GRANT OF IRU. 3.01 Subject to the terms of Article 7 below, as of the Effective Date for each Segment delivered by Grantor to Grantee hereunder, Grantor hereby grants to Grantee, and Grantee hereby acquires from Grantor for the purposes described herein (i) an exclusive indefeasible right of use in (or, if and to the extent provided in Section 3.02 hereof, ownership of), twenty-four (24) fibers (the "Initial Grantee Fibers") plus (a) to the extent Grantee exercises its option pursuant to Section 7.06, the fibers acquired by Grantee pursuant to such option, (b) the fibers in excess of 24 delivered to Grantee pursuant to Section 7.02 and (c) fibers installed in the Grantee Conduit (the fibers described in clauses (a), (b) and (c) are herein referred to as the "Additional Grantee Fibers"), in each case to be specifically identified in the Cable or cables between the Segment End Points for such Segment (the "Initial Grantee Fibers" and the "Additional Grantee Fibers", together with all substitutions and replacements thereof, are herein referred to as the "Grantee Fibers"), (ii) an exclusive indefeasible right of use in (or, if and to the extent provided in Section 3.02 hereof, ownership of) one specifically identified unoccupied conduit in the Grantor System between the Segment End Points for 3.02 Notwithstanding anything contained herein to the contrary: (a) if and to the extent not prohibited by the Required Right(s)for a particular Segment, and (b) if the Required Right(s) with respect to such Segment do not and will not impose upon Grantor any additional fees, costs or charges as a result thereof (unless Grantee shall pay the same or make arangements satisfactory to Grantor to assure such payment), Grantor shall, upon the request of Grantee and on a Segment-by-Segment basis on the Acceptance Date with respect to such Segment and without the need for any further action or execution of documents by Grantor to Grantee: (i) transfer title to the Grantee Fibers and the Grantee Conduit to Grantee free and clear of all Liens attributable to Grantor; (ii)grant to Grantee a lease, subeasement or similar agreement providing rights (at no additional cost to or monetary obligations of Grantee, except to the extent provided in clause (b) above) to Grantee substantially identical to the rights held by Grantor under the relevant Required Right(s) (a "Sublease"); and (iii) continue the grant of the IRU in the Associated Property. Nothing in this Section 3.02 or in any such Sublease shall relieve Grantor or Grantee of its rights, duties and obligations set forth in this Agreement or diminish, enlarge or otherwise affect such rights, duties and obligations (except that, to the extent applicable under this Section 3.02, Grantee's property interest will consist of title in the Grantee Fibers and the Grantee Conduit and a grant of a Sublease) and if any Sublease shall terminate or Grantee shall be otherwise subsequently prohibited from owning title to the Grantee Fibers and the Grantee Conduit, Grantor shall maintain the Required Rights in accordance with and pursuant to Article 6, title to such Grantee fibers and Grantee Conduit shall revert and be reconveyed to Grantor and Grantee shall have and retain the IRU in such Grantee Fibers and Grantee Conduit under and subject to the terms and conditions of this Agreement. 3.03 Except to the extent not permitted by any Required Right, Grantor hereby grants to Grantee a security interest and lien in all of Grantor's right, title and interest in 3.04 Grantor shall use commercially reasonable best efforts to cause construction and Acceptance Testing for all Segments to be successfully completed no later than (***) (or in the case of Phase Three, the earlier of (***) and (***) months after the commencement of construction thereof) and, if not so completed by such date, then as soon as practicable thereafter. Grantor acknowledges that time is of the essence in this Agreement and that Grantee is relying on delivery of all Segments by such date. In light of the fact that it would be impossible to calculate the reduction in the value of the IRU that Grantee bargained for in the event that construction or Acceptance Testing for any Segment is not completed by such date, or if Grantor fails to deliver any Segment altogether, Grantor and Grantee hereby agree to the following payments and/or reductions (which constitute adjustments to the IRU Contribution), which except as otherwise specifically provided for in paragraph (i) below, shall be the sole remedy of Grantee in the event of the late delivery or non-delivery of any Segment: (a) At any time that Grantor determines, in its best judgment, that the Acceptance Date for any Segment will be delayed past (***), it shall deliver to Grantee a notice in writing (a "Delay Notice"), specifying the Segment or Segments affected, stating that the Acceptance Date(s) for such Segments will be delayed past (***), and setting forth a new firm delivery date(s) for such Segments. Grantor may not deliver more than two Delay Notices in respect of any segment, and may only deliver a second Delay Notice in respect of any Segment if the second Delay Notice sets forth an earlier firm delivery date for such Segment Date. Such firm delivery date, as it may be revised in a second Delay Notice, is hereinafter referred to as the "Revised Delivery Date" for such Segment. (b) If Grantor delivers to Grantee a Delay Notice for any Segment, then the following provisions shall apply: (i) Grantee may terminate this Agreement as to such Segment at any time on or prior to (x) the date which is the later of (A) ninety (90) days following the date of delivery of such Delay Notice and (B) six (6) months prior to the Revised Delivery Date
Appears in 1 contract
Sources: Cost Sharing and Iru Agreement (Level 3 Communications Inc)
GRANT OF IRU. 3.01 Subject to the terms of Article 7 below, as As of the Effective Date for each particular Segment of Grantee Fiber delivered by Grantor to Grantee hereunder, Grantor hereby grants to Grantee, and Grantee hereby acquires from Grantor for the purposes described herein (i) an exclusive indefeasible right of use in (orin, if and to for the extent provided in Section 3.02 hereof, ownership of), twenty-four (24) fibers (the "Initial Grantee Fibers") plus (a) to the extent Grantee exercises its option pursuant to Section 7.06purposes described herein, the number of fibers acquired by Grantee pursuant to such option, (b) the fibers set forth in excess of 24 delivered to Grantee pursuant to Section 7.02 and (c) fibers installed in the Grantee Conduit (the fibers described in clauses (a), (b) and (c) are herein referred to as the Exhibit "Additional Grantee Fibers"), in each case A" to be specifically identified in the Cable or cables between the Segment End Points for such Segment (the "Initial Grantee Fibers" and the "Additional Grantee Fibers", together with all substitutions and replacements thereof, are herein referred to as the "Grantee Fibers"), (ii) an exclusive indefeasible right of use in (or, if and to the extent provided in Section 3.02 hereof, ownership of) one specifically identified unoccupied conduit in the Grantor System between the Segment End Points for
3.02 Notwithstanding anything contained herein to the contrary: (a) if and to the extent not prohibited by the Required Right(s)for a particular Segment, and (b) if the Required Right(s) with respect to such Segment do not and will not impose upon Grantor any additional fees, costs or charges as a result thereof (unless Grantee shall pay the same or make arangements satisfactory to Grantor to assure such payment), Grantor shall, upon the request of Grantee and on a Segment-by-Segment basis on the Acceptance Date with respect to such Segment and without the need for any further action or execution of documents by Grantor to Grantee: (i) transfer title to the Grantee Fibers and the Grantee Conduit to Grantee free and clear of all Liens attributable to Grantor; (ii)grant to Grantee a lease, subeasement or similar agreement providing rights (at no additional cost to or monetary obligations of Grantee, except to the extent provided in clause (b) above) to Grantee substantially identical to the rights held by Grantor under the relevant Required Right(s) (a "Sublease"); and (iiiii) continue an associated and non-exclusive indefeasible right of use, for the grant of the IRU purposes described herein, in the Associated Property. Nothing in this Section 3.02 or in any Property respecting such Sublease shall relieve Grantor or Grantee of its rightsSegment, duties and obligations set forth in this Agreement or diminish, enlarge or otherwise affect such rights, duties and obligations (except that, to the extent applicable under this Section 3.02, Grantee's property interest will consist of title in the Grantee Fibers and the Grantee Conduit and a grant of a Sublease) and if any Sublease shall terminate or Grantee shall be otherwise subsequently prohibited from owning title to the Grantee Fibers and the Grantee Conduit, Grantor shall maintain the Required Rights in accordance with and pursuant to Article 6, title to such Grantee fibers and Grantee Conduit shall revert and be reconveyed to Grantor and Grantee shall have and retain the IRU in such Grantee Fibers and Grantee Conduit under all upon and subject to the terms and conditions set forth herein (collectively the "IRU").
3.02 Grantee may, by written notice (a "Fiber Upgrade Notice") delivered to Grantor, inform Grantor that Grantee desires to purchase an IRU in additional fibers (whether of this Agreementthe same type as the Grantee Fibers or otherwise) either (a) along the same System Route as the Grantee Fibers, or (b) within planned extensions to the then-existing Grantor System. In the event that Grantor subsequently determines to install such additional fibers, then Grantor shall notify Grantee of such determination.
3.03 Except In the event that Grantee has delivered a Fiber Upgrade Notice and Grantor has received such notice prior to its determination to install additional fibers, Grantor and Grantee shall negotiate in good faith concerning Grantee's acquisition of a portion of such additional fibers (including negotiation of the additional IRU Fees due and payable by Grantee for the use of such additional fibers). The Term for use of any additional fibers shall be, unless otherwise agreed in writing by the parties, for a period which commences upon delivery of such additional fibers and which ends twenty (20) years thereafter; provided, however, that to the extent not permitted by any such extended term requires Grantor to extend or renew a Required Right, Grantor hereby grants shall have the right to Grantee a security interest and lien increase the Recurring Charge in all of order to reflect, in Grantor's rightreasonable discretion, title and interest in
3.04 the pass through (on a pro rata basis based upon the number of fibers within the Grantor shall use commercially reasonable best efforts to cause construction and Acceptance Testing for all Segments System) of any increase in the payments, fees, charges, costs or other expenses incurred or to be successfully completed no later than (***) (incurred by Grantor in connection with the extension or in the case renewal of Phase Three, the earlier of (***) and (***) months after the commencement of construction thereof) and, if not so completed by such date, then as soon as practicable thereafterRequired Right. Grantor acknowledges that time is of the essence Notwithstanding anything else in this Agreement and that to the contrary, the failure of Grantor to notify Grantee is relying on delivery of all Segments by such date. In light its determination to install additional fibers under Section 3.02, or the failure of the fact that it would be impossible parties to calculate successfully negotiate the reduction terms of an IRU in such additional fibers, shall not constitute a default or breach of this Agreement hereunder and neither Grantee nor Grantor shall have any liability to the value of other for the IRU that Grantee bargained for in the event that construction or Acceptance Testing for any Segment is not completed by such dateperformance, or if Grantor fails the failure to deliver perform, any Segment altogether, Grantor and Grantee hereby agree to the following payments and/or reductions (which constitute adjustments to the IRU Contribution), which except as otherwise specifically provided for in paragraph (i) below, shall be the sole remedy of Grantee in the event of the late delivery obligations imposed under Sections 3.02 or non-delivery of any Segment:
(a) At any time that Grantor determines, in its best judgment, that the Acceptance Date for any Segment will be delayed past (***), it shall deliver to Grantee a notice in writing (a "Delay Notice"), specifying the Segment or Segments affected, stating that the Acceptance Date(s) for such Segments will be delayed past (***), and setting forth a new firm delivery date(s) for such Segments. Grantor may not deliver more than two Delay Notices in respect of any segment, and may only deliver a second Delay Notice in respect of any Segment if the second Delay Notice sets forth an earlier firm delivery date for such Segment Date. Such firm delivery date, as it may be revised in a second Delay Notice, is hereinafter referred to as the "Revised Delivery Date" for such Segment3.03 hereof.
(b) If Grantor delivers to Grantee a Delay Notice for any Segment, then the following provisions shall apply: (i) Grantee may terminate this Agreement as to such Segment at any time on or prior to (x) the date which is the later of (A) ninety (90) days following the date of delivery of such Delay Notice and (B) six (6) months prior to the Revised Delivery Date
Appears in 1 contract
Sources: Long Haul Iru Agreement (Savvis Communications Corp)
GRANT OF IRU. 3.01 Subject to the terms of Article 7 below, as 2.01 As of the Effective Date for each Segment delivered by Grantor to Grantee hereunderDate, Grantor hereby grants to Grantee, and Grantee hereby acquires from Grantor for the purposes described herein Grantor, (i) an exclusive indefeasible right of use in of, for the purposes and subject to the limitations described herein, the Relevant Fibers along the System Route (orthe "IRU"). Without limiting the foregoing, if during the Term of this Agreement, Grantor shall not grant the right to use or enter into similar agreements or arrangements of any kind whatsoever with other Persons with respect to the Relevant Fibers.
2.02 Within ninety (90) days of the Acceptance Date, Grantor shall provide Grantee with as-built drawings (including, without limitation, general information regarding route description and the distances involved) for the Grantor System. Grantor shall, on the Acceptance Date for each Grantor System, deliver specifications for the Relevant Fibers located within such Grantor System to Grantee.
2.03 If, at any time during the Term, Grantor determines (which determination shall be at Grantor's sole discretion) to install and make available to third parties additional fibers (whether of the same type as the Relevant Fibers or otherwise) either (a) along the same System Route as the Relevant Fibers, or (b) within extensions to the then-existing Grantor System (each a "Fiber Upgrade"), then Grantor shall deliver written notice thereof (each a "Fiber Upgrade Notice") to Grantee.
2.04 The Fiber Upgrade Notice shall specify, to the extent provided in Section 3.02 hereofthen known to Grantor, ownership of), twenty-four (24) fibers (the "Initial Grantee Fibers") plus (a) to the extent Grantee exercises its option pursuant to Section 7.06, location of the fibers acquired by Grantee pursuant to such optionFiber Upgrade, (b) the fiber to be made available therein (Grantee shall be permitted to take an additional number of fibers in excess that does not exceed the number of 24 delivered fibers initially ordered by Grantee within the applicable Grantor System; Grantor shall give reasonable consideration to any request by Grantee pursuant to Section 7.02 and for fibers exceeding such amount), (c) fibers installed any applicable restrictions on the availability of additional fibers, (d) Grantor's anticipated timing for completion of the Fiber Upgrade, and (e) the additional IRU Fees to be charged to Grantee in the event that Grantee Conduit elects to participate in the Fiber Upgrade (which IRU Fees shall, on a per fiber basis, be less than the fibers described in clauses fees generally charged by Grantor to grantees purchasing the same or smaller quantities as Grantee and which have not, prior to the date of the Fiber Upgrade, purchased the right to use fiber from Grantor). Grantee shall have a period of thirty (a), (b30) and (c) are herein referred days from the receipt of the Fiber Upgrade Notice within which to as the "Additional Grantee Fibers")inform Grantor, in each case writing, of its commitment to be specifically identified participate in the Cable or cables between proposed Fiber Upgrade. In the Segment End Points event that Grantor does not receive written notice from Grantee within such period, Grantee shall be deemed to have waived any right to participate in the subject Fiber Upgrade (but Grantee shall not be deemed to have waived its rights, including its right to receive written notice as set forth in Section 2.03 above, respecting future Fiber Upgrades. The Term for use of any upgraded fibers shall be, unless otherwise agreed in writing by the parties, for a period which commences upon delivery of such Segment fibers and which ends twenty (the "Initial Grantee Fibers" and the "Additional Grantee Fibers"20) years thereafter; provided, together with all substitutions and replacements thereofhowever, are herein referred to as the "Grantee Fibers"), (ii) an exclusive indefeasible right of use in (or, if and that to the extent provided in Section 3.02 hereof, ownership ofthat such term extends beyond twenty (20) one specifically identified unoccupied conduit in years from the Grantor System between commencement of the Segment End Points for
3.02 Notwithstanding anything contained herein to the contrary: (a) if and to the extent not prohibited by the Required Right(s)for a particular Segment, and (b) if the Required Right(s) Term with respect to the Relevant Fibers initially delivered hereunder, and such Segment do not and will not impose upon Grantor any additional fees, costs or charges as a result thereof (unless Grantee shall pay the same or make arangements satisfactory to extended term requires Grantor to assure such payment), Grantor shall, upon the request of Grantee and on extend or renew a Segment-by-Segment basis on the Acceptance Date with respect to such Segment and without the need for any further action or execution of documents by Grantor to Grantee: (i) transfer title to the Grantee Fibers and the Grantee Conduit to Grantee free and clear of all Liens attributable to Grantor; (ii)grant to Grantee a lease, subeasement or similar agreement providing rights (at no additional cost to or monetary obligations of Grantee, except to the extent provided in clause (b) above) to Grantee substantially identical to the rights held by Grantor under the relevant Required Right(s) (a "Sublease"); and (iii) continue the grant of the IRU in the Associated Property. Nothing in this Section 3.02 or in any such Sublease shall relieve Grantor or Grantee of its rights, duties and obligations set forth in this Agreement or diminish, enlarge or otherwise affect such rights, duties and obligations (except that, to the extent applicable under this Section 3.02, Grantee's property interest will consist of title in the Grantee Fibers and the Grantee Conduit and a grant of a Sublease) and if any Sublease shall terminate or Grantee shall be otherwise subsequently prohibited from owning title to the Grantee Fibers and the Grantee Conduit, Grantor shall maintain the Required Rights in accordance with and pursuant to Article 6, title to such Grantee fibers and Grantee Conduit shall revert and be reconveyed to Grantor and Grantee shall have and retain the IRU in such Grantee Fibers and Grantee Conduit under and subject to the terms and conditions of this Agreement.
3.03 Except to the extent not permitted by any Required Right, Grantor hereby grants shall have the right to Grantee increase the Recurring Charge in order to reflect the pass through (on a security interest and lien pro rata basis based upon the number of fibers within the Grantor System) of any increase in all of Grantor's rightthe payments, title and interest in
3.04 Grantor shall use commercially reasonable best efforts to cause construction and Acceptance Testing for all Segments fees, charges, costs or other expenses incurred or to be successfully completed incurred by Grantor in connection with the extension or renewal of such Required Right. The determination of the amount of the increase (if any) shall be made no later than twenty five (***25) (or in the case of Phase Three, the earlier of (***) and (***) months years after the commencement of construction thereof) and, if not so completed by such date, then the Term with respect to the Relevant Fibers initially delivered hereunder and in any event as soon as practicable thereafter. possible after Grantor acknowledges that time is becomes aware of any such increase in payments, fees, charges, costs or other expenses, and Grantor shall provide Grantee with reasonable documentation or other evidence substantiating the essence in this Agreement and that Grantee is relying on delivery of all Segments by such date. In light of the fact that it would be impossible to calculate the reduction increase in the value of the IRU that Grantee bargained for in the event that construction or Acceptance Testing for any Segment is not completed by such date, or if Grantor fails to deliver any Segment altogether, Grantor and Grantee hereby agree to the following payments and/or reductions (which constitute adjustments to the IRU Contribution), which except as otherwise specifically provided for in paragraph (i) below, shall be the sole remedy of Grantee in the event of the late delivery or non-delivery of any Segment:
(a) At any time that Grantor determines, in its best judgment, that the Acceptance Date for any Segment will be delayed past (***), it shall deliver to Grantee a notice in writing (a "Delay Notice"), specifying the Segment or Segments affected, stating that the Acceptance Date(s) for such Segments will be delayed past (***), and setting forth a new firm delivery date(s) for such Segments. Grantor may not deliver more than two Delay Notices in respect of any segment, and may only deliver a second Delay Notice in respect of any Segment if the second Delay Notice sets forth an earlier firm delivery date for such Segment Date. Such firm delivery date, as it may be revised in a second Delay Notice, is hereinafter referred to as the "Revised Delivery Date" for such SegmentRecurring Charge.
(b) If Grantor delivers to Grantee a Delay Notice for any Segment, then the following provisions shall apply: (i) Grantee may terminate this Agreement as to such Segment at any time on or prior to (x) the date which is the later of (A) ninety (90) days following the date of delivery of such Delay Notice and (B) six (6) months prior to the Revised Delivery Date
Appears in 1 contract