) Once a Service Order is placed, WinStar may cancel it only by notice
of cancellation not less then ten days prior to delivery of the
corresponding Circuit, and payment of any specified cancellation fee.
WinStar agrees that the actual damages in the event of such
cancellation would be difficult or impossible to ascertain, and that
the cancellation charge set forth in herein is consequently intended
to establish liquidated damages and not a penalty.
(d) Any conflicting, different or additional terms and conditions
contained in WinStar's acknowledgment or Service Order or elsewhere
are deemed objected to by Williams and shall not constitute part of
this Agreement. No action by Williams (including fulfillment of such
Service Order) shall be construed as binding or estopping Williams
with respect to such conflicting, different or additional term or
condition, unless the Service Order containing said term or condition
has been signed by an authorized representative of Williams.
(e) Williams shall make reasonable efforts to provide Telecommunications
Services, Other Services and Additional Services within its standard
service implementation interval, as set forth herein or on WinStar's
Requested Start Date. Telecommunications Services, Other Services or
Additional Services, as applicable, shall begin on the date Williams
issues a notice that service is available (the "Start of Service
Notice" or "SOSN"), indicating the service has been tested by Williams
in accordance with Williams' standard specifications and that the
service meets or exceeds those specifications.
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(f) WinStar may reasonably request one or more delays in the Requested
Start Date of a Service Order, a move, or rearrangement if Williams
receives the delay request at least fifteen (15) days prior to the
Requested Start Date and the requested delay does not extend the
Requested Start Date more than thirty (30) days from the original date
thereof. If WinStar delays the Requested Start Date (or as gauged by
the SOSN, if issued for a date after the Requested Start Date) by more
than thirty (30) days, WinStar has the option to (a) accept the
billing for the Service Order, (b) in the case of On-Net
Telecommunications Services, Other Services, or Additional Services,
cancel the Service Order and pay the applicable cancellation charges
for the facilities ordered, or (c) in the case of Off-Net
Telecommunications Services, Other Services, or Additional Services,
cancel the Service Order and pay any charges or other costs Williams
incurs as a result of such cancellation. The billing or cancellation
will be effective thirty (30) days after the Requested Start Date. If
WinStar elects to accept billing, the installation will be completed
as soon as reasonably practical after WinStar advises Williams that
the installation can be completed.
(g) Subject to the terms of Section 24.1(l), if, after the relevant Start
Date, Williams is in material breach of its obligation to issue a SOSN
for On-Net Telecommunications Services (excluding any breach arising
from delays in obtaining or failures to obtain or maintain service
such as local access or Off-Net service, but excluding POP-to-POP
On-Net service) for a period of more than one hundred twenty (120)
consecutive days after WinStar provides written notice of such breach,
WinStar may deduct from each succeeding monthly invoice, so long as
that breach continues, the amount by which such Telecommunications
Services would otherwise have contributed toward the Minimum
Commitment during any month following such one hundred twenty (120)
day period. Upon Williams' issuance of the corresponding SOSN, no
further deductions shall be available to WinStar for such
Telecommunications Services.
5.3. Changes in Service Parameters.
(a) WinStar may disconnect Off-Net Telecommunications Service, Other
Services, or Additional Services provided by a Third-Party Service
Provider pursuant to a Service Order by providing sixty (60) days'
prior written notice and paying any and all amounts properly due that
Provider for the affected Service Order.
(b) Following the relevant Start Date for any On-Net service, WinStar may
disconnect or reconfigure that service upon sixty (60) days' prior
written notice. If that action relates to a Circuit that has not been
in place for at least one (1) year from its Start Date, (i) WinStar
shall pay Williams an amount equal to the total of the monthly charges
for one year of service of such Circuit, less the amount of monthly
charges actually paid at the time of service disconnection (the
"Minimum Term Liability") and (ii), WinStar shall also pay Williams
the additional charges set forth in this Agreement that are associated
with that disconnection or reconfiguration. Subsection (ii) shall also
apply in the event of a cancellation in accordance with Section
5.2(c).
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5.4. Assignment and Assumption of Backbone Agreements.
(a) Assumption. Subject to subsection (i) below and WinStar obtaining any
necessary required consents, WinStar will assign to Williams pursuant
to a mutually acceptable assignment and assumption agreement, all
Backbone Agreements that can be assigned, to the extent that Williams
has the requisite intrastate or international authority to provide the
services encompassed by such Backbone Agreements. The date of the
assignment shall be the "Assignment Agreement Effective Date". After
such assumption, the terms and conditions of such Assumed Backbone
Agreements or such Renegotiated Backbone Agreement, as applicable,
(including all technical standards and service provisioning intervals)
shall prevail solely with regard to services provided by Williams to
WinStar thereunder, except as to any Circuit which has been migrated
on Williams Network as provided below.
(b) Renegotiation. Williams shall renegotiate the Assumed Backbone
Agreements, as it is reasonably able, to improve on the terms and
pricing thereof. Any such renegotiated terms shall only be applicable
to WinStar to the extent it improves the terms and pricing of the
Backbone Agreement as assigned to Williams. Once an Assumed Backbone
Agreement is renegotiated, it shall be considered a Renegotiated
Backbone Agreement for all purposes herein. Williams will only pass
through to WinStar, and WinStar shall be entitled to, its pro-rata
share of such cost savings achieved in any Renegotiated Backbone
Agreement. WinStar's pro-rata share will be determined by dividing the
then current WinStar Circuit or billing volumes by the total new
Circuit or billing volume under the Renegotiated Backbone Agreement.
(c) Payment Agent. WinStar shall designate Williams as its payment agent
with respect to all Backbone Agreements that cannot be assigned to
Williams pursuant to subsection (a) above.
(d) Payment and Minimum Commitments. WinStar shall pay Williams for
services rendered under the Assumed Backbone Agreements and
Renegotiated Backbone Agreements at the rates therein and shall also
remain responsible for meeting the associated minimum revenue or
volume commitments, if any (the "Minimums"). With respect to any
Renegotiated Backbone Agreement, WinStar shall abide by the
renegotiated terms and conditions, including paying the reduced price
as set forth in subsection (b) above. WinStar shall, in all instances
and to the extent such amounts are pre-calculated, pay the
non-recurring and monthly recurring charges to Williams in immediately
available funds at least one billing cycle prior to the date that
payment is due from Williams to the Backbone Agreement Service
Provider under an Assumed Backbone Agreement or a Renegotiated
Backbone Agreement.
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(e) Administration. The parties will work together to identify the
Circuits related to each Backbone Agreement and, after assignment,
minimum revenue or volume commitments of WinStar, if any, associated
with the Assumed Backbone Agreements and Renegotiated Backbone
Agreements. In no event shall WinStar be responsible for any minimum
revenue or volume commitments under a Renegotiated Backbone Agreement
beyond such commitments agreed to by WinStar prior the Effective Date.
Subject to WinStar's confidentiality obligations, WinStar will provide
Williams reasonable access to its records, books and other documents
and data related to each Backbone Agreement, Assumed Backbone
Agreement and Renegotiated Backbone Agreement. WinStar will also
cooperate with Williams in the administration of such agreements.
Williams is not obligated to assume any Circuit until such Circuit is
identified by the parties.
(f) WinStar Disputes. Williams will endeavor to resolve, on behalf of
WinStar and at WinStar's expense, any back-billing dispute which
accrued prior to the applicable Assignment Agreement Effective Date
(provided that notice of any such dispute is received by Williams
before any such Assignment Agreement Effective Date) and WinStar will
cooperate fully in any such effort.
(g) Orders Under Assumed and Renegotiated Backbone Agreements. Unless
otherwise permitted by Williams, WinStar will place orders under
Assumed Backbone Agreements and Renegotiated Backbone Agreements
through Williams. Williams will not be obligated to accept any Circuit
arranged by WinStar in contravention of this provision and such
Circuit will not become subject to the Assignment and Assumption
Agreement unless otherwise agreed to by Williams, such agreement not
to be unreasonably withheld.
(h) Relationship to the Minimum Commitment and Migration. Provision of
service under any Backbone Agreement (including the Assumed Backbone
Agreements and Renegotiated Backbone Agreements) will not count toward
satisfaction of the Minimum Commitment until such time as such
Circuits are migrated onto the Williams Network. Subject to WinStar's
prior approval in each instance, Williams shall migrate Circuits
provided under any Assumed Backbone Agreements or Renegotiated
Backbone Agreements as soon as reasonably possible, taking into
account any Circuit terms, early termination fees or Minimums.
(i) Assumption Proviso. Williams shall not be obligated to assume any
Backbone Agreement that would materially conflict with another
Williams contract, have a materially adverse effect on Williams, or
that contains any material usage commitment based upon a percentage of
WinStar's telecommunications needs. In the event Williams does not
assume such Backbone Agreement, Williams will act as a payment agent
as provided in Section 5.4(c).
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6. CONNECTION TO THE SYSTEM AND COLLOCATION
6.1. Collocation.
(a) WinStar shall have the right to use Transmission Sites along the Route
pursuant to the Fiber Collocation Provisions. Such Transmission Sites
shall meet or exceed the power and building requirements specified in
Exhibit G. WinStar shall provide, maintain, and for all purposes be
solely responsible for all WinStar Equipment at Transmission Sites or
other locations.
(b) Collocations in Williams Points of Presence will be provided in
accordance with the terms contained in Exhibit C, Part 2.
(c) Subject to the terms of Section 24.1(l), if, after the Acceptance Date
for any System Segment, Williams is in material breach of its
obligation to provide the rack space or square footage specified by
the Collocation Provisions at any Transmission Site (excluding
Transmission Sites on the Dallas-Houston System Segment) for a period
of more than one hundred twenty (120) consecutive days after WinStar
provides written notice of such breach, WinStar may deduct the
following amount from its monthly invoice, pro-rated for partial
months, so long as that material breach continues beyond such one
hundred twenty (120) day period: (i) Five Thousand Dollars ($5,000)
per month prior to the eighth anniversary of the relevant Acceptance
Date, (ii) one thousand dollars ($1,000) per month from the the eighth
anniversary of the relevant Acceptance Date up to but not including
the tenth anniversary of the relevant Acceptance Date, and (iii) five
hundred dollars ($500) per month thereafter. The preceding provision
shall apply on a per-Transmission Site basis for each relevant
Transmission Site.
6.2. Interconnection.
(a) With respect to each of the cities served by the WinStar Fibers, the
parties shall mutually determine the most efficient manner of
providing the required connectivity ("Interconnection") between the
WinStar and Williams points of presence, whether through then-existing
installed capacity, implementation of new capacity or third party
arrangements. In addition, the parties shall set and periodically
review the schedule (timing and priority) of implementation of those
Interconnection facilities and shall adhere to that schedule in
implementing such facilities.
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(b) The parties shall allocate the costs of each Interconnection facility
as follows:
(i) The parties shall mutually agree upon a forecast of each party's
usage of that Interconnection facility during the first year
after implementation (the "Forecast"). The non-recurring costs
associated with the implementation of that facility and the
recurring cost thereof in the first month of operation (in
aggregate, the "Start-up Costs") will be allocated pro rata
between the parties based upon the Forecast. One year thereafter
the parties shall re-calculate the allocation of the Start-up
Costs by substituting actual usage during the preceding year in
place of the Forecast. Based upon that recalculation, Williams
shall pay or receive a refund, in either case equal to the
difference between the initial allocation of the Start-up Costs
and the recalculated amount, plus interest at the Prime Rate for
the applicable period.
(ii) On a quarterly basis, the parties shall allocate the periodic
recurring costs of that Interconnection facility pro rata between
the parties based upon actual usage during the preceding quarter.
(iii)Following the Effective Date, the parties will mutually develop
appropriate procedures to implement the foregoing.
6.3. Ancillary Services.
Williams may also provide other services to WinStar for reasons
including, but not limited to: (a) WinStar's request to expedite
Telecommunications Services availability to a date earlier than
Williams' published installation interval or a previously accepted
Start Date; (b) Telecommunications Services redesign or other activity
occasioned by receipt of inaccurate information from WinStar; (c)
WinStar's request for use of routes or facilities other than those
selected by Williams for provision of the Telecommunications Services;
and (d) other circumstances in which extraordinary costs and expenses
are generated at the written request of WinStar and incurred by
Williams (collectively, "Ancillary Services").
7. ACCEPTANCE AND TESTING OF FIBERS
7.1. Overview.
Fiber Acceptance Testing of the WinStar Fibers shall be conducted for
each System Segment Portion ("System Segment Portion Fiber Acceptance
Testing" or "SSPFAT"). The provisions set forth below address the
acceptance procedures and provisions regarding failure notices,
corrections, third party testing and testing of the Option Fibers.
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7.2. SSPFAT by Williams.
Williams shall perform SSPFAT of the WinStar Fibers in accordance with
Exhibit D. SSPFAT shall progress System Segment Portion by System
Segment Portion along the Route of each System Segment as cable
splicing progresses, so that test results may be reviewed in a timely
manner. WinStar shall have the right, but not the obligation, to have
an individual present to observe Williams' SSPFAT or to conduct its
own SSPFAT in accordance with Section 7.3 below (except, in either
case, to the extent Williams' System Segment Portion Fiber Acceptance
Testing takes place prior to the period ending twenty (20) days after
the Effective Date). Williams shall provide WinStar at least ten (10)
days prior notice of Williams' testing schedule or any change thereto.
Within twenty (20) days after the conclusion of any SSPFAT of the
WinStar Fibers conducted by Williams in any given System Segment
Portion, Williams shall provide WinStar with a copy of the test
results provided that in no case shall Williams be obligated to
provide copies of such test results before January 11, 1999.
7.3. SSPFAT by WinStar.
WinStar shall have the right, but not the obligation, at its sole
expense, to conduct its own SSPFAT of the WinStar Fibers to verify
that they meet the Acceptance Standards. If WinStar elects to conduct
its own SSPFAT of the WinStar Fibers, it shall notify Williams of its
intent to do so (including dates and locations) at least three (3)
days prior to the date of Williams' scheduled commencement of the
SSPFAT of a particular System Segment Portion as specified in
Williams' ten day prior written notice to WinStar as provided in
Section 7.2. WinStar may elect to perform such testing (i) itself
subsequent to the Williams testing or (ii) concurrently with Williams'
testing (except to the extent Williams' testing take place prior to
the period ending twenty (20) days after the Effective Date), in which
case both parties shall reasonably cooperate with the other to
facilitate such concurrent testing. If WinStar elects to perform the
testing itself subsequent to Williams' testing, WinStar will complete
such testing within ten (10) days after Williams completes its SSPFAT
of the relevant System Segment Portion (except to the extent such
Williams testing takes place prior to the period ending twenty (20)
days after the Effective Date in which case WinStar shall complete
such SSPFAT by January 25, 1999). Williams shall have the right, but
not the obligation, to have an individual present to observe WinStar's
SSPFAT. Within twenty (20) days after the conclusion of WinStar's
SSPFAT of the WinStar Fibers, WinStar shall provide Williams with a
copy of the test results. WinStar's exercise or non-exercise of its
right to conduct SSPFAT shall not extend or shorten the time periods
for WinStar to determine, pursuant to Section 7.4, if the System
Segment Portion meets the Acceptance Standards. Williams shall
reasonably cooperate with WinStar to facilitate SSPFAT. Changes in
testing schedules may be mutually agreed upon by the Parties.
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7.4. Failure Notice.
If, within fourteen (14) days after the later of (i) receipt by
WinStar from Williams of the test results referred to in Section 7.2
or of the results of re-testing as set forth below and (ii) WinStar
conclusion of its own testing as provided in Section 7.3, WinStar
reasonably determines that Williams' or WinStar's test results show
that the System Segment Portion of the WinStar Fibers do not meet the
Acceptance Standards, WinStar shall, within such fourteen (14) day
period, notify Williams of such determination and shall identify in
writing the specific data that indicate such failure to meet the
Acceptance Standards. Notwithstanding the foregoing, if the fourteen
(14) day period ends prior to January 25, 1999 for any System Segment
Portion, WinStar will have until January 25, 1999 to give Williams
notice of failures of the System Segment Portion to meet the
Acceptance Standard.
7.5. Correction.
(a) Upon receiving notice pursuant to Section 7.4 that a System Segment
Portion of the WinStar Fibers do not meet the Acceptance Standards,
Williams shall either:
(i) Expeditiously take such action as reasonably necessary to cause
such System Segment Portion to meet the Acceptance Standards and
then re-test in accordance with the provisions of this Article;
or
(ii) Notify WinStar that Williams disputes WinStar's determination
that the System Segment Portion of the WinStar Fibers do not meet
the Acceptance Standards.
(b) After taking corrective actions and re-testing the WinStar Fibers (if
appropriate), Williams shall provide WinStar with a copy of the new
test results and WinStar shall again have all rights provided in this
Article with respect to such new test results. The cycle described
above of testing, taking corrective action and re-testing shall take
place until the WinStar Fibers meet the Acceptance Standards;
provided, however, repeating this cycle shall not in any manner
whatsoever limit any other right or remedy WinStar may have under this
Agreement.
7.6. Testing by Third Party.
If Williams provides notice to WinStar pursuant to Subsection
7.5(a)(ii), and the parties are unable to otherwise mutually agree,
the parties shall appoint a mutually acceptable fiber optic testing
company and such company shall re-test the applicable System Segment
Portion of the WinStar Fibers. If that test demonstrates that the
tested System Segment Portion of the WinStar Fibers meet the
Acceptance Standards without any changes to such portion by Williams
as tested by WinStar, then WinStar shall pay the testing company's
charges and shall be deemed to have accepted the relevant System
Segment Portion of the WinStar Fibers. If that test demonstrates that
the relevant System Segment Portion of the WinStar Fibers do not meet
the Acceptance Standards or that they do meet the Acceptance Standards
due to changes made by Williams following WinStar's acceptance
testing, then Williams shall pay the testing company's charges for
performing the testing and shall perform the corrective action and
re-testing set forth in Subsection 7.5(a)(i).
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7.7. System Segment Fiber Acceptance Testing and Acceptance Date.
If the Fiber Acceptance Testing for all System Segment Portions of a
System Segment shows that the WinStar Fibers meet the Acceptance
Standards and WinStar does not object to the results of any SSPFAT by
written notice within the time periods specified in Section 7.4,
WinStar shall be deemed to have accepted the particular System
Segment. The date of WinStar's notice accepting the System Segment of
the WinStar Fibers or the date of deemed acceptance under this Article
for the last of all of the System Segment Portions for a System
Segment to be accepted shall be the "Acceptance Date" of the WinStar
Fibers for that System Segment. The provisions of this Section shall
not be deemed to relieve Williams of its obligation to provide Routine
Maintenance or non-Routine Maintenance as set forth in this Agreement.
7.8. Testing of Option Fibers.
Williams shall include the Option Fibers in the SSPFAT of each System
Segment. Upon WinStar's exercise of the Option, Williams shall provide
copies of the results of all SSPFAT of the Option Fibers. The
provisions above shall be applicable to the Option Fibers if WinStar
exercises its Option.
8. USE OF THE SYSTEM
8.1. Use of WinStar Fibers.
WinStar may use the WinStar Fibers for any lawful purpose.
8.2. Notice of Damage.
WinStar shall promptly notify Williams of any matters pertaining to
any damage or impending damage to or loss of System that are actually
known to it and that could reasonably be expected to adversely affect
the System.
8.3. Precautions.
WinStar shall take all reasonable precautions against any damage
proximately caused by WinStar to the System or to fibers used or owned
by Williams or third parties.
8.4. Use of Equipment.
Neither party shall use, or allow others to use, equipment,
technologies, or methods of operation that adversely affect the
Williams Network or the System or the permitted use of the Williams
Network or the System by Williams or third parties or their respective
Fibers, equipment, or facilities associated therewith. If WinStar uses
equipment, technologies, and methods of operation that are
collectively either in accord with Williams' practices or generally
accepted industry standards, Williams shall have the burden of
demonstrating that WinStar has breached the requirements of the
preceding sentence.
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8.5. Liens.
WinStar shall not, directly or indirectly, cause any part of the
System to become subject to any mechanic's lien, materialman's lien,
vendor's lien, or any similar lien whether by operation of law or
otherwise. If WinStar becomes aware that it has breached its
obligations under this Section, it shall promptly: notify Williams in
writing, cause such lien to be discharged and released of record
without cost to Williams and indemnify Williams against all costs and
expenses (including reasonable attorneys' fees and court costs at
trial and on appeal) incurred in discharging and releasing such lien.
9. TERM
9.1. Agreement Term.
The term of this Agreement (the "Term") shall begin on the Effective
Date and shall end upon expiration of the last IRU Term to expire,
provided that, with respect to the Interim IRU, the Term shall extend
twenty-five years from the Effective Date.
9.2. IRU Terms.
The term of this Agreement in respect of each System Segment (the "IRU
Term") shall begin on the applicable Acceptance Date and shall end on
the twenty-fifth (25th) anniversary of such Acceptance Date.
9.3. Effect of Termination.
No termination of this Agreement, an IRU Term, or of the Interim IRU
shall affect the rights or obligations of any party hereto:
(a) With respect to any payment hereunder for services rendered during the
Term; or
(b) Pursuant to Articles 14, 15, 16, 17, 18, 20, 23 and 24.1 entitled
Audit Rights; Indemnification; Limitation of Liability; Insurance;
Taxes and Governmental Fees; Confidentiality; Remedies and Dispute
Resolution; and Rules of Construction, respectively.
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10. OPERATION, MAINTENANCE, AND REPAIR OF THE SYSTEM
10.1. Routine Maintenance.
During the IRU Term, Williams shall perform all required Routine
Maintenance at no additional cost to WinStar. "Routine Maintenance"
means the work specifically identified as Routine Maintenance in
Exhibit I, provided that Routine Maintenance excludes work for which
WinStar is obligated to reimburse Williams for all or a portion of the
Costs incurred pursuant to other Articles of this Agreement (including
the Fiber Collocation Provisions).
10.2. Non-Routine Maintenance.
WinStar shall pay its Pro-Rata Share of Williams' direct Costs of
non-Routine Maintenance of the System, if the Cost of such work
relating to any single event or multiple related events is greater
than five thousand dollars ($5,000.00).
10.3. Subcontractors.
Williams may subcontract provisioning, testing, maintenance, repair,
restoration, relocation, or other operational and technical services
it is obligated to provide hereunder or may have the underlying
facility owner or its contractor perform such obligations. Such
subcontracting shall not relieve Williams of any obligations under
this Agreement.
10.4. Continued Breach of Routine Maintenance Obligations.
Subject to the terms of Section 24.1(l), if, after the Acceptance Date
for any System Segment, Williams is in material breach of its
obligation to provide Routine Maintenance for a period of more than
one hundred twenty (120) consecutive days after WinStar provides
written notice of such breach, WinStar may deduct the following amount
per month, pro-rated for partial months, per each relevant Route mile
from its monthly invoice so long as that material breach continues
beyond such one hundred twenty (120) day period: (i) seventy dollars
($70) per month prior to the eighth anniversary of the relevant
Acceptance Date, (ii) ten dollars ($10) per month from the eighth
anniversary of the relevant Acceptance Date up to but not including
the tenth anniversary of the relevant Acceptance Date, and (iii) five
dollars ($5) per month thereafter.
10.5. WinStar Equipment.
Williams' maintenance and repair obligations under this Agreement
shall not include maintenance, repair or replacement of WinStar
Equipment.
10.6 Access to Systems.
WinStar shall not access any physical part of any System Segment
(other than pursuant to the Fiber Collocation Provisions) without the
prior written consent of Williams, and then only upon the terms and
conditions specified by Williams.
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11. RELOCATION
11.1. Relocation.
If, following the Acceptance Date for any System Segment, Williams
determines for bona fide operational reasons, or is required by a
third party acting pursuant to condemnation or similar authority or by
a governmental entity, to relocate all or any portion of such System
Segment or any of the facilities used or required in providing WinStar
with the WinStar IRU, Williams shall, to the extent practicable,
provide WinStar sixty (60) days' prior notice of any such relocation
and shall proceed with such relocation. Williams shall have the right
to direct such relocation, including the right to determine the extent
of, the timing of, and methods to be used for such relocation,
provided that any such relocation:
(a) Shall be constructed and tested in accordance with the
specifications and requirements set forth in this Agreement and
applicable Exhibits;
(b) Shall not result in a materially adverse change to the
operations, performance, Connecting Points with the network of
WinStar, or end points of the System Segment; and
(c) Shall not unreasonably interrupt service on the System Segment.
For purposes of this Section, a Williams' relocation shall be for bona
fide operational reasons if it is undertaken in good faith (i) to
settle or avoid a bona fide threatened or filed condemnation action or
order by a governmental authority to relocate, (ii) to reduce the
likelihood of physical damage to the System, (iii) as the result of a
Force Majeure Event, or (iv) for other operational reasons to which
WinStar has consented, provided that WinStar shall not unreasonably
withhold such consent. Williams shall use reasonable efforts to
contest any exercise of condemnation authority that would require a
relocation that would require WinStar to reimburse Williams pursuant
to this Article 11.
11.2. Cost of Relocation.
Unless such relocation is necessitated by a breach of Williams'
obligations under this Agreement, any Costs Williams incurs shall not
be Routine Maintenance Costs, and WinStar shall reimburse Williams for
the Costs incurred in the same manner and to the same extent as is set
forth for reimbursement of non-Routine Maintenance Costs in Section
10.2.
11.3. Updated As-Built Drawings.
At WinStar's written request, Williams shall deliver to WinStar
updated as-built drawings with respect to a relocated portion of the
System Segment within the later of one-hundred eighty (180) days
following the completion of such relocation or thirty (30) days after
receipt of WinStar's request.
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12. INVOICING AND PAYMENT
12.1. Due Date and Invoice.
(a) Payments of the Contract Price and Exercise Price shall be made
in accordance with the Payment Terms.
(b) All amounts stated on each monthly invoice are due and payable
thirty (30) days from WinStar's receipt of the invoice ("Due
Date"). WinStar agrees to remit payment to Williams at the
remittance address set forth in the applicable invoice.
12.2. Form of Payment.
WinStar shall pay the Contract Price and Exercise Price by wire
transfer of immediately available funds to the United States account
or accounts designated by Williams. All other payments to be made
pursuant to this Agreement may be made by check or draft of
immediately available funds delivered to the address designated in
writing by the other party (e.g., in a statement or invoice) or,
failing such designation, to the address for notice to such other
party provided pursuant to Article 19.
12.3. Disputed Charges.
(a) WinStar shall pay undisputed charges when such payments are due
under this Agreement. WinStar may withhold payment of particular
charges that WinStar disputes in good faith and for which it
promptly gives written notice to Williams, stating the details of
such dispute. The parties shall promptly refer such matter to
dispute resolution in accordance with Section 23. If WinStar
withholds any disputed charges and such charges are ultimately
determined to be proper and payable to Williams, WinStar shall
pay such charges to Williams plus interest at the Prime Rate from
the date such charges were originally due until the date such
charges are paid. No payment dispute shall be grounds for
Williams to withhold or diminish the quality or quantity of any
of the connectivity and services provided hereunder.
(b) If WinStar fails to pay undisputed charges provided for under
this Agreement when such charges are due, Williams may, in
addition to any other remedies that it may have under this
Agreement or by law, terminate this Agreement only as it applies
to the System Segment(s) or Telecommunications Services to which
such failure applies, upon at least thirty (30) days' notice, if
such payment (together with applicable interest) is not made
within such thirty (30) day notice period subject to WinStar's
thirty-day right to cure, provided however, that this remedy of
termination shall be available to Williams only with respect to
System Segments for which the unpaid amount exceeds two hundred
thousand dollars ($200,000) at the time of such notice.
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12.4. Late Interest.
If either Williams or WinStar fails to make any payment under this
Agreement when due, such amounts shall accrue interest, from the date
such payment is due until paid, including accrued interest, at the
Prime Rate.
12.5. Adjustments.
Williams may make corrections to its invoices to reflect undercharges
only for the period of two (2) years following the Due Date of each
invoice, or two (2) years following the date the corresponding service
is rendered, whichever is later.
13. DISCLAIMER OF WARRANTIES
13.1. Parties.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PARTIES MAKE
NO WARRANTY TO EACH OTHER OR ANY OTHER ENTITY, WHETHER EXPRESS,
IMPLIED OR STATUTORY, AS TO THE MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OF ANY FIBERS, THE SYSTEM, THE TELECOMMUNICATIONS
SERVICES, ANY OTHER SERVICES OR ANY ADDITIONAL SERVICES PROVIDED
HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH
WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
13.2. Facility Owners/Lenders.
NO FACILITY OWNERS/LENDERS HAVE MADE ANY REPRESENTATION OR WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED, TO WINSTAR CONCERNING WILLIAMS, THE
WINSTAR FIBERS, THE CABLE, OR THE SYSTEM OR AS TO ANY OF THE MATTERS
SET FORTH IN SECTIONS 12.1 OR 24.2(a).
14. AUDIT RIGHTS
Each party shall keep such books and records (which shall be maintained on
a consistent basis and substantially in accordance with generally accepted
accounting principles) as shall readily disclose the basis for any charges
(except charges fixed in advance by this Agreement or by separate written
agreement of the parties) or credits, ordinary or extraordinary, billed or
due to the other party under this Agreement and shall make them available,
upon reasonable notice and during normal working hours, for examination,
audit, and reproduction by the other party and its agents for a period of
one (1) year after such charge or credit is billed or due.
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15. INDEMNIFICATION
15.1. Indemnification.
Each party ("Indemnitor") shall indemnify, defend, protect, and hold
harmless the other party, its employees, members, managers, officers,
agents, contractors, Facility Owners/Lenders, and Affiliates
(collectively and individually, "Claimant"), from and against any and
all Losses resulting or arising from, relating to or incurred in
connection with:
(a) The Indemnitor's failure to observe or perform its duties or
obligations to third parties (e.g., duties or obligations to its
customers);
(b) The Indemnitor's infringement or misappropriation of Intellectual
Property Rights of any third party;
(c) The death or bodily injury of any agent, employee, customer,
business invitee or any other person to the extent caused by the
tortious conduct of the Indemnitor;
(d) The damage, loss or destruction of any real or tangible personal
property to the extent caused by the tortious conduct of the
Indemnitor;
(e) Fines, penalties or other amounts payable due to the Indemnitor's
violation of applicable laws or regulation; and
(f) Any claim, demand, charge, action, cause of action, or other
proceeding asserted against the Claimant but resulting from an
act or omission of the Indemnitor in its capacity as an employer
of a person.
15.2. Third Party Claims.
With respect to third-party claims, the following procedures shall
apply:
(a) Promptly after receipt of notice of the commencement or
threatened commencement of any civil, criminal, administrative,
or investigative action or proceeding involving a claim in
respect of which the Claimant will seek indemnification pursuant
to this Article 15, the Claimant will notify the Indemnitor of
such claim in writing. No failure to so notify the Indemnitor
will relieve the Indemnitor of its obligations under this
Agreement except to the extent that its ability to defend such
claim is materially prejudiced by such failure. Within fifteen
(15) calendar days following receipt of written notice from the
Claimant relating to any claim, but no later than ten (10)
calendar days before the date on which any response to a
complaint or summons is due, the Indemnitor will notify the
Claimant in writing if the Indemnitor elects to assume control of
the defense and settlement of that claim (a "Notice of
Election").
(b) If the Indemnitor delivers a Notice of Election relating to any
claim within the required notice period, the Indemnitor shall be
entitled to have sole control over the defense and settlement of
such claim; provided that (i) the Claimant shall be entitled to
observe the defense of such claim and to employ counsel at its
own expense to observe the defense of such claim, and (ii) the
Indemnitor shall obtain the prior written approval, not to be
unreasonably withheld or delayed, of the Claimant before ceasing
to defend against such claim or entering into any settlement of
such claim. After the Indemnitor has delivered a Notice of
Election relating to any claim in accordance with the preceding
paragraph, the Indemnitor shall not be liable to the Claimant for
any legal expenses incurred by the Claimant in connection with
the defense of that claim. In addition, the Indemnitor shall not
be required to indemnify the Claimant for any amount paid or
payable by the Claimant in the settlement of any claim for which
the Indemnitor has delivered a timely Notice of Election if such
amount was agreed to without the written consent of the
Indemnitor.
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(c) If the Indemnitor does not deliver a Notice of Election relating
to any claim within the required notice period or after
delivering a Notice of Election fails to defend the claim, the
Claimant shall have the right to defend the claim in such manner
as it may deem appropriate. The Indemnitor shall promptly
reimburse the Claimant for all reasonable costs and expenses of
such defense.
15.3. Indemnification of Providers.
WinStar shall indemnify and hold harmless Williams and any Third Party
Service Providers from and against all Losses arising out of or
relating to the content of any transmission by WinStar, including
claims relating to any violation or alleged violation of export
control laws or other laws or failure to comply with WinStar's
obligations as set forth in Sections 26.4 and 26.5.
15.4. WinStar Customers.
WinStar shall indemnify and hold Williams harmless from and against
all Losses arising out of or relating to the use of the WinStar Fibers
by any WinStar customer.
16. LIMITATION OF LIABILITY
16.1. General Intent.
Subject to the specific provisions of this Article 16, it is the
intent of the Parties that each party shall be liable to the other
party for any actual damages incurred by the non-breaching party as a
result of the breaching party's failure to perform its obligations in
the manner required by this Agreement.
16.2. Liability Restrictions.
(a) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF
WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY
BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR
SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
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(b) Subject to Subsection (c), below, each party's total liability to
the other, whether in contract or in tort (including breach of
warranty, negligence and strict liability in tort) shall be
limited to two hundred million dollars ($200,000,000).
(c) The limitation set forth in Subsections (b), above, shall not
apply with respect to: (i) third-party claims subject to
indemnification pursuant to the Agreement; (ii) fees due and
owing under this Agreement at the time of the claim; and (iii)
amounts subject of Cover as provided in Section 4.2(b).
(d) For the purposes of this Section 16.2, all amounts payable or
paid to third parties in connection with claims that are eligible
for indemnification pursuant to this Agreement shall be deemed
direct damages.
16.3. Released Parties.
Neither party shall have any recourse of any kind against any Released
Party or any assets of a Released Party in respect of any Claim that
is not directly or indirectly caused by the Released Party, it being
expressly agreed and understood that no liability whatsoever shall
attach to or be incurred by any Released Party in respect of any Claim
under or by reason of this Agreement or any other instrument,
arrangement or understanding relating to the Network IRU, the System,
the Interim IRU, the Telecommunications Services, the Other Services
or Additional Services, except to the extent such Claim is directly or
indirectly caused by the Released Party. Each party waives all such
recourse to the extent set forth in this Section on behalf of its
successors, assigns, and any entity claiming by, through, or under
such party.
17. INSURANCE
17.1. Insurance.
During the Term, the parties shall each obtain and maintain not less
than the following insurance:
(a) Commercial General Liability Insurance, including coverage for
sudden and accidental pollution legal liability, with a combined
single limit of $10,000,000 for bodily injury and property damage
per occurrence and in the aggregate.
(b) Worker's Compensation Insurance in amounts required by applicable
law and Employers Liability Insurance with limits not less than
$1,000,000 each accident. If work is to be performed in Nevada,
North Dakota, Ohio, Washington, Wyoming or West Virginia, the
party shall participate in the appropriate state fund(s) to cover
all eligible employees and provide a stop gap endorsement.
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(c) Automobile Liability Insurance with a combined single limit of
$2,000,000 for bodily injury and property damage per occurrence,
to include coverage for all owned, non-owned, and hired vehicles.
The limits set forth above are minimum limits and shall not be construed to
limit the liability of either party.
17.2. Documentation.
(a) Each party shall obtain and maintain the insurance policies
required above with companies rated A- or better by Best's Key
Rating Guide or with a similar rating by another generally
recognized rating agency. The other party, its Affiliates,
officers, directors, and employees, and any other party entitled
to indemnification hereunder shall be named as additional
insureds to the extent of such indemnification. Each party shall
provide the other party with an insurance certificate confirming
compliance with the insurance requirements of this Article. The
insurance certificate shall indicate that the other party shall
be notified not less than thirty (30) days prior to any
cancellation or material change in coverage.
(b) If either party provides any of the foregoing coverages through a
claims made policy basis, that party shall cause such policy or
policies to be maintained for at least three (3) years beyond the
expiration of this Agreement.
17.3. Certificates.
The parties shall each obtain from the insurance companies providing
the coverages required by this Agreement a waiver of all rights of
subrogation or recovery in favor of the other party and, as
applicable, its members, managers, shareholders, Affiliates,
assignees, officers, directors, and employees or any other party
entitled to indemnity under this Agreement to the extent of such
indemnity.
17.4. Blanket Policies.
Nothing in this Agreement shall be construed to prevent either party
from satisfying its insurance obligations pursuant to this Agreement
under a blanket policy or policies of insurance that meet or exceed
the requirements of this Article.
18. TAXES AND GOVERNMENTAL FEES
18.1. Payment by WinStar.
WinStar shall timely report and pay any and all sales, use, income,
gross receipts, excise, transfer, ad valorem, or other taxes, and any
and all franchise fees or similar fees, if any, assessed against it
due to its ownership of the Network IRU, its use of the WinStar
Fibers, including the provision of services over the WinStar Fibers,
its use of any other part of the System, or its ownership or use of
facilities connected to the WinStar Fibers.
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18.2. Payment by Williams.
Subject to Section 18.1 above, Williams shall timely report and pay
any and all sales, use, income, gross receipts, excise, transfer, ad
valorem or other taxes, and any and all franchise fees or similar fees
assessed against it due to its construction, ownership or use of the
System, provided that WinStar shall reimburse Williams for its
Pro-Rata Share of property taxes (including ad valorem, use, property,
or similar taxes, franchise fees, or assessments that are based on the
value of property or of a property right) attributable to the System,
including taxes based on the value, operation, or existence of the
System.
18.3. Reimbursement.
If Williams is assessed for any taxes or fees (a) related to WinStar's
ownership of the Network IRU, WinStar's use of or rights in the
WinStar Fibers, or (b) that WinStar is obligated to pay pursuant to
Sections 18.1 or 18.2, WinStar shall reimburse Williams for any
payment of such taxes or fees within thirty (30) days of receipt of
Williams' invoice.
18.4. Cooperation.
The parties shall cooperate in any contest of any taxes or fees so as
to avoid, to the extent reasonably possible, prejudicing the interests
of the other party.
18.5. Services.
If any sales taxes, valued added taxes or similar charges or
impositions are assessed against Williams after, or as a result of,
WinStar's use of Telecommunications Services, any Other Services or
the Additional Services by any local, state, national, international,
public or quasi-public governmental entity or foreign government or
its political subdivision, including any tax or charge levied to
support the Universal Service Fund contemplated by the
Telecommunications Act of 1996, WinStar shall be solely responsible
for and shall pay such taxes, charges or impositions and hold Williams
harmless from any liability or expense associated with such taxes,
charges or impositions.
19. NOTICE
Unless otherwise provided in this Agreement, all notices and communications
concerning this Agreement shall be in writing and addressed to the other
party as follows, or at such other address as may be designated in writing
to the other party:
If to WinStar: If to Williams:
WinStar Wireless, Inc. Williams Communications, Inc.
230 Park Avenue One Williams Center, Suite 26-5
New York, NY 10169 Tulsa, Oklahoma 74172
Attn: EVP, General Counsel Attn: Contract Administration
Facsimile: 212/922-1637 Facsimile: 918/573-6578
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With a copy to: With a copy to:
WinStar Wireless, Inc. Williams Communications, Inc.
7799 Leesburg Pike One Williams Center, Suite 4100
Falls Church, Virginia 22043 Tulsa, Oklahoma 74172
Attn: VP, Commercial and Attn: General Counsel
Legal Operations
Facsimile: 703/288-6647 Facsimile: 918/573-3005
Unless otherwise provided herein, notices shall be hand delivered,
sent by registered or certified U.S. Mail, postage prepaid, or by
commercial overnight delivery service, or transmitted by facsimile,
and shall be deemed served or delivered to the addressee or its office
when received at the address for notice specified above when hand
delivered, upon confirmation of sending when sent by facsimile, on the
day after being sent when sent by overnight delivery service, three
(3) days after deposit in the mail when sent by U.S. mail or, in the
case of invoices, upon the Due Date (as defined in the
Telecommunications Services Purchase Provision).
20. CONFIDENTIALITY
20.1. Confidential Information.
Williams and WinStar each acknowledge that they may be furnished with,
receive, or otherwise have access to information of or concerning the
other party that such party considers to be confidential, proprietary,
a trade secret or otherwise restricted. As used in this Agreement and
subject to Section 20.3, "Confidential Information" means all
information, in any form, furnished or made available directly or
indirectly by one party (the "Disclosing Party") to the other (the
"Receiving Party") that (i) concerns the operations, facilities,
plans, affairs and businesses of the Disclosing Party, the financial
affairs of the Disclosing Party, and the relations of the Disclosing
Party with its customers, employees and service providers, or (ii) is
marked confidential, restricted, proprietary, or with a similar
designation. The terms and conditions of this Agreement shall be
deemed Confidential Information, but may be disclosed as provided
below and Section 24.6.
20.2. Obligations.
(a) Each party's Confidential Information shall remain the property
of that party except as expressly provided otherwise by the other
provisions of this Agreement. Each party shall each use at least
the same degree of care, but in any event no less than a
reasonable degree of care, to prevent unauthorized disclosure of
Confidential Information as it employs to avoid unauthorized
disclosure of its own information of a similar nature. Except as
otherwise permitted hereunder, the parties may disclose such
information (A) to their respective directors, officers,
managers, employees, agents, contractors and consultants
(collectively, "Representatives") and (B) entities performing
services required hereunder only where: (i) use of such entity is
authorized under this Agreement, (ii) such disclosure is
necessary or otherwise naturally occurs in that entity's scope of
responsibility, and (iii) the entity agrees in writing to assume
the obligations described in this Section 20.2. Any disclosure to
such entity shall be under substantially the same confidentiality
terms and conditions as provided herein.
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(b) Each party shall take reasonable steps to ensure that its (and
its Affiliates') Representatives comply with this Section 20.2.
In the event of any disclosure or loss of, or inability to
account for, any Confidential Information of the Disclosing
Party, the Receiving Party shall promptly, at its own expense:
(i) notify the Disclosing Party in writing; (ii) take such
actions as may be necessary and cooperate in all reasonable
respects with the Disclosing Party to minimize the violation and
any damage resulting therefrom.
(c) Either party may disclose the terms and conditions of this
Agreement to any third party that (i) has expressed a bona fide
interest in consummating a significant financing, merger or
acquisition transaction or other corporate transaction between
the third party and such party, (ii) has a reasonable ability
(financial or otherwise) to consummate such transaction, and
(iii) has executed a nondisclosure agreement that includes within
its scope the terms and conditions of this Agreement and also
includes a procedure to limit the extent of copying and
distribution thereof. Each party shall endeavor to delay the
disclosure of the terms and conditions of this Agreement until
the status of discussions concerning such transaction warrants
such disclosure. In addition, either party (or either party's
Affiliates) may disclose the terms and conditions of this
Agreement as such party deems appropriate to prepare for IPOs or
major corporate transactions. Any disclosure to such entity shall
be substantially under the same confidentiality terms and
conditions as provided herein.
20.3. Exclusions.
"Confidential Information" shall exclude any particular information
that the Receiving Party can demonstrate:
(a) At the time of disclosure, was in the public domain or in the
rightful possession of the Receiving Party;
(b) After disclosure, is published or otherwise becomes part of the
public domain through no fault of the Receiving Party;
(c) Was received after disclosure from a third party who had a lawful
right to disclose such information to the Receiving Party without
any obligation to restrict its further use or disclosure;
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(d) Was independently developed by the Receiving Party without
reference to Confidential Information of the Disclosing Party; or
(e) Was required to be disclosed to satisfy a legal requirement of a
competent government body; provided that, immediately upon
receiving such request and to the extent that it may legally do
so, the Receiving Party advises the Disclosing Party promptly and
prior to making such disclosure in order that the Disclosing
Party may interpose an objection to such disclosure, take action
to assure confidential handling of the Confidential Information,
or take such other action as it deems appropriate to protect the
Confidential Information.
20.4. No Implied Rights.
Nothing contained in this Section shall be construed as obligating a
party to disclose its Confidential Information to the other party, or
as granting to or conferring on a party, expressly or impliedly, any
rights or license to the Confidential Information of the other party.
20.5 Communication With FCC.
Communications by either party with the FCC regarding the subject
matter of this Agreement shall require the other's prior written
approval.
21 . DEFAULT
A party shall not be in material breach of this Agreement unless and until
the other party provides it written notice of default and the
non-performing party has failed to cure within thirty (30) days after
receipt of such notice. Any event of default may be waived in writing at
the non-defaulting party's option. Upon the failure of a party to timely
cure its material breach hereunder within the applicable cure period, the
non-defaulting party shall have the right to (i) terminate this Agreement
or (ii) subject to the terms of Article 23, pursue any legal remedies it
may have under applicable law or principles of equity relating to such
breach.
22. FORCE MAJEURE
22.1. Excusable Delay.
Neither Williams nor WinStar shall be in default under this Agreement
as a result of any delay in its performance (other than a failure to
make payments when due) caused by any elements of nature or acts of
God, fire, explosion, vandalism, power outage, earthquake, flood or
lightning; any civil or military authority; by national emergency,
insurrection, rebellion, revolution, riot, civil disorders, war or act
of terrorism; by cable cuts; or any other cause beyond the reasonable
control of such party (collectively, "Force Majeure Events");
provided, however, that (i) the non-performing party is without fault
in causing such default or delay, and (ii) such default or delay could
not have been prevented by reasonable precautions and cannot
reasonably be circumvented by the non-performing party through the use
of alternate sources (e.g., other suppliers of telecommunications
services or capacity), workaround plans or other means, including
means contemplated by applicable disaster recovery processes or
procedures).
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<PAGE>
22.2. Notice and Remedy.
In such event the non-performing party shall be excused from further
performance or observance of the obligation(s) so affected for as long
as such circumstances prevail and such party continues to use
commercially reasonable efforts to recommence performance or
observance whenever and to whatever extent possible without delay. The
non-performing party shall immediately notify the other party by
telephone (to be confirmed in writing within two (2) business days of
the inception of such delay) and describe at a reasonable level of
detail the Force Majeure Event causing such delay and the expected
duration of the Force Majeure Event. The non-performing party will
provide the other party prompt written notice of the cessation or
termination of the Force Majeure Event.
23. REMEDIES AND DISPUTE RESOLUTION
23.1. Dispute Resolution.
Any dispute between the Parties arising out of or relating to this
Agreement, the interpretation of any provision hereof or the
performance or failure to perform of Williams or WinStar shall be
resolved as provided in this Article 23.
23.2. Cumulative Remedies.
Except as otherwise expressly provided herein, all remedies provided
for in this Agreement shall be cumulative and in addition to and not
in lieu of any other remedies available to either party at law, in
equity or otherwise.
23.3. Informal Dispute Resolution.
(a) Prior to the initiation of formal dispute resolution procedures
(i.e., arbitration), the parties shall first attempt to resolve
their dispute at the senior manager level. If that level of
dispute resolution is not successful, the parties shall proceed
informally, as follows:
(i) Upon the written request of either party, each party shall
appoint a designated representative who does not otherwise
devote substantially full time to performance under this
Agreement, whose task it will be to meet for the purpose of
endeavoring to resolve such dispute.
(ii) The designated representatives shall meet as often as the
parties reasonably deem necessary in order to gather and
furnish to the other all information with respect to the
matter in issue that the parties believe to be appropriate
and germane in connection with its resolution. The
representatives shall discuss the problem and attempt to
resolve the dispute without the necessity of any formal
proceeding.
35
<PAGE>
(iii)During the course of discussion, all reasonable requests
made by one party to another for non-privileged
non-confidential information reasonably related to this
Agreement shall be honored so that each of the parties may
be fully advised of the other's position.
(iv) The specific format for the discussions shall be left to the
discretion of the designated representatives.
(b) Prior to instituting formal proceedings, the parties will first
have their chief executive officers meet to discuss the dispute.
This requirement shall not delay the institution of formal
proceedings past any statute of limitations expiration or for
more than fifteen (15) days.
(c) Subject to Subsection (b), formal proceedings for the resolution
of a dispute may not be commenced until the earlier of:
(i) The designated representatives concluding in good faith that
amicable resolution through continued negotiation of the
matter does not appear likely; or
(ii) Thirty (30) days after the initial written request to
appoint a designated representative pursuant to Subsection
(a), above, (this period shall be deemed to run
notwithstanding any claim that the process described in this
Section 23.3 was not followed or completed).
(d) This Section 23.3 shall not be construed to prevent a party from
instituting, and a party is authorized to institute, formal
proceedings earlier to avoid the expiration of any applicable
limitations period, or to preserve a superior position with
respect to other creditors or as provided in Section 23.6.
23.4. Arbitration.
If the Parties are unable to resolve a dispute as contemplated by
Section 23.3, then except as provided by Section 23.6, such dispute
shall be submitted to mandatory and binding arbitration at the
election of either WinStar or Williams (the "Disputing Party")
pursuant to the following conditions:
(a) The Disputing Party shall notify the American Arbitration
Association ("AAA") and the other party, describing in reasonable
detail the nature of the dispute (the "Dispute Notice"); and
shall request that the AAA furnish a list of five (5) possible
arbitrators who have substantial experience in the
telecommunications industry. Each party shall have fifteen (15)
days to reject two (2) of the proposed arbitrators. If only one
individual has not been so rejected, that person shall serve as
arbitrator; if two (2) or more individuals have not been so
rejected, the AAA shall select the arbitrator from those
individuals.
36
<PAGE>
(b) The arbitration shall take place in Chicago, Illinois, in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association in effect on the date that such notice is
provided. The arbitration shall be commenced promptly and
conducted expeditiously. The parties shall be entitled to submit
expert testimony and/or written documentation on such arbitration
proceeding. The decision of the arbitrator shall be final and
binding upon Williams and WinStar and shall include written
findings of law and fact, and judgment may be obtained thereon by
either Williams or WinStar in a court of competent jurisdiction.
Williams and WinStar shall each bear the cost of preparing and
presenting its own case. The cost of the arbitration, including
the fees and expenses of the arbitrator, shall be shared equally
by Williams and WinStar unless the award otherwise provides. The
arbitrator shall be instructed to establish procedures such that
a decision can be rendered within sixty (60) days of the
appointment of the arbitrator.
(c) The obligation to arbitrate shall not be binding upon any party
with respect to requests for preliminary injunctions, temporary
restraining orders, specific performance, 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.
(d) Any arbitrator appointed to act under this Article must agree to
be bound by the provisions of this Agreement and any information
obtained during the course of the arbitration proceedings. In
particular, the arbitrator shall not have the authority to
exclude the right of a Party to terminate this Agreement when a
Party would otherwise have such right. The arbitration hearing
shall be commenced promptly and conducted expeditiously.
(e) Should the arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Section, such
arbitrator shall be replaced and a rehearing shall take place in
accordance with the provisions of this Section. In such case, the
replacement for the arbitrator shall be either selected by the
AAA from the original group of potential arbitrators that were
not rejected by the parties or, if there are no such arbitrators
available, selected by repeating the process of selection
described in 23.4(a).
(f) The arbitrator is instructed that time is of the essence in the
arbitration proceeding, and that the arbitrator shall have the
right and authority to issue monetary sanctions against either of
the parties if, upon a showing of good cause, that party is
unreasonably delaying the proceeding. Recognizing the express
desire of the parties for an expeditious means of dispute
resolution, the arbitrator shall limit or allow the parties to
expand the scope of discovery as may be reasonable under the
circumstances.
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<PAGE>
23.5. Continued Performance.
Each party agrees to continue performing its obligations under this
Agreement while any dispute is being resolved except to the extent the
issue in dispute precludes performance.
23.6. Immediate Injunctive Relief.
The only circumstance in which disputes between the parties shall not
be subject to the provisions of Section 23.3 and 23.4 is where a
party, in good faith, determines that a temporary restraining order or
other injunctive relief is its only appropriate and adequate remedy.
If a party seeks immediate injunctive relief and does not prevail in
substantial part, that party shall pay the other party's costs and
attorneys' fees to the extent incurred in responding to or challenging
the request for immediate injunctive relief.
24. GENERAL
24.1. Rules of Construction.
(a) 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 that import the singular connotation shall be
interpreted as plural, and words that import the plural
connotation shall be interpreted as singular, as the identity of
the parties or objects referred to may require. References to
"person" or "entity" each include natural persons and legal
entities, including corporations, limited liability companies,
partnerships, sole proprietorships, business divisions,
unincorporated associations, governmental entities, and any
entities entitled to bring an action in, or that are subject to
suit in an action before, any state or federal court of the
United States.
(b) Unless expressly defined herein, words having well-known
technical or trade meanings shall be so construed.
(c) Except as set forth to the contrary herein, any right or remedy
of Williams or WinStar shall be cumulative and without prejudice
to any other right or remedy, whether contained herein or not.
(d) Nothing in this Agreement is intended to provide any legal rights
to anyone not an executing party of this Agreement except under
the indemnification and insurance provisions and except that (i)
the Released Parties shall have the benefit of Sections 16.3,
24.2(a) and 24.5(a) and (ii) the Facility Owners/Lenders shall be
entitled to rely on and have the benefit of Sections 13.2 and
24.5(b).
38
<PAGE>
(e) This Agreement has been fully negotiated between Williams and
WinStar.
(f) 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 Exhibit shall be corrected
accordingly, provided that the provisions of Exhibit K shall
prevail over conflicting provisions in the Agreement or in any
Exhibit. Notwithstanding the above, terms defined in Section 7 of
Exhibit K shall not supersede terms defined in the Agreement or
in other Exhibits except as used in Exhibit K.
(g) Except as otherwise set forth herein, for the purpose of this
Agreement 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.
(h) Except as the context otherwise indicates, all references to
Exhibits, Articles, Sections, Subsections, Clauses, and
Paragraphs refer to provisions of this Agreement.
(i) The failure of either Williams or WinStar 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.
(j) This Agreement shall be governed by and construed in accordance
with the domestic laws of the State of New York without reference
to its choice of law principles. All disputes referred to
arbitration and the statute of limitations and the remedies for
any wrongs that may be found shall be governed by the laws of
such state. If a proceeding is brought for the enforcement of
this Agreement or because of any alleged or actual dispute,
breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs
and expenses incurred in such action or proceeding in addition to
any other relief to which such party may be entitled.
(k) If any term, covenant or condition in this Agreement 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.
(l) The parties acknowledge and agree that: (i) the payment
deductions ("Payment Deductions") set forth in Sections 5.2(g),
6.1(c) and 10.4 (collectively, the "Deduction Sections") shall
not limit Williams' liability or serve as a sole or exclusive
remedy for Williams' default under any portion of this Agreement;
(ii) WinStar may seek any other rights or remedies it may have
against Williams for any default hereunder; (iii) none of the
Deduction Sections modify or otherwise limit any other term or
condition of this Agreement; (iv) the one hundred and twenty
(120) day periods specified in the Deduction Sections shall only
39
<PAGE>
be applicable with respect to the Deduction Sections and such
periods shall in no manner whatsoever be construed or interpreted
to extend Williams' cure periods or other timing of any other
obligation set forth in any other provision of this Agreement;
and (v) WinStar's compliance with the Deduction Sections shall
not constitute a breach of the Payment Terms. Williams hereby
waives any rights it may have to use the Deduction Sections as a
claim or defense against any other provision in this Agreement.
24.2. Assignment.
(a) Except to the extent permitted by Section 24.2(d), neither party
may, or shall have the power to, assign this Agreement or
delegate such party's obligations hereunder without the prior
written consent of the other except to:
(i) An entity that acquires all or substantially all of the
assets of such party,
(ii) Any Affiliate,
(iii) A successor in a merger or acquisition of such party, or
(iv) In connection with any financing.
(b) Notwithstanding the foregoing, no assignment or other transfer of
this Agreement shall be effective without the written agreement
of the assignee to be bound by the terms and conditions of this
Agreement including the indemnification provisions and
limitations on liability and recourse set forth in this Agreement
(including those benefiting the Released Parties).
(c) Except with respect to the assignment of less than all of a
party's rights or obligations under this Agreement and except as
set forth in Section 24.2(e), the non-assigning party shall not
unreasonably withhold its consent to an assignment if neither the
assigning party nor the proposed assignee is in material default
under this Agreement or any other agreement with the
non-assigning party.
(d) The provisions of Section 24.2(a) notwithstanding, Williams may
assign some or all of its rights and obligations hereunder to
State Street Bank and Trust Company of Connecticut, National
Association, in connection with a financing by Williams of
construction of its fiber optic network; in addition, State
Street Bank and Trust Company of Connecticut, National
Association, may further assign this Agreement as collateral for
such financing. If Williams makes an assignment pursuant to this
Subsection 24.2(d), Williams (or its assignee pursuant to an
assignment made under the other provisions of this Section 24.2)
shall guarantee performance of the assignee's obligations.
40
<PAGE>
(e) Except in connection with an assignment of this Agreement as
provided herein, until the third (3rd) anniversary of the
Acceptance Date of any System Segment, WinStar shall not sell the
dark fiber, raw frequency (commonly known as "windows") but may
place optronics in such System Segment and resell capacity in any
increment. After such three (3) year period, WinStar may convey
such an interest provided that WinStar shall serve as the sole
point of contact with Williams and no party receiving such
interest shall have any contract rights against or be in privity
of contract with Williams as a result of such conveyance.
(f) This Agreement and the rights and obligations under this
Agreement (including the limitations on liability and recourse
set forth in this Agreement benefiting the other party and the
Released Parties) shall be binding upon and shall inure to the
benefit of Williams and WinStar and their respective permitted
successors and assigns.
(g) Neither the provisions of this Article nor any other provisions
of this Agreement shall limit the ability of any Facility
Owners/Lenders or of any Released Parties to assign their rights
under this Agreement and such Facility Owners/Lenders and
Released Parties may assign their rights hereunder at any time
and from time to time without the consent of, notice to, or any
other action by any other entity. The provisions of this
Agreement benefiting the Facility Owners/Lenders and Released
Parties shall inure to the benefit of such entities and their
respective Affiliates, successors, and assigns.
(h) Notwithstanding any presumptions under applicable state law that
a change in control of a party constitutes an assignment of an
agreement, a change in control of a party, not made for purposes
of circumventing restrictions on assignment or of depriving the
other party of rights under this Agreement, shall not be deemed
an assignment for purposes of this Agreement.
24.3. Relationship of the Parties.
The relationship between Williams and WinStar 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 federal income tax purposes. Williams and WinStar, in
performing any of their obligations hereunder, shall be independent
contractors or independent parties and shall discharge their
contractual obligations at their own risk.
24.4. Prohibition on Improper Payments.
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. If
either party has reasonable cause to believe that one of the
41
<PAGE>
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.
24.5. Entire Agreement; Amendment; Execution.
(a) This Agreement constitutes the entire and final agreement and
understanding between Williams and WinStar with respect to the
subject matter hereof and supersedes all prior agreements (oral
or written) relating to the subject matter hereof, which are of
no further force or effect (including, in particular, the
Customer Services Agreement between Williams and WinStar GoodNet,
dated July 16, 1998, Contract Number 98R0675.00, provided that
any undisputed payment obligations accruing prior to the
Effective Date, shall be due and owing under the terms of this
Agreement). The Exhibits referred to herein are integral parts
hereof and are made a part of this Agreement by reference.
(b) This Agreement may only be amended, modified, or supplemented by
an instrument in a single writing executed by duly authorized
representatives of Williams and WinStar. No such amendment,
modification, or supplement shall result in any modification of
(i) any indemnity benefiting any Facility Owners/Lenders or their
respective Affiliates or (ii) any limitation of liability or
recourse benefiting any Released Parties that is adverse to such
Released Parties.
(c) This Agreement may be executed in one or more counterparts, all
of which taken together shall constitute one and the same
instrument.
(d) This Agreement may be duly executed and delivered by a party by
execution and facsimile delivery of the signature page of a
counterpart to the other party, provided that, if delivery is
made by facsimile, the executing party shall promptly deliver a
complete counterpart that it has executed to the other party.
(e) Unless otherwise expressly permitted in this Agreement, Williams
shall not make any changes to the Exhibits or Schedules attached
hereto that may have a material adverse impact on the performance
or usability of the Telecommunications Services, Additional
Services or Other Services without WinStar's prior written
consent.
24.6 Public Disclosures.
All media releases, public announcements, and public disclosures
relating to this Agreement or the subject matter of this Agreement,
including promotional or marketing material, but not including
announcements intended solely for internal distribution or disclosures
to the extent required to meet legal or regulatory requirements shall
be coordinated with and shall be subject to approval by both parties
prior to release.
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<PAGE>
25. REPRESENTATIONS, WARRANTIES AND COVENANTS
25.1. Representations and Warranties.
In addition to any other representations and warranties contained in
this Agreement, each party hereto represents and warrants to the other
that:
(a) It has the requisite corporate power to enter into, execute,
deliver, and perform its obligations under this Agreement;
(b) It has taken all requisite corporate action to approve the
execution, delivery, and performance of this Agreement;
(c) This Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms;
(d) 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;
(e) It is not subject to any contractual or other obligation that
would prevent it from entering into this relationship; and
(f) It has not offered or provided any inducements in violation of
law or the other party's policies, of which it has been given
notice, in connection with this Agreement.
25.2. Additional Williams Covenants.
Excluding services provided by third parties other than Williams'
subcontractors, Williams covenants that Telecommunications Services,
Additional Services, and Other Services shall be provided to WinStar
in accordance with the technical parameters set forth in the
applicable service schedule. Williams further covenants that it shall
use commercially reasonable efforts under the circumstances to remedy
any delays, interruptions, omissions, mistakes, accidents or errors in
the Telecommunications Services, Additional Services or Other Services
provided hereunder and to restore such Telecommunications Services or
Other Services to compliance with the terms hereof.
25.3. Infringement of Intellectual Property Rights.
Each party represents, warrants and covenants to the other that it
shall perform its responsibilities under this Agreement in a manner
that does not infringe, or constitute an infringement or
misappropriation of, any Intellectual Property Rights of any third
party.
26. USE OF TELECOMMUNICATIONS AND OTHER SERVICES
26.1. Condition to Provision of Services.
Telecommunications Services or Other Services shall not be used for
any unlawful purpose. More than ten percent (10%) of the transmissions
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will be interstate transmissions. The parties represent to each other
that this Agreement, to the extent it is subject to FCC regulation, is
an inter-carrier agreement not subject to the filing requirements of
Section 211 (a) of the Communications Act of 1934, as amended. One
strand of the Williams Network is contractually limited to use for
multimedia transmission (i.e. internet traffic, video and radio
transmission services and/or related applications, including, graphic,
visual, imaging, interactive and multimedia transmissions) (the
"Restricted Fiber"). If the parties want to use such Restricted Fiber,
upon request from Williams, WinStar agrees within a reasonable period
of time to identify the nature of its proposed use of the Other
Service so as to permit Williams to determine whether the Other
Service may be carried over the Restricted Fiber. The fact that
Williams may not utilize the Restricted Fiber for such transmissions
shall not affect Williams' obligation to provide Telecommunications
Services or Other Services unless otherwise specifically set forth in
this Agreement.
26.2. Intrastate Interexchange Services.
WinStar may use any interexchange service provided under this
Agreement including any service provided by means of a Backbone
Agreement only if such interexchange service is used for carrying
inter-state (as defined by the FCC) telecommunications (i.e.,
telecommunications subject to the jurisdiction of the Federal
Communications Commission). Williams and its Affiliates shall not be
obligated to make available Telecommunications Services, Additional
Services, or other interexchange service on a Circuit with end points
within a single state or service on a Circuit which
originates/terminates at points both of which are situated within a
single state unless WinStar represents in writing that such
interexchange service or Circuits shall be used to carry inter-state
telecommunications (as defined by the FCC).
26.3. WinStar Responsibilities.
WinStar has sole responsibility for installation, testing and
operation of facilities, services and equipment ("WinStar Facilities")
other than those specifically provided by Williams as part of the
Telecommunications Services or Other Services as described in a
Service Order. In no event will the untimely installation or
non-operation of WinStar Facilities relieve WinStar of its obligation
to pay charges for the Service or Other Service after the Requested
Start Date as set forth in the Service Order.
26.4. Consents.
As between the parties, WinStar shall be responsible for all
arrangements with copyright holders, music licensing organizations,
performers' representatives or other parties for necessary
authorizations, clearances or consents with respect to transmission
contents.
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26.5. Restriction of Transmissions.
WinStar will not transmit content, nor permit its customers to
transmit content that violates applicable law or carries an
unreasonable risk of leading to criminal, civil or administrative
proceedings or investigations against Williams or WinStar.
26.6 Compliance with Regulations.
If the FCC, any state regulatory body, or any court, in each case
having competent jurisdiction, determines that any provision of this
Agreement violates any applicable rules, policies, or regulations,
both parties shall reasonably cooperate to immediately bring this
Agreement into compliance, consistent with the intent of this
Agreement.
26.6. Reasonableness, Consents and Approval.
(a) Where this Agreement requires a party to assist or cooperate,
such requirement shall not be interpreted to require materially
more than a commercially reasonable level of effort (i.e. the
standard applicable will not be "best efforts" or "exhausting all
available means").
(b) Except where expressly provided as being in the sole discretion
of a party, where agreement, approval, acceptance, consent, or
similar action by either party is required under this Agreement,
such action shall not be unreasonably delayed or withheld. An
approval or consent given by a party under this Agreement shall
not relieve the other party from responsibility for complying
with the requirements of this Agreement, nor shall it be
construed as a waiver of any rights under this Agreement, except
as and to the extent otherwise expressly provided in such
approval or consent.
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IN WITNESS WHEREOF and in confirmation of their consent to the terms
and conditions contained in this Agreement and intending to be legally bound
hereby, Williams and WinStar have executed and delivered this Agreement as of
the dates set forth below.
<TABLE>
<S> <C>
WINSTAR WIRELESS, INC. WILLIAMS COMMUNICATIONS, INC.
/s/ Timothy R. Graham /s/ Frank Semple
By: -------------------------------------------- By: ----------------------------------------
Timothy R. Graham Frank Semple
Name: -------------------------------------------- Name: ----------------------------------------
Vice President President, Williams Network
Title -------------------------------------------- Title: ----------------------------------------
December 17, 1998 December 17, 1998
Date: -------------------------------------------- Date: ----------------------------------------
</TABLE>
46
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EXHIBIT A
WILLIAMS SYSTEM
PART 1 -- ROUTE MAP
SYSTEMS SEGMENTS
MAP SHOWING PROPOSED WILLIAMS NETWORK
<PAGE>
EXHIBIT A
PART 2 - SYSTEMS SEGMENTS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Planned Estimated Number Total
Fiber Construction Route of Fiber Option Percentage of
System Segment Type Date Miles Fibers Payment Price Route Miles
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Atlanta Washington, DC SMF-LS 12/31/98 827 4 $24,229,931 $ 4,135,000
Dallas Houston SMF-LS 12/31/98 250 4 $ 7,324,647 $ 1,250,000
Minneapolis Kansas City LEAF 12/31/98 445 4 $13,037,871 $ 1,112,500
- ------------------------------------------------------------------------------------------------------------------------
January 1999 Delivery 1,522 $44,592,449 $ 6,497,600 10.37%
- ------------------------------------------------------------------------------------------------------------------------
Las Vegas Los Angeles LEAF 03/31/99 386 4 $11,309,255 $ 2,161,600
Atlanta Jacksonville LEAF 03/31/99 346 4 $10,137,311 $ 865,000
Jacksonville Miami SMF-28 03/31/99 332 4 $ 9,727,131 $ 830,000
Daytona Tampa LEAF 03/31/99 159 4 $ 4,658,475 $ 397,500
- ------------------------------------------------------------------------------------------------------------------------
March 1999 Delivery 1,223 $35,832,172 $ 4,264,100 8.33%
- ------------------------------------------------------------------------------------------------------------------------
Houston Atlanta LEAF 06/30/99 993 4 $29,093,497 $ 2,482,500
Kansas City Denver LEAF 06/30/99 610 4 $17,872,138 $ 1,525,000
- ------------------------------------------------------------------------------------------------------------------------
June 1999 Delivery 1,603 $46,965,636 $ 4,007,500 10.92%
- ------------------------------------------------------------------------------------------------------------------------
Miami Tallahassee LEAF 09/30/99 580 4 $16,993,180 $ 1,450,000
- ------------------------------------------------------------------------------------------------------------------------
September 1999 Delivery 580 $16,993,180 $ 1,450,000 3.95%
- ------------------------------------------------------------------------------------------------------------------------
Tallahassee New Orleans LEAF 12/31/99 400 4 $11,719,435 $ 1,000,000
Denver Salt Lake City LEAF 12/31/99 397 4 $11,631,539 $ 992,500
Los Angeles San Diego LEAF 12/31/99 165 4 $ 4,834,267 $ 412,500
San Diego Phoenix LEAF 12/31/99 375 4 $10,986,970 $ 937,500
Cleveland New York LEAF 12/31/99 760 4 $22,266,926 $ 1,900,000
- ------------------------------------------------------------------------------------------------------------------------
December 1999 Delivery 2,097 $61,439,137 $ 5,242,500 14.23%
- ------------------------------------------------------------------------------------------------------------------------
Salt Lake City Sacramento LEAF 09/30/00 656 4 $19,219,873 $ 1,640,000
Sacramento Oakland LEAF 09/30/00 43 4 $ 1,259,839 $ 107,500
Oakland San Fransico LEAF 09/30/00 70 4 $ 2,050,901 $ 175,000
Oakland Modesto LEAF 09/30/00 127 4 $ 3,720,921 $ 317,500
- ------------------------------------------------------------------------------------------------------------------------
September 1999 Delivery 896 $26,251,534 $ 2,224,000 6.10%
- ------------------------------------------------------------------------------------------------------------------------
Seattle Portland LEAF 12/31/00 200 4 $ 5,859,717 $ 500,000
Portland Sacramento LEAF 12/31/00 700 4 $20,509,011 $ 3,500,000
Sacramento Los Angeles LEAF 12/31/00 470 4 $13,770,336 $ 2,350,000
New York Boston LEAF 12/31/00 250 4 $ 7,324,647 $ 625,000
- ------------------------------------------------------------------------------------------------------------------------
December 2000 Delivery 1,620 $47,463,711 $ 6,975,000 11.03%
- ------------------------------------------------------------------------------------------------------------------------
Boston Albany LEAF 06/30/01 180 4 $ 5,273,746 $ 450,000
- ------------------------------------------------------------------------------------------------------------------------
June 2001 Delivery 180 $ 5,273,746 $ 450,000 1.23%
- ------------------------------------------------------------------------------------------------------------------------
Minneapolis Cleveland LEAF 09/30/01 1,124 4 $32,931,612 $ 5,620,000
Dallas Kansas City LEAF 09/30/01 661 4 $19,366,366 $ 3,305,000
Cleveland Washington, DC LEAF 09/30/01 400 4 $11,719,435 $ 1,000,000
Atlanta Nashville LEAF 09/30/01 220 4 $ 6,445,689 $ 550,000
Nashville Chicago LEAF 09/30/01 630 4 $18,458,110 $ 1,575,000
- ------------------------------------------------------------------------------------------------------------------------
September 2001 Delivery 3,035 $88,921,211 $12,050,000 20.67%
- ------------------------------------------------------------------------------------------------------------------------
Kansas City Chicago LEAF 12/31/01 389 4 $11,397,150 $ 972,500
Phoenix Houston LEAF 12/31/01 1,539 4 $45,090,525 $ 7,695,000
- ------------------------------------------------------------------------------------------------------------------------
December 2001 Delivery 1,928 $56,487,676 $ 8,667,500 13.13%
========================================================================================================================
Totals 14,684 $430,220,451 $51,834,100 100.00%
========================================================================================================================
</TABLE>
============================================================================
WinStar Payment for 4 Dark Fibers, Collocation,
and Maintenance Charges $ 430,220,451
WinStar Option Price for 2 Additional Dark Fibers
(no charge for Collocation and Maintenance) $ 51,834,100
============================================================================
<PAGE>
Exhibit B
Williams Network Pricing Schedule
This Pricing Schedule is made as of this _____ day of ________________, 199__,
and is subject to that Carrier Services Agreement No. __________________ (the
"CSA") by and between Williams Communications, Inc. d/b/a Williams Network, a
Delaware corporation ("Williams"), and
____________________________________________, a _____________________
corporation ("WinStar").
I. ATM SERVICES
1. Rates & Charges: Williams Network ATM service has three basic rate
elements; Access, Port Connections, and either Committed Bit Rate
(CBR), or Variable Bit Rate (VBR) Permanent Virtual Circuits (PVCs)
and Virtual Paths (VPs).
1.1 Permanent virtual circuit (PVC) and Virtual Path (VP) bandwidth
charges. PVC and VP charges are based on the class of service (CoS)
and bandwidth selected. Bandwidth charges are stated in Committed
Information Rates (CIR) or Megabit per second (Mbps) increments for
one-way, or Simplex PVCs. CIR increments are available in 1Meg
increments up to 40Mbps for DS3 ports, 5 Meg increments up to 150 Mpbs
for OC3 ports and 25 Meg increments up to 600 Mbps for OC12 ports. Two
Classes of Service are offered; Constant Bit Rate (CBR) and Variable
Bit Ratenon non real time (VBRnrt). Port charges are based on port
speed connections selected. Options currently are DS3, OC3 and OC12.
Monthly recurring charges for port, PVCs and VPs are as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Monthly Recurring Charges
Port CIR (Mbps) Port CoS Price Per Meg
- ------------------- ----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C>
DS3 1-9 $4,500 VBRnrt $151
- ------------------- ----------------- ----------------- ----------------- -----------------
10-19 $4,500 VBRnrt $147
- ------------------- ----------------- ----------------- ----------------- -----------------
20-29 $4,500 VBRnrt $144
- ------------------- ----------------- ----------------- ----------------- -----------------
30-40 $4,500 VBRnrt $140
- ------------------- ----------------- ----------------- ----------------- -----------------
OC3 5-20 $11000 VBRnrt $147
- ------------------- ----------------- ----------------- ----------------- -----------------
25-35 $11000 VBRnrt $144
- ------------------- ----------------- ----------------- ----------------- -----------------
40-55 $11000 VBRnrt $140
- ------------------- ----------------- ----------------- ----------------- -----------------
60-75 $11000 VBRnrt $137
- ------------------- ----------------- ----------------- ----------------- -----------------
80-95 $11000 VBRnrt $133
- ------------------- ----------------- ----------------- ----------------- -----------------
100-120 $11000 VBRnrt $130
- ------------------- ----------------- ----------------- ----------------- -----------------
125-150 $11000 VBRnrt $126
- ------------------- ----------------- ----------------- ----------------- -----------------
OC12 25-75 $37,000 VBRnrt $133
- ------------------- ----------------- ----------------- ----------------- -----------------
100-175 $37,000 VBRnrt $130
- ------------------- ----------------- ----------------- ----------------- -----------------
200-275 $37,000 VBRnrt $126
- ------------------- ----------------- ----------------- ----------------- -----------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Monthly Recurring Charges
Port CIR (Mbps) Port CoS Price Per Meg
- ------------------- ----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C>
300-350 $37,000 VBRnrt $123
- ------------------- ----------------- ----------------- ----------------- -----------------
375-475 $37,000 VBRnrt $119
- ------------------- ----------------- ----------------- ----------------- -----------------
500-600 $37,000 VBRnrt $116
- ------------------- ----------------- ----------------- ----------------- -----------------
DS3 1-9 $4,500 CBR $323
- ------------------- ----------------- ----------------- ----------------- -----------------
10-19 $4,500 CBR $315
- ------------------- ----------------- ----------------- ----------------- -----------------
20-29 $4,500 CBR $308
- ------------------- ----------------- ----------------- ----------------- -----------------
30-40 $4,500 CBR $300
- ------------------- ----------------- ----------------- ----------------- -----------------
OC3 5-20 $11000 CBR $315
- ------------------- ----------------- ----------------- ----------------- -----------------
25-35 $11000 CBR $308
- ------------------- ----------------- ----------------- ----------------- -----------------
40-55 $11000 CBR $300
- ------------------- ----------------- ----------------- ----------------- -----------------
60-75 $11000 CBR $293
- ------------------- ----------------- ----------------- ----------------- -----------------
80-95 $11000 CBR $285
- ------------------- ----------------- ----------------- ----------------- -----------------
100-120 $11000 CBR $278
- ------------------- ----------------- ----------------- ----------------- -----------------
125-150 $11000 CBR $270
- ------------------- ----------------- ----------------- ----------------- -----------------
OC12 25-75 $37,000 CBR $285
- ------------------- ----------------- ----------------- ----------------- -----------------
100-175 $37,000 CBR $278
- ------------------- ----------------- ----------------- ----------------- -----------------
200-275 $37,000 CBR $270
- ------------------- ----------------- ----------------- ----------------- -----------------
300-350 $37,000 CBR $263
- ------------------- ----------------- ----------------- ----------------- -----------------
375-475 $37,000 CBR $255
- ------------------- ----------------- ----------------- ----------------- -----------------
500-600 $37,000 CBR $248
- ------------------- ----------------- ----------------- ----------------- -----------------
</TABLE>
2.1 Non-recurring Charges:
Non-recurring charges include installation, configuration changes,
order cancellations and order changes that may be incurred for the Port
or PVC.
2
<PAGE>
- ---------------------------------------------------------------------------
Non Recurring Charges
Description of Charge Charges
- --------------------------------------- -----------------------------------
Installation:
- --------------------------------------- -----------------------------------
45Mb Port $1,500
- --------------------------------------- -----------------------------------
155Mb Port $4,000
- --------------------------------------- -----------------------------------
622Mb Port $15,000
- --------------------------------------- -----------------------------------
per PVC $40
- --------------------------------------- -----------------------------------
- --------------------------------------- -----------------------------------
Ancillary Charges:
- --------------------------------------- -----------------------------------
Configuration Changes $50
- --------------------------------------- -----------------------------------
Order Cancellation $250
- --------------------------------------- -----------------------------------
PVC Order Change $50
- --------------------------------------- -----------------------------------
Port Order Change $100
- --------------------------------------- -----------------------------------
Configuration change charges are applied when the parameters of
Virtual Channels (VCs) are changed. Order Cancellation Charges apply
when a PVC or Port has been ordered and needs to be canceled prior to
the Service having been installed and accepted.
PVC Order Change Charges apply when WinStar requests a change to the
PVC.
Port Order Change Charges apply when WinStar requests to change the
port size ordered. If the Port has been installed and accepted,
WinStar will be charged for a new port installation.
3.1 ATM Discount Structure
Contributing Williams Network ATM Service charges include recurring
port and PVC charges only. Contributing charges do not include any
credits to which WinStar may be entitled, late payment penalties,
taxes or other government surcharges, any one-time non-recurring fees
and charges or any charges related to Local Access Services. The
discount structure is based on the monthly revenue achieved by WinStar
(contributing charges) and the stated length of the Service Order
established. The discount WinStar will receive in any given month will
be determined by the level of revenue achieved by WinStar for that
month. WinStar will receive the stated discounts off of Williams?
standard rates as such rates may exist from time to time.
3
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Discount Structure
Monthly Revenue 1 Year 2 Year 3 Year 4 Year 5 Year
- ---------------- -------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
$0 0% 0% 0% 0% 0%
- ---------------- -------------- -------------- -------------- -------------- --------------
$25,000 12% 14% 18% 22% 27%
- ---------------- -------------- -------------- -------------- -------------- --------------
$50,000 14% 16% 20% 24% 29%
- ---------------- -------------- -------------- -------------- -------------- --------------
$100,000 16% 18% 22% 26% 31%
- ---------------- -------------- -------------- -------------- -------------- --------------
$150,000 18% 20% 24% 28% 33%
- ---------------- -------------- -------------- -------------- -------------- --------------
$200,000 20% 22% 26% 30% 35%
- ---------------- -------------- -------------- -------------- -------------- --------------
</TABLE>
Private Line Services
1. Williams Network Private Line Service has three basic rate elements;
IXC charges, Local Access Charges and Non-recurring charges.
1.1 IXC rates are determined on an individual case basis and will
be set forth on WinStar's Service Order. The minimum monthly
charge for any IXC circuit ordered by WinStar shall be as
follows:
---------------------------------------------------------
Minimum Monthly Charges
---------------------------------------------------------
DS-3 $2,000
---------------------------------- ----------------------
OC-3 $5,000
---------------------------------- ----------------------
OC-12 $20,000
---------------------------------- ----------------------
OC-48 $80,000
---------------------------------- ----------------------
4
<PAGE>
Non-recurring Charges:
<TABLE>
<CAPTION>
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Non-Recurring Charges DS-1 DS-3 OC-3 OC-12 OC-48
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
<S> <C> <C> <C> <C> <C>
New Order Installation $400 $2,000 $5,000 $18,000 $48,000
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Order Change (1st change free) $25 $50 $2,000 $3,000 $4,000
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Order Cancellation (prior to activation) $150 $250 $2,000 $3,000 $4,000
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
ASR (new or disconnect) Special Access $250 $250 $250 $250 $250
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
ASR Supplement $150 $150 $150 $150 $150
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Order Expedite $300 $300 $300 $300 $300
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Reconfiguration $500 $2,000 $6,000 $12,000 $24,000
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
Additional Installation/Maintenance/Engineering $100.00/hr $100.00/hr $100.00/hr $100.00/hr $100.00/hr
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
After Hours $150.00/hr $150.00/hr $150.00/hr $150.00/hr $150.00/hr
- ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
</TABLE>
<TABLE>
<CAPTION>
- ------------------------------------------------ ------------------------------------- ----------------------------------------
Cross-Connect Charge Monthly Recurring Non-Recurring
- ------------------------------------------------ ------------------------------------- ----------------------------------------
<S> <C> <C> <C>
DS-3 $250 $500
- ------------------------------------------------ ------------------------------------- ----------------------------------------
OC-3 $800 $1,000
- ------------------------------------------------ ------------------------------------- ----------------------------------------
OC-12 $3,250 $10,000
- ------------------------------------------------ ------------------------------------- ----------------------------------------
OC-48 $12,000 $25,000
- ------------------------------------------------ ------------------------------------- ----------------------------------------
</TABLE>
Installation charges shall apply to the normal installation of
equipment necessary to provide the requested service to the point of
demarcation at WinStar's premises. Additional Installation charges
shall apply when Williams is required to install equipment other than
that normally required to provide the service or when WinStar requests
special equipment.
3.1 Private Line Discount Structure
Contributing Williams Network Private Line Service charges include
monthly recurring IXC charges only. Contributing charges do not include
any credits to which WinStar may be entitled, late payment penalties,
taxes or other government surcharges, any one-time non-recurring fees
and charges or any charges related to Local Access Services. The
discount structure is based on the monthly revenue achieved by WinStar
(contributing charges) and the stated length of the Service Order
established. The discount WinStar will receive in any given month will
be determined by the level of revenue achieved by WinStar for that
month. WinStar will receive the stated discounts off of Williams'
standard rates as such rates may exist from time to time.
------------------------------------------------------------
Rates per VG&E V&H mile On Net.
------------------------------------------------------------
DS-3 $ 0.0230
-------------------------------- ---------------------------
OC-3 $0.0220
-------------------------------- ---------------------------
OC-12 $0.0185
-------------------------------- ---------------------------
OC-48 $0.0165
-------------------------------- ---------------------------
5
<PAGE>
III. Frame Relay Services
1. Rates & Charges: Williams Network Frame Relay Service has four
principle rate elements: Access, Port Connections, Permanent Virtual
Circuits (PVCs), and Flex-CIR (Time-of-Day and/or Day-of-Week)
configuration charges.
Ports and PVCs are further categorized as being either a
User-to-Network Interface (UNI) type or Network-to-Network Interface
(NNI) type. An NNI port is defined as one end of a connection between
Williams' frame relay network and another carrier's network. The
connecting carrier could be either a customer or off-net service
provider. Similarly, an NNI PVC is defined as one which has each end of
the PVC residing in two different carrier's frame relay networks,
rather than the originating and terminating points being in the same
carrier's network.
1.1 Port Charges: Both UNI and NNI port charges are based solely on the
bandwidth selected by WinStar. Available port speeds range from 64
Kilobits per second (Kbps) to 1.536 Megabits per second (Mbps). See
rate table below for list of available speeds. Monthly recurring and
non-recurring charges for frame relay ports are provided in the rate
table below.
1.1.2 Permanent Virtual Circuit (PVC) bandwidth charges: UNI and NNI PVC
charges are both based solely on the bandwidth selected by WinStar.
Bandwidth charges are stated in Committed Information Rates (CIR) or
Kbps increments for one-way, or Simplex PVCs. Available PVC-CIR speeds
range from 4 Kbps to 1.024 Mbps. See rate table below for list of
available speeds. Monthly recurring and non-recurring charges for frame
relay PVCs are provided in the rate table below.
6
<PAGE>
1.1.3 Frame Relay Rate Table
<TABLE>
<CAPTION>
- ------------------------------- ---------------- ------------------- -------------------
Frame Relay Service Components Speed/CIR
(Kbps) MRC ($) Installation ($)
- ------------------------------- ---------------- ------------------- -------------------
<S> <C> <C> <C>
NNI Port (Private NNI) 64 $ 224 $ 250
128 $ 418 $ 250
(Add: "NNITrunking Charge") 192 $ 455 $ 250
Charge")
256 $ 492 $ 250
320 $ 610 $ 250
384 $ 727 $ 250
448 $ 823 $ 250
512 $ 920 $ 250
576 $ 984 $ 250
640 $ 1,049 $ 250
704 $ 1,114 $ 250
768 $ 1,179 $ 250
1024 $ 1,471 $ 250
1536 $ 1,856 $ 250
NNIPVC 0 $ 8 $ 25
4 $ 8 $ 25
(SimplexPricing) 8 $ 10 $ 25
16 $ 12 $ 25
32 $ 20 $ 25
48 $ 30 $ 25
64 $ 40 $ 25
128 $ 80 $ 25
192 $ 119 $ 25
256 $ 159 $ 25
320 $ 199 $ 25
384 $ 239 $ 25
448 $ 278 $ 25
512 $ 318 $ 25
576 $ 358 $ 25
640 $ 398 $ 25
704 $ 437 $ 25
768 $ 477 $ 25
832 $ 517 $ 25
896 $ 557 $ 25
960 $ 596 $ 25
1024 $ 636 $ 25
UNIPorts 64 $ 224 $ 250
128 $ 418 $ 250
192 $ 455 $ 250
256 $ 492 $ 250
320 $ 610 $ 250
384 $ 727 $ 250
448 $ 823 $ 250
512 $ 920 $ 250
576 $ 984 $ 250
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------- ---------------- ------------------- -------------------
Frame Relay Service Components Speed/CIR
(Kbps) MRC ($) Installation ($)
- ------------------------------- ---------------- ------------------- -------------------
<S> <C> <C> <C>
640 $ 1,049 $ 250
704 $ 1,114 $ 250
768 $ 1,179 $ 250
1024 $ 1,471 $ 250
1536 $ 1,856 $ 250
UNIPVCs 0 $ 8 $ 25
4 $ 8 $ 25
(SimplexPricing) 8 $ 10 $ 25
16 $ 12 $ 25
32 $ 20 $ 25
48 $ 30 $ 25
64 $ 40 $ 25
128 $ 80 $ 25
192 $ 119 $ 25
256 $ 159 $ 25
320 $ 199 $ 25
384 $ 239 $ 25
448 $ 278 $ 25
512 $ 318 $ 25
576 $ 358 $ 25
640 $ 398 $ 25
704 $ 437 $ 25
768 $ 477 $ 25
832 $ 517 $ 25
896 $ 557 $ 25
960 $ 596 $ 25
1024 $ 636 $ 25
Local Access DS-0/DDS ICB ICB
ICB
FT-1 ICB ICB
ICB
DS-1 ICB ICB
NNI Trunking Charge DS-0/DDS ICB ICB
ICB
FT-1 ICB ICB
ICB
DS-1 ICB ICB
- ------------------------------- ---------------- ------------------- -------------------
</TABLE>
8
<PAGE>
1.2 Enhanced Services: The basic Frame Relay Service components described in
the previous sections can be bundled and molded into a wide variety of
different service offerings. The following descriptions outline how
Williams packages these service components to address the specialized
requirements of its wholesale customers.
1.2.1 Frame Relay/ATM Service Interworking:
<TABLE>
<CAPTION>
- ------------------------------------- ------------------------ -------------------------------
Enhanced Wholesale Services Installation MRC
- ------------------------------------- ------------------------ -------------------------------
<S> <C> <C>
Frame Relay/ATM Interworking (No additional charge (No additional charge for
-------------------- --------------------
for locations locations requiring ATM
requiring ATM beyond beyond that for standard ATM
that for standard ATM service)
service)
- ------------------------------------- ------------------------ -------------------------------
</TABLE>
1.3 Flex-CIR Services: Williams Flex-CIR Service is designed to help end-users
in two ways:
1. Reserve the exact amount of bandwidth needed by the end-user during
the hours it is most critical.
2. Minimize the end-user's network costs by "turning off" excess
bandwidth during the hours when it is least required.
Specifically, WinStar will be able to adjust its PVC speeds (or CIR) at
quarter-hour increments (e.g. 8:00, 8:15, 8:30, 8:45, etc.). Once
WinStar has made a speed change, WinStar will not be able to make
another change for at least two (2) hours. WinStar shall have the
option of establishing different speed schedules for the same PVC
depending on the day of the week (e.g. turning a Flex-CIR PVC down from
its "weekday speed" of 256 Kbps CIR to 64 Kbps CIR on the weekend). The
configuration charges for this enhanced service are provided in the
table below
8
<PAGE>
1.3.1
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Time-of-Day/Day-of-Week Flex-CIR
PVC Charges
Description NRC (Per PVC) MRC (Per PVC)
- ------------------------------- ------------------------ -----------------------------
<S> <C> <C>
Basic PVC Charge (Standard NRC charge (Standard MRC charge for
(Based on weighted average of for average CIR level) average CIR level)
CIRs)
- ------------------------------- ------------------------ -----------------------------
TOD Configuration Charge (2 $40 $60
CIR adjustments per day)
- ------------------------------- ------------------------ -----------------------------
DOW Configuration Charge (2 $40 $60
CIR adjustments per wk.)
- ------------------------------- ------------------------ -----------------------------
Each additional CIR $20 $30
adjustment per period (Per
day or per week)
- ------------------------------- ------------------------ -----------------------------
</TABLE>
2.1 Additional Non-recurring Charges: In addition to the non-recurring
charges set forth in the tables above, WinStar may incur the following
additional non-recurring charges.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
Additional Non-Recurring Charges
Description of Charge Charge
- ------------------------------------------ ---------------------------------------
<S> <C>
Basic PVC Reconfiguration Changes $50
- ------------------------------------------ ---------------------------------------
Flex-CIR PVC Reconfiguration Changes Apply Standard Installation Charges
- ------------------------------------------ ---------------------------------------
PVC Order Cancellation Charge $40
- ------------------------------------------ ---------------------------------------
Port Order Change Charge $100
- ------------------------------------------ ---------------------------------------
Port Order Cancellation Charge $250
- ------------------------------------------ ---------------------------------------
</TABLE>
Configuration charges are applied when the parameters of PVCs are
changed. PVC Order Cancellation Charges apply when WinStar cancels a
PVC order prior to its installation.
Port Order Change Charges apply when WinStar requests to change the
port size ordered. If the Port has been installed and accepted,
WinStar will be charged for a new port installation.
Port Cancellation Charges apply when WinStar cancels a port order
prior to installation.
10
<PAGE>
3.1 Frame Relay Discount Schedule
Contributing Williams Network Frame Relay Service charges include
monthly recurring charges only. Contributing charges do not include any
credits to which WinStar may be entitled, late payment penalties, taxes
or other government surcharges, any one-time non-recurring fees and
charges or any charges related to Local Access Services. The discount
structure is based on the monthly revenue achieved by WinStar
(contributing charges) and the stated length of the Service Order
established. The discount WinStar will receive in any given month will
be determined by the level of revenue achieved by WinStar for that
month. WinStar will receive the stated discounts off of Williams'
standard rates as such rates may exist from time to time.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Frame Relay Discount Schedule
Monthly Revenue 1 Year 2 Year 3 Year 4 Year 5 Year
- ----------------------------- ----------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
$0 0% 0% 0% 0% 0%
- ----------------------------- ----------- ---------- ---------- ---------- -----------
$25,000 12% 14% 18% 22% 27%
- ----------------------------- ----------- ---------- ---------- ---------- -----------
$50,000 14% 16% 20% 24% 29%
- ----------------------------- ----------- ---------- ---------- ---------- -----------
$100,000 16% 18% 22% 26% 31%
- ----------------------------- ----------- ---------- ---------- ---------- -----------
$150,000 18% 20% 24% 28% 33%
- ----------------------------- ----------- ---------- ---------- ---------- -----------
$200,000 20% 22% 26% 30% 35%
- ----------------------------- ----------- ---------- ---------- ---------- -----------
</TABLE>
IV. Pricing General Conditions
1. All pricing set forth in Sections I, II and III above is Williams'
current pricing. Such pricing is subject to change upon thirty (30)
days written notice by Williams to WinStar. Price changes shall only be
effective on a going-forward basis and shall not apply to Service
Orders previously placed by WinStar and accepted by Williams.
11
<PAGE>
EXHIBIT B
Williams Network Technical Specifications
I. Technical Specifications for ATM and Frame Relay Services
1.0 Williams Network Technical Specifications are stated as an objective
that the ATM and Frame Relay Services will perform in accordance with
prevailing telecommunications industry standards. All Service provided
under Williams ATM and Frame Relay Services are measured using two
variables: Network Availability and Mean-time-to-restore.
2.0 Quality Standards
2.1 General. ATM and Frame Relay Service standards apply on a
one-way basis between the WinStar Premises Network Interface
Points ("CPNIP") which are connected to Local Access between
which ATM and Frame Relay Interexchange Service is provided
(CPNIP to CPNIP or End-to-End) and exclude nonperformance due
to force majeure or planned interruptions for necessary
maintenance purposes. The actual end-to-end availability and
performance of ATM and Frame Relay Service may be affected by
the WinStar provided equipment, dependent upon the type and
quality of WinStar equipment used. (WinStar provided Local
Access may not meet these specifications.)
2.2 Availability. Availability is a measurement of the percent of
total time that service is operative when measured over a 365
consecutive day (8760 hour) period. The Local Access
availability standards for ATM and Frame Relay Services are
established by the Local Access Provider. For ATM and Frame
Relay Services on the Williams network, availability shall be
99.95% from point-of-presence ("POP") to POP measured over a
one year period. For Services not on the Williams network, the
off-net provider will establish availability.
3.0 Maintenance
Repair efforts will be undertaken upon notification of trouble by
internal network surveillance and network surveillance and performance
systems or by notification of trouble and release of all or part of the
ATM or Frame Relay Service by WinStar for testing.
12
<PAGE>
4.0 Mean Time to Restore
Mean Time to Restore (MTTR) is the average time required to restore
service and resume availability and is stated in terms of equipment and
cable outages. The time is measured from the moment the outage is
reported until the service is available and applies specifically to
equipment outages or failures.
4.1 MTTR Objective: 2 Hours (Equipment)
6 Hours (First Fibers on Cable)
5.0 Calculation. Williams Network calculates network availability on
WinStar action requests. WinStar must notify the Williams Network
Customer Care department and initiate an action request to determine if
Service variables stated above were met.
II. Technical Specifications for Private Line Service
1.0 Interconnection Specifications
1.1 DS-3. DS-3 service is provided in accordance with ANSI Standard
T1.102 (formerly AT&T Compatibility Bulletin 119) and Technical
Reference 54014 |_| 4. DS-3 Service operates at 44.736 Mbps.
1.2 Optical SONET Services (OC-N). Optical SONET Services are
provided in accordance with ANSI Standard T1.105. OC-3 Service
operates at 155.520 Mbps and is configured with 3 separate STS-1
signaling paths. OC-3C Service operates at 155.520 Mbps and is
configured with 1 STS-3C signaling path (or 3 concatenated STS-1
signaling paths). OC-12 Service operates at 622.080 Mbps with 12
separate STS-1 signaling paths. OC-12C Service operates at
622.080 Mbps with 1 STS-12C signaling path (or 4 separate STS-3C
signaling paths). OC-48 Service operates at 9953.280 Mbps and is
configured with 48 separate STS-1 signaling paths.
2.0 Quality Standards
2.1 General. DS-3 and Optical SONET Service standards apply on a
one-way basis between WinStar Premises Network Interface
Points ("CPNIP") which are connected to Local Access between
which DS-3 and Optical SONET Interexchange Service is provided
(CPNIP to CPNIP or End-to-End) and exclude nonperformance due
to force majeure or planned interruptions for necessary
maintenance purposes. The actual end-to-end availability and
performance of DS-3 and Optical SONET Service may be affected
by WinStar provided equipment, dependent upon the type and
quality of WinStar equipment used. (WinStar provided Local
Access may not meet these specifications.)
13
<PAGE>
2.2 Availability. Availability is a measurement of the percent of
total time that service is operative when measured over a 365
consecutive day (8760 hour) period. DS-3 and Optical SONET
Service is considered inoperative when there has been a loss
of signal or when two consecutive 15 second loop-back tests
confirm the observation of any severely errored seconds or a
bit error rate equal to or worse than 1 x 10-3. The Local
Access availability standards for DS-3 and Optical SONET
Services are established by the Local Access Provider. For
Services on the Williams network, availability shall be 99.95%
from point-of-presence ("POP") to POP measured over a one year
period. For Services not on the Williams network, the off-net
provider will establish availability. For multi-media
services, availability will be the same as established by
WorldCom, Inc.
2.3 Performance (% Error Free Seconds, while Available).
Performance is noted in Error Free Seconds (EFS) which are a
measure of the percentage of total seconds when measured over
a consecutive 24 hour period that do not contain bit errors.
Performance shall be measured on a one-way basis using a
Pseudo Random Bit Sequence test pattern as defined in CCITT
Recommendation 0.151. The Error Free Seconds standards for the
Local Access for DS-3 and Optical SONET Service is established
by the Local Access Provider. For Services on the Williams
network, Error Free Seconds shall be 99.5% from POP to POP
measured over a monthly period. For Services not on the
Williams network, the off-net provider will establish Error
Free Seconds. For multi-media services, Error Free Seconds
will be as defined by WorldCom, Inc.
3.0 Maintenance
Repair efforts will be undertaken upon notification of trouble by
internal network surveillance and network surveillance and performance
systems or by notification of trouble and release of all or part of the
DS-3 or Optical SONET Service by WinStar for testing.
4.0 Mean Time to Restore
Mean Time to Restore (MTTR) is the average time required to restore
service and resume availability and is stated in terms of equipment and
cable outages. The time is measured from the moment the outage is
reported until the service is available and applies specifically to
equipment outages or failures.
4.1 MTTR Objective: 2 Hours (Equipment)
6 Hours (First Fibers on Cable)
5.0 Calculation. Williams Network calculates network availability on
WinStar action requests. WinStar must notify the Williams Network
Customer Care department and initiate an action request to determine if
Service variables stated above were met.
14
<PAGE>
EXHIBIT C
COLLOCATION PROVISIONS
PART 1
COLLOCATION PROVISIONS - TRANSMISSION SITES
1. Collocation Rights.
a. Collocation. WinStar shall have the right to locate, install,
maintain and operate WinStar Equipment at Transmission Sites included in each
System Segment during the relevant IRU Term. Williams will provide to WinStar
either seventy-five (75) square feet or six (6) racks* at each Transmission Site
except with respect to the Dallas-Houston System Segment, where Williams shall
make commercially reasonable efforts to secure six (6) racks at each
Transmission Site. No use of Transmission Sites required or permitted under
these Collocation Provisions shall create or vest in WinStar any easements or
other ownership or property rights of any nature in Williams' real or personal
property. Williams shall construct and operate such space, and WinStar shall
cause the WinStar Equipment to be installed and operated, in accordance with
telecommunications industry standards for similar collocation arrangements.
b. Basic Services. Williams shall designate each Transmission Site as
an optical amplifier site, a regenerator site, or a junction. At each
Transmission Site, Williams shall provide separate access, not located in its
backbone area, where available, space, HVAC, and DC power for the WinStar
Equipment as follows:
Sites Maximum Power
Optical Amplifier 90 amps of 48v DC
Regenerator 120 amps of 48v DC
Junctions 180 amps of 48v DC
* A rack space adequate to contain a rack (measuring 26 inches (width) x 24
inches (depth) x 78 or 84 inches (height)). WinStar shall supply its own
cabinets.
The total linear inches for WinStar Rack Space within each Transmission Site
shall not exceed the sum of the number of Rack Spaces for the specified
Transmission Site multiplied by 26 inches. The services provided pursuant to
this Subsection shall be referred to as the "Basic Services."
c. Charges for Basic Services. The Contract Price includes the charge
for Basic Services.
16
<PAGE>
d. Ancillary Collocation Services. WinStar may request in writing
installation services, AC power or additional DC power, additional back-up
power, technical assistance, additional space or racks, assistance in
establishing an Interconnection Facility (as defined below), or additional HVAC
(collectively referred to as the "Ancillary Collocation Services") at any
Transmission Site. Within fifteen (15) business days after receiving such
written request, Williams shall notify WinStar whether the Ancillary Collocation
Services are available and, if they are, Williams' standard rates for the
Ancillary Collocation Services. WinStar shall provide written notice to Williams
confirming its request for such Ancillary Collocation Services at the quoted
rates prior to Williams providing such Ancillary Collocation Services. If
upgrades or expansions to Transmission Sites or its facilities are necessary to
accommodate WinStar's request, Williams may include the entire cost of such
upgrades or expansions in the cost to WinStar.
e. Charges for Ancillary Collocation Services. If WinStar chooses to
receive the Ancillary Collocation Services, WinStar shall pay any and all
(initial and continuing) costs reasonably incurred by Williams in providing such
Ancillary Collocation Services or Williams' standard prices for such Ancillary
Collocation Services at the relevant Transmission Site, provided that WinStar
has in either case agreed to such charges in advance in writing. WinStar shall
pay Williams the amounts due within thirty (30) days of receipt of an invoice
therefor from Williams. Following the fifth (5th) year after the Effective Date,
upon at least thirty (30) days' notice to WinStar, Williams may adjust recurring
charges for the Ancillary Collocation Services once each calendar year to equal
its then-current standard charges. Williams' current charges (as of the
Effective Date) for certain Ancillary Collocation Services are set forth in the
following tables:
<TABLE>
<CAPTION>
- ---------------------------------------------------- ------------------- ------------------ -----------------
Recurring Monthly Charges for Specific Minimum One Year Three Year Five Year
Term Commitments Term Term Term
- ---------------------------------------------------- ------------------- ------------------ -----------------
<S> <C> <C> <C>
Rack $700 $650 $500
- ---------------------------------------------------- ------------------- ------------------ -----------------
Each AC amp 0 0 0
- ---------------------------------------------------- ------------------- ------------------ -----------------
Each DC amp 0 0 0
- ---------------------------------------------------- ------------------- ------------------ -----------------
- ---------------------------------------------------- ------------------- ------------------ -----------------
Nonrecurring Charges for Specific Minimum Term One Year Three Year Five Year
Commitments (in addition to monthly charge)
- ---------------------------------------------------- ------------------- ------------------ -----------------
Rack $3,000 $1,500 0
- ---------------------------------------------------- ------------------- ------------------ -----------------
Each AC amp $75 $75 $75
- ---------------------------------------------------- ------------------- ------------------ -----------------
Each DC amp $250 $250 $250
- ---------------------------------------------------- ------------------- ------------------ -----------------
</TABLE>
18
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------- ------------------------- ------------------------
Ancillary Charges Nonrecurring Monthly Recurring
Charge ($) Charge ($)
- ---------------------------------------------------------------- ------------------------- ------------------------
<S> <C> <C>
Change of Installation Date (pre-work date) 100 0
- ---------------------------------------------------------------- ------------------------- ------------------------
Service Order Change (pre-work date) 100 0
- ---------------------------------------------------------------- ------------------------- ------------------------
Service Order Change (post-work date) 250 0
- ---------------------------------------------------------------- ------------------------- ------------------------
Order Cancellation (more than 30 days before scheduled work 250 0
date)
- ---------------------------------------------------------------- ------------------------- ------------------------
Order Cancellation (less than 30 days from scheduled work date) 500 0
- ---------------------------------------------------------------- ------------------------- ------------------------
AC Power Addition (after initial installation) 750 0
- ---------------------------------------------------------------- ------------------------- ------------------------
Cross-Connect (per DS-3) (subject to limitations set forth in 1,000 250
Section 2 of this Exhibit)
- ---------------------------------------------------------------- ------------------------- ------------------------
Early Termination (before one, three, or five year term 100% of remaining contract term
expires)
- ---------------------------------------------------------------- --------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Dispatch Labor Charges ($)
- -------------------------------------------------------------------------------------------------------------------
<S> <C>
Monday-Friday Business Hours 100 per hour
- ------------------------------------------------------------------------ ------------------------------------------
Monday-Friday Non-Business Hours 125 per hour
- ------------------------------------------------------------------------ ------------------------------------------
Saturday & Sunday 150 per hour
- ------------------------------------------------------------------------ ------------------------------------------
Holidays 150 per hour
- ------------------------------------------------------------------------ ------------------------------------------
</TABLE>
f. Delivery and Installation. WinStar shall, at its expense, cause the
WinStar Equipment to be delivered, installed, and maintained in a safe condition
and meeting or exceeding the standards set forth in the Subsection entitled
Standards. Williams shall allow WinStar reasonable access to each Transmission
Site for purposes of installing WinStar Equipment beginning on or before the
Acceptance Date of the relevant System Segment, provided that, if a Transmission
Site is not ready for installation of equipment other than security, alarm,
HVAC, power, back-up power or other common systems on such date, Williams shall
allow such access within five (5) days of the first date such Transmission Site
is ready for such installation. Williams shall provide WinStar with at least
thirty (30) days notice prior to the date it estimates each Transmission Site
will be ready for installation of the WinStar Equipment.
g. Interface. Interface points for the WinStar fibers shall be at fiber
patch panels or digital cross-connect (DSX-N) panels located in the Transmission
Sites. Such panels shall be the demarcation to establish each party's
operational and maintenance responsibilities. All cables placed to interface
such panels shall conform to all applicable Williams' standards.
18
<PAGE>
h. Alarms 24 x 7 Monitoring. Williams shall continuously monitor (i.e.,
24 x 7) Transmission Site security, environmental, and power alarms at one or
more manned monitoring centers. At WinStar's request, Williams shall establish
procedures to allow WinStar, at WinStar's expense, to share or receive alarm
information.
i. Compliance with Agreement. Each party shall comply with the
provisions of the Agreement relating to Transmission Sites, including, without
limitation, Williams' obligations to provide as-built drawings of Transmission
Sites showing WinStar rack placement and assignment and to comply with the
Operations Specifications set forth in Exhibit I thereto.
2. Interconnections
a. Right to Interconnect Off-Premises. WinStar shall have the right to
connect any of its premises to any Transmission Site (such connection or
entrance facility referred to herein as the "Interconnect Facility").
Transmission Sites are established and designed to support network transmission
equipment and, therefore, no interconnections may be made at such sites for
other purposes such as directly or indirectly connecting to local exchange
carrier facilities or other local access facilities or for purposes of providing
local exchange or local access services.
b. Construction and Installation. WinStar shall provide at its expense
all necessary rights of way, permits, equipment and Williams-approved materials
to construct and install each Interconnect Facility, including, but not limited
to, cables and conduit and any labor charges associated therewith. Williams
shall reasonably cooperate with WinStar to facilitate reasonable WinStar
requests for Interconnection Facilities. Specifically, if necessary, and where
applicable, Williams shall assist WinStar at WinStar's expense, in obtaining
from any third-party building owner or Williams lessor access to existing
building entrance facilities, if available, to access and exit Transmission
Sites. The demarcation point for WinStar's facilities shall be in Williams'
fiber patch panel or the DSX-N panel in the Transmission Sites, as appropriate.
c. Ownership. WinStar shall retain ownership of any portion of each
Interconnect Facility that is located on Transmission Sites during the IRU Term;
provided, however, that title to any part of the Interconnect Facility within a
Transmission Site shall be transferred to Williams upon expiration of the IRU
Term.
d. Prohibition on Interconnection with Other Collocation Customers.
WinStar shall not establish interconnections between WinStar's collocated
facilities or the WinStar Equipment and the collocated facilities of other
parties who are using a Transmission Site. WinStar shall not use any
Interconnect Facility to allow third parties collocated in any Transmission Site
to interconnect with each other at that Transmission Site.
19
<PAGE>
e. Maintenance and Changes. WinStar shall provide all maintenance and
repair of the Interconnect Facility on WinStar's side of the point of
demarcation. Any improvement, modification, addition to, relocation, or removal
of, the Interconnect Facility by WinStar at Transmission Sites shall be subject
to Williams' prior review and written approval. WinStar shall pay the cost of
such improvement, modification, addition to, relocation, or removal of, the
Interconnect Facility. Williams' approval will not be unreasonably withheld and
if Williams fails to respond to WinStar's written request within thirty (30)
days of receiving WinStar's request for such changes, Williams shall be deemed
to have approved WinStar's request. Williams' maintenance responsibility shall
be limited to the demarcation point and the associated cross connect at that
point.
3. Notice to Interconnect or Collocate. No later than sixty (60) days
prior to WinStar's planned installation of its WinStar Equipment or Interconnect
Facilities at any Transmission Site, WinStar shall provide to Williams the
"Interconnect/Collocation Notice." The Interconnect/Collocation Notice shall
include notice of WinStar's desire to interconnect/collocate in a particular
Transmission Site, a copy of WinStar's construction design drawings and
installation schedule. The Interconnect/Collocation Notice shall also include:
(a) WinStar's requested installation date(s); (b) any excess cable storage
requirements; (c) identification of all Interconnect Facilities and WinStar
Equipment to be installed; (d) a diagram of the desired location of the
Interconnect Facilities and WinStar Equipment; (e) the space, power,
environmental and other requirements for the Interconnect Facilities and WinStar
Equipment; (f) the estimated commencement and termination dates for the
interconnection/collocation; (g) all other information reasonably required by
Williams. Within ten (10) business days of receiving the Interconnection/
Collocation Notice, Williams shall respond to WinStar's
Interconnection/Collocation Notice with its acceptance or objections to
WinStar's proposal in the Interconnect/Collocation Notice.
4. Use of Equipment and Interconnect Facilities
a. Power Use. WinStar shall not install any electrical or other
equipment that overloads any electrical paneling, circuitry, or wiring.
b. Standards. WinStar shall ensure that the WinStar Equipment and any
Interconnect Facilities are installed, operated, and maintained to meet or
exceed any reasonable requirements of Williams, any requirements of Williams'
building management or insurance underwriters, and any applicable local, state
and federal codes and public health and safety laws and regulations (including
fire regulations and the National Electric Code).
c. Intervention. If any part of WinStar's fiber, Interconnect
Facilities or WinStar Equipment is not placed and maintained in accordance with
the terms and conditions of these Collocation Provisions and WinStar fails to
correct the violation within thirty (30) days from receipt of written notice
thereof from Williams, then Williams may, at its option, without further notice
to WinStar, correct the deficiency at WinStar's expense without liability
(except to the extent the Agreement permits recovery for Williams' negligence)
for damages to the fiber,
20
<PAGE>
Interconnect Facilities or WinStar Equipment or for any interruption of
WinStar's services. As soon as practicable thereafter, Williams shall advise
WinStar in writing of the work performed or the action taken. WinStar shall
reimburse Williams for all expenses reasonably incurred by Williams associated
with any work or action performed by Williams pursuant hereto. WinStar shall
remit payment to Williams within thirty (30) days from its receipt of Williams'
invoice therefor.
d. Threat to Persons or Property. If Williams reasonably determines
that WinStar's actions or failure to fulfill an obligation of these Collocation
Provisions, or its Interconnect Facilities or WinStar Equipment poses an
immediate threat to the safety of Williams' employees or the public, interferes
with the performance of Williams' service obligations, or poses an immediate
threat to the physical integrity of Williams' facilities, Williams may perform
such work and/or take such action that it deems necessary without notice to
WinStar and without subjecting itself to any liability (except to the extent the
Agreement permits recovery for Williams' negligence) for damage to the fiber,
Interconnect Facilities or the WinStar Equipment or for any interruption of
WinStar's services. As soon as practicable thereafter, Williams shall advise
WinStar in writing of the work performed or the action taken. WinStar shall
reimburse Williams for all expenses reasonably incurred by Williams associated
with any work or action performed by Williams pursuant hereto. WinStar shall
remit payment to Williams within thirty (30) days from its receipt of Williams'
invoice therefor.
e. Use by WinStar's Customers. WinStar may permit its customers holding
IRU interests in the WinStar Fibers to use the collocation rights granted by
these Collocation Provisions, but only as specifically set forth herein. Such
customers shall act as WinStar's subcontractors to the extent they or their
representatives are present at or on space adjoining the Transmission Sites.
WinStar shall be liable for the acts or omissions of such customers to the same
extent as for its own employees or representatives and shall either cause such
customers, their employees and representatives to be covered by WinStar's
insurance coverages as required by the Agreement or shall cause such customers
to independently obtain such insurance. WinStar shall act as the single point of
contact with respect to such customers and Williams. WinStar must provide all
power, space, and additional service to these IRU customers out of WinStar's own
allocation of Basic Services and Ancillary Collocation Services as provided in
these Collocation Provisions.
5. Access to Transmission Site.
a. Access. Williams shall provide WinStar with secure, separate,
unescorted twenty-four (24) hour access to WinStar's assigned space, where
available. Where such separate space is not available, WinStar shall not pay for
escorted access. If WinStar requires access to Williams' common space, it shall
provide Williams with reasonable advance notice and Williams shall provide
escorted access. WinStar shall pay Williams' charges for such access, which may
include minimum call out times, and night, weekend, and holiday differentials or
multipliers. In no case shall WinStar enter Williams common space without a
Williams escort.
21
<PAGE>
b. Notice. WinStar shall notify the Williams Network Operations Center
prior to entering a Transmission Site.
c. Security. WinStar shall abide by Williams' reasonable security
requirements. When deemed appropriate by Williams, WinStar employees, customers,
or representatives shall be issued passes or visitor identification cards which
must be presented upon request before entry to Transmission Sites and
surrendered upon demand or upon expiration of the IRU Term. Such passes or other
identification shall be issued only to persons meeting any reasonable security
criteria applicable at the relevant Transmission Site for such purpose. Nothing
in this Subsection shall be construed as preventing WinStar from having
twenty-four hour unescorted access to Transmission Sites.
d. Right to Terminate Individual's Access. Notwithstanding any other
provision of these Collocation Provisions, Williams shall, without threat of
liability, have the right to immediately terminate the right of access of any
specific WinStar personnel or representative should it determine in its
reasonable discretion for any lawful reason that termination of such access is
necessary for the security of the facility or is required to prevent a violation
of law, landlord requirements, or applicable insurance requirements. Williams
shall promptly notify WinStar of any such termination, and WinStar shall have a
reasonable opportunity to demonstrate that the terminated rights of access
should be reinstated. Any termination of a specific individual's access shall
remain in effect pending Williams' final determination as to the advisability of
such reinstatement.
e. Removal of WinStar Equipment. Within sixty (60) days after the end
of the IRU Term or WinStar's abandonment of any collocation arrangement at a
Transmission Site, WinStar shall remove all WinStar Equipment from the System or
any other Williams facilities at WinStar's sole cost under Williams'
supervision. WinStar shall provide Williams with at least sixty (60) days'
notice prior to such removal. If WinStar fails to remove the same within said
sixty-day period, Williams shall either:
(a) remove WinStar's Equipment and issue an invoice to WinStar for
the cost of removal and storage, which WinStar shall pay
within thirty (30) days of receipt of such invoice; or
(b) notify WinStar that Williams elects to take ownership of such
abandoned WinStar Equipment, in which case WinStar shall
execute a bill of sale or other document evidencing Williams'
title to such WinStar Equipment.
22
<PAGE>
6. Relocation. WinStar shall, at Williams' expense, relocate its fiber,
Interconnect Facilities and WinStar Equipment within Transmission Site upon
Williams' written request and in the reasonable (under the circumstances) time
frame required by Williams. If the entire Transmission Site is relocated,
Article X (Relocation) of the Agreement shall govern such relocation.
7. No Restrictions. Williams' right to maintain and operate its
facilities in such a manner as will best enable it to fulfill its own service
requirements is in no manner limited by these Collocation Provisions, except as
specifically set forth in these Collocation Provisions or the Agreement.
8. Inspections. Williams reserves the right to make periodic
inspections of any part of the Fiber, Interconnect Facilities, or WinStar
Equipment located within or physically attached to the Transmission Sites;
provided that WinStar shall have the right to have one or more of its employees
or representatives present during the time of any such inspection. Williams
shall give WinStar advance notice of such inspections, except in those instances
where Williams determines that safety considerations justify the need for such
an inspection without the delay of providing notice. The making of periodic
inspections or the failure to do so shall not operate to impose upon Williams
any liability of any kind whatsoever nor relieve WinStar of any responsibility,
obligation, or liability allocated to it in these Collocation Provisions.
9. Liens and Encumbrances. WinStar shall not have the power, authority
or right to create and shall not permit any lien or encumbrance, including,
without limitation, tax liens, mechanics' liens, or other liens or encumbrances
with respect to work performed, in connection with the installation, repair,
maintenance or operation of its WinStar Equipment, Interconnect Facilities or
other property installed within the Transmission Site.
10. Subordination. WinStar's rights under these Collocation Provisions
shall be totally subordinate to any bona fide mortgages, loans, deeds of trust,
or any other borrowing upon the real or personal property which may be incurred
by Williams. WinStar shall sign any such reasonable documents as are necessary
to satisfy any lender, private or institutional, to reflect said subordination.
11. Independent Parties. The presence of a Williams or WinStar employee
or representative (as an inspector or otherwise) while an employee or
representative of the other party is at the Transmission Site or performing work
pursuant to these Collocation Provisions shall not make either party liable for
the actions of the other party and shall not be deemed to waive the
responsibility of either party to perform its obligations in a safe and
workmanlike manner.
23
<PAGE>
Exhibit C
Part 2
POP Collocation Services
Services & Terms
1. Collocation Service:
1.1 Collocation Service Description ("Collocation Service").
WinStar shall have the right to occupy, access and locate
therein certain telecommunications transmission equipment and
cabling ("Equipment") for the purpose of interconnecting the
Equipment with Williams' telecommunications transmission
network within a portion of certain premises ("Premises")
which are currently owned or leased by Williams. WinStar shall
initiate request for Collocation Service by completion of the
form included as Attachment I to this Schedule. Collocation
Service is granted only by mutual execution of relevant
Collocation Service Order(s), identified as Attachment II to
this Schedule. The portion of collocation space ("Space")
allocated is accepted "as-is" by WinStar and Williams makes no
representation as to the fitness of the space for WinStar's
intended purpose. WinStar shall abide by the standard
specifications as set forth in the Technical Specifications as
attached hereto. No work related to Collocation Service shall
commence until the CSA, Collocation Schedule, the Collocation
Service Request, and the relevant Collocation Service Order(s)
are mutually executed.
Only upon the express written consent of Williams may WinStar
interconnect the Equipment with transmission service provided
to WinStar by third parties. If WinStar should interconnect
the Equipment with equipment or services of any entity other
than Williams without obtaining the written consent of
Williams, WinStar shall, subject to the cure provision in the
Agreement, be in breach of Agreement and Williams may pursue
any legal or equitable remedy, including but not limited to
the immediate termination of the license granted in this
Schedule.
All cross-connections relevant to interconnecting the
Equipment with Williams or any other party for which Williams
gives explicit written permission shall be established under
the control and direction of Williams.
1.2 Minimum Service Commitment.
Collocation Service shall be granted with a minimum network
service commitment as further described herein. A minimum
multimedia transmission service level of $25,000 per month per
rack is required. Transmission charges applied to this
commitment level include monthly recurring fees for Private
Line, ATM and Frame Relay services. WinStar's monthly
transmission billing will be reviewed against the quantity of
Collocation Service and WinStar shall be liable for any
deficiency. Charges for deficiency will be assessed one month
in arrears.
24
<PAGE>
2. Effective Date: The Effective Date is defined as the date identified on
the relevant Collocation Service Order as the date of Collocation
Service delivery, or the date upon which Williams delivers Collocation
Service, whichever is later.
3. Term: The Collocation Service Term shall commence upon the Effective
Date and shall continue for the duration specified within the relevant
Collocation Service Order.
4. Rates & Charges: WinStar shall pay Williams for the Collocation
Services rendered pursuant to this Schedule the charges set forth in
each Collocation Service Order. Charges shall be payable in advance
commencing on the Effective Date of the Term relevant to the license
for the use of the Space and on the first day of each calendar month
thereafter during the said Term. Charges for partial months shall be
prorated.
4.1 Service Fee.
The Service Fee is the amount to be invoiced WinStar on a
monthly basis for Collocation Service rendered including, but
not limited to, space and power use. Service Fees are
identified on the relevant Collocation Service Order.
4.2 Installation Fee.
The Installation Fee is the amount to be invoiced WinStar as a
one time fee for Collocation Service consisting of charges
associated with the initial installation of the Collocation
Service. Installation Fees are identified on the relevant
Collocation Service Order.
4.3 Build-Out Fee.
Build-Out Fees are those one-time charges applicable to
Collocation Services rendered that are outside the standard
Collocation offering. Build-Out fees are individually quoted
based on Service Order. Build-out fees are payable in full to
Williams upon execution of a Collocation Service Order and no
work will be performed by Williams or WinStar to Build-Out
space prior to Williams' receipt of said payment. Alterations
to the form or amount of this payment must be requested by
WinStar in writing and approved by Williams Finance &
Administration prior to commencement of work.
4.4 Ancillary: Ancillary charges related to changes of Collocation
Service delivery are fully defined in Section 9 of this
Collocation Schedule.
25
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------- -----------------
Charge Per
Occurrence
- -------------------------------------------------------------------- -----------------
<S> <C>
Change of Effective Date (pre-install) $100.00
- -------------------------------------------------------------------- -----------------
Change of Collocation Service Order (pre-Effective Date) $100.00
- -------------------------------------------------------------------- -----------------
Change of Collocation Service (post-Effective Date) $250.00
- -------------------------------------------------------------------- -----------------
Order Cancellation (greater than/=30 days from Effective Date) $250.00
- -------------------------------------------------------------------- -----------------
Order Cancellation (less than 30 days from Effective Date) $500.00
- -------------------------------------------------------------------- -----------------
AC power addition (post Effective Date) $750.00
- -------------------------------------------------------------------- -----------------
</TABLE>
4.5 Dispatch Labor Charges: are assessed for WinStar requested site labor.
Dispatch requires 10 days advance notice to Williams.
-------------------------------- ------------------------
Charge Per Hour
-------------------------------- ------------------------
M-F Business Hours $100.00
-------------------------------- ------------------------
M-F Off Business Hours $125.00
-------------------------------- ------------------------
Sat & Sun $150.00
-------------------------------- ------------------------
Holidays $150.00
-------------------------------- ------------------------
5. Collocation Service Delivery: Upon mutual acceptance of a Collocation
Service Order, Williams shall confirm Effective Date, or inform WinStar
of the estimated date for the delivery of such Collocation Service.
Williams shall use reasonable efforts to install each Collocation
Service on or before the Effective Date, but the inability of Williams
to deliver a facility by such date shall not be a default under this
Schedule.
In the event Williams fails to tender possession of the Space to
WinStar by the Effective Date, WinStar shall not be obligated to pay
the Service Fee or Installation Fee until such time as Williams tenders
possession of the Space to WinStar.
If Williams fails to make Collocation Services available within ninety
(90) days after the Effective Date (due to any reason other than the
acts or omissions of WinStar), winter's sole remedy shall be to cancel
the Collocation Service Order which pertains to such Collocation
Service by written notice to Williams. Williams shall not be liable to
WinStar in any way as a result of such delay or failure to tender
possession.
6. Contract Expiration: Following the expiration of the term or failure of
the parties to enter into any renewal periods, WinStar's license shall
continue in effect on a month-to month basis upon the same terms and
conditions specified within this Schedule and relevant Collocation
Service Order, unless terminated by either WinStar or Williams upon
thirty (30) days prior written notice.
26
<PAGE>
WinStar's option to renew its license to occupy the Space shall be
contingent on the election by Williams to continue to own or lease the
premises in which the Space is located for the duration of the renewal
period(s), such election to be exercised at the sole discretion of
Williams.
7. Early Termination: WinStar may terminate Collocation Service upon 30
days written notice. Collocation Services will be terminated 30 days
from date of letter and WinStar will be liable for fifty percent (50%)
of the charges due under remaining term of contract should WinStar
terminate Collocation Service prior to contract expiration. Termination
Liability will be invoiced in lump sum in the billing period directly
following Collocation Service termination and shall be payable within
30 days of the invoice date.
8. [Intentionally Blank
9. Change of Collocation Services:
9.1 Change of Effective Date (pre-install). WinStar will be
assessed a Change of Effective Date Charge by Williams for any
changes of Effective Date requested within thirty (30) days
prior to original Effective Date. WinStar will also be charged
for any charges incurred by Williams from third party
providers as a result of a request by WinStar for a Change of
Effective Date, regardless of date of WinStar notification.
9.2 Change of Collocation Service Order (pre-Effective Date). All
modifications to the information contained in an executed
Collocation Service Order will be reviewed on an individual
case basis and the Collocation Service Order shall be amended
accordingly upon Williams' acceptance of the Collocation
Service modifications. Any modifications will permit Williams
to likewise amend Rates and Charges and Effective Date from
original Collocation Service Order. WinStar will be assessed a
one time fee for changes to a Collocation Service Order.
WinStar will also be charged for any charges incurred by
Williams from third party providers as a result of a request
by WinStar for a Change of Collocation Service Order,
regardless of date of WinStar notification.
9.3 Change of Collocation Service (post-Effective Date). If
WinStar requests a change to Collocation Services after such
Collocation Services have been installed, the request will be
reviewed by Williams on an individual case basis with no
guarantees granted by Williams as to the ability to provide
such enhanced Collocation Service. All Change of Collocation
Service requests shall be authorized by Williams via a change
Collocation Service Order. WinStar may incur an additional
Collocation Service and/or Installation Fee(s) for the amended
Collocation Service. WinStar will be assessed a one time fee
for Collocation Service changes. WinStar will also be charged
for any charges incurred by Williams from third party
providers as a result of a request by WinStar for a Change of
Collocation Service, regardless of date of WinStar
notification.
27
<PAGE>
9.4 Order Cancellation (>/=30 days from Effective Date). WinStar may
cancel a Collocation Service Order by written notice to Williams.
WinStar will incur a one time cancellation fee for Collocation
Services cancelled where notice is received at least 30 days
prior to Effective Date.
9.5 Order Cancellation (less than 30 days from Effective Date).
WinStar may cancel a Collocation Service Order by written notice
to Williams. WinStar will incur a one time cancellation fee for
Collocation Services cancelled where notice is received less than
30 days prior to Effective Date.
10. Improvements to Space: In the event WinStar desires to make
improvements to the Space which improvements are deemed material and
substantial as reasonably determined by Williams ("Material
Improvements"), WinStar shall submit all plans and specifications for
such work to be performed in the Space to Williams for Williams' prior
written approval, which approval shall not be unreasonably withheld or
delayed. No construction for Material Improvements may commence until
the foregoing consent is obtained. WinStar agrees that its use or
construction of the Space shall not interfere with Williams' use of its
Premises or other tenants' use of their premises in the building in
which the Premises are located.
WinStar shall not employ any contractor to perform Material
Improvements unless previously approved in writing by Williams, which
approval shall not be unreasonably withheld (and approved in writing by
the Landlord if required by the lease). WinStar and each contractor and
subcontractor participating in performing material Improvements shall
warrant that such work shall be free from all mechanic's and/or
materialman's liens and free from any and all defects in workmanship
and materials for the period of time which customarily applies in good
contracting practice, but in no event for less than one (1) year after
the acceptance of the work by WinStar and Williams. The aforesaid
warrantees of each such contractor and subcontractor and WinStar shall
include the obligation to repair or replace in a workmanlike manner all
defects in workmanship and materials without any additional charge.
It shall be WinStar's responsibility to cause each of WinStar's
contractors and subcontracts to maintain continuous protection of the
premises adjacent to the Space in such manner as to prevent any damage
to such adjacent property by reason of the performance of WinStar's
work.
28
<PAGE>
All of WinStar's work shall be coordinated with all work being
performed or to be performed by Williams and other tenants of the
building in which the Premises are located. The contractor or
subcontractor shall not at any time damage, injure, interfere with or
delay the completion of any other construction within the building; and
they and each of them shall comply with all procedures and regulations
prescribed by Williams and the Landlord of the Premises for integration
of winter's work with the work to be performed in connection with the
construction of the building, and all other construction within the
building which comprises or contains the Premises.
All fixtures, alterations, additions, repairs, improvements and/or
appurtenances attached to or built into, on or about the Space prior to
or during the Term of the license relevant thereto, whether by Williams
at its expense or at the expense of WinStar, or by WinStar at its
expense or by previous occupants of the Space, shall be and remain part
of the Space and shall not be removed by WinStar at the end of the Term
of the license relevant to the Space. Upon termination or expiration of
the Term relevant to the Space, Williams shall allow WinStar thirty
(30) days from the date of such termination or expiration, at WinStar's
sole cost and expense, to remove all trade fixtures (including, but not
limited to, rectifiers/chargers, batteries, AC power conditioning
equipment, telecommunication switching equipment, channel banks, etc.)
installed by WinStar provided that the Space is restored by WinStar to
its condition before the installation of such items and that all such
work (including restoration) is performed in accordance with the other
provisions of this Schedule. If WinStar shall fail to complete such
removal and restoration within the aforesaid thirty (30) day time
period, all such trade fixtures remaining within the Space or at the
Premises may, at Williams' option, become the sole property of
Williams, and Williams may dispose of such trade fixtures as it deems
appropriate. WinStar shall continue to pay the Service Fee specified in
the relevant Collocation Service Order until the earlier of: (i)
WinStar's removal of such trade fixtures and completion of such
restoral or (ii) Williams' taking possession of such trade fixtures as
set forth above.
All work affecting the Space shall be in compliance with all laws,
ordinances, rules, regulations, orders and directives of governmental
and quasi-governmental bodies and authorities having jurisdiction over
the Premises and the Space from time to time and WinStar shall obtain
and keep in effect all licenses, permits and other authorizations
required with respect to the business conducted by WinStar within the
Space.
11. Sole Use of Space by WinStar: WinStar acknowledges that it has been
granted only a license to occupy the Space and that it has not been
granted any real property interests in the Space and that neither this
Schedule nor any interest created herein shall be assigned, mortgaged,
subleased, encumbered or otherwise transferred, and that neither the
Space nor any part thereof shall be encumbered in any manner by reason
of any act or omission on the part of WinStar, or used or occupied, or
permitted to be used or occupied, by anyone other than WinStar. Any
attempt to allow the use or occupation of the Space by anyone other
than WinStar to assign, mortgage, sublease or encumber any rights
under this Schedule by WinStar shall, unless otherwise agreed to in
writing by Williams, be void and in such event, Williams shall have
the right to terminate this Schedule as to any or all Space occupied
by WinStar. Such written agreement by Williams shall be subject to the
sole discretion of Williams.
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12. Eminent Domain: In the event of a taking by eminent domain (or a
conveyance by any Landlord of all or any portion of the Premises to an
entity having the power of eminent domain after receipt of actual
notice of the threat of such taking) of all or any portion of the
Premises so as to prevent, in Williams' sole discretion, the
utilization by WinStar of the Space in the Premises, relevant
Collocation Service Order(s) shall terminate as of the date of such
taking or conveyance with respect to the Space which is affected by
such taking or conveyance and the Service Fee paid or to be paid by
WinStar shall be reduced accordingly. Except as set forth below,
WinStar shall have no claim against Williams for the value of the
unexpired Term of the license affected thereby (or any portion
thereof) or any claim or right to any portion of the amount that might
be awarded to the Landlord of the Premises or Williams as a result of
any such payment for condemnation or damages. Nothing contained in
this Schedule should prohibit WinStar from seeking any relief or
remedy against the condemning authority in the event of an Eminent
Domain proceeding or condemnation which affects the Space.
13. Damage to Premises: If the building in which the Premises are located
is damaged by fire or other casualty, Williams shall give immediate
notice to WinStar of such damage. If a Landlord or Williams exercises
an option to terminate a particular Lease due to damage or destruction
of the Premises subject to such Lease, or if Williams decides not to
rebuild such building or portion thereof in which the Space is
located, relevant Collocation Service Order(s) shall terminate as of
the date of such exercise or decision as to the affected Space and the
Service Fee paid by WinStar shall be modified accordingly. If neither
the Landlord of the affected Premises nor Williams exercises the right
to terminate, Williams shall repair the particular Space to
substantially the same condition it was in prior to the damage,
completing the same with reasonable speed. In the event that Williams
shall fail to complete the repair within a reasonable time period,
WinStar shall thereupon have the option to terminate relevant
Collocation Service Order(s) with respect to the affected Space, which
option shall be the sole remedy available to WinStar against Williams
under this Schedule relating to such failure. If the Space or any
portion thereof shall be rendered untenable by reason of such damage,
the Service Fee for such Space shall proportionately abate, based on
the amount of square footage which is rendered untenable, for the
period from the date of such damage to the date when such damage shall
have been repaired for the portion of the Space rendered untenable.
14. Conduct in Space & Premises: WinStar shall abide by Williams' and
applicable landlord's rules with regard to conduct in the Premises.
Such rules include, but are not limited to, a prohibition against
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smoking in the Space or the Premises by WinStar's employees, agents,
representatives, contractors, subcontractors, invitees or licensees.
Further, WinStar shall maintain the Space in a safe condition,
including but not limited to the preclusion of storing combustible
materials in the Space.
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Exhibit C
Part 2 (Continued)
TECHNICAL SPECIFICATION FOR COLLOCATION SERVICE
Williams Network Standards, Descriptions & Tasks
1.0 DC Power
1.1 Backup electrical power, including batteries and shared use of
an emergency generator to the extent such generator exists and
is maintained to support the Premises.
1.2 DC power adequate for WinStar's consumption equated to power
specified in applicable Collocation Service Order. A
low-voltage and high-voltage battery alarm will be monitored
by Williams.
1.3 Nominal 50 +/- 6V DC battery and charger supply with a minimum
four (4) hour reserve will be provided by Williams.
1.4 Redundant chargers of adequate size will be provided by
Williams, so that in the event of a charger failure the full
load will be supplied to WinStar's equipment. A charger
failure alarm will be monitored by Williams.
2.0 AC Power
2.1 A 20-amp four-plex AC receptacle will be available within
reach of WinStar's Equipment. AC power and outlets for use
with test equipment only and is not provided to operate the
Equipment. This AC power is not provided over an
Uninterruptable Power Source (UPS).
2.2 AC power supply to WinStar equipment is backed by generator
where available, but is not UPS. This excludes utility outlets
described in the immediately preceding subsection 2.1.
3.0 Environmentals
3.1 Pre-reaction sprinkler protection, where available. Smoke and fire
alarms monitored by Williams.
3.2 Lighting.
3.3 Ground Buss and cable interconnect.
3.4 Grounding conductor will be supplied by Williams between the bus
bar and WinStar's Equipment.
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3.5 Overhead cable ladder
3.6 Interconnect signal and power cabling between Williams and
WinStar.
3.7 Concrete floors will be covered with vinyl tile.
3.8 Ambient temperature will be maintained by Williams between
60-90(degree)F with an objective of 20-65% humidity.
3.9 General and administrative services directly relating to the
provision of the above listed Collocation Services.
WinStar Standards, Descriptions & Tasks
1.0 Equipment Specifications
1.1 The Equipment should be designed to operate satisfactorily
between 60-90(degree)F with 20-65% (non-condensing) humidity.
Low 60(degree) and high 90(degree) temperature alarms will be
monitored by Williams.
1.2 WinStar will ensure that their equipment and surrounding area
do not pose safety hazards to personnel. This includes exposed
AC electrical hazards, trip and slip hazards, hazardous
material storage deficiencies, improperly secured or
overloaded equipment racks or ladders, inadequate ingress and
egress space. OSHA and local codes will apply.
1.3 WinStar will notify Williams of any significant equipment
additions or deletions (i.e. shelf or rack). Installation and
removals will be coordinated with local Williams management.
2.0 Space Specifications
2.1 WinStar will not jeopardize Collocation Service or damage
property of other collocated customers, Williams, or landlord
in any manner.
2.2 WinStar will take precautions to protect Williams' and
landlord's common facility and nearby equipment belonging to
other customers. This includes floor, wall, and
telecommunication equipment protection while moving equipment
and notifying Williams of any major rearrangements of
equipment, drilling, power work, and etc.
2.3 WinStar will follow good housekeeping practices. All trash
must be disposed of daily at WinStar's expense. Any trash or
empty boxes not disposed of by WinStar is subject to removal
by Williams with any associated charges borne by WinStar.
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2.4 Nothing may be stored outside of the assigned rack space. A
minimum of 2.5' of aisle space must be maintained at
front and rear of equipment.
2.5 No metal ladders, stools, or chairs may be used.
2.6 Combustible or hazardous material may not be stored in the
area.
2.7 All equipment must be installed within the assigned rack
footprint (i.e. UPS units, spare equipment).
2.8 All cabling will be terminated on DSX panels in the Williams
common area. Fiber will be terminated on an appropriate Fiber
Distribution Panel ("FDP"). Any panels for WinStar end will be
supplied at WinStar's expense.
2.9 WinStar is responsible for the termination of the A & B DC
power and signal cabling in its Equipment.
2.10 Maximum DC power provided to WinStar as A & B power shall be
rated for the rating of a single feed. WinStar is liable for
an outage caused by the DC power exceeding the single feed
rating. WinStar will be responsible for payment of consumed
power exceeding the single feed rating specified in the
Collocation Service Order.
2.11 WinStar will follow normal telecommunications industry
standards with regards to equipment installation and removal
in a central office environment. Williams standards are to be
followed for connection of cables that interface with
Williams. All installations are subject to approval by
Williams.
2.12 Permanent use of extension cords is not allowed.
2.13 WinStar will not jeopardize Williams' ability to conduct
business in any manner.
2.14 All local, state, and federal laws will be obeyed. Local
requirements for union labor, especially for AC electrical
work, will be observed. Building management guidelines will be
followed.
2.15 WinStar will follow Williams sign-in procedures at all times.
Subject to the requirements of this Schedule, WinStar shall
have access to their equipment 24 hours a day, 365 days a
year. WinStar must coordinate their first visit to a
particular Williams' site with Williams' operations
department, giving at least five (5) days notice of such
visit. For all subsequent entries, WinStar will follow the
procedure outlined below:
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(a) At locations where WinStar's equipment is located in caged space
which is separate from Williams' equipment, before entry WinStar
will notify Williams' Network Control Center at (800) 582-9069
and follow Williams' sign-in procedures.
(b) At locations where WinStar's equipment is not located in caged
space which is separate from Williams' equipment, WinStar must be
escorted by a Williams technician. WinStar may gain such escort
by notifying Williams' Network Control Center at (800) 582-9069
at least forty-eight hours prior to WinStar's desired entry. In
the case of an emergency, WinStar shall give as much notice as is
reasonably possible by contacting Williams' Network Control
Center at the number listed above. Williams' Network Control
Center shall work with WinStar to allow WinStar to gain access as
soon as reasonably possible.
2.16 If Williams notifies WinStar in writing of a violation of the
above rules, or any other unsafe or unacceptable situation or
practice, WinStar must correct the problem within seven days or
provide a written plan for correction to Williams' satisfaction
and proposed completion date. Williams may agree to additional
time. If the problem is not resolved in seven days or within the
agreed upon time frame, which ever is longer, Williams may fix
the option of either (i) correcting the problem at WinStar's
expense or (ii) terminating the contract and diconnecting power
and signal connections from WinStar's equipment.
Extreme safety violations are subject to immediate correction by
Williams without prior notice to WinStar. Corrections made by
Williams are at WinStar's expense and will be billed to WinStar
on a time and material basis.
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Exhibit C - Attachment I
Reference Number ________________________
new |_| disc |_|
sup |_| cancel |_|
change |_|
[WILLIAMS COLLOCATION SERVICE REQUEST]
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[WILLIAMS COLLOCATION SERVICE ORDER]
[CONTINUED]
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EXHIBIT D
Fiber Splicing, Testing and Acceptance Standards
1. Initial Construction Testing
A. During initial construction, Williams shall use an optical time
domain reflectometer ("OTDR") to test splices and shall use an OTDR and a 1-km
launch reel to test pigtail connectors. Such initial construction tests shall be
uni-directional and performed at 1550 nm.
B. If the loss value of two connectors and the associated pigtail
splice exceeds 1 dB, Williams shall break the splice and re-splice until the
loss value is 1.0 dB or less. If Williams is unable to achieve a loss value of
1.0 dB or less after five total splicing attempts, the splice shall be marked as
Out-of-Spec (OOS).
C. If the loss value for a splice, when measured in one direction with
an OTDR, exceeds 0.15 dB, Williams shall break the splice and re-splice until
the loss value is 0.15 dB or less, provided that, if Williams is not able to
achieve a loss value of 0.15 dB after three total splicing attempts, then the
maximum loss value shall be 0.3 dB. If, after two additional resplicing
attempts, Williams is not able to achieve a loss value of 0.3 dB or less, then
Williams shall mark the splice as Out-of-Spec (OOS).
2. End-to-End Testing
A. After Williams has established end-to-end connectivity on the fibers
during initial construction, it shall:
o perform bi-directional end-to-end tests,
o test continuity to confirm that no fibers have been "frogged" or crossed in
any of the splice points,
o record loss measurements using a light source and a power meter, and
o take OTDR traces and record splice loss measurements.
B. Williams shall perform the bi-directional end-to-end tests and
OTDR traces at both 1310 nm and 1550 nm. Williams shall measure and verify
losses for each splice point in both directions and average the loss values.
Williams shall mark any splice points as Out-of-Spec (OOS) that have an average
loss value, based on bi-directional OTDR testing at 1550 nm, in excess of 0.3
dB.
<PAGE>
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3. Post-Construction Testing
After performing permanent resplicing (in conjunction with repair of a cable
cut, replacement of a segment of cable, or other work after initial installation
and splicing of the cable), the test procedures set forth in section 2
(End-to-End Testing), shall apply to the relevant fibers and cable segments. The
provisions in sections 4 (OTDR Equipment and Settings) and 5 (Acceptance Test
Deliverables), that are relevant to such testing shall also apply. Williams may,
after completing construction of its System, adopt any alternative methods of
testing that are generally accepted in the industry and that provide sufficient
data to fulfill the objectives of the tests set forth in this exhibit.
4. Out-of-Spec Splices
Out-of-Spec splices shall be noted, but shall not preclude acceptance
of a fiber if the Out-of-Spec condition does not affect transmission capability
(based on use of then-prevailing telecommunications industry standards
applicable to equipment generally used with the relevant type of fiber) or
create a significant possibility of an outage.
5. OTDR Equipment and Settings
A. Williams shall use OTDR equipment and settings that are, in its
reasonable opinion, suitable for performing accurate measurements of the fiber
installed. Such equipment and settings shall include, without limitation, the
equipment and settings described below.
B. Williams has approved the following OTDRs and settings for
acceptance testing: the Laser Precision TD3000 and CMA4000 models and compatible
models.
C. Williams has approved the following settings for various OTDR tests:
i. Index of refraction settings:
1310 nm 1550 nm
---------------------------------- ---------------- -----------------
Lucent Truwave 1.4738 1.4732
Corning SMF-28 1.4675 1.4681
Corning SMF-LS 1.471 1.470
Corning LEAF 1.470 1.469
Sumitomo fiber 1.4670 1.4670
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ii. Tests of a pigtail connector and its associated splice:
TD3000 CMA4000
-------------------------- ----------------------------
4 km Range 4 km Range
50 ns Pulse 50 ns Pulse
1 m Resolution 1 m Resolution
Medium Averaging Medium Averaging
iii. End to End Segment OTDR Testing:
TD3000 CMA4000
-------------------------- ----------------------------
64 km Range 100 km Range
500 ns Pulse 250 ns Pulse
4 m Resolution 4 m Resolution
Medium Averaging Medium Averaging
Note: If the end points are more than 64 kilometers apart, Williams
currently uses a TD3000 set at 128 km range setting and performs
bi-directional testing only at 1550 nm.
6. Acceptance Test Deliverables
Williams shall provide data sheets or computer media containing the
following information for the relevant fibers and cable segments:
A. Verification of end-to-end fiber continuity with power level
readings for each fiber taken with a light source and power meter.
B. Verification of loss at each splice point to be below 0.3 dB as
well as the final bi-directional OTDR test data, with distances.
C. Cable manufacturer, cable type (buffer/ribbon), fiber type,
cable reel number, number of fibers, number of fibers per tube, and
distance of each section of cable between splice points.
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EXHIBIT E
FIBER SPECIFICATIONS
Exhibit A, Part 2 sets forth the types of fibers for each System
Segment. The corresponding attached manufacturer's specifications shall apply to
each System Segment as indicated therein.
Williams may, with WinStar's consent, which shall not be unreasonably
withheld, substitute a different type of fiber for a System Segment if such type
is equivalent or superior to the type set forth in Exhibit A, Part 2 for such
System Segment, by written notice provided at least one hundred twenty (120)
days before the planned Acceptance Date for such System Segment. Such written
notice shall include the relevant manufacturer's specifications for such fiber
type and such specifications shall, if WinStar consents to such substitution,
apply to such System Segment.
Specifications for SMF-28, SMF-LS, and SMF-LEAF fibers are attached.
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EXHIBIT F
Cable Installation Specifications
1. Material
o Steel or PVC conduit shall be minimum schedule 40 wall thickness.
o Any exposed steel conduit, brackets or hardware (e.g., bridge attachments)
shall be hot-dipped galvanized after fabrication. o All split steel shall
be flanged.
o Handholes shall have a minimum H-15 loading rating.
o Manholes shall have a minimum H-20 loading rating.
o Warning signs shall display universal do not dig symbol, "Warning-Buried
Fiber-Optic Cable," company name and logo, local and emergency One Call
toll-free numbers.
2. Minimum Depths
Minimum cover required in the placement conduit/cable shall be forty-two inches
(42"), except in the following instances:
o 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.
o The minimum cover across streams, river washes, and other waterways shall
be sixty inches (60") below the clean out line or existing grade, whichever
is greater.
o At locations where fiber-optic cable crosses 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 the
utility/obstacle. The fiber-optic cable/conduit can be placed above the
utility/obstacle, provided the minimum clearance and applicable minimum
depth can be maintained; otherwise the fiber optic cable/conduit shall be
installed under the existing utility or other structure.
o 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 inches (42") of total cover, whichever requires the least rock
excavation.
o Where existing pipe is used, current depth is sufficient.
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3. Buried Cable Warning Tape
o All cable/conduit shall 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 inches (24") below grade and directly above the cable/conduit.
o 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 toll-free number repeated every twenty-four inches
(24").
4. Conduit Construction
o Conduits may be placed by means of trenching, plowing, jack and bore,
multi-directional bore or directional bore. Conduits shall generally be
placed on a level grade parallel to the surface, with only gradual changes
in grade elevation.
o Steel conduit shall be joined with threaded collars, Zap-Lok or welding.
(Welding is the preferred method.)
o All crossings of paved city, county, state, federal, and interstate
highways, or railroad crossings shall be encased in steel conduit.
o All longitudinal cable runs under paved streets shall be placed in steel or
concrete encased PVC conduit.
o All cable placed in metropolitan areas shall be placed in steel or concrete
covered PVC conduit.
o Metropolitan areas shall be defined as areas where there is either
extensive development and improvement or rapid growth (new building
construction).
o All crossings of major streams, rivers, bays and navigable waterways shall
be placed in HDPE, PVC or steel conduit, or shall use specially armored
submarine cable.
o At all foreign utility/underground obstacle crossings, steel conduit shall
be placed and shall extend at least five feet (5') beyond the outer limits
of the obstacle in both directions.
o All jack and bores shall use steel conduit.
o All directional or mini-directional bores shall use HDPE or steel conduit.
o Any cable placed in swamp or wetland areas shall be placed in HDPE, PVC or
steel conduit.
5. Innerduct Installation
o Innerduct(s) shall be installed in all steel conduits. No cable shall be
placed directly in any split/solid steel conduit without innerduct
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o Innerduct(s) shall extend beyond the end of all conduits a minimum of
eighteen inches (18").
6. Cable Installation in Conduit
The fiber-optic cable shall be installed using either a sealed pneumatic cable
blowing system or a powered 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 shall be available
and used to insure the maximum pulling force is not exceeded at any point along
the pull.
o The cable shall be lubricated at the reel and all pulling assist locations.
o A pulling swivel breakaway rated at six hundred pounds (600 lbs.) shall be
used at all times.
o Splices shall only be allowed at planned junctions and reel ends.
o All splices shall be contained in a handhole or manhole.
o A minimum of twenty meters (20m) of slack cable shall be left in all
intermediate handholes and manholes.
o A minimum of thirty meters (30m) of slack cable shall be left in all splice
locations.
o A minimum of fifty meters (50m) of slack cable shall be left in
Transmission Sites and points of presence.
o PVC conduit or innerduct may be split, with the fiber-optic cable installed
inside the split duct and plowed in.
7. Manholes and Handholes
o Manholes shall be placed in traveled surface streets and shall have locking
lids.
o Handholes shall be placed in all other areas, and be installed with a
minimum of eighteen inches (18") of soil covering lid.
8. 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.
9. 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. Markers shall be spaced at intervals of no more
than five hundred feet (500') apart in metropolitan areas and within line of
sight (not to exceed one thousand feet (1,000')) in non-metropolitan 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.
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Splices and pull boxes shall be marked on the cable marker post.
10. Fiber Optic Groundwire
The Williams Communications, Inc. (Vyvx) Optical Groundwire Specifications
(Issue 1; October 15, 1996) shall apply to optical groundwire (aerial fibers
installed within power transmission groundwire cable). Sections 2 through 9 of
these Cable Specifications shall be inapplicable to optical groundwire. Upon
written request, Williams shall promptly provide a copy of its Optical
Groundwire Specifications.
11. Updating of Specifications
Williams may revise these Cable Installation Specifications to include new
procedures, materials, or processes so long as the changes achieve the
objectives of the specifications set forth above and are in accordance with, or
superior to, then-current telecommunications industry standards.
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EXHIBIT G
Transmission Site Specifications
All Transmission Sites shall have redundant HVAC (heating, ventilation,
and air conditioning) units each capable of handling the site's full HVAC load.
All unattended (unmanned) Transmission Sites shall have a minimum of
eight (8) hours' battery reserve.
All attended Transmission Sites without an on-site generator shall have
a minimum of eight (8) hours' battery reserve. If there is no generator on site,
Williams shall have a portable generator at the Transmission Site within eight
(8) hours of a power failure.
All attended Transmission Sites with an on-site generator shall have a
minimum of four (4) hours' battery reserve.
All on-site generators shall be capable of powering the total site for
a minimum of twenty-four (24) hours. All generators shall have auto-start and
auto-load transfer capabilities. All generators shall be inspected, tested, and
refueled (to replace consumed fuel) once per month.
Williams shall use approximately forty-mile spacing between
Transmission Sites (or between a Transmission Site and a point of presence or
System end point), except where geographic factors dictate shorter spacing.
All Transmission Site buildings shall be grounded with a target
specification of 5 ohms or less. The Cable sheath will be exposed and grounded,
typically at least fifty (50) cable feet before the entrance to the building
transition of outside plant to inside plant cabling.
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EXHIBIT H
As-Built Drawing Specifications
1. As-Built Alignment Sheets
Survey information (either from existing data or new information) shall
be put on drawings.
Drawings shall contain cable information, splice locations, assist
point locations with permanent structures, survey stations, conduit
information, Transmission Site locations, and optical distances to the
nearest Transmission Sites from each splice location.
Drawings shall be updated with actual field data during and after
construction.
Metropolitan area scales shall not exceed 1" = 200'.
Non-metropolitan area scales shall not exceed 1" = 500'.
Drawings shall be "blue lines", as such term is understood in the
industry or in Auto CAD format revision 13 or a later revision.
Williams may, after completing construction of its System, adopt any
replacement method of creating or providing drawings that is generally
accepted in the industry and that provides equivalent information.
2. Transmission Sites
Floor plans shall show rack placement and assignment for WinStar's
floor space.
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EXHIBIT I
Operations Specifications
1. Routine Maintenance
Williams shall perform the work and provide the services set forth in the
following paragraphs A through E as Routine Maintenance:
A. NCC Functions. Williams shall operate a manned Network Control
Center ("NCC") twenty-four (24) hours a day, seven (7) days a week that monitors
the System by means of remote surveillance equipment and dispatches maintenance
and repair personnel to handle and repair problems detected through by the NCC
or reported by WinStar or other parties. Williams shall provide WinStar a
toll-free telephone number to report problems to the NCC.
B. Cable Maintenance. Williams shall perform appropriate routine
maintenance on the Cable in accordance with Williams' then current preventative
maintenance procedures. Williams' preventative maintenance procedures shall not
substantially deviate from industry practice.
C. Transmission Site Maintenance. Williams shall perform appropriate
routine maintenance on regenerator, optical amplifier, and junction buildings,
including the DC power plant, HVAC equipment, and basic building safety
equipment including alarms and emergency generators in accordance with Williams'
then current preventative maintenance procedures. Williams' preventative
maintenance procedures shall not substantially deviate from industry practice.
D. Route Patrol. Williams shall patrol the Route on a reasonable,
routine basis and shall perform all required Cable locates. Williams shall
belong to a state or regional one-call (call-before you dig) center when
available.
E. Spare Cable. Williams shall maintain an inventory of spare Cable at
strategic locations to facilitate timely restoration.
2. Planned Network Maintenance Activity
Williams shall avoid performing maintenance between 0600-2200 local time, Monday
through Friday, inclusive, that will have a disruptive impact on the continuity
or performance level of WinStar Property. However, the preceding sentence does
not apply to restoration of continuity to a severed or partially severed fiber
optic cable, restoration of dysfunctional power and ancillary support equipment,
or correction of any potential jeopardy conditions. Williams shall provide
WinStar with telephone, facsimile, or written notice of all non-emergency
planned network maintenance (a) no later than 3 working days prior to performing
maintenance that, in its reasonable opinion, has a substantial likelihood of
affecting WinStar's traffic for up to 50 milliseconds, and (b) no later than ten
(10) working days prior to performing maintenance that, in its reasonable
opinion, has a substantial likelihood of affecting WinStar's traffic for more
than 50 milliseconds. If Williams' planned activity is canceled or delayed,
Williams shall promptly notify WinStar and shall comply with the provisions of
the previous sentence to reschedule any delayed activity.
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3. Fiber and Cable
Williams shall correct or repair Cable discontinuity or damage. Williams shall
use commercially reasonable efforts to repair Cable traffic discontinuity within
the following times:
Dispatch of personnel to problem area - immediately upon learning of
discontinuity
Maintenance employee's on site - within four (4) hours of learning of
discontinuity
Restoration of Cable continuity - continuity of at least one fiber
shall be established within six (6) hours of learning of discontinuity;
restoration shall continue until all in-service fibers are restored
Within twenty-four (24) hours after completion of an emergency repair, Williams
shall commence its planning for permanent repair, shall notify WinStar of such
plans, and shall implement such permanent repair within an appropriate time
thereafter.
Williams shall comply with the Cable splicing specifications as provided in
Exhibit C (entitled "Fiber Cable Splicing, Testing and Acceptance Standards").
Williams shall provide to WinStar any modifications to these specifications for
WinStar's approval, which shall not be unreasonably withheld, so long as the
modifications do not deviate from industry standards.
The demarcation point between the Cable and the facilities of WinStar or other
parties shall be at the Fiber distribution panel or (but only if Williams agrees
to establish such a connection) meet-me vault.
4. Addition of Drop/Splice Points
WinStar shall have no right to access any Fibers within the Cable or to enter
any splice or Williams vault.
WinStar may request that Williams connect WinStar's Fibers with other
telecommunications facilities at WinStar's sole expense, at the Cable end points
or at Transmission Sites (each, a "Connecting Point"). Such request shall set
forth the splice location (which shall be at a demarcation point as set forth
above) and the work required to be performed.
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WinStar shall notify Williams at least thirty (30) days in advance of the date
that it requests that a connection be completed. Williams shall use commercially
reasonable efforts to accommodate the request, but may restrict such work to the
planned system work periods set forth above.
Williams may decline to make a requested connection if Williams determines, in
its reasonable discretion, that there is a significant likelihood that (a)
WinStar's use of a proposed Connecting Point would cause a material and adverse
effect on the System or the use thereof; (b) use of a particular splice
locations will cause a significant technical impediment; or (c) the making or
existence of the connection presents an unreasonable risk of creating an
interruption of transmission.
WinStar shall have no right to establish any connection to the System other than
at the fiber distribution panels located at the end points or Transmission
Sites.
WinStar shall, prior to the requested connection date, provide a spur cable
adequate to reach the splice location with an additional length (minimum 25
meters) sufficient for Williams to splice into any Fibers at the fiber
distribution panel or meet-me vault. WinStar shall obtain the necessary rights
of way (or other rights, if required) for the spur cable and shall install and
maintain the spur cable beyond the demarcation point.
Williams may require WinStar to pay the costs of maintaining any splice point
that presents unusual problems of access for Williams. If WinStar has a
connection at a splice point and Williams requires access to WinStar Fibers for
inspection, maintenance, or repair purposes and Williams does not have physical
access to the Fibers to verify splicing specifications from Williams' fiber
distribution panel, WinStar shall promptly upon Williams' request provide a
trained and qualified technician at WinStar's fiber distribution panel with an
OTDR to assist Williams in performing such inspection, maintenance, or repair.
5. Miscellaneous
Williams' maintenance employees shall be available for dispatch twenty-four (24)
hours a day, seven (7) days a week. Williams shall use commercially reasonable
efforts to have its first maintenance employee at the site requiring an
emergency maintenance activity within four (4) hours from the time of alarm
identification by Williams' NCC or notification by WinStar, whichever occurs
first. Emergency maintenance is defined as any service affecting situations
requiring an immediate response.
In performing its services hereunder, Williams shall take workmanlike care to
prevent impairment to the signal continuity and performance of the System. In
addition, Williams shall reasonably cooperate with WinStar in sharing
information and analyzing the disturbances regarding the cable and/or fiber
facilities.
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Nothing contained herein shall make Williams responsible for WinStar's
equipment. If, however, Williams agrees to maintain WinStar electronic
equipment, WinStar shall provide equipment spares, vendor training and
documentation for each technician along the route when different vendor
equipment is used between Williams and WinStar.
Williams shall, at WinStar's request, provide WinStar an operations escalation
list for shall use in reporting and seeking redress of exceptions noted in
Williams' performance of Routine Maintenance and Non-Routine Maintenance.
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EXHIBIT J
INTENTIONALLY OMITTED
51-A
<PAGE>
Exhibit K
Payment Terms
1. Amount of Payment. WinStar shall pay Williams the Contract Price in
eighty-four (84) consecutive monthly installments of $7,656,577 each, due and
payable on the fifteenth (15th) day of each month, commencing February 15, 1999,
provided, however, that if any such date is not a day on which banks in New York
are open for business ("Business Day"), the payment due thereon shall be paid on
the next Business Day, and further provided, however that any such payment shall
be subject to adjustment as provided in Section 2 below.
2. Adjustment Events. Each monthly payment required by Section 1 above shall be
subject to adjustment pursuant to Sections 5.2(e), 6.4 and 10.4 of the
Agreement.
3. Further Representation and Warranties.
(a) Security Matters. WinStar hereby represents and warrants (with defined
terms having the meanings set forth in Section 7 below):
(i) Winstar has good and valid rights in and to the Collateral and
has full power and authority and legal right to grant to the
Secured Party the Security Interest in the Collateral pursuant
hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent
or approval of any other Person other than any consent or
approval which has been obtained;
(ii) The Security Interest (x) constitutes a legal and valid security
interest in and to all of WinStar's rights in the Collateral
securing the payment and performance of the Obligations and (y)
upon the filing of appropriate UCC or other forms, will
0 constitute a perfected security interest in and to all
Collateral. The Security Interest is and shall be prior to any
other Lien on any of the Collateral, except for Permitted
Encumbrances; and
(iii) WinStar has not filed or consented to the filing of any
financing statement or analogous document under the Uniform
Commercial Code or any other applicable laws covering any
Collateral.
(b) Other Matters. WinStar hereby represents and warrants to Williams that
(i) the representations and warranties of WinStar Network Expansion,
LLC ("Borrower") and WinStar Communications, Inc. ("Parent") set forth
in Article III of the Credit Agreement dated as of October 21, 1998
(the "Lucent Credit Agreement"), among Borrower, Parent, the lenders
party thereto, State Street Bank and Trust Company (as "Collateral
Agent"), and Lucent Technologies, Inc. (as "Administrative Agent") are
true and correct on the date of this Agreement with the same force and
effect as if made on such date (or in the case of any representation
and warranty that expressly relates to an earlier date, on and as of
the earlier date) and (ii) that it has delivered to Williams a
complete and correct copy of the Lucent Credit Agreement.
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<PAGE>
4. Events of Default. Until the Contract Price has been paid in full (except to
the extent the Payment Deductions have relieved WinStar of the obligation to pay
the Contract Price), notwithstanding the provisions of Article 21 of the
Agreement (except as to clause (h) below), each of the following shall
constitute an "Event of Default":
0
(a) WinStar shall fail to pay any portion of the Contract Price or
the Exercise Price on the due date thereof (except to the extent
the Payment Deductions have relieved WinStar of the obligation to
pay the Contract Price or the Exercise Price);
(b) WinStar shall fail to pay any other amount in excess of $100,000
due under the Agreement within 30 days after such amount has
become due or any lesser amount within fifteen (15) days after
receiving notice from Williams of such non-payment (except to the
extent the Payment Deductions have relieved WinStar of the
obligation to pay such amount);
(c) any representation or warranty made by WinStar in this Exhibit K
or otherwise in this Agreement shall prove to have been incorrect
when made in any respect which could reasonably be expected to
have a material adverse effect upon Williams' ability to realize
the benefits of the Agreement;
(d) there shall occur any breach (including without limitation any
breach of any representation and warranty) by Parent under the
Guarantee Agreement (as described below);
(e) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization
or other relief in respect of Parent or any of its Restricted
Subsidiaries (as such term is defined in the Lucent Credit
Agreement) or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii)
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Parent or any of its
Restricted Subsidiaries or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(f) Parent or any of its Restricted Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (e) of this Section 4,
(iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator, or similar
official for Parent or any of its Restricted Subsidiaries or for
a substantial part of its assets, (iv) file an answer admitting
the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting
any of the foregoing;
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(g) Parent or any of its Restricted Subsidiaries shall become unable,
admit in writing its inability or fail generally to pay its debts
as they become due;
(h) there shall occur any other event which entitles Williams to
terminate this Agreement; or
(i) this Agreement shall cease, for any other reason, to be in full
force and effect or WinStar shall so assert or the Lien (as
defined below) created by this Agreement shall cease to be
perfected or enforceable and of the same effect as to perfection
and priority purported to be created hereunder.
5. Remedies. Upon any Event of Default, and at any time thereafter during the
continuance of such event, Williams may take any or all of the following actions
at the same or different times:
(a) cease to perform any of its obligations under the Agreement;
(b) terminate the Agreement; or
(c) seek to enforce its right to collect damages for breach of
contract.
6. Conditions Precedent.
(a) Prior to the first Acceptance Date, as a condition precedent to
Williams obligations with respect to such Acceptance Date,
WinStar shall cause the following actions to be taken:
(i) cause the Guarantee Agreement in the form attached hereto as
Annex A ("Guarantee") to be executed and delivered by
Parent;
(ii) deliver to Williams an opinion of counsel reasonably
acceptable to Williams (which may be WinStar's General
Counsel), which opinion shall be satisfactory in form and
substance to Williams, to the effect set forth in Annex B
hereto; and
(iii) deliver to Williams a certified copy of an amendment to the
Lucent Credit Agreement which permits the transactions
contemplated by this Agreement.
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<PAGE>
(b) Prior to each Acceptance Date (including the first), as a
condition precedent to Williams' obligation on such Acceptance
Date, WinStar shall take all actions required to perfect the
security interests granted by this Agreement (whether or not the
collateral is characterized as fixtures, equipment, contract
rights, general intangibles or otherwise), using filings (when
necessary) that are satisfactory in form and substance to
Williams.
7. Security Interest
(a) Definition of Certain Terms Used Herein. As used herein, the
following terms shall have the following meanings:
"Collateral" shall mean all of the following, whether now owned or
existing or hereafter acquired or arising to the extent acquired by
WinStar from Williams pursuant to this Agreement and used in
connection with or arising out of the use of the Equipment: (i) all
Equipment, (ii) all General Intangibles to the extent that a grant
of a security interest therein to does not violate any agreement to
which WinStar is now or may hereafter be subject, and (iii) all
00 Proceeds.
"Equipment" shall mean the following, to the extent acquired by WinStar
from Williams pursuant to this Agreement: (i) all equipment, strands
of optical fiber, and cable, or interests therein (ii) all tangible
personal property similar to any of the foregoing, and (iii) all
improvements, accessions or appurtenances thereto. The term Equipment
shall include Fixtures.
"Fixtures" shall mean all items of Equipment, whether now owned or
hereafter acquired, of WinStar that become so related to particular
real estate that an interest in them arises under any real estate law
applicable thereto.
"General Intangibles" shall mean the following, to the extent acquired
by WinStar pursuant to this Agreement; (i) all "general intangibles"
as such term is defined in the Section 9-106 of the UCC and (ii) all
other intangible personal property of WinStar of every kind and nature
now owned or heereafter acquired by WinStar, including WinStar's
rights under this Agreement.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, and (b) the interest of a vendor or
a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the
same economic effect as any of the foregoing) relating to such asset.
"Obligations" means all present and future monetary obligations of
WinStar to Williams under this Agreement.
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"Permitted Encumbrances" shall have the meaning specified in the
Lucent Credit Agreement.
"Person" shall mean any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
governmental or regulatory authority or other entity.
"Proceeds" shall mean any consideration received from the sale,
exchange, license, lease or other disposition of any asset which
constitutes Collateral, including any payment received from any
insurer or other Person as a result of the destruction, loss, theft,
damage or other involuntary conversion of whatever nature of any asset
which constitutes Collateral.
"Security Interest" shall have the meaning assigned to such term in
paragraph (b) below.
"Transaction Documents" shall mean this Agreement and the Guarantee .
"Transactions" shall mean the execution, delivery, and performance by
WinStar of each Transaction Document.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York or any other applicable jurisdiction.
(b) Security Interest. In order to effectuate the provisions of Section
2.6 of the Agreement, as security for the payment or performance, as
the case may be, in full of the Obligations, WinStar hereby bargains,
0 sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to Williams, its successors and assigns, and hereby
grants to Williams, its successors and assigns, a security interest
in, all of WinStar's right, title and interest in, to and under the
Collateral (the "Security Interest"). Without limiting the foregoing,
Williams is hereby authorized to file one or more financing statements
(including fixture filings), continuation statements or other
documents for the purpose of perfecting, confirming, continuing,
enforcing or protecting the Security Interest granted by WinStar
without the signature of WinStar, and naming WinStar as debtor and
Williams as secured party.
(c) No Assumption of Liability. The Security Interest is granted as
security only and shall not subject Williams to, or in any way alter
or modify, any obligation or liability of WinStar with respect to or
arising out of any of the Collateral.
(d) Protection of Security. WinStar shall, at its own cost and expense,
take any and all actions necessary to defend title to the Collateral
against all Persons and to defend the Security Interest of Williams in
the Collateral and the priority thereof against any Lien.
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<PAGE>
(e) Further Assurances. WinStar shall, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further
instruments and documents (including Uniform Commercial Code financing
statements in Collateral in which WinStar acquires an interest after
the date hereof) and take all such actions as Williams may from time
to time request to better assure, preserve, protect and perfect the
Security Interest and the rights and remedies created hereby,
including the payment of any fees and taxes required in connection
with the execution and delivery of this Agreement, the granting of the
Security Interest and the filing of any financing statements
(including fixture filings) or other documents in connection herewith
or therewith. WinStar agrees to take such action as may be requested
by Williams to cause the Security Interest in Equipment to have
priority pursuant to Sections 9-312(4) and 9-313 of the UCC, as
applicable.
(f) Inspection and Verification. Williams and such Persons as Williams may
reasonably designate shall have the right, on reasonable advance
notice at WinStar's own cost and expense, to inspect the Collateral,
all records related thereto (and to make extracts and copies from such
records) and the premises upon which any of the Collateral is located,
to discuss WinStar's affairs with the officers of WinStar and its
independent accountants and to verify under reasonable procedures the
validity, amount, quality, quantity, value, condition and status of,
or any other matter relating to, the Collateral, including, in the
case of Collateral in the possession of any third Person, by
contacting the third Person possessing such Collateral for the purpose
of making such a verification. Williams shall have the absolute right
to share any information it gains from such inspection or verification
with its agents and representatives.
(g) Taxes; Encumbrances. At its option, Williams may discharge past due
taxes, assessments, charges, fees, Liens, security interests or other
encumbrances at any time levied or placed on the Collateral and not
permitted under the Transaction Documents and may pay for the
maintenance and preservation of the Collateral to the extent WinStar
fails to do so, and WinStar agrees to reimburse Williams on demand for
0 any payment made or any expense incurred by Williams pursuant to the
foregoing authorization; provided, however, that nothing in this
Section 7 shall be interpreted as excusing WinStar from the
performance of, or imposing any obligation on Williams to cure or
perform, any covenants or other promises of WinStar with respect to
taxes, assessments, charges, fees, Liens, security interests or other
encumbrances.
(h) Continuing Obligations of WinStar. WinStar shall remain liable to
observe and perform all the conditions and obligations to be observed
and performed by it under each contract, agreement or instrument
relating to the Collateral, all in accordance with the terms and
conditions thereof, and WinStar agrees to indemnify and hold harmless
Williams and Williams' Affiliates from and against any and all
liability for such performance.
(i) Use and Disposition of Collateral. Except as otherwise permitted by
this Agreement, WinStar shall not make or permit to be made an
assignment, pledge or hypothecation of the Collateral or grant any
other Lien in respect of the Collateral, and WinStar shall not sell,
convey, lease, assign, transfer or otherwise dispose of any
Collateral, except in any such case in the ordinary course of
business.
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(j) Power of Attorney. Williams shall have the right, as the true and
lawful agent and attorney-in-fact of WinStar, with power of
substitution for WinStar and in WinStar's name or otherwise, for the
use and benefit of Williams, upon the occurrence and during the
continuance of an Event of Default (a) to receive, endorse, assign
and/or deliver any and all notes, acceptances, checks, drafts, money
orders or other evidences of payment relating to the Collateral or any
part thereof; (b) to demand, collect, receive payment of, give receipt
for and give discharges and releases of all or any of the Collateral;
(c) to commence and prosecute any and all suits, actions or
proceedings at law or in equity in any court of competent jurisdiction
to collect or otherwise realize on all or any of the Collateral or to
enforce any rights in respect of any Collateral; (d) to settle,
compromise, compound, adjust or defend any actions, suits or
proceedings relating to all or any of the Collateral; and (e) to use,
sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with all or any of the Collateral, and to do all other
acts and things necessary to carry out the purposes of this Agreement,
as fully and completely as though Williams were the absolute owner of
the Collateral for all purposes; provided, however, that nothing
herein contained shall be construed as requiring or obligating
Williams to make any commitment or to make any inquiry as to the
nature or sufficiency of any payment received by Williams, or to
present or file any claim or notice, or to take any action with
respect to the Collateral or any part thereof or the moneys due or to
become due in respect thereof or any property covered thereby, and no
action taken or omitted to be taken by Williams with respect to the
Collateral or any part thereof shall give rise to any defense,
counterclaim or offset in favor of WinStar or to any claim or action
against Williams. It is understood and agreed that the appointment of
Williams as the agent and attorney-in-fact of WinStar for the purposes
set forth above is coupled with an interest and is irrevocable. The
provisions of this Section shall in no event relieve WinStar of any of
its obligations hereunder with respect to the Collateral or any part
thereof or impose any obligation on Williams to proceed in any
particular manner with respect to the Collateral or any part thereof,
or in any way limit the exercise by Williams of any other or further
right which it may have on the date of this Agreement or hereafter,
whether hereunder, under any other Transaction Document, by law or
otherwise.
(k) Remedies upon Default.
(i) Upon the occurrence and during the continuance of an Event of
Default, Williams shall have the right with or without legal process
and with or without previous notice or demand for performance, to take
possession and/or control of the Collateral or any part thereof (at
the same or different times) and without liability for trespass to
enter any premises where the Collateral or any part thereof may be
located for the purpose of taking possession of or removing the
Collateral and, generally, to exercise any and all rights afforded to
a secured party under the UCC or other applicable law. Without
limiting the generality of the foregoing, WinStar agrees that Williams
shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral, at public or private sale for cash, upon credit or for
future delivery as Williams shall deem appropriate. Upon consummation
of any such sale Williams shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold.
Each such purchaser at any such sale shall hold the property sold
absolutely, free from any claim or right on the part of WinStar, and
WinStar hereby waives (to the extent permitted by law) all rights of
redemption, marshalling, stay and appraisal which WinStar now has or
may at any time in the future have under any rule of law or statute
now existing or hereafter enacted.
0
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(ii) Williams shall give WinStar 10 days' written notice (which WinStar
agrees is reasonable notice within the meaning of Section 9-504(3) of
the UCC or its equivalent in other jurisdictions) of Williams'
intention to make any sale of Collateral. Such notice, in the case of
a public sale, shall state the time and place for such sale. Any such
public sale shall be held at such time or times within ordinary
business hours and at such place or places as Williams may fix and
state in the notice of such public sale. At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as
an entirety or in separate parcels, as Williams may (in its sole and
absolute discretion) determine. Williams shall not be obligated to
make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall
have been given. Williams may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such
sale may, without further notice, be made at the time and place to
which the same was so adjourned. In case any sale of all or any part
of the Collateral is made on credit or for future delivery, the
Collateral so sold may be retained by Williams until the sale price is
paid by the purchaser or purchasers thereof, but Williams shall not
incur any liability in case any such purchaser or purchasers shall
fail to take up and pay for the Collateral so sold and, in case of any
such failure, such Collateral may be sold again upon like notice. At
any public (or, to the extent permitted by law, private) sale made
pursuant to this Section, Williams may bid for or purchase, free (to
0 the extent permitted by law) from any right of redemption, stay,
valuation or appraisal on the part of WinStar (all said rights being
also hereby waived and released to the extent permitted by law), the
Collateral or any part thereof offered for sale and may make payment
on account thereof by using any Obligation then due and payable to
Williams from WinStar as a credit against the purchase price and
Williams may, upon compliance with the terms of sale, hold, retain and
dispose of such property without further accountability to WinStar
therefor. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof,
Williams shall be free to carry out such sale pursuant to such
agreement and WinStar shall not be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the
fact that after Williams shall have entered into such an agreement all
Events of Default shall have been remedied and the Obligations paid in
full. As an alternative to exercising the power of sale herein
conferred upon it, Williams may proceed by a suit or suits at law or
in equity to foreclose this Agreement and to sell the Collateral or
any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.
(l) Application of Proceeds. Williams shall apply the proceeds of any
collection or sale of the Collateral, as well as any Collateral
consisting of cash, as follows:
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FIRST, to the payment of all costs and expenses incurred by Williams in
connection with such collection or sale or otherwise in connection
0 with this Agreement or any of the Obligations, including all court
costs and the fees and expenses of its agents and legal counsel, the
repayment of all advances made by Williams hereunder or under any
other Transaction Document on behalf of WinStar and any other costs or
expenses incurred in connection with the exercise of any right or
remedy hereunder or under any other Transaction Document;
SECOND, to the payment in full of the Obligations; and
THIRD, to WinStar, its successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
Williams shall have absolute discretion as to the time of application
of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by Williams (including
pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of Williams or of the officer making the sale
shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money
paid over to Williams or such officer or be answerable in any way for
the misapplication thereof.
(m) Williams' Fees and Expenses; Indemnification.
(i) WinStar agrees to pay upon demand to Williams the amount of any
and all reasonable expenses (other than those incurred in
connection with the negotiation and preparation of this
Agreement), including the reasonable fees and expenses of its
counsel and of any experts or agents, which Williams may incur in
connection with (a) the administration of this Section 7, (b) the
0 custody or preservation of, or the sale of, collection from or
other realization upon any of the Collateral, (c) the exercise,
enforcement or protection of any of the rights of Williams or
under Section 7 (d) the failure of WinStar to perform or observe
any of the provisions of this Section 7.
(ii) WinStar agrees to indemnify Williams against, and hold it
harmless from, all stamp, documentary and other taxes, levies or
charges payable in respect of the grant of the Security Interest.
(iii) The provisions of this Section shall remain operative and in
full force and effect regardless of the termination of this
Agreement or any other Transaction Document.
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Annex A To Exhibit K
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT (this "Agreement") dated as of December ___,
1998, among WINSTAR COMMUNICATIONS, INC., a Delaware corporation ("Guarantor"),
and WILLIAMS COMMUNICATIONS, INC. ("Williams").
Reference is made to the IRU Agreement dated as of December 17, 1998
(as amended or modified from time to time, the "IRU Agreement"), between WinStar
Wireless, Inc., a Delaware corporation ("Wireless"), and Williams. Capitalized
terms used herein and not defined herein shall have the meanings assigned to
such terms in the IRU Agreement.
Wireless is a wholly-owned subsidiary of Guarantor. Guarantor
acknowledges that it will derive substantial direct and indirect benefit from
the IRU Agreement. The obligations of Williams under the IRU Agreement are
conditioned on, among other things, the execution and delivery by Guarantor of a
Guarantee Agreement in the form hereof. As consideration therefor and in order
to induce Williams to enter into and perform its obligations under the IRU
Agreement, Guarantor is willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Guarantee
SECTION 1.01 Guarantee. Guarantor unconditionally guarantees, as a
primary obligor and not merely as a surety, (a) the due and punctual payment of
all monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of Wireless under the IRU Agreement and (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of Wireless under or pursuant to the IRU Agreement (all the monetary
and other obligations referred to in the preceding clauses (a) and (b) being
collectively called the "Obligations"). Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation.
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SECTION 1.02 Obligations Not Waived. To the fullest extent permitted by
applicable law, Guarantor waives presentment to, demand of payment from and
protest to Wireless of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of Guarantor hereunder shall
not be affected by (a) the failure of Williams to assert any claim or demand or
to enforce or exercise any right or remedy against Wireless or Guarantor under
the provisions of the IRU Agreement or otherwise, (b) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of this Agreement or any other agreement, or (c) the failure to perfect any
security interest in, or the release of, any of the security held by Williams.
SECTION 1.03 Security. Guarantor authorizes Williams to (a) take and
hold security given for the payment of the Obligations and exchange, enforce,
waive and release any such security, (b) apply such security and direct the
order or manner of sale thereof as they in their sole discretion may determine
and (c) release or substitute any one or more endorsees, other guarantors or
other obligors.
SECTION 1.04 Guarantee of Payment. Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by Williams to any of the
security held for payment of the Obligations.
SECTION 1.05 No Discharge or Diminishment of Guarantee. The obligations
of Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of Williams to assert any claim or demand or
to enforce any remedy under the IRU Agreement or any other agreement, by any
waiver or modification of any provision of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Obligations, or by any
other act or omission that may or might in any manner or to any extent vary the
risk of Guarantor or that would otherwise operate as a discharge of Guarantor as
a matter of law or equity (other than the indefeasible payment in full in cash
of all the Obligations).
SECTION 1.06 Other Matters. Williams may, at its election, foreclose on
any security held by it by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any
part of the Obligations, make any other accommodation with Wireless or any other
guarantor or exercise any other right or remedy available to them against
Wireless or any other guarantor, without affecting or impairing in any way the
liability of Guarantor hereunder except to the extent the Obligations have been
fully, finally and indefeasibly paid in cash. To the fullest extent permitted by
applicable law, Guarantor waives any defense arising out of any such election
even though such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy of
Guarantor against Wireless or any other guarantor, as the case may be, or any
security.
63
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SECTION 1.07 Limit of Liability. The obligations of Guarantor hereunder
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provisions of applicable
state law.
ARTICLE II
Subordination
SECTION 2.01 Subordination. Parent hereby agrees that all the
Subordinated Obligations of Wireless owed to Parent are hereby expressly
subordinated, to the extent and in the manner set forth in this Article II, to
the prior payment in full in cash of all Senior Obligations of Wireless in
accordance with the terms thereof.
As used herein:
"Senior Creditors" means Williams and its successors and assigns.
"Senior Obligations" of any means, the Obligations.
"Subordinated Obligations" of Wireless means all monetary obligations
and other liabilities of Wireless at any time owing to Parent (including any
such obligations or other liabilities owing to any other Person for the direct
or indirect benefit of Parent), including all rights of Parent against Wireless
arising by way of right of subrogation, contribution, reimbursement, indemnity
or otherwise.
SECTION 2.02 Dissolution or Insolvency. Parent agrees that upon any
distribution of the assets of Wireless or upon any dissolution, winding up,
liquidation or reorganization of Wireless, whether in bankruptcy, insolvency,
reorganization, arrangement or receivership proceedings or otherwise, or upon
any assignment for the benefit of creditors or any other marshaling of the
assets and liabilities of Wireless:
(a) the Senior Creditors of Wireless shall first be entitled to receive
payment in full in a cash of the Senior Obligations in accordance with
the terms of such Senior Obligations before Parent shall be entitled
to receive any payment on account of the Subordinated Obligations of
Wireless, whether as principal, interest or otherwise; and
(b) any payment by, or distribution of the assets of, Wireless of any kind
or character, whether in cash, property or securities, received by or
on behalf of Parent shall be held in trust for the benefit of, and
shall be paid over to, the Senior Creditors of Wireless to the extent
necessary to make payment in full in cash of all Senior Obligations
remaining unpaid, after giving effect to any concurrent payment or
distribution to the Senior Creditors in respect of the Senior
Obligations.
63
<PAGE>
SECTION 2.03 Other Creditors. Nothing contained in this Agreement is
intended to or shall impair, as between and among Wireless, its creditors (other
than its Senior Creditors) and Parent, the Obligations of Wireless to pay to
Parent the Subordinated Obligations as and when the same shall become due and
payable in accordance with the terms thereof, or affect the relative rights of
Parent and the other creditors of Wireless (other than its Senior Creditors).
SECTION 2.04 Proofs of Claims. In the event of any dissolution, winding
up, liquidation or reorganization of Wireless, whether in bankruptcy,
insolvency, reorganization, arrangement or receivership proceedings or
otherwise, or any assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of Wireless, Parent agrees to file
proofs of claim for the Subordinated Obligations owed to it upon demand by
Williams, in default of which Williams is hereby irrevocably authorized so to
file in order to effectuate the provisions hereof. This Section shall not be
construed to permit Parent to retain any payment received by it in respect of a
Subordinated Obligation that Parent is not entitled to retain under any other
provision of the Agreement.
SECTION 2.05 No Waiver. No right of any Senior Creditor to enforce this
Agreement shall at any time or in any way be prejudiced or impaired by any act
or failure to act on the part of any Senior Creditor, Parent or Wireless, or by
any noncompliance by Parent or Wireless with the terms, provisions and covenants
contained herein, and the Senior Creditors are hereby expressly authorized to
extend, renew, increase, decrease, modify or amend the terms of the Senior
Obligations or any security therefor, and to release, sell or exchange any such
security and otherwise deal freely with Wireless, all without notice to or
consent of Parent and without affecting the liabilities and obligations of the
parties hereto.
SECTION 2.06. Transfer of Subordinated Obligations. Parent agrees that
it will not sell, assign, transfer or otherwise dispose of all or any part of
the Subordinated Obligations owed to it unless the Person to whom such sale,
assignment, transfer or disposition is made shall acknowledge in writing
(delivered to Williams) that it shall be bound by the terms of this Agreement,
including the terms of this Section 2.06, as though named herein as a
Subordinated Creditor.
SECTION 2.07. Obligations Hereunder Not Affected. (a) All rights
and interests of the Senior Creditors hereunder, and all agreements and
obligations of Parent hereunder, shall remain in full force and effect
irrespective of:
(i) any lack of validity or enforceability of the IRU Agreement;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Senior Obligations, or any other
amendment or waiver of or consent to departure from the IRU
Agreement;
(iii) any exchange, release or nonperfection of any security interest
in any collateral, or any release or amendment or waiver of or
consent to departure from any guarantee, in respect of all or any
of the Senior Obligations; or
64
<PAGE>
(iv) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, Wireless in respect of its
Senior Obligations or of Parent in respect of this Agreement.
(b) Parent hereby authorizes the Senior Creditors, without notice or
demand and without affecting or impairing any of the obligations of Parent
hereunder, from time to time to (i) renew, compromise, extend, increase,
accelerate or otherwise change the time for payment of, or otherwise change the
terms of, the Senior Obligations or any part thereof and (ii) exercise or
refrain from exercising any rights against Parent or any other Person.
ARTICLE III
Miscellaneous
SECTION 3.01 Representations and Warranties. Guarantor represents and
warrants that:
(a) Organization; Powers. It is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite corporate power and authority to carry on its
business as now conducted and, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to have a material adverse
effect on its business, operations or condition (financial or otherwise), is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required.
(b) Authorization; Enforceability. The transactions contemplated hereby
are within its corporate power and have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by it and
constitutes a legal, valid and binding obligation of it, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
(c) Governmental Approvals; No Conflicts. The transactions contemplated
hereby (i) do not require any consent or approval of, registration or filing
with, or any other action by, any governmental or regulatory authority, (ii)
will not violate any applicable law or regulation or its charter, by-laws or
other organizational documents of it or any order of any governmental or
regulatory authority, (iii) will not violate or result in a default under any
indenture, agreement or other instrument binding upon it or its assets, or give
rise to a right thereunder to require any payment to be made by it, and (iv)
will not result in the creation or imposition of any lien on any of its assets.
65
<PAGE>
SECTION 3.02 Information. Guarantor assumes all responsibility for
being and keeping itself informed of Wireless' financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that Guarantor assumes
and incurs hereunder, and agrees that Williams will not have any duty to advise
Guarantor of any information known to it or regarding such circumstances or
risks.
SECTION 3.03 Termination of this Agreement and the Guarantees. This
Agreement and the Guarantee made hereunder shall terminate when all the
Obligations have been indefeasibly paid in full and Williams has no further
commitments under the IRU Agreement and shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by Williams upon the
bankruptcy or reorganization of Wireless, Guarantor or otherwise.
SECTION 3.04 Binding Effect; Several Agreement; Assignments. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of each party hereto that are
contained in this Agreement shall bind and inure to the benefit of each party
hereto and their respective successors and assigns. This Agreement shall become
effective as to Williams and Guarantor when a counterpart hereof executed on
behalf of such party shall have been delivered to Williams, and a counterpart
hereof shall have been executed on behalf of Williams, and thereafter shall be
binding upon such party and Williams and their respective successors and
assigns, and shall inure to the benefit of such party and Williams, and their
respective successors and assigns, except that Guarantor shall not have the
right to assign its rights or obligations hereunder or any interest herein (and
any such attempted assignment shall be void).
SECTION 3.05 Waivers; Amendment. (a) No failure or delay of Williams in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of Williams hereunder and under the IRU
Agreement are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by Guarantor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on Guarantor in any case shall entitle
Guarantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the parties.
SECTION 3.06 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
66
<PAGE>
SECTION 3.07 Notices. All communications and notices hereunder shall be
in writing and given as provided in Article XIII of the IRU Agreement, provided,
however, that all communications and notices hereunder to Guarantor shall be
given to it at:
WinStar Communications, Inc.
Attn: General Counsel
230 Park Avenue
New York, New York 10169
Facsimile No: (212) ______________
or at such other address as may be designated in writing to Williams.
SECTION 3.08 Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or the IRU Agreement shall be considered to have been
relied upon by Williams, regardless of any investigation made by Williams, and
shall continue in full force and effect as long as any of the Obligations is
outstanding and unpaid and as long as the IRU Agreement has not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in the IRU Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 3.09 Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 3.04. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 3.10 Rules of Interpretation. The rules of interpretation
specified in Article XXIII of the IRU Agreement shall be applicable to this
Agreement.
SECTION 3.11 Jurisdiction; Consent to Service of Process. (a) Guarantor
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
67
<PAGE>
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that Williams may otherwise have to bring any action or
proceeding relating to this Agreement or the other Transaction Documents against
Guarantor or its properties in the courts of any jurisdiction.
(b) Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 3.07. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 3.12 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.12.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
WILLIAMS COMMUNICATIONS, INC.
By ______________________________
Name:
Title:
68
<PAGE>
WINSTAR COMMUNICATIONS, INC.,
By ___________________________________
Name:
Title:
69
<PAGE>
Annex B to Exhibit K
Organization; Powers. WinStar and Parent is each a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all requisite corporate power and
authority to carry on its business as now conducted.
Authorization; Enforceability. (i) The obligations to be performed by
WinStar under the IRU Agreement are within WinStar's corporate power and have
been duly authorized by all necessary corporate action. This Agreement has been
duly executed and delivered by WinStar and constitutes a legal, valid and
binding obligation of WinStar, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
(ii) The obligations to be performed by Parent under the Guarantee
Agreement are within Parent's corporate power and have been duly authorized by
all necessary corporate action. Such Agreement has been duly executed and
delivered by Parent and constitutes a legal, valid and binding obligation of
Parent, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
Governmental Approvals; No Conflicts. The transactions contemplated by
this Agreement (a) will not violate the charter, by-laws or other organizational
documents of WinStar or Parent, (b) will not violate or result in a default
under any indenture, agreement or other instrument known to us (including all
agreements filed as exhibits to filings by Parent with the Securities and
Exchange Commission) binding upon WinStar or Parent or its assets, or give rise
to a right thereunder to require any payment to be made by WinStar or Parent,
and (c) will not result in the creation or imposition of any lien on any asset
of WinStar or Parent, except liens created under this Agreement.
70
<PAGE>
EXHIBIT L
INTENTIONALLY OMITTED
70-A
<PAGE>
EXHIBIT M
INTENTIONALLY OMITTED
70-B
<PAGE>
EXHIBIT N
INTENTIONALLY OMITTED
70-C
<PAGE>
Exhibit O
Williams Network POP List
<TABLE>
<CAPTION>
================================================================================================================================
Williams Network Onnet City List X indicates InService
Horizontal
POP Sq. Vertical Coordin- NPA/ Local Access
City St Ft. Address LATA CLLI CODE Coordinate ate NXX Vendor
=================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 Albany NY 5,000 194 Washington Avenue
Albany, NY 12210 134 ALBYNY1W 4640 1630 518/436 NYNEX MFS BS
--------------------------------------------------------------------------------------------------------------------------
2 x Atlanta GA 10,000 374 Dekalb Avenue
Atlanta, GA 30312 438 ATLNGA1W 7259 2084 404/688 MFS BST
--------------------------------------------------------------------------------------------------------------------------
3 Baltimore MD 10,000 200 North Howard Street BELLATLANTIC
Baltimore, MD 21201 228 BLTMMD1W 5511 1574 410/962 ESPIRE
--------------------------------------------------------------------------------------------------------------------------
4 x Baton Rouge LA 3,000 445 N Boulevard
Suite 500
Baton Rouge, LA 70802 492 BTRGLA1W 5475 2874 504/343 BST ACSI
--------------------------------------------------------------------------------------------------------------------------
5 x Birmingham AL 3,408 2001 Park Place North
Suite 102
Birmingham, AL 35203 476 BRHMAL1W 7518 2446 205/322 BST ACSI
--------------------------------------------------------------------------------------------------------------------------
6 Buffalo NY 5,000 325 Delaware Avenue
2nd Fl. BELLATLANTIC
Buffalo, NY 14202 140 BFLONY1W 5076 2327 716/854 HYPERION
--------------------------------------------------------------------------------------------------------------------------
7 x Charlotte NC 9,000 112 N Meyers St.
Charlotte, NC 28202 422 CHRLNC2W 5657 1598 704/347 BST PW
--------------------------------------------------------------------------------------------------------------------------
8 x Chicago IL 5,000 600 South Federal
5th Floor
Chicago, IL 60605 358 CHCGIL1W 5987 2424 312/986 MFS AMERITECH
--------------------------------------------------------------------------------------------------------------------------
9 Cleveland OH 2,362 The Keith Building
1521 Euclid Ave Ste 522 MFS
Cleveland, OH 320 CLEVOH1W 5576 2544 215/687 AMERITECH CS
--------------------------------------------------------------------------------------------------------------------------
10 x Dallas TX 5,353 One Main Place
1201 Main St Ste C-112
Dallas, TX 75202 552 DLLSTXRID1W 8437 4035 214/742 ACSI MFS SWB
--------------------------------------------------------------------------------------------------------------------------
11 Daytona Beach FL 10,000 111 N. Seagrave
Daytona Beach, FL 32114 456 DYBHFL1W 7803 1036 904/252 BST
--------------------------------------------------------------------------------------------------------------------------
12 Ft. Lauderdale FL 10,000 SW Corner of 2nd St
NW & 2nd Ave NW 460 FTKDFK1W 8281.14 558.34 BST
--------------------------------------------------------------------------------------------------------------------------
13 x Greensboro NC 5,394 South Elm Center 201-E
Creek Ridge Road
Greensboro, NC 27406 424 GNBONC1W 6402 1639 336/275 BST TW
--------------------------------------------------------------------------------------------------------------------------
14 x Houston TX 5,000 1124 Hardy Street
Houston, TX 77020 560 HSTNTX1W 8936 3536 713/225 TW SWB
--------------------------------------------------------------------------------------------------------------------------
15 x Indianapolis IN 5,723 720 Kentucky Avenue
Suite 2
Indianapolis, IN 336 IPLSHN1W 6272 2992 317/916 TW AMT
--------------------------------------------------------------------------------------------------------------------------
16 Jackson MS 4,704 Capitol Building 111
E. Capitol Street
Suite 510
Jackson, MS 39201 482 JCSNMS1W 8035 2879 ESPIRE BST
--------------------------------------------------------------------------------------------------------------------------
17 Jacksonville FL 5,000 530 West Adams St.
Jacksonville, FL 32202 452 JCVLFL1W 7613 1245 904/358 BST
--------------------------------------------------------------------------------------------------------------------------
18 x Kansas City MO 7,693 The Bryant Building
1102 Grand Ave #300
Kansas City, MO 524 KSCYMO1W 7027 4202 816/221 SWB ESPIRE
--------------------------------------------------------------------------------------------------------------------------
19 Las Vegas NV 2,525 4275 E. Sahara Ave
Units 19 & 20 SPRINT
Las Vegas, NV 89104 721 LSVGNV1W 3668 7422 702/244 NEXTLINK ACS
--------------------------------------------------------------------------------------------------------------------------
20 x Los Angeles CA 5,000 624 South Grand
Suite 1706
Los Angeles CA 90017 730 LSANCA1W 9213 7878 213/623 GST PBT MFS
--------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
================================================================================================================================
Williams Network Onnet City List X indicates InService
Horizontal
POP Sq. Vertical Coordin- NPA/ Local Access
City St Ft. Address LATA CLLI CODE Coordinate ate NXX Vendor
=================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
21 Melbourne FL 5,000 NE Corner of Line and
Lotana St Melbourne Fl 458 MLBRFL1W 7964.23 351.64 BST
--------------------------------------------------------------------------------------------------------------------------
22 Miami FL 10,000 2115 NW 22nd Street
Miami, Fl 33142 460 MIAMFL1W 8350 534 305/325 BST MFS
--------------------------------------------------------------------------------------------------------------------------
23 Minneapolis MN 10,000 511 11th Ave South
Minneapolis, MN 55415 528 MPLSMN1W 5780 4526 612/339 USWEST
--------------------------------------------------------------------------------------------------------------------------
24 x New Orleans LA 5,000 Poydrous Plaza
539 Loyola Ave Ste 2020
New Orleans, LA 70113 490 NWORLA1W 8483 2638 504/529 BST
--------------------------------------------------------------------------------------------------------------------------
25 x New York NY 5,323 60 Hudson Street
12th Floor MFS
New York, NY 10013 132 NYCMNY1W 5004 1406 212/571 BELLATLANTIC TW
--------------------------------------------------------------------------------------------------------------------------
26 Newark NJ 20,000 165 Halsey Street MFS
Newark, NJ 07102 224 NWRKNJ1W 5015 1430 973/643 BELLATLANTIC
--------------------------------------------------------------------------------------------------------------------------
27 Oklahoma City OK 7,445 201 Robert S. Kerr
Suite 220
Oklahoma City, OK 73102 536 OKCYOK1W 7946 4372 405/232 SWB MFS COX
--------------------------------------------------------------------------------------------------------------------------
28 Orlando FL 10,000 SW Corner of Division
& Columbia 458 ORLDFL1W 7957.64 1031.53 BST MFS
--------------------------------------------------------------------------------------------------------------------------
29 x Philadelphia PA 3,800 2401 Locust Street
4th Floor
Philadelphia, PA 19103 228 PHLAPA1W 5252 1461 215/568 BELL ATLANTIC MFS
--------------------------------------------------------------------------------------------------------------------------
30 Phoenix AZ 2,500 info not yet available 666 PHNXAZ1W 9119 6742 502/204 USWEST MFS
--------------------------------------------------------------------------------------------------------------------------
31 Portland OR 2,500 707 SW Washington St.
4th Floor
Portland, OR 97205 572 PTLDOR1W 6799 3915 503/417 ELI MFS SW
--------------------------------------------------------------------------------------------------------------------------
32 x Raleigh NC 5,000 3440 Tarheel Drive
Bldg. 3 Ste #105
Raleigh, NC 27609 425 RLGHNC1W 5330 1435 919/873 BST TW
--------------------------------------------------------------------------------------------------------------------------
33 x Richmond VA 1,500 3600 W Broad St
Ste 472 Richmond, VA 248 RCMDVA1W 5907 1479 304/359 BELLATLANTIC MEDIA
--------------------------------------------------------------------------------------------------------------------------
34 Rochester NY 5,000 1 West Main Stuie 610
Rochester, NY 14608 974 ROCHNY1W 4912.92 2194.33 RCCHTEL MFS TW
--------------------------------------------------------------------------------------------------------------------------
35 Sacramento CA 2,403 770 L Street Ste 120
Sacramento, CA 95814 725 SCRMCA1W 8303 3581 916/441 PBT MFS
--------------------------------------------------------------------------------------------------------------------------
36 x Spartanburg SC 4,212 BCT 145 N Church St
Spartanburg, SC 29306 430 SPBGSC1W 6809 1832 364/948 BST
--------------------------------------------------------------------------------------------------------------------------
37 x St. Louis MO 2,331 The Valley Building
900 Walnut St Ste 124
St. Louis, MO 63102 520 STLSMO01DSC 6807 2483 314/436 MFS SWB
--------------------------------------------------------------------------------------------------------------------------
38 Syracuse NY 4,700 The Atrium Building
2 Clinton Square
Syracuse, NY 13202 136 SYRCNY1W 4797.54 1990.96 315/422 BELLATLANTIC
--------------------------------------------------------------------------------------------------------------------------
39 Tucson AZ 5,000 135 & 139 North 5th Ave
Tuscon, AZ 85701 568 TCSNAZ1W 9346 5487 520/620 MFS USWEST
--------------------------------------------------------------------------------------------------------------------------
40 x Tulsa OK 5,238 100 W 5th Street
5th Floor
Tulsa, OK 74103 538 TULSOK1W 7708 4176 918/584 MFS ACSI SWB
--------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
=================================================================================================================================
Williams Network Onnet City List X indicates InService
Horizontal
POP Sq. Vertical Coordin- NPA/ Local Access
City St Ft. Address LATA CLLI CODE Coordinate ate NXX Vendor
=================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
41 x Washington DC 5,279 1220 L Street NW
Suite 200
Washington, DC 20910 236 WASHDC1W 5622 1582 202/408 BELLATLANTIC MFS
--------------------------------------------------------------------------------------------------------------------------
42 West Palm Beach FL 5,000 SW Corner of Rosemary &
Second Street
West Palm Beach, FL 460 WP8HFL1W 3161.4 509.48 561/ BST
--------------------------------------------------------------------------------------------------------------------------
</TABLE>
Service provided between any of the cities listed above is considered On-Net.
Williams will update this listing periodically.
Confidential - WinStar/Williams
WIRELESS FIBERsm IRU AGREEMENT
BY AND BETWEEN
WINSTAR WIRELESS, INC.
AND
WILLIAMS COMMUNICATIONS, INC.
Effective as of December 17, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DEFINITIONS..................................................................................................1
1.1. Particular Terms...........................................................................................1
1.2. Other Terms................................................................................................4
2. SCOPE AND STRUCTURE..........................................................................................4
2.1. General....................................................................................................4
2.2. Term.......................................................................................................5
2.3. Strategic Relationship.....................................................................................5
3. GRANTS, RIGHTS AND RESPONSIBILITIES..........................................................................6
3.1. WinStar Grant, Rights and Responsibilities.................................................................6
3.2. WinStar Acceptance and Testing.............................................................................7
3.3. Control of Facilities......................................................................................7
3.4. Provisioning of Williams T-1s..............................................................................8
3.5. Service Orders for Williams T-1s...........................................................................9
3.6. Changes in Service Parameters.............................................................................10
3.7. Delivery of Minimum Williams T-1 Inventory................................................................10
4. OTHER PERFORMANCE AND SERVICES..............................................................................11
4.1. Interconnection...........................................................................................11
4.2. Collocation...............................................................................................11
4.3. Maintenance...............................................................................................11
4.4. Routine Maintenance.......................................................................................11
4.5. Non-Routine Maintenance...................................................................................12
4.6. Subcontractors............................................................................................12
4.7. Williams Equipment........................................................................................12
4.8. Performance Standards.....................................................................................12
4.9. Disengagement Assistance..................................................................................12
4.10. Relocation................................................................................................12
4.11. Ancillary Services........................................................................................13
5. CONTRACT ADMINISTRATION.....................................................................................13
5.1. Reports and Meetings......................................................................................13
5.2. Confidentiality...........................................................................................14
6. CHARGES.....................................................................................................16
6.1. General...................................................................................................16
6.2. Taxes.....................................................................................................16
6.3. Pass-Through Expenses.....................................................................................17
6.4. Most Favored Customer Status..............................................................................17
6.5. Benchmarking..............................................................................................18
7. INVOICING AND PAYMENT.......................................................................................18
7.1. Invoicing.................................................................................................18
7.2. Payment Due...............................................................................................18
7.3. Disputed Charges..........................................................................................19
7.4. Late Interest.............................................................................................19
8. COVENANTS, REPRESENTATIONS AND WARRANTIES...................................................................19
8.1. Non-Infringement..........................................................................................19
8.2. Authorization.............................................................................................19
8.3. Wireless Fiber Connectivity...............................................................................20
8.4. Disclaimer................................................................................................20
9. INDEMNIFICATION.............................................................................................20
9.1. Indemnities by Williams...................................................................................20
9.2. Indemnities by WinStar....................................................................................21
9.3. Indemnification Procedures................................................................................22
</TABLE>
- i -
<PAGE>
<TABLE>
<S> <C>
10. LIABILITY, RISK OF LOSS AND INSURANCE.......................................................................22
10.1. General Intent............................................................................................22
10.2. Liability Restrictions....................................................................................23
10.3. Insurance Requirements....................................................................................23
10.4. Risk of Loss..............................................................................................24
10.5. Force Majeure.............................................................................................24
11. REMEDIES AND DISPUTE RESOLUTION.............................................................................25
11.1. Cumulative Nature.........................................................................................25
11.2. Informal Dispute Resolution...............................................................................25
11.3. Arbitration...............................................................................................26
11.4. Termination...............................................................................................27
11.5. Suspension of Service.....................................................................................27
11.6. Litigation................................................................................................27
11.7. Continued Performance.....................................................................................28
12. GENERAL.....................................................................................................28
12.1. Binding Nature and Assignment.............................................................................28
12.2. Entire Agreement..........................................................................................28
12.3. Tariff....................................................................................................28
12.4. Consents..................................................................................................29
12.5. Restriction of Transmissions..............................................................................29
12.6. Use and Ownership.........................................................................................29
12.7. Non-Solicitation..........................................................................................29
12.8. Notices...................................................................................................29
12.9. Counterparts..............................................................................................30
12.10. Relationship of Parties...................................................................................30
12.11. Severability..............................................................................................30
12.12. Reasonableness, Consents and Approval.....................................................................30
12.13. Waiver of Default.........................................................................................30
12.14. Survival..................................................................................................31
12.15. Public Disclosures........................................................................................31
12.16. Third Party Beneficiaries.................................................................................31
12.17. Amendment.................................................................................................31
12.18. Order of Precedence.......................................................................................31
12.19. Interpretation............................................................................................32
12.20. Covenant of Good Faith....................................................................................32
</TABLE>
LIST OF SCHEDULES AND EXHIBITS
- --------------------------------------------------------------------------------
Schedule A Scope and Services
Exhibit A-1: WinStar Target Markets
Exhibit A-2: Implementation Schedule
Exhibit A-3: Collocation
Exhibit A-4: Standards and Specifications
Exhibit A-5: Hub Implementation Forecast
Exhibit A-6: Williams Connectivity
Schedule B Performance Standards
Schedule C Charges
ii
<PAGE>
WIRELESS FIBERsm IRU AGREEMENT
BY AND BETWEEN
WINSTAR WIRELESS, INC.
AND
WILLIAMS COMMUNICATIONS, INC.
This WIRELESS FIBER IRU AGREEMENT (including the Exhibits and Schedules
attached hereto, the "Agreement"), effective as of December 17, 1998 (the
"Effective Date"), is entered into by and between WINSTAR WIRELESS, INC., a
Delaware corporation with offices located at 230 Park Avenue, New York, New York
10169 ("WinStar"), and WILLIAMS COMMUNICATIONS, INC., a Delaware corporation
with offices located at One Williams Center, Tulsa, Oklahoma 74172 ("Williams").
WHEREAS, WinStar is a fixed wireless services telecommunications
provider currently planning to build-out in the domestic major metropolitan
markets set forth in Exhibit A-1;
WHEREAS, Williams is a provider of high capacity long haul fiber optic
network transport and desires to utilize WinStar's Wireless Fiber Connectivity
(as hereinafter defined) in conjunction with its long haul network services; and
WHEREAS, upon the terms and subject to the conditions set forth below,
Williams desires to acquire from WinStar, and WinStar desires to provide to
Williams, an exclusive, indefeasible right to use certain of WinStar's Wireless
Fiber Connectivity on a private, non-common-carrier basis.
NOW THEREFORE, in consideration of the mutual promises set forth below
and other good and valid consideration, the receipt of which is hereby
acknowledged, WinStar and Williams (collectively, the "Parties" and each, a
"Party") agree as follows:
1. DEFINITIONS
1.1. Particular Terms.
As used in this Agreement:
(a) "Acceptance" has the meaning set forth in Exhibit A-4.
(b) "Acceptance Date" means, for each Hub, the date of Acceptance as
provided in Exhibit A-4.
(c) "Acceptance Standards" means the standards set forth in Exhibit
A-4 with respect to the testing of the Hubs.
(d) "Affiliate" means, with respect to any entity, any other entity
that directly, or indirectly through one or more intermediaries,
Controls, or is Controlled by, or is under common Control with,
such entity.
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(e) "Agreement" has the meaning set forth in the preamble to this
Agreement.
(f) "Confidential Information" has the meaning set forth in Section
5.2.
(g) "Control" and its derivatives means legal, beneficial or
equitable ownership, directly or indirectly, of more than fifty
percent (50%) of outstanding voting capital stock (or other
ownership interest, if not a corporation) of an entity or
management or operational control over such entity.
(h) "Cost" means actual, direct costs incurred and computed in
accordance with the established accounting procedures used by
WinStar to bill third parties for reimbursable projects. All
Costs shall be computed in accordance with generally accepted
accounting principles. Such actual, direct costs include:
(i) Labor costs, including wages and salaries, and benefits,
plus the overhead allocable to such labor costs (overhead
allocation percentage shall not exceed the lesser of: (i)
the percentage WinStar allocates to its internal projects;
or (ii) thirty percent (30%)); and
(ii) Other direct costs and Out-of-Pocket Expenses on a
Pass-Through Expenses basis (such as equipment, materials,
supplies, contract services, costs of capital, Required
Rights, sales, use or similar taxes, etc.) plus ten percent
(10%) of such expenses, but
(iii) Less any cost or expense reimbursed by a third party.
(i) "Domestic Hub Capacity" means, at the time in question, the
aggregate capacity of WinStar's deployed Hubs within the United
States.
(j) "Effective Date" has the meaning set forth in the preamble to
this Agreement.
(k) "Governmental Authorizations" means all licenses, permits and
authorizations from the Federal Communications Commission,
Federal Aviation Administration, state public utility
commissions, municipal authorities or any other governmental body
that are materially necessary or required for or used in the
business and operations of WinStar or the provision of the
Wireless Fiber Connectivity.
(l) "Hub" has the meaning set forth in Schedule A.
(m) "Indefeasible Right of Use" or "IRU" means an exclusive,
indefeasible right to use the specified Wireless Fiber
Connectivity as contemplated by this Agreement.
(n) "Intellectual Property Rights" means patent, copyright,
trademark, trade secret or other proprietary rights with respect
to any work product in which such rights could inure.
2
<PAGE>
(o) "Lit Building" means a building that, at the time in question, is
either a Hub provided by WinStar or equipped with a radio
connection to a Hub provided by WinStar utilizing spectrum in
which WinStar holds a license.
(p) "Losses" means all liabilities, damages and related costs and
expenses (including fines, levies, assessments, reasonable legal
fees and disbursements and costs of investigation, litigation,
settlement, judgment, interest and penalties) directly incurred
by a Party.
(q) "Maintenance" means the network operations, administration and
maintenance required for the continued performance of the WinStar
Fiberless Connectivity.
(r) "Minimum Williams T-1 Inventory" has the meaning set forth in
Exhibit A-6.
(s) "Out-of-Pocket Expenses" means reasonable and actual
out-of-pocket expenses incurred by a Party, but not including
that Party's overhead costs (or allocations thereof),
administrative expenses or other mark-ups.
(t) "Party" and "Parties" have the meanings set forth in the preamble
to this Agreement.
(u) "Pass-Through Expenses" means certain WinStar expenses, as agreed
to between the Parties in writing, which Williams agrees to pay
directly or reimburse on an Out-of-Pocket Expenses basis.
(v) "Prime Rate" means, in respect of any period, the rate published
as Chase Manhattan's prime rate in the Wall Street Journal, or
any successor publication thereto, from time to time during such
period.
(w) "Pro Rata Share" means a proportion equal, for Williams, to the
Williams Connectivity and, for WinStar, the complement of the
Williams Connectivity.
(x) "Qualified Building" means a building that, at the time in
question, has a verified line of sight (per WinStar's standard
practices) to a Hub provided by WinStar and for which the
necessary Required Rights have been obtained by, or provided to,
WinStar.
(y) "Required Rights" means leases or licenses for access to, and use
of, building roof areas and other antenna staging locations and
interior space and conduit rights as necessary to provide
Wireless Fiber Connectivity to a building.
(z) "Sector" means an area of coverage emanating off a
point-to-multipoint radio on a Hub.
(aa) "Sector Capacity" of any given Hub means, as of the date in
question, the transport capacity of the relevant Sector of that
Hub.
(bb) "Start Date" means, with respect to any Williams T-1, the first
day on which such service is provided.
(cc) "T-1" means a circuit (wire, fiber or spectrum) with a capacity
of 1.544 Mbps.
3
<PAGE>
(dd) "Term" has the meaning set forth in Section 2.2.
(ee) "Williams" has the meaning set forth in the preamble to this
Agreement.
(ff) "Williams Connectivity" has the meaning given in Exhibit A-6.
(gg) "Williams IRU" has the meaning given in Section 3.1(a).
(hh) "Williams T-1" has the meaning given in Section 3.1(a). Each such
circuit shall traverse any two end-points on the WinStar network
(e.g., at the common space in a Lit Building or at a local
WinStar point of presence) and shall be deemed provided when
approved by Williams in accordance with Section 3.5(e).
(ii) "WinStar" has the meaning set forth in the preamble to this
Agreement.
(jj) "WinStar Equipment" means the telecommunications equipment used
by WinStar to implement the Wireless Fiber Connectivity.
(kk) "WinStar Target Market" means a city listed in Exhibit A-2 where
WinStar has at least one Hub to provide the Wireless Fiber
Connectivity, which list may be amended by WinStar from time to
time with notice to Williams (in accordance with Exhibit A-2).
(ll) "Wireless Fiber Connectivity" means the Wireless Fibersm
connectivity, which WinStar is authorized to provide at certain
licensed radio frequency bandwidths.
1.2. Other Terms.
Other terms used in this Agreement are defined in the context in which
they are used and have the meanings there indicated.
2. SCOPE AND STRUCTURE
2.1. General.
(a) This Agreement sets forth the general terms and conditions under
which WinStar grants Williams specific rights to certain capacity
within the deployed Wireless Fiber Connectivity.
(b) The Parties acknowledge that this Agreement does not grant to
WinStar an exclusive privilege to sell or otherwise provide to
Williams any or all of the transport and services of the type
described in this Agreement. Williams may contract with other
suppliers for the procurement of comparable transport or
services. Subject to the Williams IRU granted by WinStar under
this Agreement, WinStar is not restricted from selling to other
entities any types of transport or services including the types
of transport or services that are provided to Williams hereunder.
4
<PAGE>
2.2. Term.
The term of this Agreement (the "Term"), with respect to each of the
initial two hundred and seventy (270) Hubs implemented by WinStar,
shall begin on the corresponding Acceptance Date and continue in
effect for twenty-five (25) years from that time.
2.3. Strategic Relationship.
(a) Resale of WinStar Product. Pursuant to terms to be agreed upon by
the Parties after the Effective Date, WinStar will grant Williams
the right to market and promote certain WinStar voice and data
products (e.g., wireless capacity, professional services and
Internet connectivity) through its sales channel.
(b) Williams-Provided Roof Rights and Building Access. If requested
by WinStar, Williams shall grant to WinStar, at no cost,
appropriate roof, riser, conduit rights and interior space (in
each case, in quantities to be mutually agreed upon on a
case-by-case basis) rights to buildings in the United States for
which Williams owns, leases or occupies, in whole or in part,
that Williams can obtain (at reasonable cost) or has such rights.
In addition, Williams shall assist WinStar in obtaining such
rights with respect to other buildings in the United States
leased or occupied, in whole or in part, by Williams or its
Affiliates, including by actively conveying to those Affiliates
the strategic and important nature of the relationship with
WinStar. Williams shall provide (and periodically update as
reasonably requested by WinStar) WinStar with a written list of
the addresses of all such real estate.
(c) Mutual Marketing Support. WinStar will provide Williams
reasonable marketing support in connection with Williams' sale of
the Williams T-1s and other WinStar voice and data products.
(d) Provisioning and Billing OSS. The Parties will work together in
order to interface their then-current provisioning and billing
operational support system information (e.g., network events and
statistics). The reasonable costs associated with these
activities shall be mutually shared between the Parties. If,
after consultation with Williams, WinStar is required to provide
provisioning and billing information unique to Williams'
wholesale activities, the reasonable costs of providing such
information shall be borne by Williams.
(e) Regulatory Assistance. If either Party affirmatively takes a
position in the domestic regulatory environment, it will be in
favor of a level playing field and in support of competition, as
such Party determines in its sole discretion. The Parties shall
periodically (but at least semi-annually) meet to discuss their
plans and objectives with respect to the regulatory environment.
3. GRANTS, RIGHTS AND RESPONSIBILITIES
3.1. WinStar Grant, Rights and Responsibilities.
(a) Effective as of the Acceptance Date, WinStar hereby grants to
Williams an exclusive Indefeasible Right of Use (the "Williams
IRU"), for the purposes described herein, in the Williams
<PAGE>
5
Connectivity as expressed in T-1 increments over time, as
provided in Exhibit A-6 (the "Williams T-1s"), subject to the
additional limitations set forth in Subsection (c) below. Such
grant does not convey any legal title to any real or personal
property, including the spectrum, physical equipment and
connections used to effect the Domestic Hub Capacity.
(b) Subject to the terms of this Agreement, Williams shall have
exclusive use of the Williams T-1s for any lawful purpose during
the Term.
(c) In addition to the Williams Connectivity limitation set forth in
Section 3.1(a), the Williams T-1s shall be subject to the
following limitations:
(i) Williams T-1s from any Lit Building that is connected to the
WinStar Hub through a point-to-point radio link may go up to
but shall not exceed fifteen percent (15%) of the bandwidth
capacity provided to that building notwithstanding WinStar's
usage of any or all of such capacity in that building.
(ii) Williams T-1s that are to be implemented using
point-to-multipoint links between Lit Buildings in a Sector
and a WinStar Hub may go up to but shall not exceed fifteen
percent (15%) of the relevant Sector Capacity of that Hub
notwithstanding WinStar's usage of any or all of such Sector
Capacity in the Sector.
(iii)For Qualified Buildings lit at Williams' expense pursuant
to Section 3.4(b)(ii), the limitation set forth in
Subsection (c)(i), if applicable, shall be increased to
fifty percent (50%) for buildings lit point-to-point. In
addition, only seventy-five percent (75%) of the Williams
T-1s in such buildings will count towards the Williams
Connectivity limitation set forth in Subsection (a) above.
(iv) In accordance with Section 3.6, each Williams T-1 shall
count against the limitations set forth above for one (1)
year, regardless of whether or not the duration of its
connectivity lasts less than one (1) year. After its first
year of connectivity, each Williams T-1 shall count against
such limitations until disconnected.
(v) Williams may order Williams Connectivity only in multiples
of T-1 line speeds. Orders for line speeds higher than T-1
will count proportionately toward the limitations set forth
in this Subsection (c). For example, a DS-3 will count as
twenty-eight (28) T-1s. Apart from the applicability of the
limitations, the line speeds of the circuits constituting
the Williams Connectivity shall have no effect on the
respective rights and obligations of the Parties.
3.2. WinStar Acceptance and Testing.
(a) As of the Effective Date, Williams hereby agrees that Acceptance
of the initial fifty-seven (57) Hubs (the "Initial Hubs")
deployed by WinStar is deemed to have occurred. WinStar
represents and warrants that the Initial Hubs have met the
Acceptance Standards as of the Effective Date.
6
<PAGE>
(b) Prior to the use of each Hub deployed by WinStar following the
Effective Date, WinStar will have performed testing procedures in
accordance with Exhibit A-4, which are sufficient to verify
compliance with Acceptance Standards. Acceptance of each such Hub
shall occur as set forth in Exhibit A-4.
3.3. Control of Facilities.
Notwithstanding any other provision of this Agreement, WinStar has and
shall at all times continue to retain control over all FCC licenses,
equipment and facilities subject to this Agreement and shall have, at
all times, required access to all of the equipment and facilities
installed by it pursuant to this Agreement. In exercising this
control, WinStar will not disturb or interfere with the Williams T-1s
without good cause, such as a request from the FCC to shut down
interfering transmissions, emergency service restoration or correction
of other technical problems. WinStar shall provide Williams with as
much prior notice as is reasonably practicable in the case of
emergency disruptions of the Wireless Fiber Connectivity. WinStar
shall, with the reasonable cooperation and assistance of Williams, (i)
operate its business in all material respects in accordance with the
terms of the Governmental Authorizations and (ii) maintain the
validity of the Governmental Authorizations. WinStar agrees to provide
Williams with notice in the event matters come to WinStar's attention
that could materially prevent it from meeting its obligations under
this Agreement. In this regard, WinStar and Williams further agree as
follows:
(a) Williams shall not represent itself as the holder of any FCC
licenses issued to WinStar.
(b) Any communications by either Party with the FCC regarding the
subject matter of this Agreement shall require the other's prior
written approval.
(c) Neither WinStar nor Williams shall represent itself as the legal
representative of the other before the FCC or any state
regulatory body. Except as otherwise required by law, all filings
made before regulatory bodies with respect to WinStar's license
or the services provided hereunder shall be made by and in the
name of WinStar. WinStar and Williams will cooperate with each
other with respect to regulatory matters concerning WinStar's
licenses and the services provided pursuant to this Agreement;
provided, however, this will not relieve WinStar from complying
with the Governmental Authorizations.
(d) Nothing in this Agreement is intended to diminish or restrict
WinStar's obligations as an FCC licensee and both Parties desire
that this Agreement be in full compliance with the rules and
regulations of the FCC and any state or local jurisdiction. If
the FCC or any state regulatory body of competent jurisdiction
determines that any provision of this Agreement violates any
applicable rules, policies or regulations, both Parties shall
bear their respective Pro Rata Share of costs to immediately
bring this Agreement into compliance, consistent with the intent
of this Agreement.
(e) It is expressly understood by WinStar and Williams that nothing
in this Agreement is intended to give to Williams any right that
would be deemed to constitute a transfer of control (as "control"
is defined in the Communications Act of 1934, as amended, or any
applicable FCC rules or case law) of one or more of WinStar's
licenses from WinStar to Williams.
7
<PAGE>
3.4. Provisioning of Williams T-1s.
Except as otherwise provided in this Section 3.4, WinStar, at its own
expense, shall be solely responsible for obtaining and maintaining all
rights and privileges (including Required Rights, space and power)
that are necessary for WinStar to provide the Williams T-1s to the
WinStar common space.
(a) Subject to the limitations set forth in Section 3.1, Williams may
order T-1s to be connected to any Qualified Building (or a
building that would be a Qualified Building but for the obtaining
of Required Rights). If Williams orders Williams T-1s that are to
be connected to a Lit Building, WinStar will provision, on a
non-discriminatory basis, those T-1s to the common space at no
additional cost with an objective of completing that provisioning
within thirty (30) days from the date of Williams' order.
(b) If Williams orders Williams T-1s that are to be connected to a
Qualified Building (or a building that would be a Qualified
Building but for the obtaining of Required Rights) that is not a
Lit Building:
(i) WinStar shall determine within ninety (90) days of receipt
of notice from Williams whether, in its sole discretion, it
will light such building at its own expense. If WinStar so
elects, that notice shall set forth a target delivery date
and WinStar shall light that building and provision, on a
non-discriminatory basis, the T-1s to the common space with
the objective of completing such activities by the target
delivery date.
(ii) If WinStar elects not to light such building at its own
expense, WinStar will light the building upon Williams'
request, in accordance with a target delivery date
established by WinStar. Williams shall pay for such lighting
at WinStar's Cost of performance. Additionally, in such
event, Williams shall be responsible, with WinStar's
assistance, for obtaining and maintaining, at Williams'
expense, all necessary rights and privileges (including
Required Rights, space and power). Lighting, pursuant to
this Subsection 3.4(b)(ii), of more than five (5) buildings
connected to a single Hub, whether singly or in combination
over any period of time, shall be subject to WinStar's
approval which shall not be unreasonably withheld.
(c) When WinStar lights a building for provisioning a Williams T-1,
Williams will either:
(i) Perform inside wiring for its customers in such building
subject both to obtaining any necessary consents and to
WinStar's then-current installation guidelines and
specifications; or
(ii) Have WinStar perform such wiring at WinStar's Cost.
8
<PAGE>
3.5. Service Orders for Williams T-1s.
(a) The implementation of a Williams T-1 to a Lit Building shall be
requested on WinStar's Service Order forms in effect from time to
time ("Service Orders"). Each Service Order shall reference this
Agreement. WinStar reserves the right not to accept a Service
Order that does not conform with the terms and conditions of this
Agreement and such non-conforming Service Order shall have no
force or effect hereunder.
(b) Each Service Order will indicate a requested Start Date (the
"Requested Start Date") for the implementation of the Williams
T-1s to a Lit Building, the desired term of the Williams T-1s,
and any other parameters required. WinStar shall acknowledge
receipt of the Service Order, on average, within forty-eight (48)
hours (an "Acknowledgement").
(c) Once a Service Order is placed, Williams may cancel it only by
notice of cancellation not less then ten (10) days prior to
delivery of the corresponding Williams T-1, and payment of any
specified cancellation fee. Williams agrees that the actual
damages in the event of such cancellation would be difficult or
impossible to ascertain, and that the cancellation charge
including those set forth herein is consequently intended to
establish liquidated damages and not a penalty.
(d) Any conflicting, different or additional terms and conditions
contained in Williams' acknowledgment or Service Order or
elsewhere are deemed objected to by WinStar and shall not
constitute part of this Agreement. No action by WinStar
(including fulfillment of such Service Order) shall be construed
as binding or estopping WinStar with respect to such conflicting,
different or additional term or condition, unless the Service
Order containing said term or condition has been signed by an
authorized representative of WinStar.
(e) WinStar shall make reasonable efforts to provide the Williams
T-1s within the service implementation interval set forth in
Section 3.5(b) or by Williams' Requested Start Date. Williams
T-1s shall begin on the date WinStar issues notice that service
is available (the "Start of Service Notice" or "SOSN"),
indicating the Williams T-1 has been tested by WinStar in
accordance with WinStar's standard specifications and that the
service meets or exceeds those specifications.
(f) Williams may reasonably request one or more delays in the
Requested Start Date of a Service Order, a move, or rearrangement
if WinStar receives the delay request at least fifteen (15) days
prior to the Requested Start Date and the requested delay does
not extend the Requested Start Date more than thirty (30) days
from the original date thereof. If Williams delays the Requested
Start Date (or as gauged by the SOSN, if issued for a date after
the Requested Start Date) by more than thirty (30) days, the
Williams T-1s will count against the Minimum Williams T-1
Inventory and the Williams Connectivity for a period of one (1)
year. This count against the Minimum Williams T-1 Inventory and
Williams Connectivity will be effective thirty (30) days after
the Requested Start Date.
9
<PAGE>
3.6. Changes in Service Parameters.
Following the relevant Start Date for any Williams T-1, Williams may
disconnect or reconfigure that service upon sixty (60) days' prior
written notice. If that action relates to a Williams T-1 that has not
been in place for at least one (1) year from its Start Date, (i) such
Williams T-1 will continue to count against the Minimum Williams T-1
Inventory and Williams Connectivity for the remainder of the one (1)
year period; and (ii) Williams shall also pay WinStar the additional
charges incurred by WinStar that are associated with that
disconnection or reconfiguration. Subsection (ii) shall also apply
with respect to a cancellation as provided in Section 3.5(c).
3.7. Delivery of Minimum Williams T-1 Inventory.
(a) Availability Date. The "Availability Date" shall mean (i) the
Effective Date with respect to the Minimum Williams T-1 Inventory
identified in Exhibit A-6 to be provided to Williams as of the
Effective Date, and (ii) December 31st of each calendar year
following 1998 through the end of the Term with respect to each
annual number of Minimum Williams T-1 Inventory identified in
Exhibit A-6 for such calendar year. The "Deadline Date" shall be
sixty (60) days after the later of (i) such planned Availability
Date or (ii) the planned Availability Date as extended due to
unforeseen events not in the reasonable control of WinStar (other
than as due to WinStar's negligence), Force Majeure events or as
expressly permitted by this Agreement. WinStar shall make
available each of its annual Minimum Williams T-1 Inventories by
the applicable Deadline Date. WinStar shall give Williams as much
prior notice as reasonably possible if, to the best of WinStar's
knowledge, there is a foreseeable risk that it may miss a
Deadline Date for its Minimum Williams T-1 Inventory.
(b) Failure to Meet Deadline Date. If WinStar fails to make available
the Minimum Williams T-1 Inventory by its applicable Deadline
Date, and the Parties are unable, in good faith, to agree to an
alternative Deadline Date, Williams' sole and exclusive monetary
remedy for such failure shall be to obtain Cover (as hereinafter
defined) beginning on the Deadline Date for the number of T-1s
not made available. "Cover" shall be satisfied by obtaining, at
WinStar's expense, the number of T-1s that would have been
available had WinStar made available the entire applicable
Minimum Williams T-1 Inventory. Once WinStar makes such T-1s
available, the Parties will work together to migrate the T-1s to
WinStar at WinStar's sole cost and expense.
4. OTHER PERFORMANCE AND SERVICES
4.1. Interconnection.
(a) With respect to each of the WinStar Target Markets, the Parties
shall mutually determine the most efficient manner of providing
the required connectivity ("Interconnection") between the WinStar
and Williams points of presence, whether through then-existing
installed capacity, implementation of new capacity or third party
arrangements. In addition, the Parties shall set and periodically
review the schedule (timing and priority) of implementation of
those Interconnection facilities and shall adhere to that
schedule in implementing such facilities.
10
<PAGE>
(b) The Parties shall allocate the costs of each Interconnection
facility as follows:
(i) The Parties shall mutually agree upon a forecast of each
Party's usage of that Interconnection facility during the
first year after implementation (the "Forecast"). The
non-recurring costs associated with the implementation of
that facility and the recurring cost thereof in the first
month of operation (in aggregate, the "Start-up Costs") will
be allocated pro rata between the Parties based upon the
Forecast. One year thereafter the Parties shall re-calculate
the allocation of the Start-up Costs by substituting actual
usage during the preceding year in place of the Forecast.
Based upon that recalculation, Williams shall pay or receive
a refund, in either case equal to the difference between the
initial allocation of the Start-up Costs and the
recalculated amount, plus interest at the Prime Rate for the
applicable period.
(ii) On a quarterly basis, the Parties shall allocate the
periodic recurring costs of that Interconnection facility
pro rata between the Parties based upon actual usage during
the preceding quarter.
(iii)Following the Effective Date, the Parties will mutually
develop appropriate procedures to implement the foregoing.
4.2. Collocation.
Exhibit A-3 sets forth the collocation services, terms and conditions.
4.3. Maintenance.
WinStar shall be responsible for providing maintenance, repair and
testing on all WinStar Equipment used to provide the Williams T-1s, in
accordance with its then-current standard policies and procedures, a
portion of which is attached hereto as Exhibit A-4. Williams is
prohibited from providing any maintenance, repair or testing with
regard to WinStar Equipment.
4.4. Routine Maintenance.
During the Term, WinStar shall perform all required Routine
Maintenance Services at the charges set forth in Schedule C. "Routine
Maintenance Services" means the work specifically identified as
Routine Maintenance Services in Article 5 of Schedule A, provided that
Routine Maintenance Services excludes work for which Williams is
obligated to reimburse WinStar for all or a portion of the Costs
incurred pursuant to other provisions of this Agreement.
4.5. Non-Routine Maintenance.
Williams shall pay its Pro Rata Share of WinStar's direct Costs for
maintenance in respect of the Williams Connectivity other than Routine
Maintenance Services, if the Cost of such work relating to any single
event or multiple related events is greater than Five Thousand Dollars
($5,000.00).
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4.6. Subcontractors.
WinStar may subcontract provisioning, testing, maintenance, repair,
restoration, relocation or other operational and technical services it
is obligated to provide hereunder or may have the underlying facility
owner or its contractor perform such obligations. Such subcontracting
shall not relieve WinStar of any obligations under this Agreement.
4.7. Williams Equipment.
WinStar's maintenance and repair obligations under this Agreement
shall not include maintenance, repair or replacement of Williams'
equipment.
4.8. Performance Standards.
Except as otherwise set forth in Schedule B, for the purpose of this
Agreement 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.
4.9. Disengagement Assistance.
Upon termination or expiration of this Agreement, WinStar shall
provide Williams and its designated third party providers all
reasonable assistance as necessary to effect a smooth transition to a
new supplier.
4.10. Relocation.
(a) If WinStar determines for bona fide operational reasons, or is
required by a third party acting pursuant to condemnation or
similar authority or by a governmental entity, to relocate all or
any portion of a Hub or any of the facilities used or required in
providing Williams with the Williams IRU, WinStar shall, to the
extent practicable, provide Williams sixty (60) days' prior
notice and shall proceed with such relocation. WinStar shall have
the right to direct such relocation, including 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 this Agreement
and applicable Exhibits;
(ii) Shall not result in a materially adverse change to the
operations or performance of the Hub, and
(iii) Shall not unreasonably interrupt service on the Hub.
For purposes of this Section 4.10, a WinStar relocation shall be
for bona fide operational reasons if it is undertaken in good
faith (i) to settle or avoid a bona fide threatened or filed
condemnation action or order by a governmental authority to
relocate, (ii) to reduce the likelihood of physical damage, (iii)
as the result of a Force Majeure Event, or (iv) for other
operational reasons to which Williams has consented, provided
that Williams shall not unreasonably withhold such consent.
WinStar shall use reasonable efforts to contest any exercise of
condemnation authority that would require a relocation pursuant
to this Section 4.10.
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(b) Unless such relocation is necessitated by a breach of WinStar's
obligations under this Agreement, Williams shall reimburse
WinStar for the Costs incurred in the same manner and to the same
extent as set forth for reimbursement for Costs of maintenance
other than for Routine Maintenance Services in Section 4.5.
4.11. Ancillary Services.
WinStar may also provide other services to Williams for reasons
including: (a) Williams' request to expedite Williams T-1 availability
to a date earlier than WinStar's published installation interval or a
previously accepted Start Date; (b) Williams T-1 redesign or other
activity occasioned by receipt of inaccurate information from
Williams; (c) Williams' request for use of facilities other than those
selected by WinStar for provision of the Wireless Fiber Connectivity
("facilities" for this purpose shall not include buildings that became
Lit Buildings pursuant to Section 3.4(b)(i)); and (d) other
circumstances in which extraordinary costs and expenses are generated
at the written request of Williams and incurred by WinStar
(collectively, "Ancillary Services").
5. CONTRACT ADMINISTRATION
5.1. Reports and Meetings.
(a) Within thirty (30) days of the Effective Date, the Parties shall
mutually agree upon a set of monthly reports to be issued by
WinStar to Williams. WinStar will provide Williams with suggested
formats for such reports for Williams' review and approval. As
one such report, WinStar will provide a monthly performance
report that describes WinStar's deployment of the Hubs,
availability of the applicable Minimum Williams T-1 Inventory and
a forecast of upcoming WinStar Target Market implementations
(including Hubs, buildings and addresses).
(b) Within thirty (30) days of the Effective Date, the Parties shall
mutually agree upon a set of regular management meetings. WinStar
will prepare and circulate an agenda sufficiently in advance of
each such meeting to give participants an opportunity to prepare
for the meeting and will incorporate into such agenda any items
that Williams desires to discuss. At Williams' request, WinStar
will prepare and circulate minutes promptly after a meeting.
5.2. Confidentiality.
(a) Confidential Information. Williams and WinStar each acknowledge
that they may be furnished with, receive or otherwise have access
to information of or concerning the other Party that such Party
considers to be confidential, proprietary, a trade secret or
otherwise restricted. As used in this Agreement and subject to
Section (c), "Confidential Information" means all information, in
any form, furnished or made available directly or indirectly by
one Party (the "Disclosing Party") to the other (the "Receiving
Party") that (i) concerns the operations, facilities, plans,
affairs and businesses of the Disclosing Party, the financial
affairs of the Disclosing Party, and the relations of the
Disclosing Party with its customers, employees and service
providers, or (ii) is marked confidential, restricted,
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proprietary, or with a similar designation. The terms and
conditions of this Agreement shall be deemed Confidential
Information, but may be disclosed pursuant to this Section 5.2 or
Section 12.15.
(b) Obligations.
(i) Each Party's Confidential Information shall remain the
property of that Party except as expressly provided
otherwise by the other provisions of this Agreement. Each
Party shall each use at least the same degree of care, but
in any event no less than a reasonable degree of care, to
prevent unauthorized disclosure of Confidential Information
as it employs to avoid unauthorized disclosure of its own
information of a similar nature. Except as otherwise
permitted hereunder, the Parties may disclose such
information (A) to their respective directors, officers,
managers, employees, agents, contractors and consultants
(collectively, "Representatives"), (B) to entities
performing services required hereunder only where: (1) use
of such entity is authorized under this Agreement, (2) such
disclosure is necessary or otherwise naturally occurs in
that entity's scope of responsibility, (3) the entity agrees
in writing to assume the obligations described in this
Subsection (b). Any disclosure to such entity shall be under
substantially the same confidentiality terms and conditions
set forth herein.
(ii) Each Party shall take reasonable steps to ensure that its
(and its Affiliates') Representatives comply with this
Subsection (b). In the event of any disclosure or loss of,
or inability to account for, any Confidential Information of
the Disclosing Party, the Receiving Party shall promptly, at
its own expense: (A) notify the Disclosing Party in writing;
and (B) take such actions as may be necessary and cooperate
in all reasonable respects with the Disclosing Party to
minimize the violation and any damage resulting therefrom.
(iii)Either Party may disclose the terms and conditions of this
Agreement to any third party that (A) has expressed a bona
fide interest in consummating a significant financing,
merger or acquisition or other corporate transaction between
such third party and such Party, (B) has a reasonable
ability (financial and otherwise) to consummate such
transaction, and (C) has executed a nondisclosure agreement
that includes within its scope the terms and conditions of
this Agreement and also includes a procedure to limit the
extent of copying and distribution thereof. Each Party shall
endeavor to delay the disclosure of the terms and conditions
of this Agreement until the status of discussions concerning
such transaction warrants such disclosure. In addition,
either party (or either party's Affiliates) may disclose the
terms and conditions of this Agreement as such party deems
appropriate to prepare for IPOs or major corporate
transactions. Any disclosure to such entity shall be
substantially under the same confidentiality terms and
conditions as provided herein.
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(c) Exclusions. "Confidential Information" shall exclude any
particular information that the Receiving Party can demonstrate:
(i) At the time of disclosure, was in the public domain or in
the rightful possession of the Receiving Party;
(ii) After disclosure, is published or otherwise becomes part of
the public domain through no fault of the Receiving Party;
(iii)Was received after disclosure from a third party who had a
lawful right to disclose such information to the Receiving
Party without any obligation to restrict its further use or
disclosure;
(iv) Was independently developed by the Receiving Party without
reference to Confidential Information of the Disclosing
Party; or
(v) Was required to be disclosed to satisfy a legal requirement
of a competent government body; provided that, immediately
upon receiving such request and to the extent that it may
legally do so, the Receiving Party advises the Disclosing
Party promptly and prior to making such disclosure in order
that the Disclosing Party may interpose an objection to such
disclosure, take action to assure confidential handling of
the Confidential Information, or take such other action as
it deems appropriate to protect the Confidential
Information.
(d) No Implied Rights. Nothing contained in this Section shall be
construed as obligating a Party to disclose its Confidential
Information to the other Party, or as granting to or conferring
on a Party, expressly or impliedly, any rights or license to the
Confidential Information of the other Party.
6. CHARGES
6.1. General.
The charging mechanisms and pricing methodologies for Wireless Fiber
Connectivity and maintenance and collocation services are set forth in
Schedule C.
6.2. Taxes.
The Parties' respective responsibilities for taxes arising under or in
connection with this Agreement shall be as follows:
(a) Each Party shall be responsible for personal property taxes on
property it owns or leases, for franchise and privilege taxes on
its business, and for taxes based on its net income or gross
receipts; provided, however, that Williams shall be responsible
for its proportionate share (based upon the proportion of the Hub
or building capacity used for Williams T-1) of any property taxes
(or similar levies) assessed as a result of the implementation of
any Williams T-1.
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(b) Williams shall timely report and pay any and all sales, use,
income, gross receipts, excise, transfer, ad valorem or other
taxes, and any and all franchise fees or similar fees assessed
against it due to the Williams IRU or its use of the Williams
T-1s.
(c) If a sales, use, excise, value-added, services, consumption, or
other tax is assessed on the provision of the Wireless Fiber
Connectivity, Maintenance or any other services, the Parties
shall work together to segregate the payments under this
Agreement into three (3) payment streams:
(i) Payments for taxable items;
(ii) Payments where Williams functions merely as a payment agent
for WinStar; and
(iii) Payments for other nontaxable items.
(d) The Parties agree to cooperate with each other to enable each to
determine more accurately its own tax liability and to minimize
such liability to the extent legally permissible. Each invoice
shall separately state the amounts of any taxes collected. Each
Party shall provide and make available to the other any resale
certificates and other exemption certificates or information
reasonably requested by either Party that is applicable to the
subject matter of this Agreement.
(e) Each Party shall promptly notify the other of, and coordinate the
response to and settlement of, any claim for taxes asserted by
applicable taxing authorities for which the other Party is
responsible hereunder. With respect to any claim arising out of a
form or return signed by a Party to this Agreement, such Party
shall have the right to elect to control the response to and
settlement of the claim, but the other Party shall have all
rights to participate in the responses and settlements that are
appropriate to its potential responsibilities or liabilities.
6.3. Pass-Through Expenses.
For each Pass-Through Expense, if any, WinStar shall review the
invoiced charges and determine whether such charges are proper and
valid. Unless the Parties mutually agree otherwise, Pass-Through
Expenses will be paid directly by Williams.
6.4. Most Favored Customer Status.
(a) Williams T-1s. With regard to the Williams Connectivity, Williams
shall have most favored customer protection as follows:
(i) During the twenty-four (24) months following the Effective Date,
if WinStar enters into an agreement with another party to provide
Wireless Fiber Connectivity and the overall pricing ("Financial
Terms") of such services is not Comparable (as hereinafter
defined) to that provided to Williams pursuant to this Agreement
with regard to the Williams Connectivity, WinStar shall promptly
notify Williams in writing of such more favorable Financial
Terms. WinStar shall be under no obligation to disclose to
Williams the identify of any such third party or any other
provisions of such a contract that are not more favorable than
those provided to Williams. As used in this Section, "Comparable"
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means not less than one-half the price, after adjustments to take
into account all differences attributable to volume, terms and
conditions, advances in technology, passage of time, market
conditions or strategic relationship value.
(ii) If WinStar sells Wireless Fiber Connectivity to a third party on
Financial Terms that are not Comparable to those provided
hereunder, Williams shall be entitled to an adjustment of the
amounts paid with regard to the Williams Connectivity. Such
adjustment shall be equal to twice the aggregate amount necessary
to make the Financial Terms Comparable and shall be credited in
such amounts as correspond to the timing of Williams' payment
obligations hereunder. Upon payment or credit of such adjustment
to Williams, the Financial Terms of this Agreement shall be
deemed to be those more favorable Financial Terms for the purpose
of future applications of this Section. Nothing in this Section
6.4 shall be deemed to require WinStar to sell more Wireless
Fiber Connectivity than the Williams Connectivity.
(b) Excess Connectivity. With regard to Wireless Fiber Connectivity
in excess of the Williams Connectivity or Williams T-1 Ceiling,
as appropriate ("Excess Connectivity"), Williams shall have most
favored customer protection as follows:
(i) During the Term, if WinStar enters into an agreement with another
part to provide Wireless Fiber Connectivity and the Financial
Terms of such services are not Comparable (as hereinafter
defined) to that provided to Williams for Excess Connectivity
pursuant to this Agreement, WinStar shall promptly notify
Williams in writing of such more favorable Financial Terms.
WinStar shall be under no obligation to disclose to Williams the
identity of any such third party or any other provisions of such
a contract that are not more favorable than those provided to
Williams. As used in this Section, "Comparable" means an
equivalent price, after adjustments to take into account all
differences attributable to volume, terms and conditions,
advances in technology, passage of time, market conditions or
strategic relationship value.
(ii) If WinStar sells Wireless Fiber Connectivity to a third party on
Financial Terms that are not Comparable to those provided
hereunder with regard to Excess Connectivity, Williams shall be
entitled to an adjustment. Such adjustment shall be equal to the
amount necessary to make the Financial Terms Comparable and shall
be credited in such amounts as correspond to the timing of
Williams' payment obligations hereunder. Upon payment or credit
of such adjustment to Williams, the Financial Terms of this
Agreement shall be deemed to be those more favorable Financial
Terms for the purpose of future applications of this Section.
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6.5. Benchmarking.
(a) Wireless Fiber Connectivity offered by WinStar in excess of the
Williams Connectivity, if any, shall be of equivalent or better
quality, availability and price when compared to similar
offerings in the marketplace. However, nothing in this Section
6.5 shall be deemed to require WinStar to sell more Wireless
Fiber Connectivity than the Williams Connectivity.
(b) Within 180 days after the Effective Date, the Parties will
jointly establish a benchmarking measurement and comparison
process (the "Benchmarking Process") designed to objectively
evaluate whether the Wireless Fiber Connectivity purchased by
Williams in excess of the Williams Connectivity is of equivalent
or better quality, availability and price as compared to similar
services generally available in the market for similar size and
scope requirements ("Market Level Charges"). The Benchmarking
Process will take into consideration relevant factors such as
quality and delivery terms.
7. INVOICING AND PAYMENT
7.1. Invoicing.
WinStar shall invoice Williams for all amounts due under this
Agreement prior to the payment dates set forth in Schedule C and on a
monthly basis in arrears for all other charges. Each invoice shall
show such details as reasonably requested by Williams, separately
state the amounts of any taxes collected and include the calculations
utilized to establish the charges.
7.2. Payment Due.
(a) Subject to the other provisions of this Article 7, invoices
provided for under Section 7.1 and properly submitted to Williams
pursuant to this Agreement shall be due and payable by Williams
within thirty (30) days after receipt thereof. Any amount due
under this Agreement for which a time for payment is not
otherwise specified shall be due and payable within thirty (30)
days after receipt of a proper invoice for such amount.
(b) To the extent a credit may be due Williams pursuant to this
Agreement, WinStar shall provide Williams with an appropriate
credit against amounts then due and owing; if no further payments
are due to WinStar, WinStar shall pay such amounts to Williams
within thirty (30) days.
(c) Williams shall make payments provided for under this Article 7 or
Schedule C by wire transfer of immediately available funds to the
account or accounts designated by WinStar. All other payments to
be made pursuant to this Agreement may be made by check or draft
of immediately available funds delivered to the address
designated in writing by the other Party (e.g., in a statement or
invoice) or, failing such designation, to the address for notice
to such other Party provided pursuant to Section 12.8.
(d) The first invoice provided under this Agreement shall be due and
payable within sixty (60) days of the Effective Date.
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7.3. Disputed Charges.
Williams shall pay undisputed charges when such payments are due under
this Agreement. Williams may withhold payment of particular charges
that Williams disputes in good faith and for which it promptly gives
written notice to WinStar, stating the details of such dispute. The
Parties shall promptly refer such matter to dispute resolution in
accordance with Section 11.2. If Williams withholds any disputed
charges and such charges are ultimately determined to be proper and
payable to WinStar, Williams shall pay such charges to WinStar plus
interest at the Prime Rate from the date such charges were originally
due until the date such charges are paid. WinStar agrees that no
payment dispute shall be grounds for WinStar to withhold or diminish
the quality or quantity of any of the connectivity and services
provided hereunder.
7.4. Late Interest.
If either Williams or WinStar fails to make any payment under this
Agreement when due, such amounts shall accrue interest, from the date
such payment is due until paid, including accrued interest, at the
Prime Rate.
8. COVENANTS, REPRESENTATIONS AND WARRANTIES
8.1. Non-Infringement.
Each Party represents, warrants and covenants to the other that it
shall perform its responsibilities under this Agreement in a manner
that does not infringe, or constitute an infringement or
misappropriation of, any Intellectual Property Rights of any third
party.
8.2. Authorization.
Each Party represents and warrants to the other that:
(a) It has the requisite corporate power and authority to enter into
this Agreement and to carry out the transactions contemplated by
this Agreement;
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement
have been duly authorized by the requisite corporate action on
the part of such Party;
(c) This Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms;
(d) 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;
(e) It is not subject to any contractual or other obligation that
would prevent it from entering into this relationship; and
(f) It has not offered or provided any inducements in violation of
law or the other Party's policies of which it has been given
notice, in connection with this Agreement.
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8.3. Wireless Fiber Connectivity.
Excluding services provided by third parties other than WinStar's
subcontractors, WinStar covenants that the Williams T-1s shall be
designed, engineered, installed, constructed and operated in
accordance with the specifications set forth in the applicable
services schedule. WinStar further covenants that it will use its
commercially reasonable efforts under the circumstances to remedy any
delays, interruptions, omissions, mistakes, accidents or errors in the
Williams T-1s provided hereunder and to restore such Williams T-1s to
compliance with the terms hereof.
8.4. Disclaimer.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PARTIES MAKE
NO WARRANTY TO EACH OTHER OR ANY OTHER ENTITY, WHETHER EXPRESS,
IMPLIED OR STATUTORY, AS TO THE MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OF ANY WIRELESS FIBER CONNECTIVITY, WILLIAMS T-1s,
HUBS, ANCILLARY SERVICES OR ANY OTHER SERVICES PROVIDED HEREUNDER OR
DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES
ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
9. INDEMNIFICATION
9.1. Indemnities by Williams.
Williams agrees to indemnify, defend and hold harmless WinStar and its
Affiliates and their respective officers, directors, employees,
agents, successors, and assigns, from any and all Losses and
threatened Losses arising from, in connection with, or based on
allegations of, any of the following:
(a) Williams' failure to observe or perform its duties or obligations
to third parties (e.g., duties or obligations to subcontractors);
(b) Williams' infringement or misappropriation of any Intellectual
Property Rights of any third party;
(c) Williams' unexcused failure to abide by the terms and conditions
of the business relationship as mutually agreed to by the Parties
in writing;
(d) The death or bodily injury of any agent, employee, customer,
business invitee or any other person to the extent caused by the
tortious conduct of Williams;
(e) The damage, loss or destruction of any real or tangible personal
property to the extent caused by the tortious conduct of
Williams;
(f) Fines, penalties or other amounts payable due to Williams'
violation of applicable laws or regulations; and
(g) Any claim, demand, charge, action, cause of action, or other
proceeding asserted against WinStar but resulting from an act or
omission of Williams in its capacity as an employer of a person.
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9.2. Indemnities by WinStar.
WinStar agrees to indemnify, defend and hold harmless Williams and its
Affiliates and their respective officers, directors, employees,
agents, successors, and assigns, from any and all Losses and
threatened Losses arising from, in connection with, or based on
allegations of, any of the following:
(a) WinStar's failure to observe or perform its duties or obligations
to third parties (e.g., duties or obligations to its customers);
(b) WinStar's infringement or misappropriation of Intellectual
Property Rights of any third party;
(c) WinStar's unexcused failure to abide by the terms and conditions
of the business relationship as mutually agreed to by the Parties
in writing;
(d) The death or bodily injury of any agent, employee, customer,
business invitee or any other person to the extent caused by the
tortious conduct of WinStar;
(e) The damage, loss or destruction of any real or tangible personal
property to the extent caused by the tortious conduct of WinStar;
(f) Fines, penalties or other amounts payable due to WinStar's
violation of applicable laws or regulation; and
(g) Any claim, demand, charge, action, cause of action, or other
proceeding asserted against Williams but resulting from an act or
omission of WinStar in its capacity as an employer of a person.
9.3. Indemnification Procedures.
With respect to third-party claims, the following procedures shall
apply:
(a) Promptly after receipt of notice of the commencement or
threatened commencement of any civil, criminal, administrative,
or investigative action or proceeding involving a claim in
respect of which the indemnitee will seek indemnification
pursuant to this Article 9, the indemnitee will notify the
indemnitor of such claim in writing. No failure to so notify the
indemnitor will relieve the indemnitor of its obligations under
this Agreement except to the extent that it can demonstrate
damages attributable to such failure. Within fifteen (15)
calendar days following receipt of written notice from the
indemnitee relating to any claim, but no later than ten (10)
calendar days before the date on which any response to a
complaint or summons is due, the indemnitor will notify the
indemnitee in writing if the indemnitor elects to assume control
of the defense and settlement of that claim (a "Notice of
Election").
(b) If the indemnitor delivers a Notice of Election relating to any
claim within the required notice period, the indemnitor shall be
entitled to have sole control over the defense and settlement of
such claim; provided that (i) the indemnitee shall be entitled to
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participate in the defense of such claim and to employ counsel at
its own expense to assist in the handling of such claim, and (ii)
the indemnitor shall obtain the prior written approval, not to be
unreasonably withheld or delayed, of the indemnitee before
entering into any settlement of such claim or ceasing to defend
against such claim. After the indemnitor has delivered a Notice
of Election relating to any claim in accordance with the
preceding paragraph, the indemnitor shall not be liable to the
indemnitee for any legal expenses incurred by the indemnitee in
connection with the defense of that claim. In addition, the
indemnitor shall not be required to indemnify the indemnitee for
any amount paid or payable by the indemnitee in the settlement of
any claim for which the indemnitor has delivered a timely Notice
of Election if such amount was agreed to without the written
consent of the indemnitor.
(c) If the indemnitor does not deliver a Notice of Election relating
to any claim within the required notice period, or ceases to
defend against the claim, the indemnitee shall have the right to
defend the claim in such manner as it may deem appropriate, at
the cost and expense of the indemnitor. The indemnitor shall
promptly reimburse the indemnitee for all such costs and
expenses.
10. LIABILITY, RISK OF LOSS AND INSURANCE
10.1. General Intent.
Subject to the specific provisions of this Article 10, it is the
intent of the Parties that each Party shall be liable to the other
Party for any actual damages incurred by the non-breaching Party as a
result of the breaching Party's failure to perform its obligations in
the manner required by this Agreement.
10.2. Liability Restrictions.
(a) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF
WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY
BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR
SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(b) Subject to Subsection (c), below, each Party's total liability to
the other, whether in contract or in tort (including breach of
warranty, negligence and strict liability in tort) shall be
limited to two hundred million dollars ($200,000,000).
(c) The limitation set forth in Subsections (b), above, shall not
apply with respect to: (i) third-party claims subject to
indemnification pursuant to the Agreement; (ii) fees due and
owing under this Agreement at the time of the claim; and (iii)
amounts subject of Cover as provided in Section 3.7(b).
(d) For the purposes of this Section 10.2, all amounts payable or
paid to third parties in connection with claims that are eligible
for indemnification pursuant to this Agreement shall be deemed
direct damages.
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10.3. Insurance Requirements.
(a) During the Term, WinStar shall have and maintain in force the
following insurance coverages:
(i) Worker's Compensation and Employer's Liability. Worker's
Compensation Insurance in amounts required by applicable law
and Employers Liability Insurance with limits not less than
$1,000,000 each accident. If work is to be performed in
Nevada, North Dakota, Ohio, Washington, Wyoming or West
Virginia, the party shall participate in the appropriate
state fund(s) to cover all eligible employees and provide a
stop gap endorsement for these monopolistic states in
WinStar's Worker's Compensation Insurance Program.
(ii) Commercial General Liability. WinStar shall carry broadform
general liability insurance coverage for property damage,
bodily injury, personal injury, contractual liability and
accidental pollution legal liability with coverage of at
least $10,000,000 per occurrence and in the aggregate. Total
limits can be attained by the inclusion of an
Umbrella/Excess Liability policy.
(iii)Automobile Liability. WinStar shall carry automobile
liability insurance written on the occurrence form of
policy. The policy shall provide for bodily injury and
property damage liability covering the operation of all
automobiles used in connection with performing under the
Agreement and shall provide coverage of at least $2,000,000
per occurrence.
(b) WinStar shall cause its insurers to issue certificates of
insurance evidencing that the coverages required under this
Agreement are maintained in force. The minimum limits of coverage
specified herein are not intended, and shall not be construed, to
limit any liability or indemnity of WinStar under this Agreement.
(c) Nothing in this Agreement shall be construed to prevent WinStar
from satisfying its insurance obligations pursuant to this
Agreement under a blanket policy or policies of insurance that
meet or exceed the requirements of this Article.
10.4. Risk of Loss.
(a) Each Party shall promptly notify the other of any matters
pertaining to any damage or impending damage to or loss of
Wireless Fiber Connectivity known to it that could reasonably be
expected to adversely affect the Wireless Fiber Connectivity.
(b) Each Party shall take all reasonable precautions against, and
shall assume liability for, subject to the terms of this
Agreement, any damage caused by it to the property of the other
Party.
(c) Neither Party shall use, or allow others to use, equipment,
technologies, or methods of operation that interfere in any way
with or adversely affect the Williams Connectivity or the
permitted use thereof by Williams, WinStar or authorized third
parties.
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(d) Williams shall not cause or permit any part of the Williams T-1s
to become subject to any mechanic's lien, materialman's lien,
vendor's lien or any similar lien or encumbrance whether by
operation of law or otherwise.
10.5. Force Majeure.
(a) No Party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and to the
extent such default or delay is caused, directly or indirectly,
by fire, flood, lightning, earthquake, elements of nature or acts
of God, riots, civil disorders, rebellions or revolutions in any
country or any other cause beyond the reasonable control of such
Party; provided, however, that (i) the non-performing Party is
without fault in causing such default or delay, and (ii) such
default or delay could not have been prevented by reasonable
precautions and cannot reasonably be circumvented by the
non-performing Party through the use of alternate sources,
workaround plans or other means, including means contemplated by
applicable disaster recovery processes or procedures).
(b) In such event the non-performing Party shall be excused from
further performance or observance of the obligation(s) so
affected for as long as such circumstances prevail and such Party
continues to use commercially reasonable efforts to recommence
performance or observance whenever and to whatever extent
possible without delay. Any Party so delayed in its performance
shall immediately notify the other Party by telephone (to be
confirmed in writing within two (2) business days of the
inception of such delay) and describe at a reasonable level of
detail the circumstances causing such delay. The non-performing
party will provide the other party prompt written notice of the
cessation or termination of the force majeure event.
11. REMEDIES AND DISPUTE RESOLUTION
Any dispute between the Parties arising out of or relating to this
Agreement, including with respect to the interpretation of any provision of
this Agreement and with respect to the performance by Williams or WinStar,
shall be resolved as provided in this Article 11.
11.1. Cumulative Nature.
Except as otherwise expressly provided herein, all remedies provided
for in this Agreement shall be cumulative and in addition to and not
in lieu of any other remedies available to either Party at law, in
equity or otherwise.
11.2. Informal Dispute Resolution.
(a) Prior to the initiation of formal dispute resolution procedures
(i.e., arbitration), the Parties shall first attempt to resolve
their dispute at the senior manager level. If that level of
dispute resolution is not successful, the Parties shall proceed
informally, as follows:
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(i) Upon the written request of either Party, each Party shall
appoint a designated representative who does not otherwise
devote substantially full time to performance under this
Agreement, whose task it will be to meet for the purpose of
endeavoring to resolve such dispute.
(ii) The designated representatives shall meet as often as the
Parties reasonably deem necessary in order to gather and
furnish to the other all information with respect to the
matter in issue that the Parties believe to be appropriate
and germane in connection with its resolution. The
representatives shall discuss the problem and attempt to
resolve the dispute without the necessity of any formal
proceeding.
(iii)During the course of discussion, all reasonable requests
made by one Party to another for non-privileged
non-confidential information reasonably related to this
Agreement shall be honored so that each of the Parties may
be fully advised of the other's position.
(iv) The specific format for the discussions shall be left to the
discretion of the designated representatives.
(b) Prior to instituting formal proceedings, the Parties will first
have their chief executive officers meet to discuss the dispute.
This requirement shall not delay the institution of formal
proceedings past any statute of limitations expiration or for
more than fifteen (15) days.
(c) Subject to Subsection (b), formal proceedings for the resolution
of a dispute may not be commenced until the earlier of:
(i) The designated representatives concluding in good faith that
amicable resolution through continued negotiation of the
matter does not appear likely; or
(ii) Thirty (30) days after the initial written request to
appoint a designated representative pursuant to Subsection
(a), above, (this period shall be deemed to run
notwithstanding any claim that the process described in this
Section 11.2 was not followed or completed).
(d) This Section 11.2 shall not be construed to prevent a Party from
instituting, and a Party is authorized to institute, formal
proceedings earlier to avoid the expiration of any applicable
limitations period, or to preserve a superior position with
respect to other creditors or as provided in Section 11.6(a).
11.3. Arbitration.
If the Parties are unable to resolve a dispute as contemplated by
Section 11.2, and that dispute is not subject to 11.6(a) of this
Agreement, then such dispute shall be submitted to mandatory and
binding arbitration at the election of either Party (the "Disputing
Party") pursuant to the following conditions:
(a) Selection of Arbitrator. The Disputing Party shall notify the
American Arbitration Association ("AAA") and the other Party,
describing in reasonable detail the nature of the dispute, (the
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<PAGE>
"Dispute Notice") and shall request that the AAA furnish a list
of five (5) possible arbitrators who have substantial experience
in the telecommunications industry. Each Party shall have fifteen
(15) days to reject two (2) of the proposed arbitrators. If only
one individual has not been so rejected, that person shall serve
as arbitrator; if two (2) or more individuals have not been so
rejected, the AAA shall select the arbitrator from those
individuals.
(b) Conduct of Arbitration. The arbitrator shall allow reasonable
discovery in the forms permitted by the Federal Rules of Civil
Procedure, to the extent consistent with the purpose of the
arbitration. The arbitrator shall have no power or authority to
amend or disregard any provision of this Section 11.3 or any
other provision of this Agreement. In particular, the arbitrator
shall not have the authority to exclude the right of a Party to
terminate this Agreement when a Party would otherwise have such
right. The arbitration hearing shall be commenced promptly and
conducted expeditiously.
(c) Replacement of Arbitrator. Should the arbitrator refuse or be
unable to proceed with arbitration proceedings as called for by
this Section, such arbitrator shall be replaced and a rehearing
shall take place in accordance with the provisions of this
Section. In such case, the replacement for the arbitrator shall
be either selected by the AAA from the original group of
potential arbitrators that were not rejected by the Parties or,
if there are no such arbitrators available, selected by repeating
the process of selection described in Subsection (a), above.
(d) Findings and Conclusions. The arbitrator rendering judgment upon
disputes between Parties as provided in this Section shall, after
reaching judgment and award, prepare and distribute to the
Parties a writing describing the findings of fact and conclusions
of law relevant to such judgment and award. The award of the
arbitrator shall be final and binding on the Parties, and
judgment thereon may be entered in a court of competent
jurisdiction.
(e) Place of Arbitration Hearings. Arbitration hearings hereunder
shall be held in Chicago, Illinois. If the Parties mutually
agree, arbitration hearings may be held in another location.
(f) Time of the Essence. The arbitrator is instructed that time is of
the essence in the arbitration proceeding, and that the
arbitrator shall have the right and authority to issue monetary
sanctions against either of the Parties if, upon a showing of
good cause, that Party is unreasonably delaying the proceeding.
Recognizing the express desire of the Parties for an expeditious
means of dispute resolution, the arbitrator shall limit or allow
the Parties to expand the scope of discovery as may be reasonable
under the circumstances.
11.4. Termination.
A Party shall not be in material breach of this Agreement unless and
until the other Party provides it written notice of default and the
non-performing party has failed to cure within thirty (30) days after
receipt of such notice. Any event of default may be waived in writing
at the non-defaulting Party's option. Upon the failure of a Party to
timely cure its material breach hereunder within the applicable cure
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<PAGE>
period, the non-defaulting Party shall have the right to (i) terminate
this Agreement or (ii) subject to the terms of this Article 11, pursue
any legal remedies it may have under applicable law or principles of
equity relating to such breach.
11.5. Suspension of Service.
If Williams does not make any undisputed payment of at least One
Hundred Thousand Dollars ($100,000) within thirty days of the payment
due date, WinStar may suspend service to all Williams T-1s upon five
(5) days' prior written notice if Williams does not cure within such
period. If such non-payment continues for more than thirty (30) days
after receipt of such notice, WinStar shall have the right to
terminate this Agreement.
11.6. Litigation.
(a) Immediate Injunctive Relief. The only circumstance in which
disputes between the Parties shall not be subject to the
provisions of Sections 11.2 and 11.3 is where a Party, in good
faith, determines that a temporary restraining order or other
injunctive relief is its only appropriate and adequate remedy. If
a Party seeks immediate injunctive relief and does not prevail in
substantial part, that Party shall pay the other Party's costs
and attorneys' fees to the extent incurred in responding to or
challenging the request for immediate injunctive relief.
(b) Jurisdiction. The Parties consent to the jurisdiction of the
courts of the State of New York and to jurisdiction and venue in
the United States District Court for the Southern District of New
York for all litigation that may be brought with respect to the
terms of, and the transactions and relationships contemplated by,
this Agreement. The Parties further consent to the jurisdiction
of any state court located within a district that encompasses
assets of a Party against which a judgment has been rendered for
the enforcement of such judgment or award against the assets of
such Party.
(c) Governing Law. This Agreement and performance under it shall be
governed by and construed in accordance with the laws of the
State of New York without regard to its choice of law principles.
11.7. Continued Performance.
Each Party agrees to continue performing its obligations under this
Agreement while any dispute is being resolved except to the extent the
issue in dispute precludes performance (dispute over payment shall not
be deemed to preclude performance except as provided in Section 11.5).
12. GENERAL
12.1. Binding Nature and Assignment.
(a) This Agreement shall accrue to the benefit of and be binding upon
the Parties hereto and any purchaser or any successor entity into
which either Party has been merged or consolidated or to which
either Party has sold or transferred all or substantially all of
its assets.
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(b) Neither Party may, or shall have the power to, assign this
Agreement or delegate such Party's obligations hereunder without
the prior written consent of the other, except to:
(i) An entity that acquires all or substantially all of the
assets of such Party,
(ii) Any Affiliate,
(iii) A successor in a merger or acquisition of either Party, or
(iv) In connection with any financing.
12.2. Entire Agreement.
This Agreement, including any attached Schedules, constitutes the
entire agreement between the Parties with respect to the subject
matter in this Agreement, and supersedes all prior agreements, whether
written or oral, with respect to the subject matter contained in this
Agreement.
12.3. Tariff.
WinStar acknowledges that this is a private non-common carrier
agreement and that any incorporation of WinStar tariff provisions is
done for the convenience of the Parties.
12.4. Consents.
As between the parties, Williams shall be responsible for all
arrangements with copyright holders, music licensing organizations,
performers' representatives or other parties for necessary
authorizations, clearances or consents with respect to transmission
contents.
12.5. Restriction of Transmissions.
Williams will not transmit content that violates applicable law or
carries an unreasonable risk of leading to criminal, civil or
administrative proceedings or investigations against Williams or
WinStar.
12.6. Use and Ownership.
Neither Party shall have any right, title or interest to the equipment
installed by the other Party.
12.7. Non-Solicitation.
Neither Party shall directly or indirectly solicit the other's
employees or contractors without the other Party's written consent,
which shall not be unreasonably withheld.
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12.8. Notices.
All notices, requests, demands, and determinations under this
Agreement (other than routine operational communications), shall be in
writing and shall be deemed duly given (i) when delivered by hand,
(ii) one (1) business day after being given to an express, overnight
courier with a system for tracking delivery, (iii) when sent by
confirmed facsimile with a copy delivered thereafter by another means
specified in this Section, or (iv) four (4) business days after the
day of mailing, when mailed by United States registered or certified
mail, return receipt requested, postage prepaid, and addressed as
follows:
If to WinStar: If to Williams:
WinStar Wireless, Inc. Williams Communications, Inc.
230 Park Avenue One Williams Center, Suite 26-5
New York, NY 10169 Tulsa, Oklahoma 74172
Attn: EVP, General Counsel Attn: Contract Administration
Facsimile: 212/922-1637 Facsimile: 918/573-6578
With a copy to: With a copy to:
WinStar Wireless, Inc. Williams Communications, Inc.
7799 Leesburg Pike One Williams Center, Suite 4100
Falls Church, Virginia 22043 Tulsa, Oklahoma 74172
Attn: VP, Commercial and Attn: General Counsel
Legal Operations
Facsimile: 703/288-6647 Facsimile: 918/573-3005
A Party may from time to time change its address or designee for
notification purposes by giving the other prior written notice of the
new address or designee and the date upon which it will become
effective.
12.9. Counterparts.
This Agreement may be executed in several counterparts, all of which
taken together shall constitute one single agreement between the
Parties hereto.
12.10. Relationship of Parties.
Each Party, in performing hereunder, is acting as an independent
contractor, and such Party's personnel (including its subcontractors)
shall not be considered or represented as employees or agents of the
other Party. Neither Party is an agent of the other and has no
authority to represent that Party as to any matters, except as
expressly authorized in this Agreement.
12.11. Severability.
If any provision of this Agreement conflicts with the law under which
this Agreement is to be construed or if any such provision is held
invalid by an arbitrator or a court with jurisdiction over the
Parties, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in
accordance with applicable law. The remainder of this Agreement shall
remain in full force and effect.
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12.12. Reasonableness, Consents and Approval.
(a) Where this Agreement requires a Party to assist or
cooperate, such requirement shall not be interpreted to
require materially more than a commercially reasonable level
of effort (i.e. the standard applicable will not be "best
efforts" or "exhausting all available means").
(b) Except where expressly provided as being in the sole
discretion of a Party, where agreement, approval,
acceptance, consent, or similar action by either Party is
required under this Agreement, such action shall not be
unreasonably delayed or withheld. An approval or consent
given by a Party under this Agreement shall not relieve the
other Party from responsibility for complying with the
requirements of this Agreement, nor shall it be construed as
a waiver of any rights under this Agreement, except as and
to the extent otherwise expressly provided in such approval
or consent.
12.13. Waiver of Default.
No waiver or discharge hereof shall be valid unless in writing and
signed by an authorized representative of the Party against which such
amendment, waiver, or discharge is sought to be enforced. A delay or
omission by either Party hereto to exercise any right or power under
this Agreement shall not be construed to be a waiver thereof. A waiver
by either of the Parties hereto of any of the covenants to be
performed by the other or any breach thereof shall not be construed to
be a waiver of any succeeding breach thereof or of any other covenant
herein contained.
12.14. Survival.
No termination of this Agreement shall affect the rights or
obligations of any Party with respect to any other provisions of this
Agreement that contemplate performance or observance subsequent to any
termination or expiration of this Agreement.
12.15. Public Disclosures.
All media releases, public announcements, and public disclosures
relating to this Agreement or the subject matter of this Agreement,
including promotional or marketing material, but not including
announcements intended solely for internal distribution or disclosures
to the extent required to meet legal or regulatory requirements, shall
be coordinated with and shall be subject to approval by both Parties
prior to release.
12.16. Third Party Beneficiaries.
Except as otherwise provided in this Agreement, this Agreement shall
not be deemed to create any rights in third parties, including
suppliers and customers of a Party, or to create any obligations of a
Party to any such third parties.
12.17. Amendment.
(a) This Agreement shall not be modified, amended or in any way
altered except by an instrument in writing signed by both
Parties.
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(b) Unless otherwise expressly permitted in this Agreement, WinStar
shall not make any changes to the Exhibits or Schedules attached
hereto that may have a material adverse impact on the performance
or usability of Williams Connectivity without Williams' prior
written consent.
12.18. Order of Precedence.
In the event of a conflict, this Agreement shall take precedence over
the Schedules attached hereto, and the Schedules shall take precedence
over their attached Exhibits.
This order of precedence may be modified in a subsequently-added
Schedule or Exhibit if this modification is explicitly noted in the
corresponding amendment instrument.
12.19. Interpretation.
(a) Terms other than those defined in this Agreement shall be given
their plain English meaning, and those terms, acronyms and
phrases known in the telecommunications and information
technology services industries shall be interpreted in accordance
with their generally known meanings. Unless the context otherwise
requires, words importing the singular include the plural and
vice-versa.
(b) References to "Article," "Section," "Subsection" and "Schedule"
mean references to an article, section, subsection or schedule of
this Agreement, as appropriate, unless otherwise specifically
stated.
(c) The article and section headings in this Agreement are intended
to be for reference purposes only and shall in no way be
construed to modify or restrict any of the terms or provisions of
this Agreement.
(d) The words "include," "includes" and "including," when following a
general statement or term, are not to be construed as limiting
the general statement or term to any specific item or matter set
forth or to similar items or matters, but rather as permitting
the general statement or term to refer also to all other items or
matters that could reasonably fall within its broadest scope.
12.20. Covenant of Good Faith.
Each Party agrees that, in its respective dealings with the other
Party under or in connection with this Agreement, it will act in good
faith.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
undersigned officers, thereunto duly authorized, as of the date first written
above.
<TABLE>
<S> <C>
WINSTAR WIRELESS, INC. WILLIAMS COMMUNICATIONS, INC.
/s/ Timothy R. Graham /s/ Frank Semple
By: -------------------------------------------- By: ----------------------------------------
Timothy R. Graham Frank Semple
Name: -------------------------------------------- Name: ----------------------------------------
Vice President President, Williams Network
Title -------------------------------------------- Title: ----------------------------------------
December 17, 1998 December 17, 1998
Date: -------------------------------------------- Date: ----------------------------------------
</TABLE>
<PAGE>
Schedule A - Scope and Services
WinStar Network Description
1. Current WinStar Wireless Topology, Network Building Blocks and Elements.
Set forth below is a general description of WinStar's network:
1.1. Network Building Blocks.
The current WinStar network consists of independent voice and data
networks. The voice network is entirely time-division multiplexed
("TDM") based while the data network is a combination of TDM and
packet technologies. The network elements of the voice and data
networks are being physically collocated to afford all of WinStar's
customers the opportunity to access all products and services in a
seamless manner. The WinStar network comprises the following major
building blocks:
(a) Central Offices. The Central Office is the service node for all
voice and data services. It houses a voice switch, an ATM switch,
frame relay switch, milliwave radios, transmission gear, host
loop carrier equipment, distribution frames and all necessary
power, network management devices, data service gateways, HVAC
and environmental controls. Many Central Offices also serve as
Hubs, as defined below.
(b) Hubs. A "Hub" is a Lit Building that serves as an access node in
a particular WinStar Target Market that contains milliwave
radios, host loop carrier equipment, transmission gear,
distribution frames, network management devices and related
necessary power, HVAC and environmental controls. In implementing
a Hub, WinStar seeks to have an average of ten (10) buildings
with line of sight and in range of the Hub.
(c) Lit Buildings. A Lit Building that houses milliwave radios,
remote loop carrier equipment, intra-building connectivity
facilities and/or gear to reach WinStar's customer demarcation
point and all necessary power. A Lit Building can also serve as a
Hub in a reduced configuration.
(d) Collocation Sites. WinStar physically or virtually collocates
subscriber loops and transmission/mux gear with LECs, IXCs and
CAPs. WinStar uses LECs and CAPs to access unbundled loops and
T1/T3 facilities for the provisioning of service to WinStar
customers.
(e) Data-Only Points. In some markets, there may be WinStar services
deployed that are not built around a 5ESS anchor. These markets
may also require a Central Office environment with engineered
access, power, transmission and switching.
<PAGE>
1.2. Topology.
The network topology currently consists of a centralized switching
platform that provides all of the features, services and switching
functionality for all customers in a particular network serving area.
Each switch delivers services to and from WinStar customers through
interconnect facilities to and from the LEC, IXCs and Internet Peering
Points to which WinStar has connections. Today, Switches may connect
to Hubs in both a hub-and-spoke and ring topology. Hubs connect to Lit
Buildings in a hub-and-spoke topology.
1.3. Switching.
The voice network today consists of Lucent 5ESS switches, typically
deployed one per city and operated as the centralized switching
platform for the entire market. All switches provide local service
through interconnect arrangements with the incumbent LEC. All WinStar
switches provide long distance service to WinStar local customers and
most switches provide long distance services to WinStar switched
access long distance customers. The data network consists of Newbridge
36170 ATM switches and Cascade 9000 frame relay switches in the
Central Office.
1.4. Interconnect.
The Interconnect facilities are the physical connections from
WinStar's switches to other carrier networks for the provisioning of
services to WinStar customers. These facilities connect to the LECs,
IXCs, Internet Peering Points, carrier hotels (locations with a large
concentration of carrier POPs) and CAPs. The capacity of the
interconnect facilities varies from T-1 to multiple OC-12 and OC-48.
The interconnect network can consist of any component of the
transmission facilities, as described below.
1.5. Transmission.
The transmission network provides connections from the Switch to the
Hubs, Collocation sites and Switches in other WinStar network serving
areas. The capacity of the transmission facilities varies from T-1 to
multiple OC-12 and OC-48. The transmission network can consist of:
(a) Leased telco facilities on copper or fiber;
(b) Point-to-point milliwave radio facilities operating on
WinStar-licensed radio frequency bands; or
(c) Fiber that has been procured through long-term IRUs and uses
optronics owned and operated by WinStar.
1.6. Access.
The access network provides connections from Lit Buildings to Hubs and
switches. Although fiber or other telco facilities may be used, the
preferred and most widely used access medium is Wireless Fiber
Connectivity. In these cases, the access used is dedicated, TDM-based,
point-to-point milliwave radio facilities operated on primarily the 28
and 38 GHz bands licensed by WinStar. WinStar does use other radio
bands if and when they are available and appropriate. The geographical
coverage areas, as defined and authorized by the FCC where WinStar has
38 GHz licenses, are called Licensed Serving Areas ("LSAs"). The
geographical coverage areas authorized by the FCC and where WinStar
has 28 GHz licenses are called Basic Trading Areas ("BTAs").
<PAGE>
1.7. CTE/CPE.
The CTE/CPE employed today consists of channel banks, digital loop
carrier equipment, DSUs, routers, bridges and hubs. Most Lit Buildings
have loop carrier equipment deployed as a matter of course to
provision voice services. Other devices are selected and deployed at
the time of customer order based on the services to be offered to the
customer.
2. WinStar Network Services
WinStar has entered into this Agreement solely for the provisioning of
wireless local loop access to Williams. However, the Winstar network
does offer a wide range of additional communications services which may
be of interest to Williams in the future including: local voice, long
distance voice, network transport, Internet services, LAN/WAN
integration, and other professional services. This functionality is
outlined below for informational purposes only.
2.1. Domestic Voice Functionality.
Voice service products may or may not be tariffed. Tariffed services
must interoperate and interwork with other like tariffed services, if
offered, from incumbent carriers in a service area. On a
service-by-service basis, non-tariffed enhanced services may or may
not interwork or interoperate with other non-tariffed like offerings
in a service area. Such products include: Basic and Enhanced Voice,
CLASS, Operator services, Directory services, 911 services, Local
switching (Class 5), AIN, LD switching (Class 4) and IN, Least Cost
Routing, DXC Access integration, 800/888 services, Information/900
services, Centrex, ISDN, Call center outsourcing services,
Network-based voicemail, Voice conference services, Voice network
design, outsourcing services, CPE and PBX CTI.
2.2. Domestic Data Functionality.
Data service products may or may not be tariffed. Tariffed services
must interoperate and interwork with other like tariffed services, if
offered, from incumbent carriers in a service area. On a service by
service basis, non-tariffed enhanced services may or may not interwork
or interoperate with other non-tariffed like offerings in a service
area. Such products include: Point to Point Connectivity, Internet
Access, UseNet groups, Web hosting, e-commerce, VPN connectivity,
Email, Network Notes services, IP telephony/fax, Multimedia and video,
IP multimedia conferencing services, CPE, WAN professional services,
LAN professional services, security services, E Commerce, Web/Intranet
systems integration, Private Peering, Customer Network Management,
TCP/IP, Frame Relay and X.25 / SNA integration.
<PAGE>
3. Planned WinStar Network Evolution.
WinStar anticipates certain changes in the topology of the network as
new technologies and network elements may evolve. While this section
sets forth the anticipated network evolution, the final architecture
will depend on future requirements, cost and availability of access and
transmission bandwidth, technologies and services.
It is WinStar's intention to merge voice and data services into common
local infrastructure where these service share common "Next Generation"
network elements. In addition, a common inter-city transport network is
required to support combined voice and data functionality. This
integrated metropolitan and national network will employ technology as
determined by WinStar.
3.1. Switching.
The network today consists of a centralized switching topology
connected to access nodes via transmission facilities. This topology
is expected to gradually evolve to a more distributed switching
architecture whereby many former access nodes become service nodes.
(a) The building blocks formerly referred to as switches, and perhaps
several of the Hubs, will become Integrated Core Service Nodes
("ICSNs"). The ICSN may contain many of the same network elements
as it did before, however it will now be configured and
integrated in a manner such that the provisioning of service and
utilization of transmission and access facilities will become
more efficient and seamless relative to the voice, data and video
services provided. Also, it is anticipated that there will be
more than a single ICSN in a particular market, which will offer
additional efficiencies via more localized, multiple interconnect
facilities to other carrier networks.
(b) Hubs that do not qualify as ICSNs because of traffic density or
operating costs will become Integrated Edge Service Nodes
("IESNs"). The IESN will be much like the ICSN, but it will not
have direct interconnect facilities to other carrier networks and
the switching functionality will be less sophisticated.
3.2. Interconnect.
The interconnect facilities defined in the previous section are
expected to evolve in three major ways:
(a) Facilities will migrate from hard partitioning for voice and data
services to clear pipes over which voice and data traffic will be
transported via packet technologies;
(b) With the addition of new, distributed service nodes, there will
be multiple interconnection points to other carrier networks from
the numerous ICSNs as opposed to a single interconnect point with
the centralized switching architecture; and
<PAGE>
(c) The Interconnect facilities will continue to use the mediums as
previously described but the use of WinStar fiber procured
through long-term IRUs and using optronics owned and operated by
WinStar is expected to increase. Also, it is anticipated that
long-term trends in bandwidth requirements and increased WinStar
market share will drive the capacity of these facilities much
higher than today.
3.3. Transmission.
Fundamental to advanced services is the deployment of optical
networking solutions in the network (locally and nationally),
switching and restoration capabilities for multiple optical rings, and
the appropriate terminating equipment required to deliver services to
WinStar customers. Network bandwidth requirements are expected to
increase to multiple OC-192s in the coming years in order to support
rapidly expanding Internet Protocol (IP) traffic. IP traffic is
expected to be pervasive in the local loop, over radio facilities and
in the long haul network. The Transmission network is expected to
evolve in the following ways:
(a) The topology will migrate from a hub-and-spoke topology to a ring
and/or mesh topology where it is determined to be the most
cost-effective and efficient solution;
(b) The physical provisioning that is required today will be greatly
reduced and gradually replaced by logical and virtual
connections; and
(c) The transmission facilities will continue to use the mediums as
previously described but the use of WinStar fiber procured
through long-term IRUs and using optronics owned and operated by
WinStar is expected to increase dramatically. Also, it is
anticipated that long-term trends in bandwidth requirements and
increased WinStar market share will drive the capacity of these
facilities much higher than today.
3.4. Access.
The Access network is expected to evolve in the following ways:
(a) The access network medium will become increasingly more dependent
on wireless vs. leased telco facilities as the number of Lit
Building and Hub leases increases which in turn will greatly
increase the number of constructed wireless access points;
(b) The wireless access medium will allow dynamic allocation of
bandwidth over the air interfaces via packet technologies;
(c) Increased bandwidth requirements and new technologies for
advanced services will cause the average wireless bandwidth per
building to increase from 8xT1 and DS-3 bandwidth to OC-3 speeds
and higher;
<PAGE>
(d) New point-to-multipoint radio technologies will become
commercially available and offer "sharing" or "trunking" of
WinStar's wireless spectrum to multiple Lit Buildings
simultaneously with an air interface that has evolved from TDM to
packet technologies. The Access network will become a hybrid
wireless network consisting of a combination of dedicated
high-capacity point-to-point radio and point-to-multipoint radio
technologies; and
(e) As WinStar's business needs arise, WinStar may attempt to acquire
bandwidth in different portions of the wireless spectrum, which
will create opportunities for new Access topologies and schemas.
3.5. CTE/CPE.
The CTE/CPE employed today is expected to change dramatically to
integrated edge devices and customer premises equipment, which will
provide flow-through logical and virtual provisioning as a much more
graceful solution to the current challenges of physical provisioning
of broadband integrated voice, data and video services. These edge
devices, unlike today's solutions, will be deployed as a matter of
course based on the expectation that cost-effective solutions will be
developed to justify doing so.
4. WIRELESS FIBER CONNECTIVITY
4.1. General Description.
This section outlines the scope of work for WinStar to provide
Williams T-1s over Wireless Fiber.
(a) Design.
The Williams T-1s will be implemented using a milliwave radio
system that consists of two (2) separate terminals operating in
the same frequency band on complementing transmit and receive
frequencies. Each WinStar milliwave radio system consists of an
antenna and mount, outdoor unit ("ODU"), indoor unit ("IDU") and
IDU-to-ODU interconnect cable. Each radio system connects a Hub
and a Lit Building via 38 Ghz circuits in a point-to-point or
-multipoint configuration. Wireless Fiber links are engineered to
perform at 99.999% availability using RF engineering tools and
applicable standards for atmospheric conditions. The Hub, in
turn, connects to a WinStar metropolitan area network ("MAN"),
which, in turn, connects to the local WinStar point of presence
in a given metropolitan area.
The ODU is designed to be mounted either directly to the antenna
on an antenna mount assembly or, depending on the model, remotely
from the antenna. The IDU is designed to be mounted in a standard
nineteen inch (19") EIA relay rack or in an enclosed lockable
cabinet in a designed secure location. Prior to the installation
of a WinStar milliwave radio system, the proposed installation
site shall be site surveyed, engineered and documented.
<PAGE>
(b) Network Architecture.
(i) Hubs and Lit Buildings communicate via multiple DS3/DS1
radio links in the 38-40 Ghz portion of the spectrum. The
Hubs function as concentrators for these milliwave links,
providing DS3 or DS1 service for Lit Buildings within the
Hub service area. The traffic from the Lit Buildings will be
bundled into multiple DS3 links over a fiber SONET ring
backbone, or connected by lower frequency radio shots (i.e.,
18 and 23 Ghz currently and 6 and 11 Ghz in the future).
(ii) The network architecture features Lit Buildings as customer
access points for traffic, with Hubs transmitting and
receiving traffic from Lit Buildings via milliwave links.
Hubs concentrate, transmit and receive that traffic over
fiber links to central office switch sites, other Hubs and
points of collocation (each a point of presence).
4.2. Equipping and Commissioning of Qualified Buildings.
The following outlines the scope of work required to "light" a
Qualified Building.
(a) Before installing a radio terminal, WinStar must perform the
following activities:
(i) Perform a site survey to assess installation requirements,
(ii) Prepare radio path calculations for terminal parameter
settings,
(iii) Prepare radio common space for installation as required,
(iv) Install electrical power per specifications,
(v) Install cabinet(s) and radio(s) with all necessary
x-connects, mux equipment if applicable and power
distribution,
(vi) Install waterproof sleeves at the building's roof-to
interior penetration point,
(vii) Assemble and install the antenna mount in the position
identified during the construction survey to ensure line of
sight to the Hub facility,
(viii) Ground mount per local practice,
(ix) Install coaxial cable (plenum rated, if required) between
common equipment location and the antenna mount,
(x) Identify inside wiring distribution pathways, and
(xi) Core drill verticals if required and sleeve.
<PAGE>
(b) Typically, WinStar installs five (5) coaxial cables from the roof
mount to the interior equipment location, four (4) dedicated to
radio, and one (1) spare. The maximum allowable IDU-to-ODU cable
length is one thousand feet (1,000').
(c) WinStar shall install lightning arrestor/surge protectors near
the point of building penetration. WinStar will obey local codes
or building management rules that require conduit or other
deviation from standard practices. WinStar shall verify an
internal distribution path for inside wiring through telco risers
and establish cable paths sufficient for vertical distribution as
identified by the Site Survey.
(d) Lit Building Power Requirements
WinStar will use the Reltec/Lorain MZ-60 rectifier
battery-backed-up system as the standard power supply for Lit
Buildings. Such a -48VDC power system shall supply between 10 and
60 amps DC. The system shall accept various AC feeds depending on
site requirements.
(i) WinStar shall determine the building rectifier and AC power
requirements during the preliminary site evaluation phase.
WinStar shall install one (1) 120 or 240 VAC, 20-50 amp
single phase circuit per MZ-60 power plant. The circuit
shall terminate into a NEMA L5-20-50 Twistlock female
connector and shall be mounted in an electrical outlet box.
The male connector shall be supplied on a pre-manufactured
power cord for the rectifier assembly.
(ii) WinStar shall install one (1) 120 VAC, 20 amp single-phase
circuit. The circuit shall terminate into a NEMA L5-20
Twistlock female connector, mounted in an electrical outlet
box. This Circuit shall be used for the internal AC outlet
strip, which shall host the cabinet fan assembly power plant
requirement. It may also supply power to future equipment,
test equipment and PCs that maintain the network. The male
connector for the cord of the AC outlet strip shall be
changed to a NEMA L5-20 Twistlock Male Connector. Such
connector shall be assembled during the equipment
reconfiguration. WinStar shall provision one (1) 20 amp
circuit for every three (3) cabinets on a site. The AC
outlet strips may be connected in series, in-between
cabinets.
(iii) WinStar shall install the outlet boxes no lower than
eighty-four inches (84") from the base of the floor and not
more than eight feet (8') from the cabinet location.
<PAGE>
4.3. Test, Turn-up and Certification.
Upon completion of the installation, WinStar will perform testing,
turnup and certification of the radio link per the standards in
Exhibit A-4 to ensure that the link meets WinStar specifications, the
link has been documented appropriately and can be monitored from the
WinStar Network Management Center. At this point the building is ready
for provisioning.
4.4. Provisioning of Access to Lit Buildings.
Upon receipt of an order for Williams facility, WinStar will:
(a) Complete order entry into the provisioning system,
(b) A provisioner will complete circuit design and create a Circuit
Layout Record (CLR) which represents the cross-connects and
assignments for the circuit for record keeping, installation and
maintenance purposes,
(c) An installation technician will be dispatched to the WinStar
switch, Hub(s) and Lit Building to complete the cross-connects,
assignments and configure the circuits
(d) Lit Buildings shall be connected to Hubs via 38 Ghz radio links.
Hubs shall be connected to the switch and other hubs using leased
facilities, radio links or WinStar fiber
(e) The circuit will be tested and delivered as a T1facility,
typically ESF/B8ZS or as otherwise directed by Williams, and
terminated in the WinStar common space unless otherwise
contracted in advance by Williams,
(f) Williams shall test and approve the circuit according to Exhibit
A-4
5. Operations and Routine Maintenance Services.
Upon approval of the circuit by Williams, WinStar will provide
monitoring and Routine Maintenance Services (as described below) of the
circuit in accordance with the Agreement and Schedule B. "Routine
Maintenance Services" will consist of the following:
5.1. Support Services.
(a) NCC Functions. WinStar shall operate a manned Network Control
Center ("NCC") twenty-four (24) hours a day, seven (7) days a
week that monitors the Wireless Fiber Connectivity by means of
remote surveillance equipment and dispatches maintenance and
repair personnel to handle and repair problems detected through
by the NCC or reported to WinStar. WinStar shall provide Williams
a toll-free telephone number to report problems to the NCC.
(b) Site Maintenance. WinStar shall perform appropriate routine
maintenance on WinStar Equipment, including the DC power plant,
HVAC equipment, radios and basic building safety equipment
including alarms and emergency generators in accordance with
WinStar's then current preventative maintenance procedures.
WinStar's preventative maintenance procedures shall not
substantially deviate from industry practice.
<PAGE>
(c) Equipment Spares. WinStar shall maintain an inventory of spare
WinStar Equipment at strategic locations to facilitate timely
restoration.
5.2. Planned Network Maintenance Activity
(a) WinStar shall avoid performing maintenance between 0600-2200
local time, Monday through Friday, inclusive, that will have a
disruptive impact on the continuity or performance level of the
Williams T-1s. However, the preceding sentence does not apply to
restoration during emergency situations, restoration of service
or correction of potential jeopardy conditions.
(b) WinStar shall provide Williams with telephone, facsimile, or
written notice of all non-emergency planned network maintenance
(a) no later than three working days prior to performing
maintenance that, in its reasonable opinion, has a substantial
likelihood of affecting Williams's traffic for up to thirty
seconds, and (b) no later than ten working days prior to
performing maintenance that, in its reasonable opinion, has a
substantial likelihood of affecting Williams's traffic for more
than thirty seconds. If WinStar's planned activity is canceled or
delayed, WinStar shall promptly notify Williams and shall comply
with the provisions of the previous sentence to reschedule any
delayed activity.
5.3. Miscellaneous
(a) WinStar's maintenance employees shall be available for dispatch
twenty-four (24) hours a day, seven (7) days a week. WinStar
shall use commercially reasonable efforts to have its first
maintenance employee at the site requiring an emergency
maintenance activity within four (4) hours from the time of alarm
identification by WinStar's NCC or notification by Williams,
whichever occurs first. Emergency maintenance is defined as any
service affecting situations requiring an immediate response.
(b) In performing its services hereunder, WinStar shall take
workmanlike care to prevent impairment to the signal continuity
and performance of the Williams T-1s. In addition, WinStar shall
reasonably cooperate with Williams in sharing information and
analyzing the disturbances regarding the Williams T-1s.
(c) WinStar shall, at Williams's request, provide Williams an
operations escalation list for shall use in reporting and seeking
redress of exceptions noted in WinStar's performance of Routine
Maintenance and Non-Routine Maintenance.
<PAGE>
Exhibit A-1
Winstar Target Markets
WinStar Networked Cities
Targeted WinStar Markets.
As of the Effective Date, WinStar anticipates that the Targeted
WinStar Markets will be the following (as listed in alphabetical
order):
1. Atlanta, GA* 26. Minneapolis/St. Paul, MN*
2. Austin, TX 27. Nashville, TN
3. Baltimore, MD* 28. New Orleans, LA
4. Boston, MA* 29. New York City, NY*
5. Buffalo, NY 30. Newark, NJ
6. Charlotte, NC 31. Norfolk, VA
7. Chicago, IL* 32. Oak Brook, IL*
8. Cincinnati, OH 33. Oakland, CA
9. Cleveland, OH 34. Orange County, CA
10. Columbus, OH* 35. Orlando, FL
11. Dallas, TX* 36. Philadelphia, PA*
12. Denver, CO* 37. Phoenix, AZ*
13. Detroit, MI 38. Pittsburgh, PA
14. Ft. Worth, TX* 39. Portland, OR
15. Greensboro, NC 40. Riverside/San Bernardino, CA
16. Houston, TX* 41. Salt Lake City, UT
17. Indianapolis, IN 42. San Antonio, TX
18. Jacksonville, FL 43. San Diego, CA*
19. Kansas City, KS* 44. San Francisco, CA*
20. Long Island, NY 45. San Jose, CA
21. Los Angeles, CA* 46. Seattle, WA
22. Louisville, KY 47. St. Louis, MO
23. Memphis, TN 48. Stamford, CT
24. Miami, FL 49. Tampa, FL*
25. Milwaukee, WI 50. Washington, DC*
* Signifies a city with an operational Hub.
<PAGE>
Exhibit A-2
Implementation Schedule
The following table sets forth the schedule for WinStar's rollout of
the WinStar Targeted Markets. By each date set forth below, WinStar
commits to implement one or more Hubs in the indicated number of
WinStar Target Markets.
The cities indicated in the column labeled "WinStar Target Markets"
are those that WinStar currently plans to implement in the
corresponding timeframe. They are listed in alphabetical order, not in
order of implementation. WinStar reserves the right to substitute
other cities for those indicated (provided that such substitute cities
shall be of comparable size and within the top one hundred (100)
metropolitan serving areas (MSAs)), or to change the implementation
date of any particular city, so long as the Total Implemented cities
target is reached during the relevant time frame.
WinStar will provide Williams with notice of its target date to
install a Hub in a WinStar Target Market as soon as reasonably
practicable, but in any event, within five (5) business days following
the date WinStar obtains the Required Rights for a Hub building in the
WinStar Target Market.
Except as provided in this Exhibit A-2, no other changes may be made
to this Exhibit A-2 without the mutual written agreement of the
Parties.
Date Total Implemented WinStar Target Markets
WinStar Target Markets
- ------------------------- ------------------------- ----------------------
At Effective Date 20 See Exhibit A-1
- ------------------------- ------------------------- -----------------------
1999
- ------------------------------------------------------------------------------
3/31/99 20
- --------------------------------------------------
6/30/99 20 Cleveland, OH
Detroit, MI
- -------------------------------------------------- Indianapolis, IN
Miami, FL
9/30/99 23 Milwaukee, WI
St. Louis, MO
- -------------------------------------------------- Seattle, WA
12/31/99 26
- --------------------------------------------------
<PAGE>
- ---------------------- -------------------------- --------------------------
Date Total Implemented WinStar Target Markets
WinStar Target Markets
- ---------------------- -------------------------- --------------------------
2000
- ----------------------------------------------------------------------------
New Orleans, LA
3/31/00 29 Newark, NJ
- ----------------------------------------------- Oak Brook, IL
Orange County, CA
6/30/00 32 Orlando, FL
- ----------------------------------------------- Oakland, CA
Pittsburgh, PA
9/30/00 35 Portland, OR
- ----------------------------------------------- San Antonio, TX
San Jose, CA
12/31/00 38 Stamford, CT
- ---------------------- -------------------------- ---------------------------
2001
- -----------------------------------------------------------------------------
Austin, TX
3/31/01 41 Buffalo, NY
Charlotte, NC
- ----------------------------------------------- Cincinnati, OH
Greensboro, NC
6/30/01 44 Jacksonville, FL
- ----------------------------------------------- Long Island, NY
Louisville, KY
9/30/01 47 Memphis, TN
Nashville, TN
- ----------------------------------------------- Norfolk, VA
12/31/01 50 Riverside/San Bernardino, CA
Salt Lake City, UT
- ---------------------- ------------------------ ------------------------------
<PAGE>
WinStar Hubs Delivered at Closing
- ---------------------------------- ---------------------------
Target WinStar Market Number of Hubs Built
- ---------------------------------- ---------------------------
Atlanta, GA 3
- ---------------------------------- ---------------------------
Baltimore, MD 1
- ---------------------------------- ---------------------------
Boston, MA 5
- ---------------------------------- ---------------------------
Chicago, IL 4
- ---------------------------------- ---------------------------
Columbus, OH 1
- ---------------------------------- ---------------------------
Dallas, TX 7
- ---------------------------------- ---------------------------
Denver, CO 6
- ---------------------------------- ---------------------------
Fort Worth, TX 1
- ---------------------------------- ---------------------------
Houston, TX 3
- ---------------------------------- ---------------------------
Kansas City, MO 1
- ---------------------------------- ---------------------------
Los Angeles, CA 6
- ---------------------------------- ---------------------------
Minneapolis, MN 1
- ---------------------------------- ---------------------------
New York, NY 5
- ---------------------------------- ---------------------------
Oak Brook, IL 1
- ---------------------------------- ---------------------------
Philadelphia, PA 3
- ---------------------------------- ---------------------------
Phoenix, AZ 1
- ---------------------------------- ---------------------------
San Diego, CA 2
- ---------------------------------- ---------------------------
San Francisco, CA 3
- ---------------------------------- ---------------------------
Tampa/St. Pete, FL 1
- ---------------------------------- ---------------------------
Washington, DC 2
- ---------------------------------- ---------------------------
<PAGE>
Exhibit A-3
Collocation Provisions
1.1. License.
Williams shall have the right to locate, install, maintain and operate
interconnection equipment at one central office in each WinStar Target
Market (the "Collocation Site") as designated by mutual agreement of
the Parties, during the Term. This right shall be used only for
Williams' interconnection to the Wireless Fiber Services.
1.2. Real Estate Rights.
(a) No use of Collocation Sites required or permitted under this
Agreement shall create or vest in Williams any easements or other
ownership or property rights of any nature in WinStar's real or
personal property. WinStar shall construct and operate such
space, and Williams shall cause its equipment to be installed and
operated in accordance with WinStar's policies and
telecommunications industry standards for similar collocation
arrangements.
(b) Williams shall not make any construction changes or material
alterations to the interior or exterior portions of the
Collocation Site, including cabling or power supplies for the
equipment, without obtaining WinStar's prior written approval.
WinStar shall have the right to perform and manage any
construction or material alterations within the Collocation Site
and related areas at rates to be negotiated between the Parties
hereto.
1.3. Equipment and Basic Services.
(a) At each Collocation Site, WinStar shall provide separate
access (to space not located in its switch or transmission
room), space, HVAC, and DC power at Williams' expense (up to
fifty (50) amps) for one rack space adequate to contain a
rack (measuring 26 inches (width) x 24 inches (depth) x 78
or 84 inches (height)). Williams may request additional rack
space, which WinStar may provide in its discretion. Williams
shall supply its own cabinets.
(b) Williams' use of the Collocation Site, installation of the
equipment, and type of equipment installed shall at all
times be suitable for the central office environment and
subject to Williams's adherence to generally accepted
industry standards, security rules and reasonable rules of
conduct established by WinStar for the Collocation Site.
Without limiting the foregoing, Williams acknowledges and
agrees that it shall not be permitted to install or
otherwise utilize equipment that (i) generates heat greater
than 1200 watts per cabinet; or (ii) has a weight load of
greater than 100 pounds per square foot. Williams shall not
erect any signs or devices to the exterior portion of the
Collocation Site without submitting the request to WinStar
and obtaining WinStar's written approval, which may be
withheld in its sole discretion.
<PAGE>
(c) WinStar shall not arbitrarily or discriminatorily require
Williams to relocate the equipment; however, upon sixty (60)
days' prior written notice or, in the event of an emergency,
such time as may be reasonable, WinStar reserves the right
to change the location of the Collocation Site. WinStar will
work in good faith to minimize any disruption to Williams'
services as a result of such relocation. WinStar shall be
responsible for the cost of improving the Collocation Site
to which the equipment may be relocated, and for relocation
of equipment interconnected to WinStar services.
(d) Notwithstanding anything to the contrary, WinStar shall in
no event be responsible for providing any operations,
maintenance, consulting or other related services with
respect to any equipment owned, operated, or under the
direct or indirect control or supervision of Williams.
1.4. Facilities.
WinStar shall support the overall operation of the Collocation Site
(e.g., HVAC, janitorial services, environmental systems maintenance
and power plant maintenance) at no additional charge to Williams.
However, Williams shall be required to maintain the Collocation Site
in an orderly manner and shall be responsible for the removal of
trash, packing, cartons, and related items from the Collocation Site.
Further, Williams shall maintain the Collocation Site in a safe
condition including not storing combustible materials therein.
1.5. Access.
(a) Williams will have access to the Collocation Site on a seven (7)
day by twenty-four (24) hour basis, except where Williams'
equipment is located in WinStar space. Where Williams' equipment
is in WinStar space, each visit by Williams to the Collocation
Site will be required to use escort services furnished by WinStar
from the time Williams's employees sign in upon entering the
Collocation Site to the time Williams's employees sign out upon
leaving the Collocation Site. Where Williams' equipment is in
WinStar space, Williams shall not enter a Collocation Site
without WinStar escort. Williams will provide reasonable prior
notice for any such visit. Charges for escort services, if any,
shall be in accordance with WinStar's then-current standard
rates, subject to Sections 6.4 and 6.5 of the Agreement.
(b) At least fourteen days before beginning any delivery,
installation, replacement or removal work, Williams must:
<PAGE>
(i) Submit a methods, operations and procedures document ("MOP")
and a statement of work ("SOW") to WinStar. WinStar will
respond to such submission within seven (7) days of receipt.
(ii) Obtain WinStar's written approval with respect to the SOW,
MOP and choice of suppliers and contractors, which approval
shall not be unreasonably withheld.
WinStar may request additional information before granting
approval and may require scheduling changes and substitution of
suppliers and contractors as conditions of its approval. Approval
by WinStar shall not constitute an endorsement of Williams'
supplier or contractor. Williams will remain solely responsible
for the selection of the supplier or contractor and all payments
for construction work or any other work relating thereto.
(c) Williams may not provide, or make available to any third party,
space within the Collocation Site without WinStar's prior written
consent, which may be withheld in its sole discretion. If
Williams breaches this obligation, Williams shall be in breach of
its license to the Collocation Site and WinStar may immediately
terminate that license.
1.6. Renewal.
Any option granted to Williams to renew its license to occupy the
Collocation Site shall be contingent on the election by WinStar to
continue to own or lease the Collocation Site in which the Collocation
Site is located for the duration of the Renewal Period(s), with such
election to be exercised at the sole discretion of WinStar.
<PAGE>
Exhibit A-4
Standards and Specifications
1. General
The documents attached to this Exhibit A-4 represent the standards and
specifications applicable to the Wireless Fiber Connectivity, as of the
Effective Date. (Please note that "B Site" is WinStar's internal term
for a Qualified or Lit Building.) The attached documents, which shall
be maintained and updated by WinStar from time to time in the ordinary
course of its business, except as limited by Section 12.17(b) of the
Agreement, are:
(a) Switch Site Environmental Requirements;
(b) B Site Build Out Process;
(c) Hub Construction Technical Bulletin;
(d) Hub Facility Design Criteria;
(e) NSO Site and Equipment Test and Acceptance; and
(f) DS-1/DS-3 Certification and Acceptance Performance Objectives.
2. Acceptance and Testing
2.1. Hub Acceptance Process.
(a) WinStar shall perform acceptance testing of the Hubs in a timely
manner to verify compliance with Acceptance Standards set forth
in Section 2.2 of this Exhibit A-4. Williams shall have the
right, but not the obligation, to have personnel present to
observe the acceptance testing and WinStar shall provide Williams
prior notice of WinStar's testing schedule. Within thirty (30)
days after the conclusion of any acceptance testing conducted by
WinStar on any given Hub, WinStar shall provide a copy of the
test results to Williams.
(b) Williams shall have the right, but not the obligation, at its
sole expense, to conduct its own acceptance testing to verify
compliance with Acceptance Standards. If Williams elects to
conduct its own acceptance testing, it shall notify WinStar of
its intent to do so (including dates and locations) and shall
complete such testing within the thirty (30) day review period
set forth in Section (c) below. WinStar shall have the right, but
not the obligation, to have personnel present to observe
Williams' acceptance testing. Within twenty (20) days after the
conclusion of such testing, Williams shall provide a copy of the
test results to WinStar. Williams' exercise or non-exercise of
its right to conduct acceptance testing shall not affect the
length of the thirty (30) day time periods.
<PAGE>
(c) If, within thirty (30) days after receipt by Williams from
WinStar of the test results referred to in Section (a), above, or
of the results of re-testing as set forth below, Williams
reasonably determines that the Hubs do not meet the Acceptance
Standards, Williams shall, within such thirty (30) day period,
notify WinStar of such determination and shall identify in
writing the specific data that indicate such failure to meet the
Acceptance Standards.
(d) Upon receiving notice pursuant to Section (c), above, that some
portion of the Hubs do not meet the Acceptance Standards, WinStar
shall either:
(i) Expeditiously take such action as reasonably necessary to
cause such portion of the Hubs to meet the Acceptance
Standards and re-test the Hubs in accordance with the
provisions of this Section; or
(ii) Notify Williams that WinStar disputes Williams'
determination that the Hubs do not meet the Acceptance
Standards. In such event, the Parties shall agree upon on a
mutually acceptable company that shall re-test the Hubs. If
that test determines that the Hubs meet the Acceptance
Standards, Williams shall pay the testing company's charges
and shall be deemed to have accepted the relevant Hub(s).
Otherwise, WinStar shall pay the testing company's charges
and perform the corrective action and re-testing set forth
in Subsection (i).
(e) After taking corrective actions and re-testing the Hubs, WinStar
shall provide Williams with a copy of the new test results and
Williams shall again have all rights provided in this Article
with respect to such new test results. The cycle described above
of testing, taking corrective action and retesting shall take
place until the Hubs meet the Acceptance Standards.
(f) If the acceptance tests show that the Hubs meet the Acceptance
Standards, and Williams does not object to such tests within the
time periods specified in Section (c), Williams shall be deemed
to have accepted the Hubs. Either case shall constitute
"Acceptance" of the Hubs.
2.2. Hub Acceptance Standards.
The Acceptance Standards applicable to Hubs require that:
(a) The Hub complies with WinStar's then-current construction
standards and specifications;
(b) All related interior space is completed;
(c) Primary and backup power systems are installed and operational;
(d) Primary and redundant HVAC systems are installed and operational;
(e) Connectivity to the WinStar switch location is installed and
operational;
(f) Antennas are mounted in the designated building space in
conformance with Required Rights; and
(g) Radio alarm and monitoring systems are installed and operational.
<PAGE>
WinStar
Switch Site Environmental Requirements
1. Space
Switch & Transmission 3600
Collocation 1000 * = May be placed in 5ESS Growth Areas
WWI Hub 800
* Office Space 550
* MAP Room 350
-------
Total 6300 Sq. Ft.
These are approximate figures and will vary based on each site's
layout.
2. AC Power
480V 600 amp approximately
208V 750 amp approximately
The switch is powered by -48V DC power derived from 480V or 208V AC
(depending on building supply) rectified and backed up by gel cell
batteries. Architect to specify High In-rush Breakers for the
Rectifiers.
3. Ceiling Height
10 Ft. AFF Minimum clear above equipment line-ups.
4. Floor Loading
100 lbs. Per Sq. Ft. in equipment area - switch, transmission
& collocate
200 lbs. Per Sq. Ft. to support batteries (stacked 4 high)
770 lbs. per battery
4 batteries per stack
2 stacks per string
------
6160 per string
5. Floor Tile
Commercial Grade with Anti-static wax.
6. Environmental Alarms
Provide for the following:
1. Fire - Heat & Smoke - Pre-action Control Panel
2. High temperature - Honeywell Sensor Device
3. Low Temperature - Honeywell Sensor Device
4. High Humidity - Honeywell Sensor Device
5. Low Humidity - Honeywell Sensor Device
6. Switch Room Door Alarms - Security System
7. Commercial AC Failure - Engine Annunciator Panel
8. AC Switch - Gen Transfer - Engine Annunciator Panel
<PAGE>
9. Liebert Drip Pan Water Alarm - Remote LIQUI-TEC Annunciator
10. Water Alarm - Switch Room - Remote LIQUI-TEC Annunciator
11. Water Alarm - Power Room (1A) - Remote LIQUI-TEC Annunciator
12. Low Fuel - Storage Tank - Storage Tank
13. Low Fuel - Day Tank (1A) Engine Annunciator Panel
14. Liebert Failure - Liebert Unit
Engineering Notes:
1. Three Honeywell sensor devices will be ordered and placed in
the Power Room, Transmission and Switch areas.
2. The Liebert Common Alarm point will be strapped together and
reported as one Liebert failure.
3. All alarm points wired to a pull box, below the false
ceiling, in the vicinity of the CDF (SSLPDF). They should be
pigtailed and tagged or terminated on a connecting block.
4. The WinStar Switching Engineer will provide for Lucent to
cable from the pull box to the CDF for crossconnect to scan
points in the 5ESS. Lucent will connect on to the pigtailed
lead and stencil the CDF - 89 block as to the alarm type.
5. The annunciators should be mounted in the MAP Room .
6. The Architect should specify and install the Honeywell
Sensors, Annunciator, the Liebert Alarms, Water Alarm,
Engine and Pre-Action Panel, etc.
7. Lighting
A 20 ckt. - 20 amp (120V) panel needs to be provided in the equipment
room (as spotted by Lucent). This panel will be provided for Lucent to
power their Frame & Aisle lights and convenience receptacles. Frame and
aisle lights will be provided by Lucent in all line-ups being provided.
General lighting must be provided elsewhere.
8. Grounding
Lucent will provide a C. O. Ground bar and locate per their floor plan.
From this ground bar, a 750 MCM needs to be run to the principal ground
point which is a recognized building perimeter ground ring, driven
ground system, and on the utility side of the water meter. At that
point, the connection point must be cadwelded and compression fitting
to the 750 MCM is required. We must be careful when using the utility
side of the water meter because of the use of PVC. The WinStar Switch
Engineer will determine the principal ground point.
9. Telephone Closet
This requirement will be site specific and will require either a new
closet built in our equipment room or the re-use of an existing closet.
Either case, there must be 200 shielded pair, run from their closet to
the common distributing frame for the building. WinStar will provide
the connecting blocks in the closet.
Lucent will provide connection from the closet to inter-connect
locations within the switch. Room.
<PAGE>
10. Collocation Room
This room shall be isolated from WinStar Equipment Room with access
from a common corridor. A cable hole shall be made for cable rack
access from WinStar's equipment room to this collocation room. Lucent
to spot on their cable rack plan.
This room shall be approximately 1,000 sq. Ft. in size and have two AC
receptacle circuits run around the perimeter. General lighting to be
provided. Also provide a 20 circuit 20 amp 208 AC panel located on the
wall in the Collocation Room.
11. MAP Room
This is the maintenance room where interface terminals shall be
located. Two AC circuits shall be wired into the room for receptacle
service in the perimeter wall.
This room shall be approximately 350 sq. Ft. and be provided with
general lighting.
Provide a 3' high by 5' long panel with a 1' writing shelf mounted on
a wall in the MAP room for the purpose of mounting test phones. This
unit to be mounted 40" AFF.
12. Emergency Lighting
The equipment rooms, including the collocation room, shall be equipped
with emergency re-chargeable battery packs (or equivalent) sufficient
to light egress path out of equipment room.
13. Emergency Generator
A 350 KW generator and a 1,000 gal. Fuel storage tank is required. A
25-75 gal. Day tank should be provided if required.
The engine will be equipped with auto start and auto transfer.
14. AC Requirements
The AC requirements for a fully built out switch room is approximately
60 Ton. AC is required on a 24 hour basis and should include
redundancy. Lucent will provide heat release figures for all cabinets.
From these figures, the exact requirements can be calculated.
15. Humidity/Temperature
The 5ESS-2000 will operate successfully anywhere between 65 and 85
degrees Fahrenheit and 30% to 80% relative humidity. Performance will
degrade if the temperature or humidity is allowed to change too
rapidly; rate of temperature change should be kept below 1 degree in 4
minutes. Normal (plus or minus 2 degrees and plus or minus 5% RH)
controls will normally maintain these conditions. The machine will
continue to operate at temperatures as high as 120 degrees Fahrenheit,
but this will cause accelerated circuit pack failure for some time
after the "burn". I recommend the controls be set to maintain a
constant 76 degrees Fahrenheit year around.
<PAGE>
16. Filtration
All air induced into the space (both outside and recirculated) should
be filtered using a medium efficiency (30% or greater by ASHRAE Dust
SpotTest) filters. On rare occasions the medium efficiency filter may
not prevent build-up of particulates on or inside the equipment
cabinets at an unacceptably high rate. This can be caused by the
presence of unusually fine particulates or very large amounts of
average size particulates. In either case the remedy is to use filters
of a high enough efficiency to give satisfactory performance. Filters
should be changed at least once every six months (or more often if
recommended by the manufacturer), or when filters are so "loaded up"
that the fan system can not maintain proper room pressurization as
described below.
17. Room Pressurization
The room should be pressurized so that the pressure inside the
equipment space is 0.2 to 0.5 inches of water gauged above the areas
bordering the equipment spaces with all doors closed. Higher pressures
are acceptable as long as door operation does not become too difficult
or dangerous. With the doors open there should be enough positive
pressure to maintain a continuous flow of air out of the room over the
entire area of all openings. If this cannot be accomplished then
appropriate "air curtain" devices or a double door "airlock" should be
provided to prevent the migration of unfiltered particulates into the
equipment space. A pressure gauge should be installed in the space with
probes to both the equipment area and the "outside" area to read the
pressure difference. The reading on this gauge will only be relevant
with the room in its "normal (closed) condition. A Dywer model 2000-00
"Magnehelic" Gauge is suitable for this application.
18. Ventilation
"Outside" air induction of five per cent of the circulated air quantity
is recommended. Successful applications have been designed as low as
two per cent induction. The quantity induced must only be sufficient to
maintain acceptable air quality in the space. If there is no noticeable
"warm equipment" smell outside of the immediate area of the cabinets
then sufficient induction can be assumed.
19. Manager Office
A room of approximately 125 sq. ft. shall be provided for the
Operations Manager's office. Normal lighting and receptacle to be
provided. This office may or may not open directly into the equipment
room. Preferably this office should be within an administration area.
20. Technician & Administration Space
There shall also be a space for two cubicle enclosures and a
receptionist in or around the Manager's Office area.
21. Break Room/Conference Room
A room large enough to house 10 people comfortably shall be provided
close to the proximity of the equipment room, preferably in the
administration area as previously mentioned.
If a sales force is collocated with the switch, by strategically
positioning the conference room, it could be shared by both groups.
<PAGE>
22 Riser Space
We need to have at least two 4" risers to the roof and two to the
basement for access.
23. Freight Elevator
Must be able to handle at least 3500 lbs. And have a 7' high door and
the elevator should be 6' W x 8' D x 10' H.
24. Sprinkler System
A dry pipe system is required.
25. Water Pipes
No building water supply pipes are allowed to be run in the equipment
room. They must be re-routed.
26. Window Covering
If at all possible, windows should be walled off for security reasons.
The above requirements are an attempt to pull together various items that are
relative to the telephone equipment and personnel needs for each site.
Merle Peterson
(Rev. 4-22-97)
<PAGE>
WINSTAR
B SITE BUILD OUT
PROCESS
DESCRIPTION
&
PROCEDURES
Prepared by
WinStar
Network Deployment
Support Services
<PAGE>
PURPOSE
The purpose of the B Site Build Out Process is to provide an overview and
guidelines of the simultaneous activities involved in the construction of On-Net
B Sites. Prior to the construction phase of this process, there are several
preliminary steps that are crucial to the successful selection, construction and
activation of a B Site. The flow process described in this document is
represented in the following chart, and detailed in a brief description of the
activities and responsibilities for each step. WinStar Program Management will
scheduled intervals of activities that are tracked by the Program Manager of
Implementation for each region.
This document provides a single uniform guideline for install contractors and
vendors to provide price/fee quotes and documented proposals to pre-equip and
install WinStar's On Net B Site Locations. This document is not intended to
replace or be used in lieu of WinStar Engineering requirements or local Building
Code Regulations.
SCOPE OF WORK
The Scope of Work relating to the installation of WinStar B Site cabinets/racks
will be presented as three separate phases of performance.
Phase One will be the Site Survey of the proposed building utilizing the WinStar
B Site Evaluation form (hereinafter referred to as the "evaluation form"). Phase
Two will be the creation of B Site specific drawings (hereinafter referred to as
the "drawings") depicting installation of the roof top antenna mount
positioning, cable riser path (s), placement of the WinStar cabinet,
electrical requirements positioning, and location of customer termination
interconnect cable. Phase Three will be the actual installation of the WinStar B
Site cabinet according to the regulations documented in Phases One and Two,
WinStar's Engineering requirements and local Building Code requirements.
Each phase of the process is separate and will be awarded separately.
Additionally, WinStar's acceptance of one phase does not automatically
constitute an award for construction of the subsequent phases. Contractors and
vendors must respond with unit pricing for each phase exclusive of the other.
Price/fee quotes must be submitted within forty-eight (48) hours after the
contractor performs a Phase One B Site Survey and seventy-two (72) hours after
requesting Phase Two site specific drawings.
Phase Three, the physical installation and activation of the B Site Equipment,
is to be initiated by the contractor within forty-eight (48) hours of
notification by the designated WinStar representative. Construction for this
phase must be complete within five (5) working days.
Extenuating circumstances resulting in delays will be addressed on a
case-by-case basis. Payments may be impacted in the event delays are caused
and/or initiated by the contractor/vendor.
<PAGE>
B SITE BUILD OUT PROCESS
o Site Acquisition Identifies a selection of buildings in the scheduled city
o NDSS PM (Program Management) coordinates the build out schedule - Internal
tracking begins
o A Regional Vendor/Contractor is selected based upon the following criteria:
The ability to preform preliminary site evaluation and preform a LOS survey
Provide a detailed Technical Specifications package such as -
drawings/layouts Installation and Activation
o The selected regional contractor reviews the potential site.
The Building Management is presented with a package defining WinStar's
build out plan and model B site equipment specifications
o A Site Evaluation Form is completed (Preliminary LOS- RF study) and
following the guidelines specified in the site evaluation form the
contractor prepares a Site Specification Package containing
Drawings/Renderings, Roof Mounts, Room/Equipment Layouts
o The contractor provides package to WinStar's PM, COI, and Construction for
review
o Site Acquisition presents the lease with a detailed technical package to
the Building Management for approval and the appropriate signatures
o PM coordinates the schedule with the Contractor to pick up the equipment
from Tier 2 staging area
o Site Acquisition notifies the PM upon lease completion, PM provides
Contractor with a Work Authorization form for completion and schedules
installation
o Internal process underway, an ISR is generated activating the ASAP process
and Frequency Planning coordinates path assignments
o Upon site installation completion, PM schedules a Site Walk Through/ Punch
list for B Site Test and Acceptance and completes the hand off to
Operations for Site certification
<PAGE>
B SITE IMPLEMENTATION FLOW PROCESS - PHASE 1
<TABLE>
<S> <C> <C> <C> <C> <C>
Road Runner Vendor Bid process
finalized - vendor package sent Site Survey - Construction
. - generic package recvd by PM schedules - Real Estate
. Construction kickoff & Contractor to -COI to review Mech/
. - Construction selects procedures perform survey Site Eval package Elec drawings
. . vendor and notifies PM of ........... projects -Site Evaluation ..to flow through.....
. . vendor selection schedule .. -Drawings created PM to: - Provide go/no-go
Real Estate . -LOS completed with/recommendation
visits/reviews site. -SOW generated if required
. . - Review contractor
. . costs .
. . Site Identified/ .
. ... Preliminarily .
. . Qualified .
. . .
RF Engineering . 75% Trigger .
performs pre- .... notification from GO/NO-GO .
freq approval Real Estate ....... DECISION ...................................................
. No . Yes Construction & COI
. .
. ................. - Finalize SOW (extremes &
. . abstracts)
. . - Produce checklist
. . - Schedule PM w/vendor
. . - Approve contractor
. . - Generate ISR
. .
Return to Real Estate to ................. RF Engineering B
identify/re-establish . completes freq plan................
.
. ............... Real Estate notified & A
. secures lease ....................
.
. PM notifies COI to
................. load ASAP
</TABLE>
<PAGE>
B SITE IMPLEMENTATION FLOW PROCESS - PHASE II
<TABLE>
<S> <C> <C> <C> <C> <C>
Real Estate PM notifies procurement to produce ................... PM to verify
A signs lease and Letter of Intent to contractor equipment
..... notifies PM ......................... availability
- PM coordinates installation with .
...... contractor; produces schedule .
B .
.
Pre-wire site No Pre-wire to PM/Construction to .
and handoff to ................. equip process ..... schedule contractor Yes Equipment
Ops in excess of 10 for equipment ........................ available?
. days? retrieval .
. . . .
. Yes . . . No
. . . .
. Equip site . .
Construction Complete . . PM notifies
. . Logistics
- Formal handoff from PM/COI to Develop . .
Ops completed punchlist/ . .
. handoff . Logistics
. documentation . locates
PM officially . . equipment and
closes project . . notifies PM
with Real . . .
Estate . . .
Construction Complete . PM notifies
. Construction
- formal handoff from PM/COI to . of equipment
Ops completed . availability
. ......................................
.
PM officially
closes project
with Real
Estate
</TABLE>
<PAGE>
SITE SURVEY
Prior to the commencement of any installation, a certified installation
team will conduct a site survey at the designated installation location(s). This
team will be designated by WinStar NC&D and will be comprised of contractors,
WinStar personnel, or a combination of both. The Site Survey Team will comply
with the procedures described below. The Site Survey Team should always work in
cooperation with the building engineer/manager while performing the site survey.
These guidelines generally apply to rooftop installation or towers.
Preparation
The Site Survey Team will be dispatched by WinStar NC&D to the location of the
installation.
WinStar NC&D will provide the Site Survey Team detailed information related to
building access contacts, phone numbers, and the scheduled date of the site
survey. This information will be provided in advance to the Site Survey Team
immediately after initial WinStar contact with building(s) management.
The Scope of Work relating to the B Site Evaluation (hereinafter referred to as
the "evaluation") covers in a general form the following sample of requirements
which equates to a complete building profile. WinStar has determined that the
following factors are effectively significant to the successful installation of
B Site Equipment:
o Positioning of the antenna mounts.
o Penetration of roof top to gain access to cable risers.
o Cable riser capacity/constraints.
o Core boring vertical floors in riser pathways (if required).
o Identify inside wiring distribution pathways.
o Power availability and grounding requirements.
o Positioning of the WinStar B Site Cabinet.
All proposed WinStar B Site buildings will be surveyed utilizing the standard
form. The survey process must be initiated by a designated a WinStar
representative. B Site Evaluation Forms will be provided as required and are the
property of WinStar and are not to be utilized for any purpose other than that
requested by WinStar.
The contractor/vendor must respond to WinStar within twenty-four (24) hours upon
receipt of notification to perform.
GPS measurements to include the following:
o Longitude and latitude to the nearest second.
o Ground elevation within one (1) meter.
Line of Sight to WinStar designated HUB building:
o Confirmation of LOS between the two designated buildings.
o Physical confirmation by actual site roof top visits.
o Notification of potential obstructions or related interference.
The above requirements are a sample of the data required to complete the survey
form.
Prior to submitting a bid response the attached documents must be reviewed
for additional requirements.
Site Survey Team Procedures
Confirm a clear, unobstructed Line of Sight (LOS) between Building A and
Building Z. (Building A pertains to the predetermined Hub Site and Building B
pertains to the B Site). In the event the LOS is obstructed by new construction,
trees, or roof top mechanical installations, immediately notify WinStar NC&D to
describe the environment and discuss possible remedies. Pay special attention to
window washing gear. Determine if it will block LOS during use.
<PAGE>
If LOS does not exist or if distance is too great, look for several potential
repeater buildings/towers. Obtain building management information and phone
numbers. If access to these buildings cannot be obtained for on-site survey,
consult with WinStar Program Management for assistance.
Obtain the latitude and longitude of the A and Z sites with a GPS receiver and
record the data on the WinStar Site Evaluation Form.
Roof Mount Location and Type:
Determine the best location for placement of the antenna mount that ensures
optimum LOS between Building A and Building Z and provides ease of installation
for the Installation Team.
Determine the type of antenna mount:
The type of antenna mount required is determined by the roof top construction
and any obstructions located on the roof (e.g., mechanical housings).
If an existing tower or antenna framework is present on either Building A or
Building Z, the Site Survey Team will immediately advise WinStar NC&D of the
potential to use these structures for installation, as well as the name and
telephone number of the organization responsible for the structure.
Identify and/or confirm the location(s) of the Indoor Unit (IDU), rack/cabinet
placement.
Grounds:
Electrical grounds are required for the proper operation and protection of
transceivers as well as protection of personnel and other equipment connected to
the radios. Improper ground procedures put the equipment and its environment at
risk.
ODU ground:
Grounds should be used on the ODU to the mast or tower. For a rooftop
installation, the mast should be grounded to building steel. Long cable runs for
grounding purposes should be avoided.
IDU ground:
If the IDU is connected to a floating battery power source, such as a Central
Office environment, generally no further precautions must be taken. However,
when using a WinStar power supply or other power supply or other AC rectifier
without benefit of battery back-up, special care must be taken to prevent the
formation of AC ground loops, which can cause a variety of problems. Ideally,
the source for reference ground for the outside and inside units will be the
same and will be building steel. Bonding the ground to building steel to the
inside unit is very important. Often, however, the inside and outside units are
far apart, which creates ground loops. Every effort both to find and to
eliminate these loops should be made before certifying installation.
Ground Loops:
Ground loops are formed when two or more points on the radio system are
referenced to different grounds. They also occur when the distance from the
outside unit and the inside unit is increased, thereby increasing the chance for
a difference in potential between the two reference points. After going through
all Installation steps, a test for the existence of ground loops should be made.
With the equipment turned on and the cable disconnected from the IDU, measure AC
voltage between the chassis of the inside unit and the braid on the coaxial
cable. This reading should be in millivolt range. (Note: local codes may be
stricter than this.) If it exceeds this reading, a possibility for ground loops
exists and must be eliminated. The second test to be performed is to measure the
DC voltage between the chassis and the braid on the cable. This reading should
not exceed 5 VDC. If the reading is in excess of 5 VDC, steps must be taken to
eliminate the ground loop. There are several ways to eliminate ground loops.
Bonding the two points in the system with a low resistance cable is one way to
resolve this problem. However, if this is not feasible, the AC ground must be
broken at the outside unit. AC grounds can occur at the outside unit due to
installation of receptacles on the tower, other equipment mounted on the tower,
or tower lighting. If the first ground used is referenced to the mast or tower
itself, it must be removed and referenced to another, better ground. Again
building steel is preferable. Check the second ground point where the cable
enters the building, if this does not solve the problem. Re-connect it directly
to building steel or to the reference point for the lightning arrestor field.
<PAGE>
Use 8 AWG cable or better for this purpose. The ideal situation, especially for
a building with multiple installations, is to create a ground buss in the common
space in the building and run very heavy gauge (MCM 50 or better) to the buss
and connect all grounds to the buss via copper lug connections. Determine the
cable path for the cable(s) between the ODU and the IDU. This requires
inspection of the roof top for a portal conduit that allows entry from the roof
top to the internal cable riser pathway. If a portal conduit is not available,
or the existing ports are filled, notify WinStar Operations and provide a
recommended solution. While on the premises, obtain the name and telephone
number of the roofing contractor used by, or recommended by, the building
manager. This information will assist in expediting the installation of a portal
conduit.
Measure the distance of the proposed cable path between the ODU and the IDU and
add 10%. This additional cable will be used for the creation of service loops
associated with the installation. The maximum length of the coax cable is 800
feet if using plenum rated and 1000 feet if using non-plenum. Determine the
source and connection points of the building roof top ground. Proper grounding
of the antenna mounting serves as lightning protection and reduces the
possibility of electrical shock to personnel and equipment damage. Do not use
building lightning protection or aluminum to ground. Use building ground (i.e.,
I-Beam, stairwell, etc.).
Determine the source and connection points of building/earth ground in the
immediate area of the IDU installation. When possible, perform steps 1-11
simultaneously in Buildings A and Z.
Document the Site Survey results on the WinStar Evaluation Form and fax the
completed form to WinStar Program Management at 703-790-4672. Retain a copy of
the completed site survey form for reference during the actual installation.
SITE SPECIFIC - TECHNICAL DRAWINGS
Phase Two is the creation of B Site specific drawings that are in
direct association with the technical and physical requirements of a successful
B Site installation as it relates to the existing/proposed B Site building.
The drawings must accurately represent the physical environmental
structure of the B site building as well as the actual addition of 100% of the
components of the WinStar B Site equipment package. Drawings are to be computer
software-enhanced with one (1) inch to equal no less than twenty-four (24)
actual feet of the structure, whether it constitutes roof top, vertical risers
or floor space.
Roof top drawings are to display the position of the WinStar antenna
mount in relationship to adjacent roof top structures as currently located and
are to be accurate in relationship to Polar designations. Cable penetration
locations are to be specifically designated as to entry point by Polar location
on the roof top and an accurate measurement from a fixed permanent
position/structure on the roof top.
Cable path risers are to be accurately designated as to specific
vertical runs in relationship to interior locations by room and shaft
designators, floors to be transgressed, roof top paths, and break-out locations.
These designations must be specific as to point of roof penetration to the point
of termination at the WinStar B site equipment location.
The proposed core boring of new cable riser space is to be specific as
to locations by room and shaft designators, floors to be transgressed and degree
of anticipated difficulty in successful competition. Core boring proposals on
the site specific drawings are to include the actual locations of existing cable
runs/conduits in relationship to the proposed new core bore holes.
Positioning of the WinStar B Site cabinet is to be accurately depicted
on computer software enhanced drawings to reference the exact location within
the B Site Building environment. Detail should be shown to reference room
designator number, floor designator and exact floor space to be occupied with
detailed references to existing devices in the immediate space.
<PAGE>
Contractors are encouraged to enhance the level of visual detail within
the environment to include electrical outlet references, grounding positions, AC
power distributors, point of entry for the WinStar coax cable and pathway within
the facility.
In addition, drawings of the B-Site equipment location are to designate
the specific customer interface wiring positions when available. Wiring
backboards and termination blocks are to be identified by exact wall mounting
locations within the environment.
In the event that electrical outlets are unavailable and new outlets
are required, the drawings are to reflect the exact proposed positioning of the
required outlets in exact relationship to the WinStar B Site cabinet location.
Measurements are to be recorded and listed in exact distance between the
outlet(s) and the WinStar B Site cabinet.
The contractor must make available to WinStar computer enhanced site
specific drawings within seventy-two (72) hours of formal notification by a
designated WinStar representative. Under no circumstances are B Site specific
drawings to be delivered or presented to other parties outside the WinStar
organization without prior written consent from an authorized WinStar
representative.
<PAGE>
SITE EVALUATION FORM
[FORM FOR SPECIFYING DATE RELEVANT TO SITE LOCATION PROCESS]
<PAGE>
B SITE PRE-EQUIP GUIDELINES
DESIGN
The WinStar microwave radio system is a compact, cost effective,
highly reliable, easy to configure microwave radio system. The WinStar microwave
radio system is also referred to as a LINK, consisting of two separate terminals
operating in the same frequency band on complementing transmit and receive
frequencies.
Each WinStar microwave radio system consist of an antenna and
mount, outdoor unit (ODU ), indoor unit ( IDU ) and IDU to ODU interconnect
cable. The IDU of each terminal is connected to the Customer's termination
equipment via an approved WinStar interconnect cable.
The WinStar microwave radio system is designed for ease of
installation and operation. The outdoor unit ( ODU ) is designed to either be
mounted directly to the antenna on an antenna mount assembly or depending on the
model be mounted remotely from the antenna.
The indoor unit ( IDU ) is designed to be mounted in a standard 19-
inch EIA relay rack or in an enclosed lockable cabinet in a designated secure
location. Prior the installation of a WinStar microwave radio system, the
proposed install site must be site surveyed and documented as required by
WinStar. The Site Survey is one phase of several that will allow the successful
installation of a WinStar Microwave radio system to proceed.
On-Net facilities are connected to Hubs via 38 GHZ circuits in a
point-to-point configuration. On-Net facilities provide customer access via high
speed and low speed circuits in a point-to-point design. WinStar field personnel
will follow the pre-construction design criteria d in this document to prepare
for the installation of On-Net facilities.
NETWORK ARCHITECTURE
On-Net sites are customer access points for microwave links that
transmit traffic to and from Hubs. Hub and On-Net sites communicate via
multiple DS3/DS1 radio links in the 38 Ghz portion of the spectrum. The Hubs
function as concentrators for these microwave links, providing DS3 or DS1
service for buildings within the Hub service area. In some instances , the
traffic from these buildings will be bundled into multiple DS3 links over a
fiber SONET Ring backbone, or connected by low frequency radio shots. This
fiber backbone will initially be provided by a competitive access provider
(CAP).
In simple terms, the network architecture features On-Net sites as
customer access points for traffic, with Hubs transmitting and receiving
traffic from On-Net sites via microwave links. Hubs concentrate that traffic
from On-Nets and transmit (or receive) traffic over fiber links to any one of
the following:
o WTI 5ESS switch sites
o Other Hubs
o IXCs (inter-exchange carriers)
o LECs (local exchange carriers)
o CAPs (competitive access providers)
<PAGE>
B-SITE PRE-EQUIP CONSTRUCTION GUIDELINES
This section provides a single, uniform guideline for field personnel that
outlines the scope of work required for pre-equipping of On-Net sites (B-sites).
These guidelines can be used for obtaining price quotes from service vendors.
Any questions should be directed to Network Construction & Deployment. If the
cost for meeting the guidelines below exceeds $5,000 consult with NC&D
Construction Engineering.
Complete the WinStar B Site Evaluation Form and submit with price quote.
Scope of Work
o Assemble and install antenna mount/s in a position that ensures
line-of-site (LOS) to Hub facility
o Install plenum rated cable between common equipment location and
penetration point
o Install five (5) RG 8 cables from mount to common equipment location,
ensure all cables are tagged with WinStar provided cable
Identification tags
o WinStar's policy does not dictate the use of conduit between common
equipment and point of penetration.
o Install five (5) WinStar provided surge protectors at the building
interior point of penetration (refer to diagram 0-7)
o Install water proof sleeves at cable point of penetration
o Protect cable in rigid conduit or cable trough if crossing open roof
area
o Common equipment location to be based on cost of proximity to building
MDF
o Identify inside wiring distribution pathways
o Core drill verticals if required and sleeve
o Grounding mount per local practice. Refer to WinStar Antenna mount
grounding requirements
o Utilize open bay configurations for secure areas
o Utilize lockable cabinet configurations for non protected areas
Install RG-8 plenum coax cables from the roof mount to equipment location.
Install at least 5 cables in all cases. Install an additional two cables if the
two cables can be installed for less than $2000. Otherwise, obtain price quotes
for the additional two cables and submit to NC&D. The maximum allowable IDU to
ODU cable length is 1000 feet. Ensure any exposed cable on rooftop is protected
(by conduit, wire tray, or PVC), from the antenna mount to building penetration
point. Install lightning arrestor and surge protection inside building near
point of penetration. B-sites do not require that conduit be used between
equipment location and roof penetration point, only that the cable be sleeved at
penetration points. Local codes or building management requirements may require
otherwise. Exceptions should be explained and justified in writing to Network
Engineering. Verify internal distribution path for inside wiring through
existing telco risers. Maximum allowable STP cable length is 550 feet. Establish
cable paths sufficient for vertical distribution as identified by the Site
Survey and insert removable fire protection as required.
Pre wiring of riser cable is not recommended, inside wiring will be installed on
a ICB basis depending on customer requirements.
Determine the cable path for the cable(s) between the ODU and the IDU. This
requires inspection of the roof top for a portal conduit that allows entry from
the roof top to the internal cable riser pathway. If a portal conduit is not
available, or the existing ports are filled, notify WinStar Operations and
provide a recommended solution. While on the premises, obtain the name and
telephone number of the roofing contractor used by, or recommended by, the
building manager. This information will assist in expediting the installation of
a portal conduit.
<PAGE>
Measure the distance of the proposed cable path between the ODU and the IDU and
add 10%. This additional cable will be used for the creation of service loops
associated with the installation. The maximum length of the coax cable is 800
feet if using plenum rated and 1000 feet if using non-plenum.
B SITE POWER REQUIREMENTS
WinStar utilizes the Reltec/Lorain MZ-60 rectifier as the standard power supply
for B sites. This -48VDC power system is capable of supplying between 10 and 60
amps of DC current. The system can accept various AC feeds depending on site
requirements. Use the following guidelines when ordering initial AC power.
It is the recommendation of WinStar Engineering to equip the rectifier at 240VAC
@ 50 amps. This would allow full utilization of the power plant.
Determine B site rectifier, AC power requirements. This should be done during
the preliminarily site evaluation phase. Install one (1) 120 or 240 VAC, 20-50
amp single phase circuit per MZ-60 power plant. The circuit will terminate into
a NEMA L5-20-50 Twistlock female connector and be mounted in an electrical
outlet box. The male connector will be supplied on a pre-manufactured power cord
for the rectifier assembly. This circuit will be used for the Rectifier
Assembly.
Smaller sites with limited growth potential may install two (2) AC circuits of
110 VAC @ 20 amps. Factors such as separate metering requirements and cost
factors need to be considered when selecting AC power.
1. Install one (1) 120 VAC, 20 amp single-phase circuit. The circuit will
terminate into a NEMA L5-20 Twistlock female connector, mounted in an
electrical outlet box. This circuit will be used for the AC outlet strip,
which will host the cabinet fan assembly power requirement. It may also
supply power to future equipment, test equipment, and PCs used for
maintaining the network.
2. The male connector for the cord of the AC outlet strip must be changed to a
NEMA L5-20 Twistlock Male Connector. This connector will be assembled
during the equipment reconfiguration.
3. Provision one (1) 20 amp circuit for every three cabinets installed at a
site. The AC outlet strips may be connected in series, in-between cabinets.
4. Install the outlet boxes no lower than 84 inches from the base of the floor
and not to exceed more than 8 feet from the cabinet location.
<PAGE>
B SITE POWER CONSUMPTION
The Building Management at B sites may be concerned about the power
consumption of the WinStar equipment installed on their premises. By using Chart
N, it is possible to evaluate the amount of AC power that will be used by
various equipment configurations.
To use the chart it is first necessary to calculate the DC requirement
of the WinStar equipment - this will typically be 1.5 amps for each IDU/ODU and
0.6 amps for each Mux. Using this figure, the monthly AC power consumption can
be found from the chart. The chart uses figures taken from the Lorain MZ10F50
Technical Document and assumes a 730 hour month.
EQUIPPED B SITE GUIDELINES
This phase of the B Site process will define the criteria for a fully
equipped B Site Installation.
EQUIPMENT
STANDARD B SITE EQUIPMENT ORDERING FORMS
Central Office Implementation updates the master equipment ordering forms and
provides approved copies to construction and logistics to standardize equipment
ordering.
The following is an approved B Site equipment ordering form.
Current Electronic Copies are available from Logistics and Central Office
Implementation
<PAGE>
Standard Configuration 1 Build P-COM 8xT1 Link
<TABLE>
<CAPTION>
Power PART# MFG QTY
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Rectifier, 10 Amp 486524401 Reltec 2
- -----------------------------------------------------------------------------------------------------
Fan Module, Rectifier 427215600 Reltec 2
- -----------------------------------------------------------------------------------------------------
Mounting Cabinet, Rectifier 588242000 Reltec 1
- -----------------------------------------------------------------------------------------------------
Battery, 12V 100 Amp Sure Power 4
- -----------------------------------------------------------------------------------------------------
Shelf, Battery 412805200 Reltec 1
- -----------------------------------------------------------------------------------------------------
Power Strip IBAR-12 Tripplite 1
- -----------------------------------------------------------------------------------------------------
Fuse Panel, Alarm 19"-23" 009-0002-1005 Telect 1
- -----------------------------------------------------------------------------------------------------
Mounts
- -----------------------------------------------------------------------------------------------------
Mounts: (one of following) 1
- -----------------------------------------------------------------------------------------------------
Non-Penetrating Roof PSH-4 Baird
- -----------------------------------------------------------------------------------------------------
Wall 60" 91148 Microflect
- -----------------------------------------------------------------------------------------------------
Wall 100" 91147 Microflect
- -----------------------------------------------------------------------------------------------------
Tripod, Penetrating Microflect
- -----------------------------------------------------------------------------------------------------
Cable Feet
- -----------------------------------------------------------------------------------------------------
RG-8 Plenum (feet) C-0216 5K
- -----------------------------------------------------------------------------------------------------
Octopus, 10' 5006-10 2
- -----------------------------------------------------------------------------------------------------
IDU External Alarms 5016-08 1
- -----------------------------------------------------------------------------------------------------
16 awg 2 pair (feet) 9080-RED/BLK 20ft
- -----------------------------------------------------------------------------------------------------
DC Pwr 6 awg Red (feet) 0601-THHN-RED 10
- -----------------------------------------------------------------------------------------------------
DC Pwr 6 awg Blk (feet) 0601-THHN-BLK 10
- -----------------------------------------------------------------------------------------------------
Fuse Panel Alarm (feet) 9501 20
- -----------------------------------------------------------------------------------------------------
Rectifier Alarm (feet) 20
- -----------------------------------------------------------------------------------------------------
Mux Alarm (feet) 20
- -----------------------------------------------------------------------------------------------------
25 pr STP cable 24awg CMP-025-24-SSP ANIX 100
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
Cabinets
- -----------------------------------------------------------------------------------------------------
Indoor Enclosure GL 8401/32 Great Lakes 1
- -----------------------------------------------------------------------------------------------------
Radio Equipment
- -----------------------------------------------------------------------------------------------------
IDU, 8x 16488 PCom 1
- -----------------------------------------------------------------------------------------------------
ODU (one of following)
- -----------------------------------------------------------------------------------------------------
Band 1 16268 PCom
- ------------------------------------------------------------------------------------------------------
Band 2 16260 PCom
- -----------------------------------------------------------------------------------------------------
Band 3 16266 PCom
- -----------------------------------------------------------------------------------------------------
Band 4 16258 PCom
- -----------------------------------------------------------------------------------------------------
Antenna, 12" 23770-002 Andrews 1
- -----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Power PART# MFG QTY
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
DSX
- -----------------------------------------------------------------------------------------------------
DSX-1 Panel, Jack Field MINI DSX-1/W ADC 1
- -----------------------------------------------------------------------------------------------------
DSX-1 Module MINI DSX-1/WM ADC 1
- -----------------------------------------------------------------------------------------------------
Mounting Panel, DSX-3 3 Position 010-0000-0701 Telect 1
- -----------------------------------------------------------------------------------------------------
Chassis, DSX-3/4 16 Position 1000000301 Telect 1
- -----------------------------------------------------------------------------------------------------
Module, DSX-3/4 1090010401 Telect 1
- -----------------------------------------------------------------------------------------------------
Local Termination Field
- -----------------------------------------------------------------------------------------------------
Split 50 pair block 6639-01-001-01 Krone 4
- -----------------------------------------------------------------------------------------------------
Stand off bracket S89D Siemons 4
- -----------------------------------------------------------------------------------------------------
Wire management rings 4
- -----------------------------------------------------------------------------------------------------
19" wall/cabinet mount Krone
- -----------------------------------------------------------------------------------------------------
Miscellaneous
- -----------------------------------------------------------------------------------------------------
Connector, RG-8 Plenum NS 5848-5 20
- -----------------------------------------------------------------------------------------------------
Cable Standoff 10001-01 20
- -----------------------------------------------------------------------------------------------------
Lightning Protection Device RT-N/W 5
- -----------------------------------------------------------------------------------------------------
Ground Bar 40280013 1
- -----------------------------------------------------------------------------------------------------
Mounting Bar, 19" 76017 1
- -----------------------------------------------------------------------------------------------------
Cable Ties, 4" Blk TYT-T18R-0-M bulk
- -----------------------------------------------------------------------------------------------------
Cable Ties, 8" Blk TYT-T30M-0-M bulk
- -----------------------------------------------------------------------------------------------------
Screws 2
- -----------------------------------------------------------------------------------------------------
Nut, Star Locking (6/32) 2
- -----------------------------------------------------------------------------------------------------
Terminal, 12 Position N70149 BEAU 1
</TABLE>
<PAGE>
Standard Configuration 1 Build P-COM DS-3 Link
<TABLE>
<CAPTION>
Power PART# MFG QTY
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------
Rectifier, 10 Amp 486524401 Reltec 2
- ------------------------------------------------------------------------------------------
Fan Module, Rectifier 427215600 Reltec 2
- ------------------------------------------------------------------------------------------
Mounting Cabinet, Rectifier 588242000 Reltec 1
- ------------------------------------------------------------------------------------------
Battery, 12V 100 Amp Sure Power 4
- ------------------------------------------------------------------------------------------
Shelf, Battery 412805200 Reltec 1
- ------------------------------------------------------------------------------------------
Power Strip IBAR-12 Tripplite 1
- ------------------------------------------------------------------------------------------
Fuse Panel, Alarm 19"-23" 009-0002-1005 Telect 1
- ------------------------------------------------------------------------------------------
Mounts
- ------------------------------------------------------------------------------------------
Mounts: (one of following) 1
- ------------------------------------------------------------------------------------------
Non-Penetrating Roof PSH-4 Baird
- ------------------------------------------------------------------------------------------
Wall 60" 91148 Microflect
- ------------------------------------------------------------------------------------------
Wall 100" 91147 Microflect
- ------------------------------------------------------------------------------------------
Tripod, Penetrating Microflect
- ------------------------------------------------------------------------------------------
Cable Feet
- ------------------------------------------------------------------------------------------
RG-8 Plenum (feet) C-0216 5K
- ------------------------------------------------------------------------------------------
Octopus, 10' 5006-10 2
- ------------------------------------------------------------------------------------------
IDU External Alarms 5016-08 1
- ------------------------------------------------------------------------------------------
16 awg 2 pair (feet) 9080-RED/BLK 20ft
- ------------------------------------------------------------------------------------------
DC Pwr 6 awg Red (feet) 0601-THHN-RED 10
- ------------------------------------------------------------------------------------------
DC Pwr 6 awg Blk (feet) 0601-THHN-BLK 10
- ------------------------------------------------------------------------------------------
Fuse Panel Alarm (feet) 9501 20
- ------------------------------------------------------------------------------------------
Rectifier Alarm (feet) 20
- ------------------------------------------------------------------------------------------
Mux Alarm (feet) 20
- ------------------------------------------------------------------------------------------
25 pr STP cable 24awg 100
- ------------------------------------------------------------------------------------------
Muxes
- ------------------------------------------------------------------------------------------
Mux, M13 NEC RC-28D NEC
- ------------------------------------------------------------------------------------------
Cabinets
- ------------------------------------------------------------------------------------------
Indoor Enclosure GL 8401/32 Great Lakes 1
- ------------------------------------------------------------------------------------------
Radio Equipment
- ------------------------------------------------------------------------------------------
IDU, 8x 16488 PCom 1
- ------------------------------------------------------------------------------------------
ODU (one of following)
- ------------------------------------------------------------------------------------------
Band 1 16268 PCom
- ------------------------------------------------------------------------------------------
Band 2 16260 PCom
- ------------------------------------------------------------------------------------------
Band 3 16266 PCom
- ------------------------------------------------------------------------------------------
Band 4 16258 PCom
- ------------------------------------------------------------------------------------------
Antenna, 12" 23770-002 Andrews 1
- ------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Power PART# MFG QTY
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
DSX
- ------------------------------------------------------------------------------------------
DSX-1 Panel, Jack Field MINI DSX-1/W ADC 1
- ------------------------------------------------------------------------------------------
DSX-1 Module MINI DSX-1/WM ADC 1
- ------------------------------------------------------------------------------------------
Mounting Panel, DSX-3 3 Position 010-0000-0701 Telect 1
- ------------------------------------------------------------------------------------------
Chassis, DSX-3/4 16 Position 1000000301 Telect 1
- ------------------------------------------------------------------------------------------
Module, DSX-3/4 1090010401 Telect 1
- ------------------------------------------------------------------------------------------
Local Termination Field
- ------------------------------------------------------------------------------------------
Split 50 pair block 6639-01-001-01 Krone 4
- ------------------------------------------------------------------------------------------
Stand off bracket S89D Siemons 4
- ------------------------------------------------------------------------------------------
Wire management rings 4
- ------------------------------------------------------------------------------------------
19" wall/cabinet mount Krone
- ------------------------------------------------------------------------------------------
Miscellaneous
- ------------------------------------------------------------------------------------------
Connector, RG-8 Plenum NS 5848-5 bulk
- ------------------------------------------------------------------------------------------
Cable Standoff 10001-01 20
- ------------------------------------------------------------------------------------------
Lightning Protection Device RT-N/W bulk
- ------------------------------------------------------------------------------------------
Ground Bar 40280013 1
- ------------------------------------------------------------------------------------------
Mounting Bar, 19" 76017 1
- ------------------------------------------------------------------------------------------
Cable Ties, 4" Blk TYT-T18R-0-M bulk
- ------------------------------------------------------------------------------------------
Cable Ties, 8" Blk TYT-T30M-0-M bulk
- ------------------------------------------------------------------------------------------
Screws 2
- ------------------------------------------------------------------------------------------
Nut, Star Locking (6/32) 2
- ------------------------------------------------------------------------------------------
Terminal, 12 Position NH 70149 BEAU 1
</TABLE>
On-Net (B-site) equipment shall be pre-assembled and tested prior to deployment
in the field.
STANDARDIZED B-SITE EQUIPMENT CONFIGURATIONS
o DS1-1 8XT1 IDU
o DS1-2 8XT1 IDU WIRING
o DS1-3 8XT1 IDU ALARM WIRING
o DS3-1 8XT1 IDU
o DS3-2 8XT1 IDU WIRING
o DS3-3 8XT1 IDU ALARM WIRING
o B-SITE ANTENNA SURGE PROTECTION
LOCAL TERMINATION FIELD AND CIRCUIT DEMARC
(See Appendix for Attachments Local Termination Field and WTI Demarc)
o Terminate/Extend B site DSX-1 field per the following guidelines
o Locate Krone 66 style termination block field per site
requirements
o Field may be located in various locations, including:
- wall mounted near common equipment
- rack mounted in either 9 or 23 inch cabinet
- mounted in closest telco closet, blocks may be added to
existing 66 type backboards - in telco closets
<PAGE>
o Terminate two (2) 25 pair ABAM cables from DSX-1 panel to first
row of split 50 blocks
o Separate transmit and receive pairs on opposite sides of split 50
block in upper right position per drawing
o Extend customer cables from local termination field to customer
premise o Install cross connects from first row of termination
field (network side) to customer cable termination points
(customer side)
Install WTI cross connects from network side blocks to RJ 48X blocks
located on the right side of termination field
<PAGE>
Appendix - Technical Drawings
[CHART DIAGRAMMING SITE IMPLEMENTATION TIMELINE]
<PAGE>
Network Construction Engineering
Technical Bulletin No. 550-30-1001-004
This bulletin contains additions or revisions to the WinStar Network
Construction and Development Standard Operating Practices, Volume 1, Revision 1,
(Part No. ###-##-####.)
Insert the following new or changes pages or drawings where indicated.
To: All Winstar Construction Personnel
From: Richard Bailey
Network Construction Engineer
Re: Specifications / Requirements / Overview
Standardized WinStar Hub Construction Models
Standardized WinStar Equipment Configurations
Hub Construction Model # 1
1000 Square foot Hub Facility
Specifications / Requirements
Designed to accommodate fifty (50) remote customer "B" sites
Large equipment growth potential / Collocate space available
Original foot print of 24 equipment bays, expandable
VAC requirement 400 amps @ 240 VAC or 200 amps @ 480 VAC
VDC requirement 4-600 amps@ -48VDC @ 8hrs reserve
Environmentally controlled facility
Hub Construction Model # 2
500 Square foot Hub Facility
Specifications / Requirements
Designed to accommodate fifty (50) remote customer "B" sites
Limited equipment growth potential / Collocate space available
Original foot print of 24 equipment bays
AC site power requirements 2-300 amps @ 240 VAC or 1-200 amps @ 480VAC
VDC requirement 400 amps @ -48VDC @ 8hrs reserve
Environmentally controlled facility
<PAGE>
Hub Construction Model # 3
Less than 200 Square foot Hub Facility
Specifications / Requirements
Designed to accommodate 25 plus remote customer "B" sites
No equipment growth potential
No less then 12 equipment bays
AC site power requirements 100 amps @240 VAC
Hub Construction Model # 4
100 Square foot Hub Facility
Equipped with a 4 x14 DMC Equipment Configuration
Specifications / Requirements
Designed to accommodate up to fourteen remote B sites
Designed under current B site lease language restrictions
Utilizes B site power requirements 240vac @ 40a plus 110vac @ 20a
Utilizes all DMC radio equipment ( requires B sites to be configured with DMC
IUD's)
All active equipment SNMP compliant
Accepts various connectivity schemes
Accepts up to four (4) Low Frequency protected links (or)
Accepts up to 14 carrier provided DS 3 circuits (or)
Designed to support carrier provided Optical Mux (OC XX ) with DS3 terminations
8xT1 or DS3 outbound links depending on available back bone bandwidth
Utilizes Great Lakes 8401 model 23 inch cabinets
Initial equipment complement is pre-assembled for quick turn up time
Requires 100 square foot leased space, sufficient to accommodate four
28"Wx28"Dx84"H lockable cabinets with front and rear access.
<PAGE>
Standardized Equipment Configurations
Equipment elevation and assembly drawings available in NC&D Construction Manual
Hub (WinStar Node )
4 x14 DMC Equipment Configuration (see hub construction model 4)
12x T1 P-Com IDU configuration
12x DS3 P-Com IDU configuration
12x CAC/NEC Mux bay
Antenna Bay configuration
12x M 1/3 Mux Bay configuration
DSX-1 Cross connect bay configuration
DSX-3 Cross connect bay configuration
Local Termination Field Hub
"B" (Customer Site )
P-Com 8xT1 x 5 IDU configuration
P-Com DS3 x 2 m1/3 configuration
DLC add on configuration
DLC stand alone configuration
Local Termination Field Customer site
<PAGE>
1. HUB FACILITY DESIGN CRITERIA
1.1. INTRODUCTION
The material presented in this section relates to the space planning
and design, the construction, and the communication equipment
installation for the WinStar Hub Facilities.
1.1.1. SPACE PLANNING AND DESIGN
There are two categories of Hub facilities: 500 - 1000 square feet,
200 - 500 square feet. The space planning size of the facility is
determined by the number of antennas the facility plans to support,
although, due to lease arrangements, the gross hub size may differ
from the Hub equipment's physical space needs. Unless otherwise
designated in the following guidelines, the Hub design aspects
associated with finishes, power, and environmental support equipment
is similar for all three type of hubs.
The architectural and engineering (A/E) firm is responsible for
producing the construction drawings and specifications necessary to
construct the Hub. The design of all facility components shall be in
accordance with all local, state, regional and/or national building
codes which have jurisdiction at the site location. The construction
engineer shall be responsible for reviewing these governing building
codes and assuring that the Hub is built according to the drawings and
specifications.
The typical hub facility space planning process revolves about the
support of telecommunications equipment located within the Hub space,
and the transmission/reception (antenna) equipment located exterior to
the space. WinStar engineering holds the responsibility for relating
Hub telecommunication equipment quantities and antenna locations to
the A/E at the onset of the space planning process. Lease information
associated with tenant construction standards/guidelines is to be made
available to the A/E, along with any other landlord requirements such
a those associated with review and approval of construction documents.
The A/E holds the responsibility for obtaining, with the assistance of
the WinStar Engineer as necessary, any base building plans of
documents needed for Hub design, or must otherwise develop building
backgrounds and design documents by audit.
At the onset of the space planning process, the A/E shall develop
basic Hub background drawings showing walls, columns, doors, windows,
floor elevation changes, etc. The A/E shall then initiate a proposed
Hub equipment layout for WinStar Network Construction Engineering
approval. The layout shall reflect the items noted on the initial
WinStar Hub equipment listing noted above, along with "generic" hub
equipment support systems such as HVAC equipment, electrical
panelboards, fire alarm panels, etc. Once WinStar Network Construction
Engineering approval is secured, construction documentation
preparation can commence.
1.1.2. ARCHITECTURAL
Every site may be unique and each region of the country may have
special considerations. The following items shall be considered during
the design:
1.1.2.1. Demolition
Coordinate demolition plan for the leased space. Drawings shall
indicate removal and legal disposal of items except those
indicated to be reinstalled, salvaged, or to remain the owner's
property. Measures shall be taken to prevent damage and soiling
of the construction during selective demolition. When permitted,
items may be removed to a suitable, protected storage location
during demolition and then cleaned and reinstalled in their
original locations. The contractor shall be required to
photograph the existing conditions of adjoining construction and
site access pathways prior to the start of construction, as a
record of pre-existing conditions, in order to avoid undue
landlord claims for reparations as a result of construction
activities. A walk-through of the site with the landlord
representative, along with walk through notes are to supplement
the photographs.
<PAGE>
The construction documents shall be in compliance with EPA
requirements on hazardous materials before starting demolition.
Comply with hauling and disposal regulations of authorities
having jurisdiction.
1.1.2.2. Ceiling, Walls & Floor
Ceilings: Where possible, an open ceiling environment should be
employed. Should finished ceilings be required due to site
conditions, the standard minimum acceptable ceiling height for
the hubs shall be (ten) feet. Should a particular site not
support the ten floor height, the equipment layout A/E shall
boldly identify the standard variance on the conceptual equipment
layout noted above. When planning ceiling heights, consider
stacked cabinet heights as well as individual cabinet heights. Be
sure to consider seismic bracing and how it will be implemented
in the design. Cable tray shall be installed a minimum of six
inches above equipment, with a minimum of 12 inches clear above
the tray.
For standardization purposes, the preferred drop ceiling system
shall be Armstrong Minaboard Fire Guard 24"x24"x5/8" Cortega
#842.
Walls: All walls shall have a minimum of 2.5" sound attenuation
and 5/8" gypsum board with 3 5/8" metal studs. Walls shall be
designed for a two hour fire rating. Finish walls and paint
eggshell white below 8'-0", flat black above 8'-0". Seal all
penetrations in and out of the space with 3M putty, firestop
bags, or equivalent. Wall base shall be finished with Johnsonite
4"x1/8" black vinyl base or approve equal.
Mounting Boards: The A/E shall specify the installation of two
(2) 4'x8'x3/4" fire retardant treated plywood boards to be
located as directed by WinStar. Boards are to be primed and
painted to match adjacent surfaces.
Doors: Hub entrance doors shall be 3'-6" x 7'-0"x 1 3/4" hollow
metal with 1 1/2 hour UL listing and complimentary UL listed
metal door frame. Door hardware shall be Simplex L-1000
mechanical cypher locks. Where possible, embed magnetic door
contacts in door frame for security needs (see below). Door shall
receive WinStar supplied, contractor installed door decal (or
other signage) for space identification.
Floors: Ensure the space has a level floor. Bare concrete floor
shall be sealed to prevent the generation of dust, dirt, and
other airborne particles. Standard Hub floor finishes shall be
Armstrong Imperial #51911 Classic White. Anti-static strip mats
shall be used in equipment rows.
All finish material schedules and specifications should be
included in the design.
A/E shall indicate on the design documents the designated floor
space for one (1) storage cabinet, one (1) storage shelving unit,
and one (1) desk with chair, all to be supplied by WinStar,
delivered and placed by contractor.
To be included in the Hub design are the following items:
<PAGE>
Eye Wash Station: Lab Safety Supply #RC-2121-S (fend-all) 6
gallon gravity feed eyesaline eye wash station with #RC-2121S-2
dust cover.
Full Coverage Face Shield with wall hook: Lab Safety Supply #
RC-10253 Head/Face Shield or equal.
First Aid Kit: Lab Safety Supply #RC-10430 Small industrial first
aid kit for up to 25 personnel
Fire Extinguishers: One (1) 10 pound carbon dioxide class B and C
One (1) 5 pound dry chemical class A, B & C
1.1.3. STRUCTURAL
Standard commercial property will, in most cases, provide adequate
floor loading capacity for the communications equipment in the typical
layout scheme. However, stacking and/or back to back placement of
equipment may exceed the structural capacity of the floor.
Analysis: Typically, the battery load and power equipment load will
exceed the structural load limit. A structural analysis shall be
completed on the entire hub area at the onset of the space planning
process, and prior to the conceptual equipment layout being sent to
WinStar for approval. Depending upon the proposed antenna mounting
structure, a structural study of the antenna location should be
completed at this time as well. The analysis must include
consideration for the seismic zone of the facility. The results of the
analysis shall be transmitted to the WinStar Engineer at the earliest
possible moment. The following items shall be considered during the
analysis:
o Communication equipment specifications and layout
o DC Power Bay specifications and layout
o Battery plant specifications and layout
o Antenna specifications and layout
o Deck hanging loads (mechanical, electrical, plumbing,
cable ladder, DC cables, communication cables, etc.)
Design: Should structural alteration be required as a result of the
analysis, the construction documents shall reflect all equipment
layouts with anticipated structural loading characteristics. Included
on the documents shall be equipment and antenna mounting details
including seismic restraint connections where applicable.
1.1.4. ELECTRICAL
1.1.4.1. AC Power Systems
The purpose of this section is to establish minimum engineering
parameters to be observed during the design and or retrofit of
WinStar Wireless, Inc. Hub Facilities AC Power Systems. All
design articles must adhere to the requirements of National
Electrical Code, and all applicable state and local ordinances.
Facility AC Power Systems consist of (3) primary components;
generation, distribution, and protection systems. All of these
components are to be engineered to insure maximum cohesiveness
and operating performance. Successful operation of the AC Power
System is crucial in insuring the uninterrupted operation of
WinStar Wireless, Inc. network telecommunications equipment.
<PAGE>
1.1.4.2. System Engineering Criteria
Engineers must observe the following parameters when designing
WinStar Wireless, Inc. Hub Facility AC Power Systems. Deviations
from stated parameters must be requested and approved by WinStar
Wireless, Inc. Network Engineering Group, prior to
implementation.
1.1.4.3. Utility Service
WinStar Wireless Inc. Hub Facilities shall preferably be equipped
with (1) 480 Volt 3 Phase 3 Wire Alternating Current Electrical
Service in order to minimize primary service installation costs.
Should 480 Volt service not be available, 208 Volt 3 Phase 3 Wire
service shall be used and treated as the Primary Electrical
Service. Origination of this circuit can be derived via direct
interconnection to Local Utility Provider electrical distribution
grid, or via Subfeed connection to an existing electrical
service. The electrical service must be engineered to satisfy
demand loads of network Hub Facility telecommunications, and
infrastructure support equipment. Service must be equipped with
facilities to allow for disconnect from utility/existing
electrical service and a means for metering of electrical energy
consumption.
1.1.4.4. Main Distribution Switchboard
Should the service be 480 volt, the Hub shall be equipped with
one (1) 480 Volt 3 Phase 3 Wire Alternating Current distribution
panel. The panel shall be equipped with Main Disconnect providing
Ground and Overcurrent Fault Protection for the Service Entrance
(see Shunt-trip Primary Service Circuit Breaker below). The panel
shall be engineered for correct voltage, phase, frequency, short
circuit and continuous current ratings. The panel is to be
equipped with Branch Circuit Distribution Devices; quantities,
ratings, and types will be determined by Infrastructure Support
equipment requirements. Engineering must include execution of
Fault Current analysis, and Short Circuit Coordination study. The
panel must also provide limiting devices as required to eliminate
transient voltage conditions such as spikes and surges which may
be delivered via Service Entrance or emergency power supply (see
surge protection information below).
1.1.4.5. Emergency Service
WinStar Wireless Inc. Hub Facilities shall be equipped with an
Emergency Service Entrance which matches the Hub's Primary
Electrical Service. This Service Entrance shall be derived via
installation of a Bulk Distribution Circuit routed from
Street-Side Portable Generator connection device to one (1)
Manual Transfer Switch. The street-side connection device shall
be a lockable fused switch equipped with main lugs for portable
generator connection. This service shall be utilized via Manual
Actuation in the event of a sustained Utility Electrical Outage.
Emergency service must be engineered to satisfy demand loads of
network Hub Facility telecommunications, and infrastructure
support equipment. Engineering must provide for execution of
Fault Current analysis and Short Circuit Coordination studies.
Manual Transfer Switch shall be ASCO Model 486 with labels
clearly marking source of both emergency and normal feed.
<PAGE>
Step-down Transformer
In the sites with 480 Volt primary service, the secondary
distribution is to be obtained via the installation of one (1)
Dry Type, step-down Isolation Transformer. Transformer Primary is
to be routed from current limiting device contained within the
main distribution panel board. Transformer Secondary is to be
routed to Input of Facility Secondary Panel board. Transformer
and Primary/Secondary circuits are to be engineered to satisfy
load requirements of Hub Facility telecommunications and
infrastructure support systems.
1.1.4.6. Secondary Distribution
WinStar Wireless, Inc. Hub Facilities shall be equipped with (1)
120/208 Volt 3 Phase 3 Wire Alternating Current Secondary Service
(Primary Electrical Service and Secondary Electrical Distribution
are considered one and the same where 208 volt service is the
Primary Electrical service). The panel shall be equipped with
Main Disconnect providing Ground and Overcurrent Fault Protection
for the Secondary distribution panel board (see Shunt-trip
Primary Service Circuit Breaker below). The panel shall be
engineered for correct voltage, phase, frequency, short circuit
and continuous current ratings. The panel is to be equipped with
Branch Circuit Distribution Devices; quantities, ratings, and
types will be determined by Infrastructure Support equipment
requirements. Engineering must include execution of Fault Current
analysis, and Short Circuit Coordination study. For Hub sites
with incoming service at 208 volts, the secondary distribution
panel must provide limiting devices as required to eliminate
transient voltage conditions such as spikes and surges which may
be delivered via Service Entrance or emergency power supply (see
surge protection information below).
1.1.4.7. Shunt-trip Primary Service Circuit Breaker
The primary Hub electrical service shall be equipped with a main
disconnect circuit breaker with a shunt-trip device for emergency
power shutdown. The shunt trip device shall be located after the
manual transfer switch and before Hub distribution, with the
possible exception of an independent circuit feeding the fire
alarm control panel and/or other life safety devices. Emergency
Power Off switch shall be ASCO model 1243 with labels "TO
DISCONNECT ELECTRICAL SERVICE".
1.1.4.8. Overcurrent Protective Devices
WinStar Wireless, Inc. Hub Facilities Electrical Distribution
System is to be engineered with Overcurrent Protective Devices
that comply with the following parameters:
Molded Case Circuit Breakers - Sized as required to support loads
with RMS Symmetrical Interrupting Ratings to match symmetrical
interrupting ratings coordinated with fault current analysis and
short circuit study. Breakers are to include permanent Thermal,
Fault, and Instantaneous Trips per pole. Provide 2-pole 25A
breakers for current and future rectifiers in accordance with
equipment schedule.
Fuses - Sized as required to support loads with UL Class RK-1
Time-Delay ranges.
<PAGE>
1.1.4.9. Conductors
WinStar Wireless, Inc. Hub Facility AC Power System
conductor requirements must conform to the following
parameters: All conductors are to be AWG type THHN insulated
copper only. All conductor termination's are to be performed
utilizing Compression (15) Ton High-Press, Hex or
Circumventual Crimps will only be accepted. All
termination's are to utilize (2) Hole NEMA Spaced Long
Barrel Lugs only. All fastening hardware to be #316 Grade
Stainless Steel only. All termination's are to be insulated
utilizing Thick Wall Heat Shrink. All conductors are to be
permanently identified utilizing Fiber Cable Tags only.
1.1.4.10. Lighting
Adequate lighting is required for a safe and efficient work
environment. The design should be energy efficient with low
heat generation. UL approved fluorescent light fixtures
shall be installed to provide adequate illumination levels
throughout the hub. Energy efficient 32W T8 tubes and
electronic ballast's should be used to provide 50% decrease
in energy usage and a 90% reduction in heat generated by the
lights.
Emergency backup lighting units should be installed. They
should be activated upon loss of AC power. All emergency
lights should be UL approved and meet all NEC, OSHA, NFPA,
and Life Safety Code requirements.
Telephone
Each Hub space shall be provided with at least one telephone
with high volume ringer.
1.1.4.11. DC Power System
The purpose of this section is to establish minimum
engineering parameters to be observed during the design and
or retrofit of WinStar Wireless, Inc. Hub Facilities DC
Power Systems. Facility DC Power Systems consist of (3)
primary components; rectifiers, batteries, and distribution
systems. All of these components are to be engineered to
insure maximum cohesiveness and operating performance.
Successful operation of DC Power Systems is crucial in
insuring the uninterrupted operation of network
telecommunications equipment in the event of a utility power
outage. As a result of network dependencies DC power systems
are designed with redundant capabilities in all primary
system components, including rectifiers, divergent
distribution paths, and finite stationary battery reserves.
1.1.4.12. System Engineering Criteria
Engineers must observe the following parameters when
designing Hub Facility DC Power Systems. Deviations from
stated parameters must be requested and approved by WinStar
Wireless, Inc. Network Engineering Group prior to
implementation.
1.1.4.13. Battery Reserve
WinStar Wireless Inc. Hub Facilities shall be equipped with
Valve Regulated Lead-Acid recombination batteries to provide
power in the event of a utility power outage. Battery
reserves shall be engineered to provided adequate capacity
required to support Hub Facility DC power demand loads for a
finite period of time. Network Hub Facilities must be
equipped with a minimum of (8) Hours Reserve capacity.
<PAGE>
1.1.4.14. Reserve Calculation
Battery reserve capacities must not fall below stated
minimum requirements. Modifications to facility network
equipment DC demand loads will require re-calculation of
battery reserve capacities. Reserve capacity of battery is
to be calculated using battery end voltage equaling 1.75
volts per cell, and 80% of published (8) Hour Amp Hour
Rating. Reserve capacity is to be calculated utilizing the
following formula:
AH
------ x C = R
L
AH - Amp Hours
L - Demand Load Ampacities
C - Correction Factor/0.950
R - Reserve Capacity
1.1.4.15. Battery Recharge
WinStar Wireless Inc. Hub Facilities shall be equipped with
Switchmode technology modular rectifiers as required to
insure capability of exercising Valve Regulated Lead-Acid
recombination station batteries from discharged to full
recharge condition within (24) Hours. Rectifier bank must
included required capacities and (1) redundant unit.
1.1.4.16. Recharge Calculation
Recharge capacities must not fall below stated minimum
requirements. Modifications to facility network equipment DC
demand loads will require re-calculation of battery recharge
capacities. Rectifiers are not to be operated beyond maximum
current limit of 110% of rated capacity. Recharge capacity
is to be calculated utilizing the following formula:
1.1 x AH
------------- + L = RC
R
AH - Amp Hours
L - Demand Load Ampacities
R - Recharge Capacity/Hours
RC - Recharge Current
1.1.4.17. System Voltage
WinStar Wireless, Inc. Hub Facility DC Power Systems are to
be designed to operate within the following voltage ranges:
<PAGE>
End Voltage - 42.0 VDC
Float Voltage - 54.0 VDC
Equalize Voltage - 56.0 VDC
High Voltage Shutdown - 57.0 VDC
1.1.4.18. Voltage Drop
WinStar Wireless, Inc. Hub Facilities DC Power Systems are
to be engineered to finite voltage drop levels insuring
continued network equipment operation while providing for
resistance levels encountered due to transport distances.
Voltage drop is to be limited to a maximum of 2.0 VDC
throughout linear routing of distribution circuit.
1.1.4.19. Voltage Drop Calculation
Voltage drop levels are not to exceed stated maximum
allowances. Voltage drop is to be calculated utilizing
battery end voltage equaling 1.75 volts per cell. Voltage
drop is to be calculated utilizing the following
calculations:
L x LL x C
-------------------- = CM
VD
L - Demand Load Ampacities
LL - Loop Length
C - Constant Factor (11.1)
VD - Voltage Drop
CM - Circular Mills
1.1.4.20. Distribution
WinStar Wireless Inc. Hub Facilities DC Power Systems design
is to provide for the installation of (1) Main Power
Distribution Board and Bulk Distribution Circuit
installation to Relay Rack mounted GMT Branch Circuit Fuse
Panels. This distribution system is to provide for Hub
Facility network equipment DC demand loads as well as
equipment interconnection requirements. Main Power
Distribution Board is to be designed with a Charge Section
capable of accommodating termination of all battery and
rectifier sources. Main Power Distribution Board must
provide for divergent Bulk Distribution Conductor routing to
allow for derived A/B distribution systems from board to all
ancillary equipment. Main Power Distribution Board must
provide Over-Current Protection for all Bulk Distribution
Circuits to insure protection of the entire DC Power System.
Electrical fault protection shall be designed to insure
correct device coordination, rating, and placement, allowing
for circuit interruption closest to fault occurrence.
<PAGE>
1.1.4.21. Environment
WinStar Wireless, Inc. Hub Facility DC Power Systems are to
be engineered to operate without performance degradation
within the following controlled environmental levels:
Temperature - 32 through 122 Degrees Fahrenheit, Ambient
Humidity - 12% through 97% Relative
1.1.4.22. System Component Engineering Criteria
Section purpose is to establish minimum performance
specifications for all components utilized in Hub Facility
DC Power System design. All equipment must meet or exceed
stated requirements prior to installation consideration.
1.1.4.23. Rectifiers
WinStar Wireless, Inc. Hub Facility DC Power System utilizes
Switchmode rectifier technology. Rectifiers are to be of
modular design to accommodate installation within Facility
Main Power Distribution Board. All rectifier modules must be
capable of Load Sharing with entire plant charge section.
Rectifiers are to be listed by Underwriters Laboratories.
Rectifiers are to be installed with capacities sufficient to
satisfy DC load demands as well as provide for redundant
modular unit application. This configuration will allow for
the removal of (1) unit from service without effecting
station load. Please see Appendix E for rectifiers currently
being purchased.
1.1.4.24. Batteries
WinStar Wireless, Inc. Hub Facility DC Power System utilizes
Valve Regulated Lead-Acid recombination battery technology
to provide mission critical power to network equipment in
the event of a utility power outage. Batteries are to be
designed to accommodate the facility DC load demand with the
capability to support this demand for a minimum of (8)
hours. Load is to be calculated utilizing end voltage
equaling 1.75 VPC. Batteries must be capable of being rack
mounted to allow for integration within facility technical
areas. Racks must satisfy all seismic zone requirements.
Disconnecting means must be supplied to allow for isolation
of battery from Facility Distribution System. Each battery
cell must be individually valve regulated to vent excess
pressure. Rated capacity of cell shall be expressed in
Ampere Hours based on an (8) hour discharge rate. The abrupt
transient response of the cell must not fall below 1.89VPC.
Recombination efficiency of the cell must be 95% or greater.
Provide Specific Gravity of 1.250. Please see Appendix E for
the battery plant currently being purchased.
1.1.4.25. Distribution (MPB)
WinStar Wireless Inc. Hub Facilities DC Power Systems design
is to provide for the installation of (1) Main Power
Distribution Board. This Main Power Distribution Board is to
provide for Hub Facility network equipment DC demand loads
as well as equipment interconnection requirements. Main
Power Distribution Board is to be designed with a Charge
Section capable of accommodating termination of all battery
and rectifier sources. Main Power Distribution Board must
provide for divergent Bulk Distribution Conductor routing to
allow for derived A/B distribution systems from board to all
ancillary equipment. Main Power Distribution Board must
provide Over-Current Protection for all Bulk Distribution
Circuits to insure protection of the entire DC Power System.
Electrical fault protection shall be designed to insure
correct device coordination, rating, and placement, allowing
for circuit interruption closest to fault occurrence. Board
must provide metering, alarms, and control interfaces that
are equipped for extension to remote surveillance stations.
Board must include provisions for the installation of
Battery Disconnecting device, Rectifier module installation,
and battery installation. Please see Appendix C for Main
Power Distribution Board currently being purchased. For ease
in securing DC contractor pricing, the distance between the
main ground bar, the batteries, and the main
distribution/rectifier bay shall not exceed 20 feet.
<PAGE>
1.1.4.26. Distribution (GMT)
WinStar Wireless, Inc. Hub Facility DC Power System design
is to provide for diversified Bulk Distribution Circuit
routing from Main Power Distribution Board to Relay Rack
mounted GMT Fuse Panels. These Fuse Panels are to provide
A/B Branch Circuit Distribution from panels to network
equipment.
1.1.4.27. Grounding
WinStar Wireless, Inc. Hub Facility DC Power System design
must include connection of Main Power Distribution Board
Positive Discharge Buss Detail to Facility Master Ground
Buss Detail. Grounding cable shall be run in independent "J"
hooks supported under cable racks.
1.1.4.28. Conductors
WinStar Wireless, Inc. Hub Facility DC Power System
conductor requirements must conform to the following
parameters: All conductors are to be AWG type THHN insulated
copper only. All conductor termination's are to be performed
utilizing Compression (15) Ton High-Press, Hex or
Circumventual Crimps will only be accepted. All
termination's are to utilize (2) Hole NEMA Spaced Long
Barrel Lugs only. All fastening hardware to be #316 Grade
Stainless Steel only. All termination's are to be insulated
utilizing Thick Wall Heat Shrink. All conductors are to
secured utilizing #9 Round Wax Lacing Cord only. All
conductors are to be permanently identified utilizing Fiber
Cable Tags only. All conductors are to be routed complete
point to point. Use of Splices is prohibited. Cabling from
main distribution board to equipment racks shall be
supported below cable ladder using "J" hooks.
1.1.4.29. Buss
WinStar Wireless, Inc. Hub Facility DC Power System design
shall provide for all Buss Details to be copper rated on
(1000) Amperes per (1) Square Inch of cross-sectional area.
Buss details are to be machined and pre-punched.
<PAGE>
1.1.5. MECHANICAL
In most facilities the existing leased space base building
Heating, Ventilation, and Air Conditioning (HVAC) system
will not meet the seven days a week 24 hour requirement the
WinStar hub demands. To achieve the required cooling and
ventilation a dedicated HVAC system will need to be
installed. WinStar is currently purchasing several different
type of HVAC systems from Liebert Corporation depending on
the size and specific requirements of the hub. The location
of the hub versus the location of the cooling system heat
rejection components ( i.e. air cooled condensers, dry
coolers, or exterior wall mounted unitary systems) will
determine which type of HVAC system is used for the hub. See
Appendix B for types of system being purchased by WinStar
for Hub facilities.
The HUB interior design criteria for the HVAC system is
based upon the Hub equipment listing provided by WinStar at
the onset of the design. The maximum bay of equipment is
2700 BTU/hr with a maximum of 130BTU/hr/SF for total
facility load. The overall HVAC system must be designed
along proper engineering practices, taking into
consideration exterior temperature and humidity conditions,
sun exposure, and low initial internal head gain due to
partial equipment installation.
The following items shall be considered during the design:
o Facility temperature shall be maintained between 66
degrees Fahrenheit and 77 degrees Fahrenheit
o Facility relative humidity shall be maintained between
30% and 55%
o Noise level 40dBA or below
o Outside air be kept below 5%
o Redundancy within the system, with one HVAC unit
available at all times
o Overhead hung units supported from the deck/structural
steel above or exterior wall mounted units outside the
hub space
o Drip pan with liquid detector
o Remote temperature and humidification controls
o Automatic HAVC switch over controls
o Condensate pump where necessary
o Alarm and shutdown contacts
o Maintenance accessible
o Final testing and balancing
1.1.5.1. Thermostats
Thermostats shall be mounted in the vacinity of the air
return inlets and should be installed in such a way to
minimize unauthorized tampering with the temperature setting
controls. A lock box cover on a conventional thermostat may
be required if unauthorized temperature resetting is
anticipated.
<PAGE>
Normal Set-Points and Sensitivities:
Temperature:
75 degrees F DB +2 degrees F DB
-
Relative Humidity (RH):
Minimum RH: 35%, +5%
-
Maximum RH: 50%, +5%
-
1.1.5.2. Alarms
All sites should be equipped with high and low temperature
alarms. These alarms should be interfaced with the site
security system and monitored around the clock. The sensors
must be accurate enough to detect minimal temperature
variations.
Alarm Set-Points:
Temperature:
Low Set-Point: 60 degrees F DB
High Set-Point: 80 degrees F DB
Relative Humidity (RH):
Low Set-Point: 30% RH
High Set-Point: 60% RH
1.1.5.3. Exhaust Fan
For every hub an exhaust fan should be installed. This
provides a method of removing excessive heat buildup if the
air conditioning units are disabled. The exhaust fan will
also remove any gas or vapors that maybe emitted from the
batteries. It should be located as high as possible in the
hub to remove the maximum amount of heat from the site. The
exhaust fan should run continuously to provide at least four
air exchangers or 2 CFM/SF. The fan should be interlocked
with the fire suppression system.
1.1.5.4. Room Pressurization
The Hub shall be at a positive air pressure. This room shall
be at a positive air pressure relative to all other adjacent
spaces and the outdoors. The purpose of maintaining
pressurization is to minimize the infiltration of airborne
particles.
1.1.5.5. Construction Documents
The construction drawings and specifications for each hub
shall include a listing of all equipment to be installed,
noting whether it is to be purchased by WinStar or by the
contractor. If purchased by WinStar, equipment submittal
sheets and installation instructions shall be included
within the construction document package. Arrangements for
manufacturer representative start-up and instruction shall
be a part of the contractor's work scope for all major
equipment items, weather purchased by WinStar or the
contractor. The mechanical contractor shall be responsible
for all control wiring, including providing a normally
closed or normally open circuit for HVAC unit fire alarm
shut-down where necessary.
1.1.6. FIRE DETECTION AND SUPPRESSION
The fire detection system shall be a cross-zoned smoke detection
system linked to a fire alarm control panel (sub-system to the
building fire alarm control system). The fire suppression protection
systems for a Hub shall either be a pre-action system if water is
available in the building, or a FM-200 gaseous system.
The design of the fire detection and suppression system shall comply
with the requirements of the State Building Codes, applicable NFPA
Sections and requirements of the insurance carrier for the project.
1.1.6.1. Pre-Action System
The design shall be a complete hydraulically designed pre-action
sprinkler system which complies with NFPA 13, 24, 26, 70, 72,
72E, and 72G, ANSI, ASTM, AWS, and MSS.
The safest type of pre-action system for communication equipment
is a Double-Interlocked System. This type of system requires the
activation of both detection system and a sprinkler head before
<PAGE>
allowing water to flow into the sprinkler system piping. This
will protect against accidental discharge of water. The A/E
design should provide for a deluge valve, check valve with rubber
seat, main water supply control valve with tamper switch, alarm
pressure switch, air pressure supervisory switch and all trim
valve gages and components all located within the hub. The deluge
valve should be electronically operated. The sprinkler system
shall be supervised with a air compressor and air maintenance
device.
Include a pre-action releasing panel for operation of the
pre-action system. The control unit shall be UL Listed per
Standard 864 for pre-action and the solenoid shall be listed for
use with the panel. The control panel shall have the capacity for
at least two initiative device circuits and inputs from flow, low
air and tamper switches. The control panel shall also have the
capacity for two output circuits for trouble and supervisory
signals to building fire alarm system. The alarm notification to
the building shall be from the alarm pressure switch. All
initiating circuits from the panel shall be Style D. The panel
shall have backup battery and charger for continuous operation of
system for 24 hours.
The pre-action system shall include a detection and control
system for solenoid valve operation on the preaction valve. The
detection circuits shall be obtained from the release panel.
Valves controlling sprinklers or water supplies shall be listed
OS&Y gate valves or butterfly valves suitable for the service
indicated. Where butterfly valves are used, they shall be lug
type flanged or grooved so that piping can be disconnected on one
side of the valve and the valve still hold pressure. All valves
shall be provided with listed tamper switches with both normally
open and normally closed contacts.
1.1.6.2. Installation
Before commencing installation, the Fire Protection Contractor
shall prepare a complete set of Working Drawings required for the
approval and the installation of the fire protection system.
Spacing of the sprinklers shall be coordinated with lights, cable
tray system, air conditioning duct, and architectural reflected
ceiling plan (if any) prior to the installation. The Fire
Sprinkler Contractor shall submit working plans to the
Architect/WinStar representative for final approval and
acceptance. The installation of pre-action system shall be in
accordance with NFPA 13 and manufacturers instructions. The
following items shall be followed during install:
o Place pipe runs to minimize obstruction to other work.
o Place piping in concealed spaces above finished
ceilings if applicable.
o Center sprinklers in one direction only in ceiling tile
with location in other direction variable, dependent
upon spacing and coordination with ceiling elements.
o Apply masking tape or paper cover to ensure concealed
sprinklers, cover plates and sprinkler escutcheons do
not receive field paint finish. Remove after painting.
Replace painted sprinklers.
o Flush entire piping system of foreign matter.
o Install guards on sprinklers where indicated.
o Hydrostatically test entire system and provide trip
test of pre-action system.
o Require test be witnessed by the authority having
jurisdiction (local fire marshall), and the A/E.
<PAGE>
o Piping Systems shall be installed as follows:
o Piping mains shall be run close to roof, walls and
columns at elevations noted on drawings. Where
elevations are not indicated on plans or sections, run
as high as other work will permit.
o Coordinate piping runs with work of other trades.
Piping shall not interfere with WinStar equipment.
o Pipe lines shall be pitched to allow systems to be
drained.
o Reducing fittings (not bushings, orifices, reducing
flanges or couplings) shall be provided where pipe size
changes. Eccentric reducers shall be provided where
necessary to prevent liquid pockets or air binding.
o Drains shall run to hub or floor drains (provided under
plumbing work).
o Inspection test connections shall be installed as
required by system design.
1.1.6.3. Cleaning
o Cleaning and Purging shall be as specified for each
service.
o Internal surfaces of piping shall be inspected and kept
free of trash, dirt and corrosion.
o Dirty or corroded pipe shall be cleaned to clean, new
condition before assembly.
o External surfaces of piping shall be cleaned of dirt,
rust scale, grease and other foreign matter, acceptable
for painting.
1.1.6.4. Painting
o All finished painting of piping shall be done under
this section.
o All piping and equipment, whether painted in shop,
factory or field, shall be wire brushed and cleaned of
dirt, rust, grease and other foreign matter before
prime coating.
o All fire protection piping shall be painted Fire
Department Red.
o All fire protection piping shall be given two coats of
paint, a minimum thickness of 2 mils.
1.1.6.5. System Inspections, Start-Up And Testing
At the completion of the installation, and after debugging
and preliminary testing of equipment had been carried out by
the contractor, an on-line "real-time" test of the entire
system in the building shall be carried out in the presence
of the WinStar construction manager, the manufacturer's
representative and the Engineer.
1.1.6.6. FM-200 Gaseous Suppression Systems
In buildings where fire suppression water is unavailable or
of insufficient capacity to support a pre-action suppression
system, a gaseous suppression system shall be employed.
WinStar standards call for the use of "Dead-man" abort
switches and time delays. Abort switches are acceptable only
if they are of the "dead-man" type. Keyed abort switches may
be installed for security reasons. Time delay should have no
more than a 30 second delay program. An abort switch may be
used to cycle a time delay. The intent of the time delay is
<PAGE>
to allow for: (a) an immediate inspection of the alarmed
area (as indicated on the graphic panel) to determine if the
fire hazard can be contained locally with a hand held
portable fire extinguisher, and (b) to provide additional
time to evaluate the room and prepare equipment for
discharge.
1.1.6.7. FM 200
FM 200 is the preferred substitution for Halon suppression
systems. There are significant differences between the two
systems which must be considered during the design. FM 200
is not toxic. FM 200 concentration requirement is greater
than Halon (7%) and it employs a discharge time of 10
seconds. The pipe sizes are larger and need to be Schedule
40 pipe.
Certain local regulations do not recognize gaseous fire
suppression systems as substitutes for sprinkler systems
where required. Other local regulations may require spare
gas tanks connected to manifolds for maintained coverage
after a system release. The A/E shall consult with the local
fire official prior to committing to a design.
1.1.6.8. Portable Extinguishers
All hub facilities must have a minimum of two type of fire
extinguishers on the premises at all times. The first type
is a 10lb., class BC, CO2 extinguisher. The CO2 extinguisher
should be used first in the event of fires involving
equipment cabinets or racks. This will minimize secondary
damage caused by chemical agents used in ABC class dry type
extinguishers. These agents have alkaline based powders that
can be corrosive and cause sever equipment damage. The
second type is a class ABC, 5 lb., dry chemical
extinguisher. This type should only be used as a last resort
on electrical equipment or when the fire has spread to the
building structure. The extinguishers shall be located where
they will be readily available in the event of a fire. (See
architectural section above)
1.1.7. RACKS
o WinStar has standardized on 23 inch racks for all of its
equipment facilities, this is to provide flexibility for new
technologies that may be introduced into the network.
Wherever possible equipment will be specified at 19 inch,
this is to be able to install equipment into existing 19
inch facilities or at other service providers sites.
o Equipment racks or cabinets shall be 23 x 84 inch EIA/TIA
standard, drilled both sides.
o Provide 23 to 19 inch full length rack reducers
o Allow a minimum of 36 inches space in front and back of the
rack.
o Racks shall be lag mounted into a concrete floor on 4
corners.
o Rack systems require an additional ladder connecting all
racks and extending from each end-rack to a wall.
o Racks in Hub facilities shall be built in rows.
1.1.8. CABLE LADDER SYSTEM
The hub facility cable ladder system shall be a single-tier ladder
system with the weight capacity of the system to support 40 lbs/LF
and, depending on location, must consider the seismic requirements.
The layout of the cable ladder shall match the configuration of the
equipment rows. The cable system design shall provide the required 4"
<PAGE>
separation of cable groups. The following items shall be considered
during the design:
o All ladder and overhead framing must be grounded and bonded
o Cable ladder shall have J-hooks extensions to support power
and ground cables
The following cable groups that are required to be separated by a
minimum of two inches:
o Battery and ground (Battery and ground must always be
installed in pairs run side by side)
o Safety and signal grounds
o DS1 transmit and receive cables
o DS3 transmit and receive cables
o OC interface fiber cabling
o Radio cabling
o Alarm cables
o Cabling from riser coming from the Antenna's
o All cabling shall be designed on a 90 degree crossover
pattern
The cable tray system must be laid out and designed to accommodate
cable distribution throughout the equipment area. Continuity of the
cable tray system and support for the cables shall be maintained. The
cable tray system shall be designed with the proper type sections used
as designed by the manufacturer. Straight sections, elbows, tees,
dropouts and expansion connectors shall be used as required within the
system. Cable trays, ladders and troughs may extend through wall or
floors providing the installation is made so that the possible spread
of fire or products of combustion will not be substantially increased.
Openings through fire resistant walls, partitions, floors or ceiling
shall be sealed using firestop or fire bags.
Cable tray systems shall be designed to be installed at heights that
provide clearances adequate to install the necessary equipment with
provisions for expansion. Factors such as ceiling height, light
fixture locations, cable entry ports, equipment location and minimum
cable bending radius must be considered during design and layout.
Cable trays shall not be placed under smoke detectors or sprinkler
heads. Cable trays should not be placed under lights or electrical
fixtures or boxes. It is desirable to have a minimum of 6 inches
between the top of an equipment rack/cabinet and the bottom of the
cable tray. It is recommended that there be a minimum of 12 inches
above the top of the cable tray and the ceiling. AC power cables shall
not be run within a cable tray system unless they are enclosed within
metallic conduit or raceway. Equipment drops from cable racks shall be
from the rack side, not through the rack.
WinStar Wireless is currently purchasing a complete turnkey cable
ladder installation for each hub. Fifteen inch cable supported by
floor mounted tubular supports with unistrut interlocking the system
to the walls. See figure X for typical install.
1.1.9. LOCAL TERMINATION FIELD
1.1.10. ANTENNA CONDUIT REQUIREMENTS
Hub design shall include 2 four inch EMT conduits from the equipment
room to the surge protector box.
<PAGE>
WINSTAR
WinStar Practice ###-##-####
Issue 2.2 September 1998
NSO SITE AND EQUIPMENT
TEST AND ACCEPTANCE
1.GENERAL
1.1.Synopsis
This practice presents the necessary steps to test and accept
equipment, products, and sites as they are added to the network. The
intent of this document is to provide a guideline for standardized
acceptance criteria.
1.2.Reason for reissue
Modification of Acceptance Matrix in Section 2.3 and to the Central
Office checklist in Attachment 1.
1.3.Contact for comments
Comments regarding this document should be directed to either:
Tim Precht, Room 2032, 1577 Spring Hill Rd, Vienna VA 22182
Telephone (703) 645-5627. Email: [email protected].
or
John Alfasi, Room 2027, 1577 Spring Hill Rd, Vienna VA 22182
Telephone (703) 645-5622. Email: [email protected].
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Not for use or disclosure outside WinStar Communications without the written
permission of WinStar.
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A-4-55
<PAGE>
1.GENERAL...............................................................55
1.1.SYNOPSIS.........................................................55
1.2.REASON FOR REISSUE...............................................55
1.3.CONTACT FOR COMMENTS.............................................55
2.CHECKLIST.............................................................57
2.1.DESCRIPTION......................................................57
2.2.ACCEPTANCE CRITERIA..............................................57
2.3.ACCEPTANCE MATRIX................................................58
2.4.USING THE CHECKLIST..............................................61
2.4.ROUTING THE CHECKLIST............................................62
2.5.NSO PRODUCT/EQUIPMENT ACCEPTANCE CHECKLIST.......................63
2.6.OVERALL ASSESSMENT: MANDATORY SECTION.........................66
ATTACHMENT 1............................................................67
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Not for use or disclosure outside WinStar Communications without the written
permission of WinStar.
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A-4-56
<PAGE>
2.CHECKLIST
2.1.DESCRIPTION
This document identifies the steps necessary to ensure that new
additions to the network are properly installed, functional, and
supportable in the operations environment. The checklist is intended as
a generic tool to be utilized in assessing network additions prior to
their acceptance by Network Services Operations.
2.2.ACCEPTANCE CRITERIA
The specific requirements for acceptance by NSO will differ based on
what is being deployed and whether that particular equipment/product
has been previously deployed. For example, the requirements for
accepting a Central Office Switch will differ from those for accepting
a new DCS or Voicemail platform. In general, the following rules can be
applied:
o There should be no duplication of validations that have already
occurred. NC&D is required to provide NSO with documentation of
installation and testing at hand-off to NSO. Accountability is
established via that documentation and acceptance criteria that is
documented by NC&D should not require further validation. NC&D
documentation and Test and Acceptance documents should be stored
centrally with the City Manager for future reference.
o All Central Office switches will require documentation of successful
completion of Integration Testing and ORT for the Engineering plans
effective at time of delivery. In addition, inspection and validation
of all physical installations must be recorded on the checklists
provided in this document.
o Equipment installed in Central Offices external to the switch itself
requires documentation of successful completion of Integration Testing
along with inspection and validation of the physical installation.
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Not for use or disclosure outside WinStar Communications without the written
permission of WinStar.
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A-4-57
<PAGE>
2.3.ACCEPTANCE Matrix
FIELD OPERATIONS REQUIREMENTS FOR ACCEPTANCE
Using the following matrix: A check (or notation) in a correlating box
indicates that either documentation of completed work activity must be
received or completion of the activity itself must be acknowledged by
the Field Operations group prior to acceptance of the new
product/equipment in a Central Office.
Product/Equipment types are listed in generic form (i.e. DXC = any
digital crossconnect system) meaning that the same requirements apply
regardless of manufacturer, installer, types of input/output, etc.
<TABLE>
<CAPTION>
Integration Ops Ops
Product/Equipment Engr Pkg MOP CLR Test Results ORT Inspection Testing
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
CAP/LEC Interconnects X X X
- -----------------------------------------------------------------------------------------------------------
Centrex X X X
- -----------------------------------------------------------------------------------------------------------
CLASS Features X X FVO
- -----------------------------------------------------------------------------------------------------------
Collocated Equipment X X X X X X
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DXC X X X X X
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Fiber Terminal X X X X X
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ISDN X X FVO X X
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LET X X X X
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LNP X
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Long Distance X X FVO
- -----------------------------------------------------------------------------------------------------------
Switch X X X X X
- -----------------------------------------------------------------------------------------------------------
Test Equipment X X X X X
- -----------------------------------------------------------------------------------------------------------
Trunks (i.e. DA, LD) X X X
- -----------------------------------------------------------------------------------------------------------
Voicemail X X X FVO X
- -----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
NOTE: FVO = Field Verification Office meaning that only locations designated FVO
will be ORT tested.
<PAGE>
2.4.USING THE CHECKLIST
------------ -------------------------------------------------------
STEP ACTION
------------ --------------------------------------------------------
2.3.1 The checklist is designed in sectionalized format. These
sections may or may not be applicable to the specific
product/equipment being assessed. Section titles are
followed by the question: "Section Applies?".
o If the section is not applicable to the current
product/equipment check:
No
o Alternately, if the section does apply check:
Yes
-------- ------------------------------------------------------------
2.3.2 Sections that are required for every assessment are noted as
"Mandatory Section".
-------- ------------------------------------------------------------
2.3.3 The final section entitled "Overall Assessment" is intended to
provide the rationale for acceptance or rejection of the
product/equipment. If a product is rejected the comments
section must contain an explanation of the criteria that was
critical to that rejection.
There are three categories of potential determinations that can
result:
1. Passes all criteria and is determined to be ready for
service.
2. Conditionally ready for service with no "service
affecting" discrepancies. Items that need to be
resolved will be documented and NC&D will provide a
timeline for resolution.
3. Not ready for service due to the nature of the
deficiencies.
------ ---------------------------------------------------------------
2.3.4 Attachment 1 is provided for use with new Central Office
acceptances only. This attachment is required prior to
Central Office acceptance.
<PAGE>
2.4.ROUTING THE CHECKLIST
------ ---------------------------------------------------------------
STEP ACTION
------ ---------------------------------------------------------------
2.4.1 Once the checklist has been completed:
1. a copy should be filed and maintained at the site
2. the original should be forwarded to the Network
Construction and Deployment manager responsible for the
installation
------ ---------------------------------------------------------------
2.4.2 If the assessment involves a rejection an immediate email
notification is necessary to:
1. NC&D Manager responsible for installation (from MOP)
2. NC&D Program Management Director (John Resavage)
3. NSO City Manager
4. NSO Regional Director
------ ---------------------------------------------------------------
2.4.3 If the assessment results in an acceptance an email notification
is necessary to:
1. NSO City Manager
2. NSO Regional Director
Once the managers agree to acceptance, the NSO Regional
Director sends an email notification to:
1. Operations Support
Debbie Guadalupe ([email protected])
Marlene Miller ([email protected])
2. VP, Field Operations (Joe Haggler)
Operations Support forwards notifications via email to the
Marketing Distribution list.
<PAGE>
2.5.NSO Product/Equipment Acceptance Checklist
- ------------------ ---------------------------------- -----------------------
Product/ Equipment:
- ------------------ ---------------------------------- -----------------------
Site/Location: Date:
- ------------------ ---------------------------------- -----------------------
1.0 Rack Installation Section applies? Yes No
Description Accept Defect Initials
--------- -----------------------------------------------------------
1.1 Mountings |_| |_| |_|
--------- -----------------------------------------------------------
1.2 Labels |_| |_| |_|
--------- -----------------------------------------------------------
1.3 Other |_| |_| |_|
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
2.0 Station Ground Section applies? Yes No
Description Accept Defect Initials
--------- -----------------------------------------------------------
2.1 Grounds |_| |_| |_|
--------- -----------------------------------------------------------
2.2 Other |_| |_| |_|
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
3.0 Power Section applies? Yes No
--------- -----------------------------------------------------------
Description Accept Defect Initials
--------- -----------------------------------------------------------
3.1 Connections |_| |_| |_|
--------- -----------------------------------------------------------
3.2 Breakers |_| |_| |_|
--------- -----------------------------------------------------------
3.3 Labels |_| |_| |_|
--------- -----------------------------------------------------------
3.4 Convenience Outlets |_| |_| |_|
--------- -----------------------------------------------------------
3.5 Other |_| |_| |_|
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
<PAGE>
4.0 Alarms Section applies? Yes No
--------- -----------------------------------------------------------
Description Accept Defect Initials
--------- -----------------------------------------------------------
4.1 Wiring |_| |_| |_|
--------- -----------------------------------------------------------
4.2 Labels |_| |_| |_|
--------- -----------------------------------------------------------
4.3 Functional testing |_| |_| |_|
(Verified visibility with NMC)
--------- -----------------------------------------------------------
4.4 Other |_| |_| |_|
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
5.0 Card Installation Section applies? Yes No
--------- -----------------------------------------------------------
Description Accept Defect Initials
--------- -----------------------------------------------------------
5.1 Per design |_| |_| |_|
--------- -----------------------------------------------------------
5.2 Other |_| |_| |_|
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
6.0 Timing Section applies? Yes No
--------- -----------------------------------------------------------
Description Accept Defect Initials
--------- -----------------------------------------------------------
6.1 Connections |_| |_| |_|
--------- -----------------------------------------------------------
6.2 Labels |_| |_| |_|
--------- -----------------------------------------------------------
6.3 Other |_| |_| |_|
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
7.0 Local Craft Interface Section applies? Yes No
--------- -----------------------------------------------------------
Description Accept Defect Initials
--------- -----------------------------------------------------------
7.1 Connections |_| |_| |_|
--------- -----------------------------------------------------------
7.2 Other |_| |_| |_|
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
<PAGE>
8.0 Remote Access Connection Section applies? Yes No
--------- -----------------------------------------------------------
Description Accept Defect Initials
--------- -----------------------------------------------------------
8.1 Network (LAN) |_| |_| |_|
--------- -----------------------------------------------------------
8.2 Dial |_| |_| |_|
--------- -----------------------------------------------------------
8.3 Other |_| |_| |_|
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
9.0 TBS Inventory Check Section applies? Yes No
--------- -----------------------------------------------------------
Description Accept Defect Initials
--------- -----------------------------------------------------------
10.1 Base data built |_| |_| |_|
--------- -----------------------------------------------------------
10.2 Verified 3rd party |_| |_| |_|
--------- -----------------------------------------------------------
10.3 Other |_| |_| |_|
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
10.0 Intra-Facility Connections Section applies? Yes No
--------- -----------------------------------------------------------
Description Accept Defect Initials
--------- -----------------------------------------------------------
11.1 Cabling |_| |_| |_|
--------- -----------------------------------------------------------
11.2 Continuity/Loopback Testing |_| |_| |_|
--------- -----------------------------------------------------------
11.3 Labels |_| |_| |_|
--------- -----------------------------------------------------------
11.4 Other |_| |_| |_|
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
11.0 Access Lines Section applies? Yes No
--------- -----------------------------------------------------------
Description Accept Defect Initials
--------- -----------------------------------------------------------
12.1 Access terminations |_| |_| |_|
--------- -----------------------------------------------------------
12.2 Other |_| |_| |_|
--------- -----------------------------------------------------------
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
12.0 Functionality Mandatory Section
--------- -----------------------------------------------------------
Description Accept Defect Initials
--------- -----------------------------------------------------------
13.1 Provisioning mechanisms
operating |_| |_| |_|
--------- -----------------------------------------------------------
13.2 Operational testing |_| |_| |_|
--------- -----------------------------------------------------------
13.3 Other |_| |_| |_|
--------- -----------------------------------------------------------
--------- -----------------------------------------------------------
--------- -----------------------------------------------------------
Defect
------------------------------------------------------
Descriptions:
---------------------------------------------------------------------
<PAGE>
2.6.Overall Assessment: Mandatory Section
==============================================================================
NOTE: If the current assessment is for a new Central Office, attachment 1A must
also be completed and considered prior to acceptance.
==============================================================================
There are three potential assessment categories:
1. Passes all criteria and is determined to be ready for service.
2. Conditionally ready for service with no "service affecting"
discrepancies. Items that need to be resolved will be documented and
NC&D will provide a timeline for resolution.
3. Not ready for service due to the nature of the deficiencies.
---------------- ----- -------------------- ------------------------------
Accepted |_| Rejected |_|
---------------- ----- -------------------- ------------------------------
Comments:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------- --------------------------------------------------
Name:
--------------------- --------------------------------------------------
Signature:
--------------------- --------------------------------------------------
Title:
--------------------- --------------------------------------------------
Date:
--------------------- --------------------------------------------------
<PAGE>
ATTACHMENT 1
New Central Office Switch
- -------------- ------------------------------ ---------------------------------
CO Name:
- -------------- ------------------------------ ---------------------------------
CLLI Identifier: Date:
- -------------- ------------------------------ ---------------------------------
1. Has NC&D provided a list of outstanding issues and known defects? Yes No
2. Has a schedule for correction of defects been provided? Yes No
===============================================================================
NOTE: If the answer to either question 1 or 2 is No, STOP. Acceptance of the
Central Office by NSO cannot be considered until these have been provided.
===============================================================================
If items 1-3 outlined in the matrix below are less than "fully operational", CO
Operations can accept the switch as "conditional ready for service but requiring
further resolution by NC&D" as long as this item does not constitute offering
services less than what has been declared acceptable by Marketing. Sign-off from
an authorized representative of Marketing management is necessary to effect this
conditional acceptance.
- ------------------------------------------------------------------------------
Description Yes No Initials
- ----- ------------------------------------------------- ---- ----- ----------
1. BLV/BLVI operable to Operator Services Provider
- ----- ------------------------------------------------- ---- ----- ----------
2. E911 services operating
- ----- ------------------------------------------------- ---- ----- ----------
3. All WinStar NXXs loaded in the switch
- ----- ------------------------------------------------- ---- ----- ----------
4. Network Facilities and Trunk Groups inventoried
- ----- ------------------------------------------------- ---- ----- ----------
5. Centest EF&I tested including LAN access
- ----- ------------------------------------------------- ---- ----- ---------
6. DLC EF&I tested and spare equipment provided
- ----- ------------------------------------------------- ---- ----- ----------
7. Fiber and CAP facilities tagged
- ----- ------------------------------------------------- ---- ----- ----------
8. Generator load tested
- ----- ------------------------------------------------- ---- ----- ----------
9. Rectifier load-sharing equalized
- ----- ------------------------------------------------- ---- ----- ----------
10. Security card access system verified/alarm detection
- ----- ------------------------------------------------- ---- ----- ----------
11. Facility clean and ready for operation
- ----- ------------------------------------------------- ---- ----- ----------
12.
- ----- ------------------------------------------------- ---- ----- ----------
13.
- ----- ------------------------------------------------- ---- ----- ----------
14.
- ----- ------------------------------------------------- ---- ----- ----------
Exception
------------------------------------------------------------
Descriptions:
- -----------------------------------------------------------------------------
<PAGE>
WINSTAR
WinStar Practice ###-##-####
Issue 1 March 1998
DS-1/DS-3 Certification and Acceptance
Performance Objectives
Synopsis
This practice presents the standards for certification and acceptance of
the WinStar's DS-1 and DS-3 circuits. The standards are intended to be used
for both radios, as well as wireline circuits from carriers, CAPs, etc
Reason for reissue
N/A
Contact for comments
Comments regarding this document should be directed to either:
Majid Borojeni, 180, 1650 Tysons Blvd, McLean, VA 22102 Telephone
(703) 790-9246 ext 112. Email: [email protected]. or
Chris Ball, 2nd Floor, 1577 Springhill Road, Vienna, VA 22182
Telephone (703) 645-5623. Email: [email protected].
<PAGE>
DS-1/DS-3 Circuit Certification and Acceptance Objectives
1.0 Objective:
The objective of this document is to provide a set of standards for
certification and acceptance of the WinStar's DS-1 and DS-3 circuits.
The use of these specifications will ensure a quality circuit, that will meet
customer's increasing demands for circuit performance, as well as industry's
performance objectives.
The error performance parameters that will be used during certification and
acceptance tests are: Errored Seconds (ES), Severely Errored Seconds (SES), Bit
Error Rate (BER), and availability objectives.
The Certification test process will be used to test the "transport" link, prior
to having customer circuit assignments. This certification insures that any
impairments are corrected and these facilities meet the minimum performance
requirements. Duration of the certification test should be a 24-hour test period
to reflect the long term effect of the equipment as well as the environmental
effects on this path.
Acceptance test will use the same test parameters as the certification test,
however, the duration of the test is reduced to one (1) hour. The purpose of the
acceptance test is to detect any degradation in performance which may have
occurred since the certification of the facility, prior to the activation of
customer circuits.
It should also be noted that the Bit Error Rate test by itself can not be used
to describe the health of the transport. The reason being that, usually BER
occurs in burst, therefore, is not indicative of the overall health of the
transport network. In today's data oriented environment, and customers'
increasing demands for error free facilities, performance parameters such as ES
and SES must be used for finding the overall error distribution.
<PAGE>
2. Definitions:
Bit Error Ratio (BER): The ratio of the number of bit errors to the total number
of bits transmitted in a given time interval.
Errored Second (ES): A one second interval with one or more bit error.
Error Free Second (EFS): A one second interval in which no bit errors are
received. This parameter is measured in percentage.
Severely Errored Second (SES): A one second interval having a bit error ratio of
1xe-3 or worse.
Outage: An outage, usually measured in `outage second", is declared after 10
consecutive SESs have occurred. Outage seconds are counted until 10 consecutive
non-SESs occur.
Availability: Availability refers to that time which the circuit is available,
that is not experiencing an outage. Usually this termed is expressed as percent
availability by taking the ratio of the available time during a given interval
to the total interval.
3.0 DS-3 Certification Link Objectives (24-hour test period)
This is a test for a newly installed DS-3 radio or a DS-3 hand-off
from other carriers. This test should be done at the DSX-3 point. This
is a looped back test at the DSX-3 panel from the remote location.
Errored Seconds (ES) less than or = 2
Error Free Seconds % (EFS%) greater than 99.998%
Severely Errored Seconds (SES) = 0
Bit Error Ratio (BER, QRS test) less than 1xe-9
3.1 DS-3 Acceptance Link Objectives (not required)
At the present time, once the customer orders a DS-3 circuit, the
certification test will also serve as an acceptance test. A DS-3
acceptance test will be required in the future with the deployment of
OC-3 type SONET radios.
<PAGE>
4.0 DS-1 Certification Link Objectives (24-hour test period)
This is a test for a newly installed 8x or 4x DS1 radios or a DS-1
hand-off from other carriers. This test should be done at the DSX-1
point. This is a looped back test at the DSX-1 panel from the remote
location.
Errored Seconds (ES) less than or = 1
Error Free Seconds % (EFS%)greater than 99.999%
Severely Errored Seconds (SES) = 0
Bit Error Ratio (BER, QRS test) less than 1xe-9
4.1 DS-1 Acceptance Objectives (1-hour test period)
This test should be done every time we are turning up a DS1 off of the
DS1 radios or off of the DS-3 radios via the MUX equipment at the
DSX-1 panel
QRSS pattern should be selected for this test to verify the health of
the network, once the following objectives are met the additional 15
minutes stress test must be done before the circuit is accepted and
handed off to the customer.
Errored Seconds (ES): 0
Error Free Seconds(EFS%): 100%
Severely Errored Seconds (SES): 0
Bit Error Ratio (BER) less than 1xe-9
4.1.1 DS-1 Acceptance Objectives (15 minutes stress test)
In addition to the above acceptance test the following stress test
patterns should be performed. The test should be a loop test at the
CSU (if available) or at the RJ48X jack, or equivalent DS1 termination
point. The objectives of these stress test patterns are to isolate any
mis-optioning that might exist in the network prior to customer
activation. The length of each pattern should be five minutes.
Stress Test Pattern (AMI):
TEST TIME ERRORS
3 in 24 5 minutes 0
All Ones 5 minutes 0
55 Octet 5 minutes 0
<PAGE>
Note: Other stress pattern tests such as 2^15-1, 2^20-1, 2^23-1 could be used
for fault isolation purposes.
Stress Test Pattern (B8ZS):
TEST TIME ERRORS
3 in 24 5 minutes 0
All 0s 5 minutes 0
All Ones 5 minutes 0
55 Octet 5 minutes 0
Note: Other stress pattern tests such as 2^15-1, 2^20-1, 2^23-1 could
be used for fault isolation purposes.
<PAGE>
Exhibit A-5
Hub Implementation Forecast
<TABLE>
<CAPTION>
- -------------- ------------------- ---------------- ------------------ ---------------------
Month Hubs Delivered Percent of Hubs Delivered Percent of Total
Total Hubs to Date Hubs to Date
- -------------- ------------------- ---------------- ------------------ ---------------------
<S> <C> <C> <C> <C> <C>
Dec-98 57 21.11% 57 21.11%
Jan-99 -- 0.00% 57 21.11%
Feb-99 -- 0.00% 57 21.11%
Mar-99 18 6.67% 75 27.78%
Apr-99 -- 0.00% 75 27.78%
May-99 -- 0.00% 75 27.78%
Jun-99 25 9.26% 100 37.04%
Jul-99 -- 0.00% 100 37.04%
Aug-99 -- 0.00% 100 37.04%
Sep-99 25 9.26% 125 46.30%
Oct-99 -- 0.00% 125 46.30%
Nov-99 -- 0.00% 125 46.30%
Dec-99 25 9.26% 150 55.56%
Jan-00 -- 0.00% 150 55.56%
Feb-00 -- 0.00% 150 55.56%
Mar-00 20 7.41% 170 62.96%
Apr-00 -- 0.00% 170 62.96%
May-00 -- 0.00% 170 62.96%
Jun-00 20 7.41% 190 70.37%
Jul-00 -- 0.00% 190 70.37%
Aug-00 -- 0.00% 190 70.37%
Sep-00 20 7.41% 210 77.78%
Oct-00 -- 0.00% 210 77.78%
Nov-00 -- 0.00% 210 77.78%
Dec-00 20 7.41% 230 85.19%
Jan-01 -- 0.00% 230 85.19%
Feb-01 -- 0.00% 230 85.19%
Mar-01 10 3.70% 240 88.89%
Apr-01 -- 0.00% 240 88.89%
May-01 -- 0.00% 240 88.89%
Jun-01 10 3.70% 250 92.59%
Jul-01 -- 0.00% 250 92.59%
Aug-01 -- 0.00% 250 92.59%
Sep-01 10 3.70% 260 96.30%
Oct-01 -- 0.00% 260 96.30%
Nov-01 -- 0.00% 260 96.30%
Dec-01 10 3.70% 270 100.00%
- -------------- ------------------- ---------------- ------------------ ---------------------
TOTAL 270 100% 270 100%
- -------------- ------------------- ---------------- ------------------ ---------------------
</TABLE>
<PAGE>
Exhibit A-6
Williams Connectivity
1.1. Definitions
The following terms shall have the meanings set forth herein:
(a) "Minimum Williams T-1 Inventory" means the aggregate, cumulative
Williams T-1s that WinStar commits to provide to Williams as
described herein.
(b) "Williams T-1 Ceiling" means the maximum cumulative amount of
Williams T-1s that Williams is entitled to use in any given
calendar year, which shall equal 1.5 multiplied by such year's
Estimated T-1 Inventory, up to a cap of 95,355 Williams T-1s.
Such cap shall in no event be exceeded except as expressly
provided for herein.
(c) "Estimated T-1 Inventory" means the non-binding estimate of the
cumulative number of Williams T-1s that may be available in a
certain calendar year. The Estimated T-1 Inventory is provided
for illustrative purposes only.
(d) "Williams Connectivity" means two percent (2%) of the Domestic
Hub Capacity, which is the quantity to be allocated to Williams,
as may be subsequently modified by written agreement of the
Parties.
(e) "Technology Fee" means the amount that Williams shall pay in
order to exceed the Williams T-1 Ceiling and have the right to
obtain up to the full amount of the Williams Connectivity. The
Technology Fee shall be equal to Williams' Pro-Rata Share of all
Costs associated with any upgraded technology deployed by
WinStar.
[CHART DIAGRAMMING INVESTORY LEVELS]
1.2. Operation.
Upon the Effective Date and for each calendar year beginning with the
calendar year 2000, WinStar will provide to Williams the greater of
the Williams Connectivity, subject to the Williams T-1 Ceiling, and
the Minimum Williams T-1 Inventory. Beginning on the first day of the
calendar year 2008, the Minimum Williams T-1 Inventory and the
Williams T-1 Ceiling shall both remain constant (i.e. at 2008 levels)
for the remainder of the Term.
<PAGE>
Schedule B
Performance Standards
1. General
1.1. General.
The performance standards set forth in this Schedule are intended
to measure WinStar's performance with regard to two specific
areas: Problem Resolution and Circuit Availability.
1.2. Definitions.
(a) "Actual Uptime" of a circuit shall mean the period that such
circuit is actually available for normal transport (i.e.,
Scheduled Uptime - outage) plus any time of outage due to a force
majeure event or third party equipment, transport or services.
(b) "Availability" of a circuit shall mean the Actual Uptime
expressed as a percentage of the Scheduled Uptime for such
circuit (i.e., Availability % = (Actual Uptime)/Scheduled Uptime
* 100%).
(c) "Scheduled Uptime" shall mean that period of time (days of the
week and hours per day) during which a circuit is expected to be
available for normal transport.
(d) "Time to Respond" shall mean the elapsed time between
registration of a problem (e.g., through notification by
Williams' Network Customer Care) or service request to WinStar
and the commencement of efforts.
2. problem resolution
2.1. General.
WinStar shall resolve problems with the Williams T-1s as quickly as is
practicable but, at a minimum, shall use commercially reasonable
efforts to meet the standards set forth in Section 2.3.
2.2. Measurement.
The problem classifications are as follows:
(a) Priority Level 1: A problem that causes Outage of
multiple Williams T-1s.
(b) Priority Level 2: A problem that
causes Outage of one Williams T-1 or degrades performance of
multiple Williams T-1s.
(c) Priority Level 3: A problem that
causes degradation of performance of one Williams T-1.
2.3. Performance.
Priority Level Objectives:
Priority Level Mean Time to Respond
------------------------- ------------------------
1 Four (4) hours
2 Eight (8) hours
3 Twelve (12) hours
3. Circuit Availability.
3.1. General.
WinStar shall attain the performance standards set forth in Section
3.3.
3.2. Measurement.
Availability of the Williams T-1s shall be measured as the average
Availability of all WinStar Wireless Fiber Connectivity circuits.
3.3. Performance Objective.
(a) WinStar shall achieve a Wireless Fiber Connectivity Availability
of at least 99.95%.
(b) A circuit is considered inoperative when there is a loss of
signal or when its bit error rate is equal to or worse than 1.0 x
10-3.
<PAGE>
Schedule C
Charges
1. General
This Schedule C describes the charging methodologies and processes for
the Wireless Fiber Connectivity that WinStar will provide to Williams
under the terms and subject to the conditions of the Agreement.
2. Williams' payment commitments
2.1. Payment for Hubs.
As consideration for the Williams Connectivity, Williams shall
pay One Million, Four Hundred Eighty-One Thousand, Four
Hundred and Eighty-One Dollars ($1,481,481) upon Acceptance of
each Hub, up to a maximum of Four Hundred Million Dollars
($400,000,000) over the Term. This payment shall be made
thirty (30) days following Acceptance of the corresponding
Hub.
2.2. Additional Wireless Fiber Connectivity.
Subject to Sections 6.4 (Most Favored Customer) and 6.5 (Benchmarking)
of the Agreement, WinStar shall price Wireless Fiber Connectivity
purchased by Williams in excess of the Williams Connectivity, if any,
at WinStar's then-current standard rates. Nothing set forth in this
Schedule C shall be deemed to obligate WinStar to sell more Wireless
Fiber Connectivity than the Williams Capacity.
2.3. Maintenance
Services. Williams shall pay for the Routine Maintenance Services (as
defined in Schedule A) delivered over the Term with regard to the
Williams T-1s at a rate of Three Hundred Eighty Thousand, Twenty-Seven
Dollars ($380,027) per month for the period between January, 1998 and
December 2008, inclusive. Charges for up to Five Thousand Dollars
($5,000) worth of non-routine maintenance per Williams T-1 are also
included in such rate. Charges for Routine Maintenance Services for
other Wireless Fiber Connectivity purchased by Williams shall be
priced at WinStar's then-current standard rates, subject to Sections
6.4 and 6.5 of the Agreement.
2.4. Collocation Services.
Charges for Collocation Services with regard to the Williams
Connectivity are included in the pricing set forth in Sections 2.1 and
2.2 of this Schedule C. Charges for Collocation Services for other
Wireless Fiber Connectivity purchased by Williams shall be priced at
WinStar's then-current standard rates, subject to Sections 6.4 and 6.5
of the Agreement.
AGREEMENT TO PURCHASE LMDS LICENSE
AGREEMENT TO PURCHASE LMDS LICENSE, dated as of July 10, 1998 (this
"Agreement") by and between WinStar Communications, Inc., a Delaware corporation
the "Purchaser"), CellularVision USA, Inc., a Delaware corporation ("CVUSA") and
CellularVision of New York, L.P., a Delaware limited partnership ("Seller"),
WHEREAS, Seller holds the LMDS A Block License (the "License") from the
Federal Communications Commission (the "FCC") for the New York Primary
Metropolitan Statistical Area (i.e., the five boroughs comprising the City of
New York, and the contiguous New York State counties of Westchester, Rockland
and Putnam), free and clear of all liens, claims, rights of usage by third
parties and other encumbrances (collectively, "Liens"),
WHEREAS, Seller and CVUSA have retained Wasserstein Perella & Co., Inc.
to advise them on the marketing and sale of the 850 MHz License and Wasserstein
Perella & Co., Inc. has managed the sale process, which included, among other
things, contacting a large number of potential purchasers as well as active
negotiations with certain potential purchasers, all of which resulted in the
offer of the Purchase Price and the Loans (as hereinafter defined) all on the
terms and conditions set forth herein, which CVUSA deems to be the best offer
currently available for the 850 MHz License;
WHEREAS, Seller intends to disaggregate 850 MHz of the spectrum covered
by the License, comprised of the frequencies between 27.5 and 28.35 GHz and to
be conveyed to Purchaser pursuant to a license granted by the FCC thereto (the
"850 MHz License") and Purchaser wishes to purchase the 850 MHz License, upon
the terms and subject to the conditions set forth herein, free and clear of all
Liens.
WHEREAS, holders of a majority of the outstanding shares of common
stock of CVUSA wish to irrevocably consent to this Agreement and the
transactions contemplated hereby;
<PAGE>
NOW, THEREFORE, in consideration of the premises, and the mutual
conditions and obligations set forth herein, the parties hereto hereby agree as
follows:
1. Purchase Price; Loan. (a) The purchase price for the 850 MHz License
shall be $32,500,000, of which a portion will be payable by offset of the total
outstanding principal amount and accrued interest on the Loan (as defined below)
and the remainder of which will be payable by wire transfer of immediately
available funds to Seller at the Closing (defined in Section 3).
(b) As promptly as practicable following the execution and delivery of
this Agreement by the parties hereto (including the voting agreement of certain
holders owning not less than 39% of the outstanding shares of common stock of
CVUSA), Purchaser will make an initial loan to Seller (the "Initial Loan") in
the amount of $3,500,000, and, when Seller shall have made the FCC filings
contemplated by Section 2(a) and CVUSA shall have obtained the stockholder
approval contemplated by Section 13, Purchaser will make an additional loan in
the amount of $2,000,000 (such loan, together with the Initial Loan and the
loans that Purchaser may, in its sole discretion, make pursuant to Section 6,
the "Loans") at 7.5% per annum, with interest and principal payable in full at
the Closing by way of offset against the purchase price then due, as provided
above, or on such earlier date as this Agreement may be terminated in accordance
with its terms, provided that in the event of such a termination, such interest
rate will be 18% per annum. The Loans will be secured by a first priority
perfected security interest on all of the assets of Seller as to which a
security interest may be granted, including, without limitation, the proceeds
from such assets as well as from the sale or other transfer of FCC licenses, it
being understood and agreed that (i) a vendor's security interest in certain
equipment has been assigned to NewStart Factors, Inc. and (ii) the FCC licenses
may not be subject to security interests as a matter of law. Purchaser's
security interest will extend to after-acquired property and to proceeds,
provided that Borrower will retain the right to enter into vendor financing and
equivalent secured financing arrangements with respect to equipment acquired
after the date hereof. CVUSA will guarantee the repayment in full of the Loans
in accordance with its terms, and will secure its guarantee with a pledge of all
of the outstanding shares of stock of CellularVision Capital Corp., the sole
general partner of Seller, and all of the outstanding limited partnership
2
<PAGE>
interests in Seller, all of which are owned by CVUSA. The parties agree to
prepare, review and negotiate in good faith and execute as promptly as
practicable (and in any event prior to the funding of the Loans) mutually
acceptable definitive documentation ((the "Loan Documents") in customary form
for these financing transactions, including, without limitation, a Loan
Agreement (including guaranty provisions), a Note, a Security Agreement
(including pledge provisions), and UCC-1 forms. To the extent there is an
inconsistency between the Loan Documents and this Agreement with respect to the
Loans and related security arrangements, the Loan Documents shall control.
2. Government Approvals; Transition. (a) As promptly as practicable
following the execution and delivery of this Agreement, Seller and Purchaser
will (i) file appropriate applications for the disaggregation of the License and
assignment of the 850 MHz License to Purchaser and (ii) make such filings under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and
regulations (collectively, the "HSR Act") as may be legally required in order to
consummate the transactions contemplated herein, with the filing fee related to
any such filing to be shared by Purchaser and CVNY on a 50%/50% basis. Following
the making of such applications and filings, both parties will diligently
attempt to obtain successful results with respect thereto in a manner that
permits the consummation of the transactions contemplated herein as soon as
practicable.
(b) Prior to the Closing, and in accordance with all
applicable legal and regulatory requirements, Seller will clear its operations
from the spectrum covered by the 850 MHz License, such transition to be
completed in any event within 90 days of the date of FCC Approval (as herein
defined).
3. Closing. The closing of the transactions contemplated herein (the
"Closing") shall occur on the first business day (the "Closing Date") following
the first date upon which all of the following conditions are satisfied: (i) the
FCC shall have granted its consent to the assignment of the 850 MHz License to
Purchaser and, unless waived by Purchaser, such consent shall have become a
final, nonappealable order no longer subject to review or reconsideration ("FCC
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Approval"); (ii) CVUSA shall have obtained the approval of its stockholders with
respect to the transactions contemplated hereby; and (iii) any applicable
waiting period under the HSR Act shall have expired without action taken to
prevent the consummation of the transactions contemplated herein. At the
closing, Seller shall assign the 850 MHz License to Purchaser free and clear of
all Liens against payment of the Purchase Price as contemplated by Section 1.
4. Representations and Warranties. (a) Each party (the "Representer")
hereby represents and warrants to the other that (i) the Representer has all
requisite power and authority to execute this Agreement and the Loan Documents
and perform its obligations hereunder and thereunder, (ii) all corporate and
partnership action necessary for the authorization, execution and performance by
the Representer of its obligations hereunder and thereunder have been taken,
except that, in the case of CVUSA, stockholder approval may be required, and
(iii) subject to obtaining the consent and approvals referred to in paragraph 3
above, the execution, delivery and performance of this Agreement and the Loan
Documents does not and will not require the consent of any other person or
entity, contravene the certificate of incorporation or by-laws or certificate of
limited partnership or partnership agreement of the Representer or conflict with
or result in a breach or violation by the Representer of any law, court or
administrative order or contract to which the Representer is a party or by which
the Representer is bound.
(b) Seller and CVUSA hereby represent and warrant that Seller is the
sole legal and beneficial owner and holder of the License, has the right under
applicable law and FCC regulations to effect the disaggregation of spectrum
contemplated hereby and that the License is, and the 850 MHz License will be,
held by Seller free and clear of all Liens. Without limiting the foregoing,
Seller hereby represents and warrants that no person or entity other than Seller
has or will have the right to use all or any portion of the License or the 850
MHz License. Seller hereby further represents and warrants that (i) it is in
compliance in all material respects with the Communications Act of 1934, as
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amended, and the rules, regulations and policies of the FCC, (ii) Seller has
satisfied all build-out, renewal, construction and other material regulatory
requirements, and (iii) there are no pending complaints, challenges, petitions,
appeals or other regulatory encumbrances pending or, to the best of the
knowledge of Seller or CVUSA, threatened, against Seller or the License.
(c) Each party will use all commercially reasonable efforts to cause
all of its representations and warranties in this Agreement to remain true and
correct at all times through the Closing Date and to cause all conditions to
Closing to be satisfied.
5. Closing Conditions. (a) Each Party's obligation to close shall be
subject to the following conditions (i) the other party's representations and
warranties hereunder and under the Loan Documents shall be true and correct on
and as of the Closing Date as if made again on that date, (ii) the other party
shall have performed all covenants to have been performed hereunder and
thereunder and (iii) the other party shall have delivered a certificate of a
senior officer as to the matters in clauses (i) and (ii) above dated as of the
Closing Date.
(b) Purchaser's obligation to close shall be subject to the conditions
that (i) the conditions referred to in Sections 2(b) and 3 shall have been
satisfied, (ii) there shall be no injunction or order of any court or government
agency restraining or invalidating any of the transactions contemplated hereby,
and (iii) Purchaser shall have received opinions of Seller's counsel dated as of
the date hereof and as of the Closing date in form and substance reasonably
satisfactory to Purchaser and covering such portion of the matters covered by
Seller's and CVUSA's representations contained herein as are customarily covered
in legal opinions and subject to customary qualifications, including an opinion
of FCC counsel substantially in the form attached.
6. Termination. Either party which is not then in material breach of
its obligations hereunder may terminate this Agreement without liability by
written notice to the other party if the Closing Date shall not have occurred on
or before January 31, 1999, provided, however, that upon Purchaser's notice
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given at least 10 days prior to the date that termination would otherwise be
permitted, such date shall be extended to June 30, 1999 and, thereafter, to
December 31, 1999 if (i) Purchaser is not in material breach of its obligations
hereunder and (ii) on each such occasion Purchaser makes an additional Loan of
$3.5 million in principal amount to the Seller on substantially the same terms
as the Loans. Purchaser may terminate this Agreement at any time if CVUSA has
not obtained stockholder approval of this transaction by October 10, 1998.
7. Transaction Expenses. Except as otherwise provided in Section 2(a)
and Section 13, each of the parties hereto will be responsible for its own
expenses (including fees and expenses of legal counsel) incurred in connection
with the transactions contemplated hereby, provided that as of the Closing Date
(or earlier termination of this Agreement in accordance with its terms in a case
in which the expense reimbursement provision of Section 13 do not apply) Seller
and CVUSA will reimburse Purchaser's reasonable fees and expenses of counsel
incurred in connection with the negotiation and preparation of the documents
relating to the transactions contemplated hereby, including the Loans, and the
prosecution of the FCC applications contemplated hereby, provided that the
amount of such fees and expenses related to the documentation of the
transactions through the funding of the Initial Loan and prosecution of the FCC
applications contemplated hereby shall not exceed $50,000. Each party represents
to the other that it has not incurred any liability for a broker's or finder's
fee in connection with the transactions contemplated hereby, except that Seller
is liable to Wasserstein Perella & Co., Inc. for fees in connection with such
transactions.
8. Publicity; Disclosure. Without the prior approval of the other
party, neither of the parties hereto shall disclose to the public or to any
third party any information concerning the transactions contemplated hereby,
other than disclosures to their financial, legal and other advisors and to
governmental authorities or the public as may, in the opinion of counsel, be
required by law. Notwithstanding the foregoing, CVUSA shall be permitted to
include in the proxy statement described in Section 13 hereof, such details of
the transactions contemplated hereby as may be required by law; provided that
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Purchaser shall have the right to review and comment thereon prior to the proxy
statement being filed with the SEC or distributed. The parties will cooperate in
the preparation of a joint press release or coordinated but separate press
releases announcing the effectiveness of this Agreement as soon as it occurs
pursuant to Section 12.
9. Access. Until the Closing, CVUSA and Seller will give Purchaser and
its representatives all access during ordinary business hours to the premises
and personnel of Seller and CVUSA and to all accounting, financial and other
records applicable to Seller as Purchaser may reasonably request for the purpose
of confirming compliance with this Agreement and CVUSA and shall furnish all
information with respect to the business and affairs of Seller as Purchaser may
reasonably request for such purpose. CVUSA and Seller will cause their
executives, employees, attorneys and accountants to make themselves available to
provide reasonable cooperation to Purchaser in connection therewith.
10. Exclusivity. Neither CVUSA nor Seller shall (nor shall either of
them permit their representatives or stockholders to) discuss a possible sale,
lease or other disposition of or by Seller or CVUSA (whether by sale of stock or
assets or otherwise) that is not consistent with the sale to Purchaser of the
850 MHz License contemplated hereby or provide any information in connection
therewith to any other party or enter into any agreements or commitments to do
the same.
11. Assignment. This Agreement is intended to be a binding agreement
between Purchaser, CVUSA and Seller and shall bind and inure to the benefit of
the successors and assigns of such parties; provided that CVUSA and Seller may
not assign their rights or delegate their obligations hereunder without
Purchaser's prior written consent, which will not be unreasonably withheld. The
Purchaser may assign its rights hereunder to any of its wholly-owned or majority
controlled subsidiaries, provided that no such assignment of its rights shall
relieve Purchaser of any of its obligations hereunder.
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12. Effectiveness. Simultaneously with the execution and delivery of
this Agreement the following are expected to occur, upon the occurrence of which
this Agreement will come into full force and effect:
(a) Holders of not less than 39% of the issued and outstanding
shares of Common Stock of CVUSA shall have agreed to vote their shares as
provided below;
(b) Seller shall have executed and delivered to Purchaser the
Loan Documentation, including arrangements with existing creditors as Purchaser
shall deem appropriate;
(c) Purchaser shall have received such opinions of Seller's
counsel as it shall reasonably require in connection with FCC and corporate
matters with respect to the Loan Documents, the License and the transactions
contemplated hereby, including, if Purchaser so requires, a favorable opinion
from Purchaser's FCC counsel to the effect that there is no reason to expect (i)
that the transactions contemplated hereby will materially adversely affect the
regulatory status of any of the FCC wireless licenses currently held by
Purchaser or any of its subsidiaries or (ii) that there is any reason to believe
that the disaggregation of spectrum is not permissible under applicable law.
13. Shareholder Approval; Break-up fee; Events of Bankruptcy.
(a) CVUSA has obtained the approval of a majority of its board
of directors to the transactions contemplated hereby, and its board has
recommended and will continue to recommend, so long as such recommendation is
consistent with their fiduciary duties under applicable law, that its
stockholders vote to approve the transactions contemplated hereby. CVUSA will
call a special meeting of its stockholders as promptly as practicable for the
purpose of obtaining such approval, will file a preliminary proxy statement with
respect thereto with the Securities and Exchange Commission within five (5)
business days of the execution of this Agreement and will distribute a
definitive proxy statement to stockholders in accordance with applicable law,
and use its best efforts to hold such meeting and obtain such approval as
quickly as possible.
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(b) In the event a petition for relief under 11 U.S.C. ss.101
et seq. (the "Bankruptcy Code") or similar State insolvency statute, is filed by
or against Seller or CVUSA, each Seller and CVUSA agree to (i) consent to entry
of an order for relief under Chapter 11 of the Bankruptcy Code; (ii) continue to
comply with the terms of this Agreement; and (iii) to the extent necessary for
Seller or CVUSA to continue to comply with the terms of this Agreement, seek
Bankruptcy Court approval of the sale contemplated by this Agreement or take
such other action as may be necessary or advisable to allow Seller and CVUSA to
continue to comply with the terms of this Agreement.
(c) in the event at any time on or prior to the Closing Date
(i) this Agreement is terminated by Seller or CVUSA (other than as a result of a
material breach by Purchaser) and a court determines that specific enforcement
in accordance with the provisions of Section 14(b) is not available to
Purchaser, or (ii) Purchaser terminates this Agreement because CVUSA stockholder
approval has not been obtained by October 10, 1998, then Purchaser shall be
entitled to the following as liquidated damages, and not as a penalty:
(i) Expense Reimbursement: Seller and CVUSA jointly and
severally shall reimburse Purchaser for its actual and reasonable out-of-pocket
expenses, not to exceed $325,000 (exclusive of the amounts payable pursuant to
Section 7) incurred in furtherance of this Agreement and the transactions
contemplated herein, including without limitation, attorneys' fees and expenses
incurred by Purchaser for services of outside counsel in negotiating this
Agreement, the Loan Documents and all related agreements, performance of due
diligence, or otherwise (the "Expense Reimbursement"). Purchaser shall submit to
Seller and CVUSA an itemized statement reflecting such actual reasonable
expenses. Within five (5) days thereafter, Seller and CVUSA shall make an
Expense Reimbursement. This obligation shall survive any termination of this
Agreement, and shall be secured by the collateral under the security agreement
being executed in relation to the Loans.
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(ii) Termination Fee. Seller and CVUSA jointly and severally
shall, within five (5) days of such termination, pay $1,625,000 to the Purchaser
as a termination fee ("Termination Fee"). This obligation shall survive any
termination of this Agreement, and shall be secured by the collateral under the
security agreement being executed in relation to the Loans.
14. Specific Performance; Miscellaneous; Conflict Waiver. (a) This
Agreement shall be construed and enforced in accordance with the internal laws
of the State of New York. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but which together shall
constitute one instrument.
(b) Notwithstanding the provisions of Section 13(c)(i) and
(ii), it is understood and agreed that money damages would not be an adequate
remedy for a breach of the Agreement by Seller or CVUSA and that Purchaser shall
be entitled to specific performance and injunctive or other equitable relief as
a remedy for any such breach. Seller and CVUSA agree to waive any requirement
for the securing or posting of any bond in connection with such remedy. Such
remedy shall not be deemed to be the exclusive remedy for any such breach, but
shall be in addition to all other remedies available to Purchaser at law or in
equity.
(c) Each of the parties hereto acknowledges that Willkie Farr
& Gallagher regularly acts as counsel for each of them, and consents to the fact
that the New York office of such firm will provide corporate (but not FCC)
advice to CVUSA and Seller (which will receive FCC advice from other counsel),
its Washington office will provide FCC (but not corporate) advice to Purchaser,
which is also represented by other counsel in this matter.
[Signature page follows]
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
WINSTAR COMMUNICATIONS, INC.
By:/s/ Timothy R. Graham
--------------------------
Timothy R. Graham
Title:
Accepted and agreed as of July 10, 1998
CELLULARVISION USA, INC.
By:_/s/ Shant Hovnanian
- -------------------------
Printed name: Shant Hovnanian
Title:
CELLULARVISION OF NEW YORK, L.P.
By: CELLULARVISION CAPITAL CORP.,
its General Partner
By:___/s/ Shant Hovnanian
--------------------------
Title:
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Voting Agreement by Stockholders
In consideration of the Purchaser executing the Agreement, the
undersigned, being the holders of not less than 39% outstanding shares of the
voting capital stock of CellularVision USA, Inc. which is entitled to vote a the
approval of the transactions described herein, hereby expressly and irrevocably
agree to vote all such shares in favor of approval of the transactions
contemplated hereby at any special meeting of stockholders to be called for such
purpose and do hereby agree to take such actions as Purchaser may reasonably
request in order to further evidence such approval and consent.
/s/ Shant Hovnanian
---------------------
Shant Hovnanian
/s/ Vahak Hovnanian
--------------------
Vahak Hovnanian
