Common use of Underlying Rights Clause in Contracts

Underlying Rights. (a) Grantor shall, prior to or as of the Acceptance Date, obtain all rights, licenses, authorizations, easements, rights-of-way and other agreements necessary for the use of poles, conduit, cable, wire or other physical plant facilities, as well as any other such rights, licenses, authorizations (including any necessary state or federal authorizations such as environmental permits), easements, rights-of-way and other agreements necessary for the installation and use of the Fibers, as required to permit Grantor to grant the IRU in the Fibers to Recipient, and otherwise to perform its obligations hereunder, in accordance with the terms and conditions hereof, including and subject to underlying real property and contractual limitations and restrictions (collectively the “Underlying Rights”). Grantor shall use its best efforts to cause such Underlying Rights to remain effective during the Term. (b) If Recipient reasonably believes that it requires property rights in addition to the Underlying Rights for its Authorized Use of the Fibers, Recipient shall be responsible at its cost for obtaining such additional property rights and entering into any related agreements as Recipient deems necessary. Grantor shall cooperate as reasonably requested by Recipient to assist Recipient in obtaining such additional property rights. (a) Within thirty (30) days after Recipient’s written request, Grantor shall provide access to or copies of such Underlying Rights documents as Recipient may reasonably request. (b) Grantor shall give Recipient notice of any lawsuit or administrative filing which challenges the Underlying Rights or the rights granted to Recipient pursuant to this Agreement. 10.3 If (a) Grantor is unable to obtain and/or cause to remain effective throughout the Term all Underlying Rights obtained by Grantor as of the Acceptance Date pursuant to Section 11(a), (b) Recipient is unable to obtain additional property rights pursuant to Section 11(b) that it reasonably believes are required for Authorized Use of the Fibers, or (c) a change in Underlying Rights Requirements occurs after the Acceptance Date that materially diminishes or restricts Recipient’s use of the Fibers, then either party may terminate this Agreement upon thirty (30) days prior written notice.

Underlying Rights. (a) Grantor shall, 4.1 The Underlying Rights for the Southern Route will be provided pursuant to the PNM Agreement. Tri-State will provide the Underlying Rights for the Northern Route pursuant to this Agreement and to the extent permitted by the Underlying Rights that have been provided to Pathnet for its review prior to or as of the Acceptance Date[* * *], obtain all rights, licenses, authorizations, easements, rights-of-way and other agreements necessary hereby grants to each Party an easement for the term of this Agreement to use and access the Tri-State right of poles, conduit, cable, wire way to the extent necessary or other physical plant facilities, as well as any other such rights, licenses, authorizations (including any necessary state or federal authorizations such as environmental permits), easements, rights-of-way and other agreements necessary for the installation and use of the Fibers, as required appropriate to permit Grantor such Party to grant the IRU in the Fibers to Recipient, exercise its rights and otherwise to perform its obligations hereunder. Pathnet will be responsible for obtaining any and all other Underlying Rights required to install, maintain and operate the System, provided that the Parties will use reasonable efforts to cooperate with Pathnet in accordance obtaining any additional underlying rights. Prior to [* * *], Tri-State will disclose to Pathnet any Underlying Rights Requirements of which it is aware that would materially interfere with the terms construction and conditions hereof, including and subject to underlying real property and contractual limitations and restrictions (collectively operation of the “Underlying Rights”)System on the Northern Route. Grantor shall Tri-State will use its best efforts to cause such Underlying Rights to remain effective during the Term. (b) If Recipient reasonably believes that it requires property rights in addition to the Underlying obtain Perfection Rights for its Authorized Use at least the term of the FibersAgreement, Recipient shall and will not agree to any Perfection Rights for less than the term of the Agreement without the prior written consent of Pathnet. If Tri-State is unable to obtain Perfection Rights for the full term of the Agreement on any portion of the right of way, then Tri-State and Pathnet will convene to discuss the best way to proceed. Provided that Tri-State follows the procedures set forth in this Section 4.1, Tri-State will not be responsible at its cost in breach of this Agreement for obtaining such additional property rights and entering into any related agreements as Recipient deems necessary. Grantor shall cooperate as reasonably requested by Recipient failure to assist Recipient in obtaining such additional property rights. (a) Within thirty (30) days after Recipient’s written request, Grantor shall provide access to or copies obtain Perfection Rights for the full term of such Underlying Rights documents as Recipient may reasonably request. (b) Grantor shall give Recipient notice of any lawsuit or administrative filing which challenges the Underlying Rights or the rights granted to Recipient pursuant to this Agreement. 10.3 If (a) Grantor 4.2 In order to prevent a situation where Tri-State incurs Project Costs in obtaining the Perfection Rights, but is subsequently unable to obtain and/or cause sufficient Perfection Rights to remain effective throughout develop the Term all Underlying System, Tri-State may obtain Perfection Rights obtained by Grantor as making deposit or option payments, with full payment for the Perfection Rights contingent on acquiring sufficient Perfection Rights to develop the System. Pathnet shall be responsible for its share of the Acceptance Date pursuant costs in obtaining the Perfection Rights, including both the amount of any payments to landowners and the cost of contractors and Tri-State personnel (not in excess of costs that would have been charged by non-affiliated entities) in obtaining the Perfection Rights, provided that if Pathnet elects to withdraw from the Project as provided in Section 11(a), (b) Recipient is unable to obtain additional property rights pursuant to Section 11(b) that it reasonably believes are required for Authorized Use 5.2, Pathnet's share of the Fibers, or (c) a change in Underlying costs of acquiring the Perfection Rights Requirements occurs after the Acceptance Date that materially diminishes or restricts Recipient’s use of the Fibers, then either party may terminate this Agreement upon thirty (30) days prior written noticeshall be capped at [* * *].