-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, F1f3U+BvL1AsG1u7rxVGZgxRJCFEC8B5z1LSwqG/ttijxfh56QKmhEgcnkKTrznY AJJTDXBCgXIPoApzfjcGdw== 0000938492-99-000055.txt : 19990203 0000938492-99-000055.hdr.sgml : 19990203 ACCESSION NUMBER: 0000938492-99-000055 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19981109 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990202 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WINSTAR COMMUNICATIONS INC CENTRAL INDEX KEY: 0000868797 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 133585278 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: SEC FILE NUMBER: 001-10726 FILM NUMBER: 99519063 BUSINESS ADDRESS: STREET 1: 230 PARK AVE STE 2700 CITY: NEW YORK STATE: NY ZIP: 10169 BUSINESS PHONE: 2125844000 FORMER COMPANY: FORMER CONFORMED NAME: ROBERN INDUSTRIES INC DATE OF NAME CHANGE: 19930328 FORMER COMPANY: FORMER CONFORMED NAME: ROBERN APPAREL INC DATE OF NAME CHANGE: 19600201 8-K/A 1 AMENDMENT TO REPORT ON FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------- AMENDMENT NO. 1 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 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. 2 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 1, 1999 WINSTAR COMMUNICATIONS, INC. /s/ Timothy R. Graham By: ____________________________ Timothy R. Graham 3 EXHIBIT INDEX Exhibit Document - ------- --------- 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. 4 EX-10.1 2 IRU AGREEMENT Confidential - WinStar/Williams IRU AGREEMENT BETWEEN WINSTAR WIRELESS, INC. AND WILLIAMS COMMUNICATIONS, INC. Dated December 17, 1998 (Long-Haul) 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 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 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 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. 2 (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. 3 (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. 4 (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). 5 (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. 6 (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. 9 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. 10 (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. 11 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. 12 (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. 13 (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). 14 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. 15 (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). 16 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. 17 (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. 18 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. 19 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). 20 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. 21 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. 22 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. 23 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. 24 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. 25 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. 26 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. 27 (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. 28 (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. 29 (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. 30 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 31 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. 32 (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; 33 (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). 34 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 (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 (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. 37 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 (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 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 (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 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. 42 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 43 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. 44 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. 45 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. 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: ----------------------------------------
46 EXHIBIT A PART 1 SYSTEMS SEGMENTS MAP SHOWING PROPOSED WILLIAMS NETWORK EXHIBIT A PART 2 SYSTEM SEGMENTS
- ------------------------------------------------------------------------------------------------------------------------ Planned Estimated Number Total Fiber Construction Route of Fiber Option Percentage of System Segment Type Date Miles Fibers Payment Price Route Miles - ------------------------------------------------------------------------------------------------------------------------ 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% ========================================================================================================================
============================================================================ 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 ============================================================================ 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:
- ------------------------------------------------------------------------------------------- Monthly Recurring Charges Port CIR (Mbps) Port CoS Price Per Meg - ------------------- ----------------- ----------------- ----------------- ----------------- 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 - ------------------- ----------------- ----------------- ----------------- -----------------
- ------------------------------------------------------------------------------------------- Monthly Recurring Charges Port CIR (Mbps) Port CoS Price Per Meg - ------------------- ----------------- ----------------- ----------------- ----------------- 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 - ------------------- ----------------- ----------------- ----------------- -----------------
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 - --------------------------------------------------------------------------- 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
- ------------------------------------------------------------------------------------------- Discount Structure Monthly Revenue 1 Year 2 Year 3 Year 4 Year 5 Year - ---------------- -------------- -------------- -------------- -------------- -------------- $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% - ---------------- -------------- -------------- -------------- -------------- --------------
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 Non-recurring Charges:
- ------------------------------------------------ ---------------- --------------- -------------- -------------- --------------- Non-Recurring Charges DS-1 DS-3 OC-3 OC-12 OC-48 - ------------------------------------------------ ---------------- --------------- -------------- -------------- --------------- 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 - ------------------------------------------------ ---------------- --------------- -------------- -------------- ---------------
- ------------------------------------------------ ------------------------------------- ---------------------------------------- Cross-Connect Charge Monthly Recurring Non-Recurring - ------------------------------------------------ ------------------------------------- ---------------------------------------- DS-3 $250 $500 - ------------------------------------------------ ------------------------------------- ---------------------------------------- OC-3 $800 $1,000 - ------------------------------------------------ ------------------------------------- ---------------------------------------- OC-12 $3,250 $10,000 - ------------------------------------------------ ------------------------------------- ---------------------------------------- OC-48 $12,000 $25,000 - ------------------------------------------------ ------------------------------------- ----------------------------------------
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 $0.0165 -------------------------------- --------------------------- 5 III. Frame Relay Services 1. Rates & Charges: Williams Network Frame Relay Service has four principle rate elements: Access, Port Connections, Permanent Virtual Circuits (PVCs), and Flex-CIR (Time-of-Day and/or Day-of-Week) configuration charges. Ports and PVCs are further categorized as being either a User-to-Network Interface (UNI) type or Network-to-Network Interface (NNI) type. An NNI port is defined as one end of a connection between Williams' frame relay network and another carrier's network. The connecting carrier could be either a customer or off-net service provider. Similarly, an NNI PVC is defined as one which has each end of the PVC residing in two different carrier's frame relay networks, rather than the originating and terminating points being in the same carrier's network. 1.1 Port Charges: Both UNI and NNI port charges are based solely on the bandwidth selected by WinStar. Available port speeds range from 64 Kilobits per second (Kbps) to 1.536 Megabits per second (Mbps). See rate table below for list of available speeds. Monthly recurring and non-recurring charges for frame relay ports are provided in the rate table below. 1.1.2 Permanent Virtual Circuit (PVC) bandwidth charges: UNI and NNI PVC charges are both based solely on the bandwidth selected by WinStar. Bandwidth charges are stated in Committed Information Rates (CIR) or Kbps increments for one-way, or Simplex PVCs. Available PVC-CIR speeds range from 4 Kbps to 1.024 Mbps. See rate table below for list of available speeds. Monthly recurring and non-recurring charges for frame relay PVCs are provided in the rate table below. 6 1.1.3 Frame Relay Rate Table
- ------------------------------- ---------------- ------------------- ------------------- Frame Relay Service Components Speed/CIR (Kbps) MRC ($) Installation ($) - ------------------------------- ---------------- ------------------- ------------------- 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
7
- ------------------------------- ---------------- ------------------- ------------------- Frame Relay Service Components Speed/CIR (Kbps) MRC ($) Installation ($) - ------------------------------- ---------------- ------------------- ------------------- 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 - ------------------------------- ---------------- ------------------- -------------------
8 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:
- ------------------------------------- ------------------------ ------------------------------- Enhanced Wholesale Services Installation MRC - ------------------------------------- ------------------------ ------------------------------- 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) - ------------------------------------- ------------------------ -------------------------------
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 1.3.1
- -------------------------------------------------------------------------------------- Time-of-Day/Day-of-Week Flex-CIR PVC Charges Description NRC (Per PVC) MRC (Per PVC) - ------------------------------- ------------------------ ----------------------------- 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) - ------------------------------- ------------------------ -----------------------------
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.
- ---------------------------------------------------------------------------------- Additional Non-Recurring Charges Description of Charge Charge - ------------------------------------------ --------------------------------------- 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 - ------------------------------------------ ---------------------------------------
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 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.
- -------------------------------------------------------------------------------------- Frame Relay Discount Schedule Monthly Revenue 1 Year 2 Year 3 Year 4 Year 5 Year - ----------------------------- ----------- ---------- ---------- ---------- ----------- $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% - ----------------------------- ----------- ---------- ---------- ---------- -----------
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 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 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 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 EXHIBIT C 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 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:
- ---------------------------------------------------- ------------------- ------------------ ----------------- Recurring Monthly Charges for Specific Minimum One Year Three Year Five Year Term Commitments Term Term Term - ---------------------------------------------------- ------------------- ------------------ ----------------- 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 $250 - ---------------------------------------------------- ------------------- ------------------ -----------------
18
- ---------------------------------------------------------------- ------------------------- ------------------------ Ancillary Charges Nonrecurring Monthly Recurring Charge ($) Charge ($) - ---------------------------------------------------------------- ------------------------- ------------------------ Change of Installation Date (pre-work date) 100 0 - ---------------------------------------------------------------- ------------------------- ------------------------ Service Order Change (pre-work date) 100 0 - ---------------------------------------------------------------- ------------------------- ------------------------ Service Order Change (post-work date) 250 0 - ---------------------------------------------------------------- ------------------------- ------------------------ Order Cancellation (more than 30 days before scheduled work 250 0 date) - ---------------------------------------------------------------- ------------------------- ------------------------ Order Cancellation (less than 30 days from scheduled work date) 500 0 - ---------------------------------------------------------------- ------------------------- ------------------------ AC Power Addition (after initial installation) 750 0 - ---------------------------------------------------------------- ------------------------- ------------------------ Cross-Connect (per DS-3) (subject to limitations set forth in 1,000 250 Section 2 of this Exhibit) - ---------------------------------------------------------------- ------------------------- ------------------------ Early Termination (before one, three, or five year term 100% of remaining contract term expires) - ---------------------------------------------------------------- --------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------- Dispatch Labor Charges ($) - ------------------------------------------------------------------------------------------------------------------- Monday-Friday Business Hours 100 per hour - ------------------------------------------------------------------------ ------------------------------------------ Monday-Friday Non-Business Hours 125 per hour - ------------------------------------------------------------------------ ------------------------------------------ Saturday & Sunday 150 per hour - ------------------------------------------------------------------------ ------------------------------------------ Holidays 150 per hour - ------------------------------------------------------------------------ ------------------------------------------
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 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 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 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 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 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 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 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
- -------------------------------------------------------------------- ----------------- Charge Per Occurrence - -------------------------------------------------------------------- ----------------- 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 - -------------------------------------------------------------------- -----------------
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 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 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 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. 29 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 30 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. 31 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. 32 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. 33 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: 34 (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. 35 Exhibit C - Attachment I Reference Number ________________________ new |_| disc |_| sup |_| cancel |_| change |_| [WILLIAMS COLLOCATION SERVICE REQUEST] 36 [WILLIAMS COLLOCATION SERVICE ORDER] [CONTINUED] 37 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. 38 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 39 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. 40 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. 41 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. 42 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 43 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. 44 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. 45 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. 47 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. 47 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. 48 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. 49 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. 50 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. 51 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 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. 52 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": (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; 53 (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. 54 (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 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. 55 "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, 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. 56 (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 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. 57 (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. 58 (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 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: 59 FIRST, to the payment of all costs and expenses incurred by Williams in connection with such collection or sale or otherwise in connection 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 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. 60 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. 61 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 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 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 (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 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 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 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 WINSTAR COMMUNICATIONS, INC., By ___________________________________ Name: Title: 69 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 Exhibit O Williams Network POP List
================================================================================================================================ 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 ================================================================================================================================= 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 --------------------------------------------------------------------------------------------------------------------------
================================================================================================================================ 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 ================================================================================================================================= 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 --------------------------------------------------------------------------------------------------------------------------
================================================================================================================================= 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 ================================================================================================================================= 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 --------------------------------------------------------------------------------------------------------------------------
Service provided between any of the cities listed above is considered On-Net. Williams will update this listing periodically. EX-10.2 3 AGREEMENT Confidential - WinStar/Williams WIRELESS FIBERsm IRU AGREEMENT BY AND BETWEEN WINSTAR WIRELESS, INC. AND WILLIAMS COMMUNICATIONS, INC. Effective as of December 17, 1998 TABLE OF CONTENTS 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
- i - 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
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 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. 1 (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 (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 (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 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 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 (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 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 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 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 (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). 11 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. 12 (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, 13 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. 14 (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. 15 (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" 16 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. 17 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. 18 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. 19 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. 20 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 21 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. 22 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. 23 (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: 24 (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 25 "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 26 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. 27 (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. 28 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. 29 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. 30 (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. 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: ----------------------------------------
Schedule A 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. 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"). 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. 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 (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; (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. (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. (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. 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. (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. Exhibit A-1 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. 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 - -------------------------------------------------- - ---------------------- -------------------------- -------------------------- 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 - ---------------------- ------------------------ ------------------------------ 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 - ---------------------------------- --------------------------- 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. (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: (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. 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. (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. 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 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. 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. 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. 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) WINSTAR B SITE BUILD OUT PROCESS DESCRIPTION & PROCEDURES Prepared by WinStar Network Deployment Support Services 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 B Site 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. 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 B SITE IMPLEMENTATION FLOW PROCESS - PHASE I [CHART DIAGRAMMING STEMPS IN DIVISION-MAKING PROCESS] B SITE IMPLEMENTATION FLOW PROCESS - PHASE II [CHART DIAGRAMMING STEMPS IN DIVISION-MAKING PROCESS] 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. 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. 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. 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. SITE EVALUATION FORM [FORM FOR SPECIFYING DATE RELEVANT TO SITE LOCATION PROCESS] 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) 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. 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. 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 Standard Configuration 1 Build P-COM 8xT1 Link
Power PART# MFG QTY - ----------------------------------------------------------------------------------------------------- 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 - -----------------------------------------------------------------------------------------------------
Power PART# MFG QTY - ----------------------------------------------------------------------------------------------------- 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
Standard Configuration 1 Build P-COM DS-3 Link
Power PART# MFG QTY - ------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------ 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 - ------------------------------------------------------------------------------------------
Power PART# MFG QTY - ------------------------------------------------------------------------------------------ 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
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 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 Appendix - Technical Drawings [CHART DIAGRAMMING SITE IMPLEMENTATION TIMELINE] 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 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. 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 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. 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: 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. 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. 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. 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. 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: 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. 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. 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. 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. 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 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. 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 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" 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. 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: tprecht@winstar.com. or John Alfasi, Room 2027, 1577 Spring Hill Rd, Vienna VA 22182 Telephone (703) 645-5622. Email: jalfasi@winstar.com. - ------------------------------------------------------------------------------ Not for use or disclosure outside WinStar Communications without the written permission of WinStar. - ------------------------------------------------------------------------------ A-4-55 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 - ------------------------------------------------------------------------------ Not for use or disclosure outside WinStar Communications without the written permission of WinStar. - ------------------------------------------------------------------------------ A-4-56 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. - ------------------------------------------------------------------------------ Not for use or disclosure outside WinStar Communications without the written permission of WinStar. - ------------------------------------------------------------------------------ A-4-57 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.
Integration Ops Ops Product/Equipment Engr Pkg MOP CLR Test Results ORT Inspection Testing - ----------------------------------------------------------------------------------------------------------- CAP/LEC Interconnects X X X - ----------------------------------------------------------------------------------------------------------- Centrex X X X - ----------------------------------------------------------------------------------------------------------- CLASS Features X X FVO - ----------------------------------------------------------------------------------------------------------- Collocated Equipment X X X X X X - ----------------------------------------------------------------------------------------------------------- DXC X X X X X - ----------------------------------------------------------------------------------------------------------- Fiber Terminal X X X X X - ----------------------------------------------------------------------------------------------------------- ISDN X X FVO X X - ----------------------------------------------------------------------------------------------------------- LET X X X X - ----------------------------------------------------------------------------------------------------------- LNP X - ----------------------------------------------------------------------------------------------------------- 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 - -----------------------------------------------------------------------------------------------------------
NOTE: FVO = Field Verification Office meaning that only locations designated FVO will be ORT tested. 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. 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 (dguadalupe@winstar.com) Marlene Miller (mmmiller@winstar.com) 2. VP, Field Operations (Joe Haggler) Operations Support forwards notifications via email to the Marketing Distribution list. 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: --------------------------------------------------------------------- 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: --------------------------------------------------------------------- 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: --------------------------------------------------------------------- 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: --------------------- -------------------------------------------------- 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: - ----------------------------------------------------------------------------- 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: mborojeni@winstar.com. or Chris Ball, 2nd Floor, 1577 Springhill Road, Vienna, VA 22182 Telephone (703) 645-5623. Email: cball@winstar.com. 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. 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. 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 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. Exhibit A-5 Hub Implementation Forecast
- -------------- ------------------- ---------------- ------------------ --------------------- Month Hubs Delivered Percent of Hubs Delivered Percent of Total Total Hubs to Date Hubs to Date - -------------- ------------------- ---------------- ------------------ --------------------- 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% - -------------- ------------------- ---------------- ------------------ ---------------------
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. 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. 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. EX-10.3 4 AGREEMENT TO PURCHASE LICENSE 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; 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 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 3 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 4 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 5 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 6 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. 7 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. 8 (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. 9 (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] 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: 11 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 -----END PRIVACY-ENHANCED MESSAGE-----