Contract analysis

I. Executive Summary Sean Calloway was deposed on November 19, 2024, at the offices of Calderwood & Harkness LLP. Mr. Calloway serves as the Director of Construction Management at Northgate Fiber Americas Inc. ("NFA" or "Northgate" or "Owner") and functioned as the day-to-day contract administrator for the Master Construction Agreement ("MCA") between Northgate and Meridian Infrastructure Partners LLC ("Meridian" or

II. Background and Qualifications of the Witness A. Employment History and Role at NFA Mr. Calloway testified that he holds the title of Director of Construction Management at Northgate Fiber Americas Inc. He has been employed by NFA since approximately June 2019. Prior to joining NFA, Mr. Calloway spent approximately eight years at Arcadian Telecom Solutions Inc., where he held progressively senior roles in construc

III. Testimony Regarding Project Phases and Milestone Delays A. Phase 1 — New York Metro & Northern New Jersey (Milestones 1–4) Mr. Calloway testified in detail regarding the scope and performance of Phase 1 of the fiber build-out program. Phase 1 encompassed the New York metropolitan area and northern New Jersey and involved the construction of approximately 3,200 route miles of fiber-optic infrastructure. The total

IV. Testimony Regarding Non-Conformance Reports (NCRs) and Quality Defects A. NCR Process and Documentation Mr. Calloway testified at length regarding the quality assurance and non-conformance reporting framework that governed the project. Under MCA § 12.4 and the Northgate Technical Specification NS-FIBER-2020, all construction work performed by Meridian was required to conform to three sets of standards: (1) the AN

V. Testimony Regarding the Cure Notice and Termination Sequence A. Cure Notice No. 1 (January 18, 2024) Mr. Calloway testified that he drafted the initial version of Cure Notice No. 1, working from a template and incorporating specific factual details regarding Meridian's performance deficiencies that he had compiled from his monthly progress reports, the NCR database, and his contemporaneous records. The cure notice

VI. Testimony Regarding Meridian's Scope Change / Change Order Defense A. The 14 Alleged Scope Changes Mr. Deluca devoted a substantial portion of his examination to Meridian's claim that 14 Owner-directed scope changes were not formalized as Change Orders under MCA § 16.1. This line of questioning occupied approximately 90 minutes of the deposition and was the area where Mr. Deluca was most persistent and aggressive

VII. Testimony Regarding Permitting Responsibilities (MCA § 5.3) Mr. Deluca also questioned Mr. Calloway regarding Meridian's assertion that municipal permits were the Owner's responsibility under MCA § 5.3 and that NFA's delays in obtaining certain permits contributed to Meridian's milestone delays. Mr. Calloway testified clearly and in detail regarding the allocation of permitting responsibilities under the MCA. He

VIII. Testimony Regarding Force Majeure Mr. Deluca briefly explored the impact of the COVID-19 pandemic on the project. This line of questioning was relatively brief compared to the scope change and permitting topics, occupying approximately 20–25 minutes of the deposition. Mr. Calloway acknowledged that COVID-19 caused some disruption during the initial months of the project. The Notice to Proceed was issued on Apri

IX. Testimony Regarding Replacement Contractor — Crestline Construction Group Inc. Mr. Calloway testified regarding the process by which NFA identified and retained a replacement contractor following the termination of the MCA. He stated that after the termination on April 1, 2024, NFA conducted an expedited procurement process to identify a qualified contractor capable of completing the remaining Phase 2 work (Miles

X. Testimony Regarding Payments and Retainage Mr. Calloway testified in detail regarding the progress payment process and the financial status of the MCA at the time of termination. As Owner's Representative, Mr. Calloway oversaw the monthly progress payment certification process under MCA § 18.1. Under that process, Meridian submitted monthly payment applications detailing the work completed during the preceding mon

XI. Exhibits Marked During Deposition The following exhibits were marked during the deposition of Sean Calloway on November 19, 2024: All exhibits are being maintained in the matter file and have been cross-referenced against the document production index.

XII. Key Admissions and Favorable Testimony (Summary) A. Favorable to Defense The following key admissions and favorable testimony from Mr. Calloway's deposition are highlighted for purposes of trial preparation and dispositive motion practice:

1. Crew Shortages. Mr. Calloway confirmed that Meridian's construction crew levels dropped to approximately 60–65% of the levels specified in Meridian's original mobilization plan by mid-2022, and that these staffing shortfalls persisted through the termination date. This testimony establishes that Meridian's schedule delays were the direct result of its own failure to maintain adequate resources, not external factor

2. Contemporaneous NCR Documentation. All 287 NCRs, including the 43 classified as critical, were documented contemporaneously as deficiencies were identified during construction. The NCRs are not a post-hoc litigation product; they were created in the ordinary course of contract administration and reflect genuine quality defects with safety and network performance implications.

3. No Change Order Requests by Meridian. Meridian never submitted formal Change Order requests under MCA § 16.1 for any of the 14 alleged scope changes during the performance of the contract. This fact powerfully undercuts Meridian's scope change defense, as it demonstrates that Meridian did not consider these matters to be scope changes at the time, and only raised them after receiving the cure notice.

4. Cure Period Compliance. Cure Notice No. 1 was sent on January 18, 2024, and the termination did not occur until April 1, 2024 — a period of 73 days, well in excess of the 30-day cure period required by MCA § 14.1. Northgate not only satisfied the contractual cure period but extended additional time and process to Meridian through Cure Notice No. 2 and the corrective action plan process.

5. Continuing Deficiencies During Cure Period. Twelve additional critical NCRs were issued in February 2024, during the cure period following Cure Notice No. 1. This testimony is devastating to Meridian's position, as it demonstrates that Meridian's quality performance was not improving — and may have been deteriorating — even after receiving formal notice of material breach.

6. Unrealistic Corrective Action Plan. Mr. Calloway testified that Meridian's Corrective Action Plan was facially unrealistic, failed to address the quality defects documented in the critical NCRs, and proposed crew additions insufficient to recover the schedule even with the requested nine-month extension.

7. No Knowledge of In-House Plans. Mr. Calloway testified unequivocally that he had no knowledge of any plan by NFA to bring fiber construction in-house and that the termination was motivated solely by Meridian's material breach of the MCA. This testimony directly rebuts Meridian's pretext theory.

8. No Formal Force Majeure Notice. Meridian never issued a formal force majeure notice under MCA § 15.1 at any time during the project. This failure to comply with the contractual notice requirement significantly undermines Meridian's force majeure defense. B. Potentially Unfavorable or Requiring Attention The following areas of Mr. Calloway's testimony are potentially unfavorable or require further attention during

1. Verbal Field Adjustments. Mr. Calloway acknowledged three to four instances in which he verbally communicated minor field adjustments to Meridian's crew supervisors without formalizing those adjustments as Change Orders. While Mr. Calloway credibly characterized these as de minimis adjustments within existing scope, plaintiff's counsel will attempt to use this testimony to argue that NFA engaged in a broader patte

2. Municipal Permit Delays. Mr. Calloway acknowledged that NFA's franchise approvals were delayed in approximately four to five municipalities. While he testified that these delays were is