EXHIBIT 10.10
CONSTRUCTION AND INDEFEASIBLE RIGHT OF USE AGREEMENT
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THIS CONSTRUCTION AND INDEFEASIBLE RIGHT OF USE AGREEMENT (the
"Agreement") is made as of this 17th day of June, 1997 (the "Effective Date"),
by and between BecoCom, Inc., a Massachusetts corporation ("BecoCom"), and
RCN-BecoCom, LLC, a Massachusetts limited liability company ("Carrier").
WHEREAS, RCN Telecom Services, Inc. ("RCN") and Boston Energy Technology
Group, Inc., a Massachusetts corporation ("BETG"), have entered into that
certain Joint Venture Agreement (the "JV Agreement") dated as of December 23,
1996, as amended, setting forth the terms and conditions upon which RCN,
through one of its affiliates, and BETG, acting through BecoCom, its indirect
wholly-owned subsidiary, have organized Carrier to: (i) create, own and
operate a telecommunications network, and (ii) provide voice, video, data,
other communications services, and the communications support component of
energy-related customer services offered by Boston Edison Company, a
Massachusetts company and the direct parent of BETG ("BECO"), to residential
and commercial customers in the Relevant Market (as defined below)
(collectively, the "Services");
WHEREAS, BECO and C-Tec Corporation, a Delaware corporation ("C-Tec"),
have each executed instruments of adherence with respect to certain provisions
hereof; and
WHEREAS, BecoCom currently operates the BecoCom System (as hereinafter
defined);
WHEREAS, BECO has licensed to BecoCom the right to use the portions of
the Rights of Way and the Equipment Sites (each as hereinafter defined)
necessary to BecoCom to perform its obligations hereunder;
WHEREAS, BecoCom is engaged in the business of communications network
planning, design, procurement, construction and testing and desires to provide
certain services to Carrier in connection with the planning, design,
procurement, construction and testing of the Network (as defined below) as
directed by Carrier and upon the terms and conditions of this Agreement;
WHEREAS, Carrier and BecoCom desire to enter into this Agreement to set
forth the terms and conditions under which (i) BecoCom will perform, from time
to time, certain Work (as hereinafter defined) as is necessary or as requested
by Carrier to engineer, procure and construct the Network, and (ii) Carrier
will have the right to use the BecoCom System, for use in the Business (as
hereinafter defined), all upon the terms and subject to the conditions of this
Agreement;
WHEREAS, the parties hereto acknowledge that providing the use of the
BecoCom System as hereinafter provided is vital to the Business in the
Relevant Market; and
WHEREAS, the parties hereto also acknowledge that the primary purpose of
the Existing BecoCom Facilities and the BecoCom Rights-of-Way (as such terms
are defined below) is to serve the electric transmission and distribution
business of BECO and its Affiliates;
NOW, THEREFORE, for and in consideration of the foregoing, the covenants
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Certain Definitions.
(a) The following terms shall have the following meanings:
"Acceptance Test Plan" means the product acceptance test plan
recommended by the manufacturer of such products, and shall incorporate
the specifications of such manufacturer.
"Affiliate" means, with respect to any Person, any other Person
Controlling, Controlled by, or under common Control with, that first
person.
"Affiliate Right-of-Way Owners" means Right-of-Way Owners which are
Affiliates of BecoCom.
"Basic Agreements" means (i) this Agreement, the JV Agreement and
the Operating Agreement; (ii) the Exchange Agreement, dated as of the
date herewith, between BecoCom and C-Tec; (iii) the Joint Investment and
Non-Competition Agreement, dated as of the date herewith, among RCN
Telecom Services of Massachusetts, Inc., BecoCom and the Carrier; (iv)
the Management Agreement, dated as of the date herewith, among RCN
Operating Services, Inc., BecoCom and the Carrier; and (v) the Initial
LLC Agreement (as defined in the JV Agreement).
"BECO Dedicated Fibers" means such number of Fibers not to exceed
twelve (12) desired by BECO and its Affiliates for use by such parties
in the electric transmission and distribution business, which fibers are
(a) identified in Exhibit A hereto, (b) specified in any Scope of Work
or (c) constructed by Carrier at the request and expense of BecoCom.
"BECO License" means the document pursuant to which BECO and its
Affiliates have made available to BecoCom such BecoCom Facilities,
Rights of Way and Equipment Sites as shall be necessary for BecoCom to
satisfy its obligations under this Agreement.
"BecoCom Facilities" means (a) the Existing BecoCom Facilities,
and (b) all (i) Interim Constructed Facilities, and (ii) New BecoCom
Constructed Facilities, which are Power Space Facilities.
"BecoCom Rights-of-Way" means Rights of Way which BecoCom has
acquired the right to use through the BECO License.
"BecoCom System" means the BecoCom Rights of Way and the BecoCom
Facilities.
"Business" means the provision by Carrier of Services in the
Relevant Market, and all ancillary activities reasonably necessary for
the provision of same, provided such Services and ancillary activities
do not violate any law, rule or regulation.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by such Person as lessee
which would, in accordance with generally accepted accounting
principles, be required to be classified and accounted for as a capital
lease on a balance sheet of such Person.
"Carrier Facilities" means all (a) Interim Constructed Facilities,
(b) New BecoCom Constructed Facilities, and (c) New Carrier Constructed
Facilities, which are Non-Power Space Facilities.
"Construction Materials" has the meaning set forth in Section
3(b)(iii) hereof.
"Control" means the power to direct or cause the direction of the
management or policies of an entity, whether through the ownership of
voting securities, by agreement or otherwise.
"DPU" means the Commonwealth of Massachusetts Department of Public
Utilities, or any successor thereto.
"Entity" means any corporation, limited liability company, general
partnership, limited partnership, venture, trust, business trust, estate
or other entity.
"Equipment Sites" means ground space, floor space, vault space,
wall space or rooftop space, whether now owned or hereafter acquired,
in, on, upon or within (a) electric distribution substations owned by
BECO which are enclosed within an existing building or structure; (b)
electric distribution stations owned by BECO which are not enclosed
within a building or structure; (c) service centers or field stations
(excluding generating facilities) operated by BECO, which are located on
land owned by BECO, or leased from a third party; (d) parcels of land
comprising the above-ground electric transmission line rights of way; or
(e) vacant land owned by BECO.
"Existing BecoCom Facilities" means any Facilities (other than
Interim Constructed Facilities) in place or existing as of the date
hereof as set forth in Exhibit A-1, including any upgrades,
improvements, or additions thereto, which BecoCom has the right to use
pursuant to the BECO License.
"Facilities" means all installed Fiber (excluding the BECO
Dedicated Fibers), coaxial cable, twisted pair wires, connection cable,
splice closures, splice cases, associated suspension hardware and other
pole or power attachments, electronics, equipment and other items of
personal property, used or usable in the Carrier's conduct of the
Business.
"FCC" means the Federal Communications Commission, or any successor
thereto.
"FERC" means the Federal Energy Regulatory Commission, or any
successor thereto.
"Fiber" means fiber optic cable, including optical ground wire,
all dielectric cable, and all dielectric self supporting cable.
"Force Majeure" shall mean the following: acts of God; orders of
any kind of the government of the United States of America or of the
Commonwealth of Massachusetts or of any of their departments, agencies,
political subdivisions, or officials, or any civil or military
authority; civil insurrections; riots; epidemics; landslides; lightning;
earthquakes; fires; hurricanes; or any cause beyond the reasonable
control of the party whose duty or obligation has not been met.
"Interim Constructed Facilities" means all Facilities (both
completed and in progress) constructed by BECO (or BecoCom as assignee
of BECO) prior to the date hereof pursuant to the Interim Construction
Agreement, which Facilities (both completed and in progress) are set
forth on Exhibit A-2.
"Interim Construction Agreement" means that certain Interim
Construction Agreement, dated February 6, 1997, between BECO and RCN of
Massachusetts, Inc.
"Liens" means, as to any Person, any mortgage, lien, pledge,
adverse claim, charge, security interest or other encumbrance in or on,
or any interest or title of any vendor, lessor, lender or other secured
party to or of such person under any conditional sale or other title
retention agreement or Capital Lease with respect to, any property or
asset owned or held by such Person, or the signing or filing of a
financing statement which names such Person as debtor, or the signing of
any security agreement authorizing any other party as the secured party
thereunder to file any financing statement.
"Network" means the BecoCom Facilities and the Carrier Facilities.
"New BecoCom Constructed Facilities" means all New Facilities
constructed by BecoCom.
"New Carrier Constructed Facilities" means all New Facilities
constructed by Carrier.
"New Facilities" means all Facilities constructed after the date
hereof.
"Non-Power Space Facilities" means all Facilities located or to be
located outside the Power Space.
"Operating Agreement" means the Amended and Restated Operating
Agreement of Carrier of even date herewith as it may be amended from
time to time.
"Person" means a corporation, an association, a business, an
individual, a government or political subdivision thereof or a
governmental agency.
"Plans" means all engineering drawings or construction plans
relating to a Project.
"Power Space" means space within the Rights-of-Way normally and
primarily utilized for the transmission and distribution of electric
power, which space is (a) in the case of above-ground Rights-of-Way
located on distribution poles, space from the top of such poles to the
communications space, including the neutral space, (b) in the case of
above-ground Rights-of-Way located on transmission towers, all space
located thereon except as designated by BecoCom, and (c) in the case of
below-ground Rights of Way, all space located therein.
"Power Space Facilities" means all Facilities located or to be
located within the Power Space.
"Project" shall mean the engineering, construction, testing or
buildout, or any combination thereof, of any New Facilities.
"Relevant Market" means those certain cities and towns as set
forth on Exhibit B attached hereto.
"Request for Proposal" has the meaning set forth in Section 3(b)
below.
"Right-of-Way Owner" means the party or parties with whom BecoCom
or its Affiliates shall have contracted for the Rights-of-Way.
"Rights-of-Way" means, whether now owned or hereafter acquired,
all (a) electric distribution system poles located in public ways and
owned by BECO or owned jointly by BECO and NYNEX Corporation ("NYNEX");
(b) electric distribution system conduits, manholes and vaults located
in public ways and owned by BECO; (c) electric transmission system poles
and towers located on transmission line rights of way, which consist of
strips of land of varying width, which BECO owns in fee, or in which
BECO holds permanent easements, and in some cases licenses or other
lesser interests; and (d) electric transmission system conduits,
manholes and vaults owned by BECO and located primarily in public ways,
and in some cases on private or public property pursuant to easements or
licenses. This includes, but is not limited to, those areas upon,
above, along, across, under and over those public or private properties,
streets, roads, lanes, courts, ways, alleys, boulevards, water crossings
and other places necessary for the provision of BECO's business.
"Scope of Work" has the meaning set forth in Section 3(c) below.
"Specifications" means the manufacturer's specifications.
"Subcontractor" means any contractor engaged by BecoCom or
Carrier, as the case may be, to perform such party's obligations under
any Scope of Work.
"System Records" means the map which identifies locations of
Equipment Sites at substations or other locations in the Network, along
with surveys, mechanical and structural plans, and other records or
documents necessary or desirable for the purpose of operating or
maintaining the Facilities.
"Term" has the meaning set forth in Section 9 hereof.
"Work" means the work necessary to implement any Project pursuant
to this Agreement.
(b) Words importing the singular also include the plural and,
vice-versa, where the context so requires.
(c) All terms used herein which are defined in any one of the
attached Exhibits shall have the meaning ascribed to them in such exhibit
unless provided to the contrary herein.
2. Interim Constructed Facilities. BecoCom and Carrier hereby agree
and confirm that (a) all Interim Constructed Facilities shall be deemed
incorporated into this Agreement for all purposes hereof, (b) from and after
the date of this Agreement, the rights and obligations of the parties with
respect to the Interim Constructed Facilities shall be as provided herein, and
(c) the Interim Construction Agreement shall be deemed terminated effective as
of the date of this Agreement. To the extent any Interim Constructed
Facilities have not been paid for, such payment shall be an obligation of the
Company to BecoCom.
3. Construction of New Facilities. BecoCom and Carrier agree to the
following provisions with respect to the construction and installation of New
Facilities for the purpose of expanding the Network:
(a) Power Space and Non-Power Space Facilities. BecoCom shall
have the sole and exclusive right and obligation to construct (either directly
or through a Subcontractor) on a timely and efficient basis, at the request of
Carrier, all New Facilities which are Power Space Facilities, upon the terms
and conditions set forth in this Section 3. At Carrier's election, BecoCom
shall have the right and obligation on a timely and efficient basis, or
Carrier shall have the right, to construct (either directly or through a
Subcontractor) any New Facilities which are Non-Power Space Facilities, upon
the terms and conditions set forth in this Section 3 to the extent this
Section 3 is specifically applicable to New Carrier Constructed Facilities.
All New Facilities constructed by BecoCom pursuant to this Section 3 are "New
BecoCom Constructed Facilities" for all purposes of this Agreement, and all
New Facilities constructed by Carrier pursuant to this Section 3 are "New
Carrier Constructed Facilities" for all purposes of this Agreement.
(b) Request for Proposal. At any time Carrier desires BecoCom to
perform Work on any Project hereunder, Carrier shall deliver to BecoCom a
notice (a "Request for Proposal") which includes the following:
(i) a description of the routes to be constructed;
(ii) specification of the amount and type of New Facilities
to be installed;
(iii) a description of any materials, construction
equipment, tools, consumables, temporary services and
facilities, transportation, storage and all other
facilities and services (collectively, "Construction
Materials") required for the satisfactory construction
of the New Facilities and performance of the Work and
which Carrier intends to procure and supply;
(iv) a description of all engineering responsibilities to
be undertaken by BecoCom;
(v) any other Plans for the Project, including a plan for
splicing; and
(vi) any other material information as may be necessary or
appropriate for the construction of such New
Facilities.
BecoCom shall, upon request of Carrier, promptly provide to Carrier any
information regarding the BecoCom System as may be necessary or appropriate
for preparing the Request for Proposal.
(c) Scope of Work. Promptly upon receipt of the Request for
Proposal, and in any event not later than three business days thereafter,
BecoCom shall commence discussions with Carrier for the purpose of permitting
it to determine the Work required to complete the Project, and to determine
the cost for the completion of such Project. As part of such process, Carrier
and BecoCom may agree on modifications to the Request for Proposal. As soon
as practicable, and in any event not more than 10 days after receipt of the
Request for Proposal, BecoCom shall deliver to Carrier a proposal for the
Project, which shall include (i) all of the terms of the Request for Proposal,
as may be modified pursuant to discussions between Carrier and BecoCom or
otherwise modified as deemed necessary by BecoCom; (ii) the cost for the
completion of the Project (including the calculation thereof); (iii) the route
details for the Project; and (iv) a schedule for all Work to be performed on
the Project. Promptly following receipt of such proposal, and in any event
not more than three business days thereafter, Carrier shall either reject such
proposal, accept such proposal or accept such proposal as may be modified with
the consent of BecoCom (such accepted proposal being referred to as a "Scope
of Work"). If Carrier shall reject BecoCom's proposal, and the Project
relates in whole or in part to any Power Space Facilities, then BecoCom and
Carrier shall immediately thereafter negotiate in good faith to agree upon a
Scope of Work with respect thereto; it being agreed, however, that such
portion of the Project which relates to the construction of Power Space
Facilities may not commence until such Scope of Work is so agreed upon. With
respect to any portion of a Project proposed by BecoCom which relates to the
construction of Non-Power Space Facilities and which has been rejected by
Carrier, BecoCom and Carrier shall immediately thereafter negotiate in good
faith to agree upon a Scope of Work with respect thereto; it being agreed,
however, that if no such agreement is reached within 21 days after the Request
for Proposal, then Carrier shall have the right to perform (either by itself
or through the use of Subcontractors) such portion of the Project which
relates to the construction of such Non-Power Space Facilities.
(d) Construction. BecoCom shall complete, or shall cause the
completion by Subcontractors of, all Projects and all Work relating thereto
set forth and in accordance with any Scope of Work.
(i) BecoCom shall provide all supervision, labor and
Construction Materials required for the satisfactory performance of such
Work, except as provided in the Scope of Work.
(ii) BecoCom, or its Affiliates or agents, shall use its or
their best efforts to secure all necessary agreements from Right-of-Way
Owners (other than Affiliate Right-of-Way Owners), including the
Commonwealth of Massachusetts, its counties or municipalities, any other
governmental entity and any quasi-governmental entity, for use of any
poles, conduits or other rights-of-way (unless specified otherwise in
any Scope of Work), and Carrier shall reimburse BecoCom for reasonable
and supportable expenses incurred in securing such agreements.
(iii) The New BecoCom Constructed Facilities and all
components thereof shall, when installed, (A) be structurally sound, in
good operating condition and repair, (B) not be in need of maintenance
or repairs except for conditions that will not have a material impact on
Carrier's ability to conduct the Business and (C) meet all
specifications provided in the Scope of Work.
(iv) The System Records delivered to Carrier upon
completion of the New BecoCom Constructed Facilities shall be true,
complete and correct copies. Carrier and BecoCom shall agree on a
mutually compatible computer software system on which such System
Records shall be recorded and delivered to Carrier.
(v) Upon completion of any New BecoCom Constructed
Facilities, all electric facilities required by law or by the normal use
and operation of such New BecoCom Constructed Facilities shall be
installed to the property lines of the properties owned by BecoCom or
its Affiliates in fee simple, shall be connected pursuant to valid
permits, and shall be adequate to service such New BecoCom Constructed
Facilities and to permit full compliance with all requirements of law and
normal usage of such New BecoCom Constructed Facilities. BecoCom shall
cooperate with Carrier in obtaining any telephone facilities required by
the normal use and operation of such New BecoCom Constructed Facilities.
(vi) Construction Materials provided by BecoCom for use in
the construction or installation of the New BecoCom Constructed
Facilities shall be without physical or mechanical defects. BecoCom
shall not be responsible for physical or mechanical defects in
Construction Materials provided by Carrier for such construction or
installation; provided, however, that nothing in this paragraph (vi)
shall relieve BecoCom of its obligation to build New BecoCom Constructed
Facilities to meet the Specifications and the Scope of Work.
(e) Inspection. Carrier and its representatives or agents, and
others as may be required by applicable laws, ordinances and regulations,
shall have the right at all reasonable times to inspect the Work relating to
any New BecoCom Constructed Facilities and all Construction Materials provided
by BecoCom for said Work. BecoCom shall provide or cause to be provided
access and sufficient, safe and proper facilities for such inspections.
Except as set forth in the second sentence of Section 3(d)(vi) above,
Carrier's failure to inspect Construction Materials provided by BecoCom or the
Work relating to any New BecoCom Constructed Facilities shall not relieve
BecoCom or any of its Subcontractors and suppliers of their responsibilities
for any such Construction Materials or Work which prove to be defective or
omitted, nor be deemed to be a waiver of Carrier's rights subsequently to
reject any such Work which proves to be defective. Carrier shall have the
right to reject any or all parts of such Work that do not meet all
specifications in any Scope of Work and commonly accepted industry standards;
such standards shall include, but shall not be limited to, compliance with
state and local construction and permitting requirements. The method used in
making such determination must be based on commonly accepted industry standards
for measuring quality of the same or similar work. Such rejected Work shall
be promptly corrected or replaced, but in any event commencing within three
business days, by BecoCom at BecoCom's expense (except for Work rejected due
to failure to meet the specifications of any Scope of Work due to physical or
mechanical defects in Construction Materials provided by Carrier, which shall
then bear such expense) so that such Work complies with requirements of this
Agreement.
(f) Acceptance and Testing of the New BecoCom Constructed
Facilities.
(i) Prior to accepting any New BecoCom Constructed
Facilities, Carrier shall have the right to conduct its own test in
accordance with the Test Acceptance Plan to verify that such New BecoCom
Constructed Facilities are operating in accordance with the
Specifications and the Scope of Work relating thereto. Carrier shall
provide BecoCom with five business days' notice prior to beginning such
test procedures. BecoCom shall have the right to have a person or
persons present to observe such test procedures.
(ii) Within 14 days after the conclusion of such test
procedures, Carrier shall provide BecoCom with a copy of the Carrier
test results (the "Carrier Test Results"). If the Carrier Test Results
are within the parameters of the Specifications and the Scope of Work
relating to such New BecoCom Constructed Facilities, Carrier shall
provide BecoCom with a written notice accepting such New BecoCom
Constructed Facilities. If such test procedures are not completed
within 60 days after such New BecoCom Constructed Facilities are
installed and capable of being tested, Carrier shall be deemed to have
accepted such New BecoCom Constructed Facilities.
(iii) In the event the Carrier Test Results are not within
the parameters of the Specifications and the Scope of Work relating to
such New BecoCom Constructed Facilities, Carrier may notify BecoCom in
writing that the Carrier Test Results are unacceptable with respect to
all or any portion of such New BecoCom Constructed Facilities. BecoCom
shall take such action, consistent with industry standards, as shall be
necessary with respect to such portion of such New BecoCom Constructed
Facilities as do not operate within the parameters of the Specifications
and the Scope of Work relating thereto, to bring the operating standards
of such portion of such New BecoCom Constructed Facilities within the
parameters of the Specifications and the Scope of Work relating thereto,
at its sole cost and expense. Following such action, Carrier shall
retest such New BecoCom Constructed Facilities to ensure compliance with
the Specifications and the Scope of Work relating thereto.
(iv) Notwithstanding anything to the contrary in Section
3(f)(iii) above, Carrier's use of any New BecoCom Constructed Facilities
to carry revenue-bearing traffic shall constitute acceptance of such New
BecoCom Constructed Facilities; provided that, notwithstanding the
foregoing, Carrier shall have the right to notify BecoCom, prior to
carrying any revenue-bearing traffic over such New BecoCom Constructed
Facilities, that it is provisionally or conditionally accepting such New
BecoCom Constructed Facilities, or any part thereof, and specifying the
reasons for such provisional or conditional acceptance, which reasons
must be reasonably related to such New BecoCom Constructed Facilities'
not being within the parameters of the Specifications and the Scope of
Work relating thereto as determined by such test procedures. In such
event, the parties may determine a mutually acceptable method and
deadline for resolving Carrier's objections to unconditional acceptance
of such New BecoCom Constructed Facilities and BecoCom shall thereupon
take such action at its sole cost and expense. Notwithstanding the
foregoing, if BecoCom does not resolve Carrier's objections to such
unconditional acceptance as expeditiously as commercially practicable
under the circumstances, Carrier may bring the operating standards of
such portion of such New BecoCom Constructed Facilities within the
parameters of the Specifications and the Scope of Work relating thereto,
at BecoCom's sole cost and expense. In the event that Carrier takes
such action necessary to bring such New BecoCom Constructed Facilities
within such parameters, BecoCom shall, or shall cause its Affiliates to,
provide any accompanying personnel required in order to comply with any
law, rule or regulation pertaining to the access to such New BecoCom
Constructed Facilities or the supervision of the actions to be taken to
resolve Carrier's objections. Until Carrier's objections to
unconditional acceptance have been resolved by BecoCom to Carrier's
satisfaction, the use of such New BecoCom Constructed Facilities, or any
part thereof, by Carrier shall not constitute acceptance of such New
BecoCom Constructed Facilities.
(g) Liens.
(i) BecoCom shall at all times (A) promptly pay for all
services, Construction Materials, and labor used or furnished by BecoCom
(except if provided by Carrier pursuant to Section 3(b)(iii) hereof) in
the performance of the Work under this Agreement in order to keep the
BecoCom Facilities and the New BecoCom Constructed Facilities which are
Non-Power Space Facilities, the premises of the Affiliate Right-of-Way
Owners and all property or rights belonging to Carrier or Affiliate
Right-of-Way Owners, free and clear of any and all Liens and (B) keep the
premises of Right-of-Way Owners who are not Affiliates of BecoCom free
and clear of any and all Liens arising as a result of any activities of
BecoCom. If BecoCom fails to release and discharge any such Lien
against the BecoCom Facilities and premises of Right-of-Way Owners
within 30 days after receipt of written notice from Carrier to remove
such Lien, Carrier may, at its option, discharge or release the Lien or
otherwise deal with the Lien claimant, and BecoCom shall pay Carrier any
costs and expenses incurred by Carrier, including reasonable attorneys'
fees, or alternatively Carrier may, at its choosing, deduct such costs
and fees from amounts due to BecoCom hereunder.
(ii) Carrier acknowledges that the primary source of
revenue of BecoCom is the payments that Carrier is or becomes obligated
to pay BecoCom pursuant to this Agreement and the other Basic
Agreements. Therefore, the obligations of BecoCom under the provisions
of this Section 3(g) may be enforced by Carrier only so long as Carrier
is in material compliance with its obligations to pay BecoCom pursuant
to this Agreement and the other Basic Agreements.
(h) Duration of Construction Obligation. Notwithstanding
anything to the contrary in Section 9 hereof, BecoCom shall be obligated to
fulfill its obligations under this Section 3 for 10 years from the date of
this Agreement. No later than one year prior to the end of such 10 year
period, Carrier and BecoCom shall commence good-faith negotiations to reach a
new agreement concerning the construction of the Network for an additional 10
year term.
4. Ownership of Facilities. BecoCom and Carrier agree that the
various types of Facilities provided for under this Agreement shall be owned
as follows:
(a) BecoCom Facilities. All BecoCom Facilities (including any
Construction Materials supplied by Carrier for inclusion therein) shall
be owned by BecoCom or BECO, as the case may be; provided that all
Interim Constructed Facilities and New Facilities which are Power Space
Facilities shall be owned by BecoCom.
(b) Carrier Facilities. All Carrier Facilities shall be owned
by Carrier.
5. Indefeasible Right-of-Use of the BecoCom System.
(a) Rights of Access and Use.
(i) Upon the terms and conditions set forth in this
Section 5, BecoCom hereby grants to Carrier the exclusive, indefeasible
and non-cancellable right of access to and use of the BecoCom Facilities
for the conduct of the Business during the Term (as defined in Section 9
hereof);
(ii) Upon the terms and conditions set forth in this
Section 5, BecoCom hereby grants to Carrier, with respect solely to the
provision of Services, the exclusive, indefeasible and non-cancellable
right of access to and use of the BecoCom Rights-of-Way, subject to the
provisions of Sections 3(a), 5(c)(ii) and 6 hereof.
(iii) Carrier may not resell, lease, license, transfer or
otherwise provide the right to use dark Fibers included in the BecoCom
Facilities without BecoCom's consent, which shall not be unreasonably
withheld or delayed; and
(iv) BecoCom may not resell, lease, license, transfer or
otherwise provide the right to use dark Fibers included in the BecoCom
Facilities, without providing Carrier an opportunity to purchase or
lease such dark Fibers on the same terms offered, in writing, by a party
who is not an Affiliate of BecoCom.
The rights granted to Carrier under this Section 5(a) (herein called the
"Indefeasible Rights") include the right of access to and use of the BecoCom
System as if Carrier were the holder of such rights of access to and use of
the BecoCom System as BecoCom holds, including the right to solely use the
BecoCom System in the conduct of the Business.
(b) Equipment Sites. BecoCom will, or will cause its Affiliates
to, provide sufficient space to Carrier to accommodate New Facilities at
Equipment Sites in accordance with any Project; provided, however, that in no
event shall BecoCom or its Affiliates be required to reconfigure, in any way,
its electric transmission or distribution equipment. BecoCom hereby grants to
Carrier reasonable access to the Equipment Sites for such purpose. BecoCom
will provide (i) heating at Equipment Sites at the incremental cost thereof,
(ii) to the extent practicable, air conditioning at Equipment Sites at the
incremental cost thereof and (iii) 24 hours per day, 7 days per week access to
the Equipment Sites. Other than with respect to the Contributed Assets (as
defined in the Operating Agreement), compensation shall be paid by Carrier to
BecoCom for the use of Equipment Sites which are distribution facilities or
transmission Right-of-Way sites on a case-by-case basis at a price to be
agreed upon by the parties; no payment shall be required for the use of 150
square feet of space in Equipment Sites which are transmission stations.
(c) Exclusivity; Right of First Refusal; Etc.
(i) During the Term, BecoCom shall not grant any right of
access to or use of the BecoCom Facilities to any Entity. BecoCom shall
not sell, assign, mortgage, encumber or pledge or otherwise dispose of
(by operation of law or otherwise) any portion of the BecoCom
Facilities, and shall not permit any of the foregoing to occur.
(ii) Except as may be required (A) by applicable law or
regulatory authority, (B) pursuant to those existing agreements
described on Exhibit E hereto, (C) in connection with BECO's leasing or
licensing of locations on Rights-of-Way or Equipment Sites for use by
third parties in providing wireless telecommunications services, or (D)
in connection with the use by abutters for purposes other than providing
telecommunications services (including video) and which do not adversely
affect Carrier's use thereof, during the Term BecoCom and its Affiliates
shall not grant, with respect solely to the provision of Services, any
right of access to or use of any other part of the BecoCom System to any
Entity (other than BECO or its Affiliates) without 30 days prior written
notice to Carrier, which notice shall include the material terms and
conditions under which such right to access or use is to be granted.
Subject to all requirements of applicable law or regulatory authority,
Carrier shall have 10 days from the date such notice is given to inform
BecoCom of its intention to acquire such right of access or use. Such
acquisition shall include terms and conditions substantially similar to
the terms and conditions contained in the notice.
(iii) In the event that BECO or any of its Affiliates seeks
to sell, assign or otherwise dispose of all or any portion of the
BecoCom System in place on the date hereof (which sale, assignment or
disposition shall, in any event, be subject to the rights and
obligations in this Agreement), BecoCom shall give Carrier written
notice of the material terms of the proposed sale, assignment or other
disposition, including the price and terms of payment. Carrier shall
then have 30 days, commencing with the date on which it received such
written notice, to purchase such portion of the BecoCom System upon
comparable terms and conditions, and BecoCom shall cause BECO and its
Affiliates to effect such sale to Carrier.
(d) Continued Use Beyond Term. Not later than one year prior to
the end of the Term, Carrier and BecoCom shall commence good faith
negotiations with a goal of providing to Carrier continued access to the
BecoCom System after expiration of the Term; such negotiations shall take into
account Carrier's contribution to the cost of constructing and maintaining the
New BecoCom Constructed Facilities including, without limitation, payments
under this Agreement.
6. Maintenance of the Network.
(a) BecoCom shall repair, maintain, reinforce and otherwise
preserve on a timely and efficient basis (to Carrier's reasonable satisfaction
consistent with the Plans and Specifications) (i) the BecoCom Facilities,
which shall be BecoCom's exclusive right, and (ii), if agreed to by Carrier
and BecoCom, any Carrier Facilities, all in accordance with accepted industry
standards and Plans or, if applicable, with any plan mutually agreed upon by
the parties, and with all applicable federal, state and municipal laws,
orders, rules and regulations.
(b) Prior to completion of construction of any BecoCom
Facilities, BecoCom and Carrier shall agree on a plan for regular maintenance
and repair thereof, in sufficient detail to meet Carrier's operational needs.
BecoCom will deliver to Carrier any amendments to any such plan throughout the
Term, and such amendments shall be subject to approval by Carrier, which
approval shall not be unreasonably withheld or delayed. Carrier, in
conjunction with BecoCom, will implement procedures for reviewing and
approving or rejecting, within reasonable time periods, submissions to Carrier
for maintenance and repair.
(c) Prior to completion of construction of any Carrier
Facilities, BecoCom and Carrier shall negotiate to agree on a plan for regular
maintenance and repair thereof, in sufficient detail to meet Carrier's
operational needs. If BecoCom and Carrier are unable to agree on any such
plan, Carrier shall have the right to perform such regular maintenance and
repair itself, or to procure such regular maintenance and repair from any
other Person. If BecoCom and Carrier are able to agree on any such plan,
BecoCom will deliver to Carrier any amendments to any such plan throughout the
Term, and such amendments shall be subject to approval by Carrier, which
approval shall not be unreasonably withheld or delayed.
7. Relocation.
(a) Voluntary Relocation.
(i) If BecoCom, for its own business purposes other than an
involuntary relocation, elects to relocate any Facilities, then BecoCom
shall pay all costs relating to such relocation, including all costs
reasonably incurred by Carrier to connect or reconnect any such
Facilities. BecoCom shall use its best efforts (including coordination
with Carrier) to minimize all relocations and, in the event of a
voluntary relocation, shall ensure Carrier is able to provide the same
level and quality of Services throughout and after such voluntary
relocation.
(ii) BecoCom shall provide Carrier notice of any voluntary
relocation no later than 30 days prior to its commencement of such
voluntary relocation. Such notice to Carrier shall provide a
description of the relocation plan.
(b) Involuntary Relocation.
(i) If BecoCom is required to relocate any Facilities as a
result of requirements under a right-of-way agreement, a mandate from
any governmental authority having jurisdiction, or condemnation, BecoCom
shall make a reasonable good faith effort to identify an alternative
site for replacement of such Facilities that, once constructed, will
enable the Carrier to provide the same level and quality of Services.
BecoCom shall, as the circumstances warrant, seek to recover on behalf of
Carrier and/or cooperate with Carrier's efforts to recover from the
governmental authority or other entity requiring such relocation, on
behalf of Carrier, any available reimbursement of any expenses incurred
by Carrier as a result of such involuntary relocation. BecoCom shall
use its best efforts to ensure Carrier is able to provide the same level
and quality of Services throughout and after such involuntary relocation.
(ii) BecoCom shall provide Carrier notice of any
requirement of such involuntary relocation not later than 10 days after
its receipt of notice of the requirement to make such involuntary
relocation, and in any event not later than 10 days prior to the date
such relocation will commence. Such notice to Carrier shall provide a
description of the agreement, mandate or condemnation requiring such
relocation and BecoCom's relocation plan (including the anticipated cost
thereof). Carrier may, at its option and expense, provide an
alternative relocation plan with respect to such Facilities which are
Carrier Facilities.
8. Governmental Authorizations.
(a) Each party shall be responsible for and shall undertake, in
good faith, all actions which may be necessary for it to take in furtherance
of the intended use of the Network by Carrier hereunder, and each party shall
be responsible to undertake, in good faith, to procure and to maintain in full
force and effect all regulatory and other consents, authorizations, or
approvals that are necessary for it to perform its obligations under this
Agreement including, but not limited to, the issuance of all necessary
consents, authorizations or approvals of the DPU, the FCC and the FERC. Each
party shall have the right to review and participate in the preparation of all
filings and other documentation in support of such consents, authorizations
and approvals.
(b) BecoCom shall obtain all licenses, permits, easements,
approvals and rights of way required from all governmental authorities
necessary for completion of the New BecoCom Constructed Facilities and to
ensure Carrier's vehicular and pedestrian ingress to and egress from such
Facilities where required for maintenance and repair thereof. Carrier shall
reimburse BecoCom for all reasonable and supportable construction, permit and
traffic control fees and other items expressly set forth in any Scope of Work
relating to New BecoCom Constructed Facilities.
9. Term.
This Agreement shall commence on the date first written above, and shall
expire on December 31, 2060 (the "Term").
10. Compensation. Carrier shall pay to BecoCom the following
compensation with respect to the Facilities:
(a) Existing BecoCom Facilities. The Indefeasible Rights with
respect to the Existing BecoCom Facilities have been contributed by BecoCom to
Carrier, as a "BecoCom Contributed Asset" under the Operating Agreement,
contemporaneously with the execution and delivery of this Agreement.
Notwithstanding such contribution, Carrier shall pay to BecoCom, for the use
of the Existing BecoCom Facilities, the charges set forth on Exhibit C-1
hereto.
(b) New BecoCom Constructed Facilities. Carrier shall pay to
BecoCom (i) the charges set forth on Exhibit C-1 hereto for the use of the New
BecoCom Constructed Facilities in the Power Space and (ii) the charges set
forth on Exhibit D hereto for BecoCom's construction of the New BecoCom
Constructed Facilities. With respect to each Project as to which BecoCom
constructs New BecoCom Constructed Facilities, payment of such compensation
shall commence upon acceptance by Carrier or deemed acceptance (pursuant to
Section 3(d) above) of such New BecoCom Constructed Facilities constructed
pursuant to such Project. Not later than October 1, 1998, Carrier and BecoCom
will enter into discussions in order to reach an agreement on
performance-based incentive compensation to be effective starting January 1,
1999 through the end of the Term and to be paid to BecoCom as earned in
addition to the amounts set forth in Exhibit D. Such performance-based
incentive compensation shall be based on such factors as the parties shall
agree.
(c) Maintenance of Power Space Facilities and Carrier
Facilities. Carrier shall pay to BecoCom with respect to the Power Space
Facilities and any Carrier Facilities which BecoCom maintains pursuant to
Section 6 hereof (i) the charges set forth on Exhibit C-2 hereto, and (ii)
reasonable charges for general and administrative costs incurred by BecoCom
with respect to such maintenance. BecoCom and its Affiliates shall use their
best efforts to minimize the amounts provided for in clauses (i) and (ii)
above.
(d) Involuntary Relocations. Carrier shall reimburse BecoCom
for the cost of any involuntary relocation of Facilities contemplated by
Section 7(b) above, unless Carrier elects, pursuant to Section 7(b)(ii) above,
to undertake such relocation using contractors other than BecoCom (in which
case Carrier shall reimburse BecoCom for any costs reasonably incurred due to
its need to address safety concerns and to protect BECO's electric
transmission and distribution business). To the extent that any such
involuntary relocation also involves relocation of electric distribution or
transmission facilities and Carrier does not elect to undertake such
relocation using contractors other than BecoCom, Carrier shall only be
required to reimburse BecoCom for those costs of relocation that are
incremental to the costs otherwise required for the relocation of such
electric distribution or transmission facilities.
(e) Engineering Costs. Carrier shall reimburse BecoCom for all
reasonable and supportable engineering costs incurred in the preparation of
Scopes of Work, and for all other engineering costs incurred pursuant to
Scopes of Work, at competitive rates.
11. Indemnification; Limitation on Liability.
(a) Indemnification by Carrier. Carrier shall indemnify, defend
and hold harmless BecoCom, its Affiliates, and all officers, directors,
employees, shareholders, partners, members and agents of BecoCom and its
Affiliates, from and against any and all claims, demands, liabilities
(including reasonable attorneys' fees), and judgments, fines, settlements and
other amounts ("Damages") arising from any and all civil, criminal,
administrative or investigative proceedings ("Claims") relating to or arising
out of:
(i) Any failure of Carrier to materially observe or
perform any term or provision of this Agreement;
(ii) Any failure of any representation or warranty made by
Carrier herein to be true in any material respect as of the date made or
deemed made;
(iii) Any Claim of any third party resulting solely from and
to the extent caused by the gross negligence or willful misconduct of
Carrier or any of its agents or employees;
(iv) The construction, installation, maintenance or
operation of any Carrier Facilities by Carrier, or the conduct or
management of the Business, except to the extent such Damages are caused
or contributed to by BecoCom or its Affiliates; and
(v) Any Claim by any customer of Carrier relating to the
provision by Carrier of Services to such customer over the Network.
(b) Indemnification by BecoCom. BecoCom shall indemnify, defend
and hold harmless Carrier, its Affiliates, and all officers, directors,
employees, stockholders, partners, members and agents of Carrier and its
Affiliates from and against any and all Damages arising from any and all
Claims relating to or arising out of:
(i) Any failure of BecoCom to materially observe or
perform any term or provision of this Agreement;
(ii) Any failure of any representation or warranty made by
BecoCom herein to be true in any material respect as of the date made or
deemed made;
(iii) Any Claim of any third party resulting from the gross
negligence or willful misconduct of BecoCom or any of its agents or
employees;
(iv) The construction, installation, maintenance or
operation of (A) any BecoCom Facilities and (B) any Carrier Facilities
which BecoCom has constructed or maintained, or the conduct or actions
of BecoCom with regard to the Business, except to the extent such
Damages are caused or contributed to by Carrier or its Affiliates;
(v) Any Claim by any customer of BecoCom relating to the
provision by BecoCom of any services to such customer over the Network;
and
(vi) Any failure of BecoCom or its Subcontractors to be in
substantial compliance with all Environmental Laws (as defined below)
applicable to the Carrier Facilities constructed by BecoCom, which
compliance includes, but is not limited to, the possession by BecoCom or
BECO, as the case may be, of all permits and other governmental
authorizations required under the Resource Conservation and Recovery
Act, the Comprehensive Environmental Resources Compensation and
Liability Act, wetlands laws, the Clean Water Act, the regulations
issued pursuant thereto by the Environmental Protection Agency and/or
superlien statutes, if any, in the Commonwealth of Massachusetts
("Environmental Laws"), and compliance with the terms and conditions
thereof.
12. Insurance.
(a) Liability Insurance - BecoCom. BecoCom shall maintain (i)
such insurance or (ii) a self-insurance plan as will fully protect both
Carrier and BecoCom from any and all claims by employees of BecoCom under the
workers' compensation act or employees' liability laws, including any
employers' disability insurance laws, and from any and all other claims of
whatsoever kind or nature for any and all damage to personal property or for
personal injury, including death to anyone whomsoever that may arise from
operations in connection with the performance of its duties under this
Agreement. BecoCom shall provide Carrier with certificates evidencing the
required coverage.
(b) Liability Insurance - Carrier. Carrier shall maintain (1)
such insurance or (ii) a self-insurance plan as will fully protect both
Carrier and BecoCom from any and all claims by employees of Carrier under the
workers' compensation act or employees' liability laws, including any
employers' disability insurance laws, and from any and all other claims of
whatsoever kind or nature for any and all damage to personal property or for
personal injury, including death to anyone whomsoever that may arise from
operations in connection with the performance of its duties under this
Agreement. Carrier shall provide BecoCom with certificates evidencing the
required coverage.
(c) Property Insurance - BecoCom Facilities. BecoCom currently
maintains and will continue to maintain throughout the Term (1) insurance with
a reputable insurance company covering loss or damage to any part of the
BecoCom Facilities by fire and standard extended coverage perils in amounts in
no event less than 90% of the full replacement value of such BecoCom
Facilities, and (2) such comprehensive general liability insurance covering
personal injury or property damage occurring in or about such BecoCom
Facilities in commercially reasonable amounts; or (B) a plan of self-insurance
sufficient to provide the coverage set forth in clause (A) above. In the
event of any covered loss to any BecoCom Facilities, BecoCom shall, at the
option of Carrier, use the insurance proceeds therefrom to repair or replace
the Facilities, or to reimburse Carrier for payments made by it for the
construction, operation and maintenance of such Facilities.
(d) Property Insurance - Carrier Facilities. Carrier shall
maintain, with a reputable insurance company throughout the Term (A) (1)
insurance covering loss or damage to any part of the Carrier Facilities by
fire and standard extended coverage perils in amounts in no event less than
90% of the full replacement value of such Carrier Facilities, and (2)
comprehensive general liability insurance covering personal injury or property
damage occurring in or about the Carrier Facilities in commercially reasonable
amounts; or (B) a plan of self-insurance sufficient to provide the coverage
set forth in clause (A) above.
13. Representations and Warranties.
(a) General Representations and Warranties. Each party hereby
represents and warrants to the other that:
(i) It is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and is duly
qualified to conduct business in all jurisdictions where such
qualification is required.
(ii) It has the power and authority (corporate or
otherwise) to execute, deliver and perform its obligations under this
Agreement. Such execution, delivery and performance have been duly
authorized by all necessary action on its part and do not and will not
contravene its organizational documents or conflict with, result in a
breach of, or entitle any party (with due notice or lapse of time or
both) to terminate, accelerate or call a default with respect to, any
agreement or instrument to which it is a party or by which it is bound.
The execution, delivery and performance by it of this Agreement will not
result in any violation by it of any law, rule or regulation applicable
to it. It is not a party to, nor subject to or bound by, any judgment,
injunction or decree of any court or other governmental entity which may
restrict or interfere with the performance of this Agreement by it.
This Agreement is its valid and binding obligation, enforceable against
it in accordance with the terms of this Agreement, except that (i) such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) the remedy of specific performance
and injunctive relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(iii) No consent, waiver, order, approval, authorization or
order of, or registration, qualification or filing with, any court or
other governmental entity is required for the execution, delivery and
performance by such party of this Agreement and the consummation by such
party of the transactions contemplated hereby. No consent or waiver of
any party to any contract to which such party is a party or by which it
is bound is required for the execution, delivery and performance by such
party of this Agreement.
(iv) There is no action, suit, grievance, arbitration or
proceeding pending or, to the knowledge of such party, threatened
against or affecting such party at law or in equity, before any federal,
state, municipal or other governmental court, department, commission,
board, arbitrator, bureau, agency or instrumentality which prohibits or
impairs its ability to execute and deliver this Agreement or to
consummate any of the transactions contemplated hereby. Such party has
not received written notice of any such pending or threatened
investigation, inquiry or review by any governmental entity.
(b) Representations and Warranties of BecoCom Regarding the
Facilities. BecoCom represents and warrants to Carrier that:
(i) The Existing BecoCom Facilities and the Interim
Constructed Facilities installed by BecoCom and its Affiliates prior to
the date hereof have been installed in accordance with the System
Records and the Specifications. All such Facilities are fusion spliced
with no unnecessary mid-span splicing, and satisfy the Acceptance Test
Plan.
(ii) BecoCom has the indefeasible right to use the Existing
BecoCom Facilities, sufficient to permit BecoCom to perform its
obligations to Carrier under this Agreement, and such ownership or
indefeasible right of BecoCom are free and clear of any and all Liens,
except for (A) Liens on account of real or personal property taxes not
yet due and payable; and (B) Liens which will not materially impair the
use of the Existing BecoCom Facilities by Carrier for the conduct of the
Business, and which are otherwise not material.
(iii) The Interim Constructed Facilities installed by
BecoCom or its Affiliates prior to the date hereof are free and clear of
any and all Liens arising from any action or omission by BecoCom, except
for (A) Liens on account of real or personal property taxes not yet due
and payable; and (B) Liens which will not materially impair the use of
such Interim Constructed Facilities by Carrier for the conduct of the
Business, and which are not otherwise material.
(iv) The Existing BecoCom Facilities, the Interim
Constructed Facilities installed by BecoCom or its Affiliates prior to
the date hereof and all components thereof are structurally sound, are
in good operating condition and repair and none of the Existing BecoCom
Facilities, such Interim Constructed Facilities or any component
thereof, is in need of maintenance or repairs except for conditions that
do not and will not have a material impact on Carrier's ability to
conduct its Business.
(v) The System Records and all records relating to the
Existing BecoCom Facilities and Interim Constructed Facilities installed
by BecoCom or its Affiliates prior to the date hereof and all other
contracts or documents delivered to Carrier pursuant to this Agreement
or in connection with the execution hereof are true, complete and
correct copies.
(vi) Carrier has been named as a third party beneficiary of
the BECO License, with power to enforce BecoCom's rights thereunder upon
a breach of the obligations of either BecoCom or BECO. BecoCom has
delivered to Carrier a true and complete copy of the BECO License, and
will not permit the BECO License to be amended without the prior written
consent of Carrier, which consent shall not be unreasonably withheld.
(c) Representations and Warranties of BecoCom Regarding the
Rights-of-Way. BecoCom represents and warrants to Carrier that:
(i) With respect to those portions of the Rights-of-Way
that are distribution system poles located within public ways, BECO
holds, jointly with NYNEX, licenses permitting the location of such
poles within the public ways. Such licenses are obtained from municipal
or state authorities who, in granting the same, are acting as agents of
the state, pursuant to statutes creating a right to such licenses on the
part of public utilities. These licenses are unlimited in time, but the
rights obtained are not vested, and are subject to the action of the
legislature. The use of such poles is subject to the terms of the Joint
Ownership Agreement dated October 28, 1979, between BECO and New England
Telephone and Telegraph Company, and the corresponding Intercompany
Operating Procedures, last revised effective February 1, 1995, in both
cases as amended from time to time, and Carrier shall be required to
execute a separate Aerial License Agreement with NYNEX and BECO for the
use of the communications space on such poles. Subject to the
foregoing, (A) such licenses and the BECO License are sufficient to
permit BecoCom to perform its obligations to Carrier under this
Agreement in all material respects, except for any limitations which may
be imposed by any new and adverse interpretation of current law,
contracts or granting instruments and (B) neither BecoCom nor any of its
Affiliates has any reason to believe or anticipates that the licenses
for use of such portions of the Rights-of-Way shall, during the Term,
expire, be revoked or be modified in such a way as to make such licenses
not sufficient to permit BecoCom to perform its obligations to Carrier
under this Agreement in all material respects.
(ii) With respect to those portions of the Rights-of-Way
that are distribution or transmission system conduits, manholes and
vaults located within public ways, BECO holds licenses permitting the
location of such conduits, manholes and vaults within the public ways.
Such licenses are obtained from municipal or state authorities who, in
granting the same, are acting as agents of the state, pursuant to
statutes creating a right to such licenses on the part of public
utilities. These licenses are unlimited in time, but the rights
obtained are not vested, and are subject to the action of the
legislature. Within the City of Boston, the use of such facilities for
telecommunications purposes is subject to the policies adopted from time
to time by the Public Improvements Commission of the City of Boston.
Subject to the foregoing, (A) such licenses and policies and the BECO
License are sufficient to permit BecoCom to perform its obligations to
Carrier under this Agreement in all material respects, except for any
limitations which may be imposed by any new and adverse interpretation
of current law, contracts or granting instruments and (B) neither
BecoCom nor any of its Affiliates has any reason to believe or
anticipates that such licenses or policies for use of such portions of
the Rights-of-Way shall, during the Term, expire, be revoked or be
modified in such a way as to make such licenses not sufficient to permit
BecoCom to perform its obligations to Carrier under this Agreement in
all material respects.
(iii) With respect to those portions of the Rights-of-Way
that are electric transmission system poles and towers located on
transmission line rights of way, or conduits, manholes and vaults
located on private property, BECO generally either owns in fee or holds
permanent easements in the land on which such structures are located.
In some cases, BECO holds licenses or lesser interests, where such
rights of way cross public ways, tidewaters or water courses, railroad
rights of way, state highways, public domain lands, or lands owned by
state or federal agencies or authorities. In some cases, BECO's rights
were obtained by the exercise of eminent domain powers, with the
permission of the Massachusetts Department of Public Utilities. In all
cases where BECO holds less than a fee simple interest, the
Rights-of-Way are subject to the terms, conditions, reservations,
restrictions and other limitations imposed by the grantor and contained
in the granting instrument, generally recorded in the public land
records, and in some cases the paramount authority of the grantor which
is a state or federal agency or authority. In all cases, subject to the
foregoing, (A) the rights held by BecoCom in such portions of the
Rights-of-Way are sufficient to permit BecoCom to perform its
obligations to Carrier under this Agreement in all material respects,
except for any limitations which may be imposed by any new and adverse
interpretation of current law, contracts or granting instruments and (B)
neither BecoCom nor any of its Affiliates has any reason to believe or
anticipates that such rights for use of such portions of the
Rights-of-Way shall, during the Term, expire, be revoked or be modified
in such a way as to make such rights not sufficient to permit BecoCom to
perform its obligations to Carrier under this Agreement in all material
respects.
(iv) There are no condemnation, environmental, zoning or
other land-use regulation proceedings, either instituted or, to
BecoCom's knowledge, planned to be instituted, or contractual
obligations or third party actions or claims, nor are there are special
assessment proceedings pending or, to BecoCom's knowledge, threatened,
which would affect, in any material respect, the use and operation of
the BecoCom Rights-of-Way for the Business.
(v) BecoCom has received the BECO License, which license
pertains to the Rights-of-Way.
(d) Representations and Warranties of BecoCom Regarding the
Equipment Sites. BecoCom represents and warrants to Carrier that, as of the
time individual Equipment Sites are identified for purposes of performing the
Scope of Work for any Project:
(i) With respect to those Equipment Sites that are electric
distribution substations owned by BECO, or service centers or field
stations which are located on land owned by BECO, or parcels of land
comprising the above-ground electric transmission line rights of way
owned by BECO in fee, or vacant land owned by BECO in fee, BECO is the
sole legal and equitable owner of record and in fact of good and
marketable fee simple title, with no imperfections or irregularities
therein which materially impair the use of such property for the
purposes for which it is held, and subject only to (A) Liens on account
of real and personal property taxes and assessments not yet due and
payable (including any lien in favor of the Commonwealth of
Massachusetts pursuant to Chapter 21E of the General Laws for costs, if
any, incurred by the Commonwealth to clean up hazardous materials), or
which are being contested in good faith, (B) public and private
easements, (C) leases and licenses to third parties for occupancy
purposes, all of which, with respect to (A), (B) and (C) above,
individually or in the aggregate do not and will not materially impair
the use of such property by Carrier in the conduct of its Business, and
(D) zoning and building laws or other restrictions. Subject to the
foregoing, the rights held by BecoCom with respect to such Equipment
Sites are sufficient to permit BecoCom to perform its obligations to
Carrier under this Agreement in all material respects.
(ii) With respect to those Equipment Sites that are service
centers or field stations which are located on land leased by BECO from
third parties, all such leases are valid and subsisting and in full
force and effect in accordance with their terms, and BECO holds a valid
leasehold interest in such Equipment Sites, subject only to the terms
and conditions of the specific leases applicable to such Equipment
Sites. Subject to the foregoing, the rights held by BecoCom with
respect to such Equipment Sites are sufficient to permit BecoCom to
perform its obligations to Carrier under this Agreement in all material
respects, subject to any landlord consents.
(iii) The System Records are true, complete and correct
copies.
(iv) The Equipment Sites and all components thereof are
structurally sound, are in good operating condition and repair, and are
adequate for the uses to which they will be put, and none of the
Equipment Sites is in need of maintenance or repairs except for
conditions that do not have a material adverse impact on Carrier's
ability to conduct the Business. Subject to the foregoing, the
Equipment Sites have no physical condition that would have a material
impact on Carrier's ability to conduct the Business.
(v) There are no condemnation, environmental, zoning or
other land-use regulation proceedings, either instituted or, to
BecoCom's knowledge, planned to be instituted, or contractual obligation
or third party actions or claims, nor are there any special assessment
proceedings pending or, to BecoCom's knowledge, threatened, which would
affect in any material respect the use of the Equipment Sites for the
Business.
(vi) BecoCom has received the BECO License, which license
pertains to the Equipment Sites.
14. Covenant of BecoCom with respect to Rights-of-Way and Equipment
Sites.
BecoCom hereby represents, warrants and covenants with Carrier
that, at the time that specific Rights-of-Way and Equipment Sites are
identified in any Scope of Work, BecoCom shall hold, pursuant to the BECO
License and any consents required from landlords, subject to such
qualifications set forth in Sections 13(c) and (d) hereof, sufficient rights
in the Rights-of-Way and Equipment Sites described in such Scope of Work,
necessary to implement such Scope of Work and to permit Carrier to utilize the
portion of the BecoCom Facilities installed within such Rights-of-Way and
Equipment Sites for the Business, and further subject only to
(a) Liens on account of taxes not yet due and payable;
(b) minor imperfections in title or other rights, occupancy
leases or licenses, encroachments and similar matters, none of which
individually or in the aggregate will materially impair the ability of
BecoCom to implement such Scope of Work or the ability of Carrier to
conduct the Business;
(c) zoning laws, ordinances or regulations;
(d) environmental laws, ordinances or regulations, none of which
individually or in the aggregate will materially impair the ability of
BecoCom to implement the such Scope of Work or the ability of Carrier to
conduct the Business; and
(e) such matters as are specifically identified in such Scope of
Work as required consents, licenses, permits, approvals, grants,
modifications or other actions necessary to allow the use of particular
Rights-of-Way or Equipment Sites for the Business, none of which will be
material relative to (i) BecoCom's ability to implement such Scope of
Work, or (ii) Carrier's ability to conduct the Business.
15. Right to Cure.
(a) In the event that Carrier shall fail to observe or perform
any of its obligations under this Agreement, BecoCom may (but shall not be
obligated to), at any time after delivery of written notice from BecoCom to
Carrier of such failure (but not later than 30 days after delivery of such
notice), undertake such actions (except such actions as are prohibited by law)
as may be related to curing such default on behalf of Carrier, whereupon
Carrier shall reimburse BecoCom for the full costs reasonably expended
therefor by BecoCom, but Carrier shall not be relieved of any obligation,
liability, duty or undertaking whatsoever relating thereto. Carrier hereby
agrees to reasonably cooperate with BecoCom to facilitate BecoCom's
undertaking (including allowing BecoCom's access as may be necessary to effect
such undertaking).
(b) In the event that BecoCom shall fail to observe or perform
any of its obligations under this Agreement, Carrier may (but shall not be
obligated to), at any time after delivery of written notice from Carrier to
BecoCom of such failure (but not later than 30 days after delivery of such
notice), undertake such actions (except such actions as are prohibited by law)
as may be related to curing such failure on behalf of BecoCom, whereupon
BecoCom shall reimburse Carrier for the full costs reasonably expended therefor
by Carrier, but BecoCom shall not be relieved of any obligation, liability,
duty or undertaking whatsoever relating hereto. BecoCom hereby agrees to
reasonably cooperate with Carrier to facilitate Carrier's undertaking
(including allowing Carrier's access as may be necessary to effect such
undertaking, subject to limitations on such access reasonably imposed,
consistent with past practice, for reasons of safety or the protection of
BECO's electric transmission and distribution business).
16. Arbitration.
(a) In the event of any dispute between the parties hereto as to
a matter referred to herein or as to the interpretation of any part of this
Agreement, including but not limited to this Section 16 or as to the
determination of any rights or obligations or entitlements arising from or
related to this Agreement or as to the calculation of any amounts payable
under this Agreement, the parties shall refer the matter to their respective
chief executive officers for resolution.
(b) Should the chief executive officers of the respective
parties fail to resolve the dispute within 20 days from such referral, the
parties agree that such dispute will not be referred to any court but will be
referred to binding arbitration, and the provisions of this Section 16 shall
apply.
(c) The arbitration shall be governed by the AAA Commercial
Arbitration Rules or, in the case of Section 2 hereof, the AAA Construction
Industry Arbitration Rules (in each case, the "Rules") as modified by this
Section 16 and by the United States Arbitration Act, 9 U.S.C. Section 1 et
seq. (the "Arbitration Act"). Any conflict between the Rules and the
Arbitration Act shall be decided in favor of the Rules. The party wishing
to submit such matter to arbitration shall give written notice (the
"Arbitration Notice") to the other party (the "Respondent") of its
intention to arbitrate. The place of the arbitration shall be Boston,
Massachusetts. The arbitration shall be conducted, and the final
resolution of the dispute (the "Award") shall be rendered by one arbitrator
(the "Arbitrator") to be mutually selected by the parties. If the parties
cannot agree to a mutually acceptable Arbitrator within seven days of
Respondent's receipt of the Arbitration Notice, the Arbitrator shall be
selected in accordance with rule 13 of the Rules.
(d) All hearings shall be held within 30 days following the
appointment of the Arbitrator. At a time designated by the Arbitrator, each
party shall simultaneously submit to the Arbitrator and exchange with each
other its final proposed Award, and in rendering the final Award, the
Arbitrator shall be limited to choosing the Award proposed by either of the
parties without modification. The Arbitrator shall issue the final Award no
later than 15 days from the completion of the hearings. The Award of the
Arbitrator shall be final and binding. Judgment on any Award may be entered
in any court having jurisdiction thereof.
(e) To the extent that the parties pursue a judicial remedy in
aid of arbitration, each party consents and submits to the non-exclusive
jurisdiction of and venue in the federal courts located in Boston,
Massachusetts (or, in case such a federal court does not have jurisdiction,
the state courts located in Boston, Massachusetts). Each party consents to
service of the notice of arbitration, and any other paper in the arbitration,
by registered mail or personal delivery at its address specified in Section
17(b) hereof. Nothing in this subsection (e) shall limit the jurisdiction of
other courts for purposes of enforcement of a final arbitral Award.
(f) The fact that any party has invoked the provisions of this
Section 16 shall be considered to be confidential information under Section
17(d) of this Agreement and shall not relieve either party of any obligations
it may otherwise have to continue performance in accordance with the
provisions of this Agreement.
(g) This agreement to arbitrate a dispute in accordance with
this Section 16 and any Award made hereunder shall be binding upon the
successors and assigns and any trustee or receiver of each of the parties
hereto.
17. Miscellaneous.
(a) Assignment. This Agreement and the rights and obligations
of the parties hereto may not be assigned by any of the parties hereto without
the prior written consent of the other party which may be withheld by such
party in its sole discretion. This Section 17(a) shall not be interpreted to
prohibit the use of Subcontractors by either party to fulfill its
construction, maintenance or repair obligations hereunder. Notwithstanding the
foregoing, either party may assign its rights and obligations under this
Agreement to any of its Affiliates, provided that the assigning party will
continue to be responsible for its liabilities and obligations hereunder.
(b) Notices. All notices, requests and other communications
hereunder (herein collectively a "notice" or "notices") shall be deemed to
have been duly delivered, given or made to or upon any party hereto if in
writing and delivered by hand against receipt, or by certified or registered
mail, postage pre-paid, return receipt requested, or to a courier who
guarantees next business day delivery or sent by telecopy (with confirmation)
to such party at its address set forth below or to such other address as such
party may at any time, or from time to time, direct by notice given in
accordance with this Section 17(b).
If to Carrier: RCN-BecoCom, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Manager
and C-TEC Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
with a copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇, Esq.
If to BecoCom: BecoCom, Inc.
c/o Boston Edison Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., Assistant
General Counsel
with a copy to: ▇▇▇▇▇, ▇▇▇▇ & ▇'▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
The date of delivery of any such notice, request or other communication shall
be the earlier of (i) the date of actual receipt or (ii) three business days
after such notice, request or other communication is sent by certified or
registered mail, (iii) if sent by courier who guarantees next business day
delivery, the business day next following the day of such notice, request or
other communication is actually delivered to the courier or (iv) the day
actually telecopied (with confirmation received).
(c) Governing Law. The rights and obligations of the parties
hereto shall be construed and interpreted in accordance with the substantive
law of the Commonwealth of Massachusetts without giving effect to its
principles for choice of law.
(d) Confidentiality. Design criteria, Plans and other
information obtained by BecoCom from Carrier and working drawings and
specifications prepared by BecoCom shall be held in confidence by BecoCom, and
shall not be used by BecoCom for any purposes other than for the performance
of the Work, the operation of BECO's electric transmission and distribution
business or as authorized in writing by Carrier to BecoCom or its Affiliates.
Documents prepared by or on behalf of either party with respect to the New
Facilities shall be or, upon preparation, become the joint property of Carrier
and BecoCom. Each of Carrier and BecoCom shall keep confidential, and shall
not disseminate to any third party (other than their respective Affiliates) or
use for any other purpose (except with the written authorization of the other
party), all information relating to the System Records, and any information
received from the other party that is confidential or proprietary unless
legally compelled (by deposition, inquiry, request for documents, subpoena,
civil investigative demand or similar process, or by order of a court,
regulatory authority or tribunal of competent jurisdiction, or in order to
comply with applicable rules or requirements of any stock exchange, government
department or agency or other regulatory authority, or by requirements of any
securities law or regulation or other legal requirement). Each party shall
promptly notify the other of any such requirement or dissemination prior to
such event.
(e) No Partnership. Nothing contained in this Agreement shall be
construed to create a partnership or other relationship that may invoke
fiduciary obligations between the parties hereto.
(f) Compliance With Laws. At all times during the term of this
Agreement, the parties shall comply in all material respects with all laws,
rules, regulations, and codes of all governmental authorities having
jurisdiction over each of their respective businesses which are now
applicable, or may be applicable hereafter, including without limitation, all
special laws, policies, ordinances, or regulations now in force, as amended or
hereafter enacted. Nothing herein shall be deemed a waiver of the parties'
right to challenge the validity of any such law, rule or regulation.
(g) Time is of the Essence. Time is of the essence in the
performance of the obligations set forth herein by the parties. Each party
acknowledges and agrees that providing the use of the Network, as set forth
herein, is vital to the Business in the Relevant Market. Therefore, subject
to the provisions of paragraph (h) below, and taking into account the
requirements regarding safety and reliability of the electric transmission and
distribution system of BecoCom and its Affiliates, any consent, authorization
or approval that must be obtained by a party, or any construction, maintenance
or other obligation shall be given or performed within the time specified, or
if no time for performance is specified, shall be given or performed promptly,
with no unreasonable delay or condition. Any extension of the time requested
by either of the parties hereto to meet any of the obligations of the parties
pursuant to this Agreement shall not be unreasonably withheld by the other
party, provided that such extension will not have a material adverse effect on
the Business. No party shall be deemed in violation of this paragraph (g) to
the extent that such failure to comply is caused by a default of the other
party.
(h) Force Majeure. If by reason of Force Majeure either party
is unable in whole or in part to carry out its obligations hereunder (other
than the payment of money), said party shall not be deemed in violation or
default during the continuance of such inability.
(i) Fees and Expenses. Except as otherwise provided herein,
each of BecoCom and Carrier shall pay all fees and expenses incurred by, or on
behalf of, such party in connection with, or in anticipation of, this
Agreement and the consummation of the transactions contemplated hereby.
(j) Specific Performance. Each party hereby acknowledges and
agrees that there would be no adequate remedy at law for the other party's
breach, threatened breach or default of its covenants, agreements or
undertakings in this Agreement. As a result, and in addition to and without
prejudice to or waiver in whole or in part of each party's other remedies
under this Agreement and at law and in equity, each party shall have the right
to equitable relief and to specifically enforce its rights and the other
party's obligations as set forth in this Agreement and the breach or
threatened breach of such obligations may be enjoined by each without bond,
and accordingly each party consents and submits to the nonexclusive
jurisdiction of and venue in the federal courts located in Boston,
Massachusetts (or in case such a federal court does not have jurisdiction, the
state courts located in Boston, Massachusetts) in aid of arbitration pursuant
to Section 16 hereof.
(k) Condemnation. In the event and to the extent of any
condemnation or other taking by eminent domain of all or any part of the
BecoCom Facilities (other than existing Equipment Sites), or any property or
rights relating thereto, then the proceeds thereof shall by apportioned fairly
between BecoCom and Carrier as their interests may warrant.
(l) Captions. The captions to sections throughout this
Agreement are intended solely to facilitate reading and reference to the
sections and provisions of this Agreement. Such captions shall not affect the
meaning or interpretation of this Agreement.
(m) Entire Agreement. This Agreement sets forth the entire
agreement of the parties, and takes precedence over all prior understandings,
with respect to the subject matter herein. This Agreement may not be amended
except by a writing signed by the parties.
(n) Binding Effect. Subject to the provisions of Section 17(a)
of this Agreement, this Agreement is binding on and inures to the benefit of
the parties hereto and their respective heirs, legal representatives,
successors, and assigns.
(o) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the other provisions hereof. If
any provision of this Agreement is held to be invalid, such provision shall
not be severed from this Agreement; instead, the scope of the rights and
duties created thereby shall be reduced by the smallest extent necessary to
conform such provision to the applicable law, preserving to the greatest
extent the intent of the parties to create such rights and duties as set out
herein. If necessary to preserve the intent of the parties hereto, the
parties shall negotiate in good faith to amend this Agreement, adopting a
substitute provision for the one deemed invalid or unenforceable that is
legally binding and enforceable.
(p) Further Assurances. In connection with this Agreement and
the transactions contemplated hereby, each party shall execute, deliver and
file or record any additional documents and instruments and perform any
additional acts that may be necessary or appropriate to evidence or safeguard
the rights herein granted and to effectuate and perform the provisions of this
Agreement and such transactions and the intention of the parties hereto. Each
party agrees to reimburse the other party for its actual out of pocket
expenses incurred in connection therewith.
(q) Waiver of Subrogation. Carrier and BecoCom shall each cause
all policies of fire, extended coverage, and other physical damage insurance
covering the Network to contain a clause or endorsement denying the insurer
any rights of subrogation against the other party provided, that no additional
premium is payable as a result of such request unless the party requesting
such waiver agrees to pay such additional premium. Notwithstanding any
provisions of this Agreement to the contrary, Carrier and BecoCom respectively
waive all claims and rights to recover against the other for injury or loss
due to hazards covered by insurance, so long as waiver does not invalidate
such insurance.
(r) Changes in Law. If and to the extent that, during the Term,
any laws or regulations shall change which govern any transaction contemplated
herein or either party's business operations so as to make either unlawful,
then Carrier and BecoCom hereby agree to effect such modifications to this
Agreement as shall be reasonably necessary for the Agreement to accommodate
any such legal or regulatory changes.
(s) Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, any of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(t) Interpretation. In the event of any dispute concerning the
construction or interpretation of this Agreement or any ambiguity hereof,
there shall be no presumption that this Agreement or any provision hereof be
construed against the party who drafted this Agreement.
(u) Independent Contractor. Nothing in this Agreement shall be
construed or interpreted to make either party, any Subcontractor, or the
employees or agents of either party, to be the agent, representative or
employee of the other party or the Right-of-Way Owners. Each party shall at
all times be an independent contractor and shall have sole responsibility for
and control over the details and means for performance of its obligations
hereunder, so long as such party is in compliance with the terms of this
Agreement.
(v) No Other Business. BecoCom shall not engage in any
substantial business other than pursuant to this Agreement and the other Basic
Agreements.
(w) No Third Party Beneficiaries. Nothing in this Agreement
shall be construed to create any rights or obligations except between the
parties hereto, and no person or entity shall be or be deemed a third-party
beneficiary of this Agreement.
(x) BECO's Core Business. Notwithstanding anything to the
contrary set forth herein, nothing herein shall obligate BecoCom or its
Affiliates to take any action, or refrain from taking any action, which would,
in BecoCom's reasonable opinion, adversely affect the operation of BECO's
electric transmission and distribution business.
(y) Limitation on Damages. NOTWITHSTANDING ANYTHING TO THE
CONTRARY SET FORTH IN THIS AGREEMENT, NEITHER BECOCOM NOR CARRIER SHALL BE
LIABLE TO THE OTHER FOR OR IN RESPECT OF ANY CONSEQUENTIAL, INDIRECT OR
SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES BASED UPON BUSINESS
INTERRUPTION OR LOSS OF EXPECTED OR ANTICIPATED BUSINESS PROFITS, WHICH MAY
ARISE OUT OF OR RESULT FROM ANY BREACH OF BECOCOM'S OR CARRIER'S OBLIGATIONS
UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT
MITIGATE THE LIABILITY OF ANY PARTY WITH RESPECT TO SUCH PARTY'S GROSS
NEGLIGENCE AND/OR WILLFUL MISCONDUCT.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement
as an instrument under seal as of the date first set forth above.
BECOCOM, INC.
a Massachusetts corporation
By:
------------------------
Name:
----------------------
Title:
---------------------
RCN-BECOCOM, LLC,
a Massachusetts limited liability company
By:
------------------------
Name:
----------------------
Title:
---------------------
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇ this 17th day of June, 1997, before me, a notary public in and for
said county and state, personally came ___________________________________,
__________________________________ of BecoCom, Inc., a Massachusetts
corporation, known to be the identical person who signed the foregoing
Agreement and acknowledged the execution thereof to be his voluntary act
and deed and the voluntary act and deed of said corporation.
WITNESS, my hand and notarial seal at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, in said county and state, the day and year last above written.
[SEAL]
-----------------------------------
NOTARY PUBLIC
My Commission Expires:
---------------------------------
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇ this 17th day of June, 1997, before me, a notary public in and for
said county and state, personally came ___________________________________,
__________________________________ of RCN-BecoCom, LLC, a Massachusetts
limited liability company, known to be the identical person who signed the
foregoing Agreement and acknowledged the execution thereof to be his
voluntary act and deed and the voluntary act and deed of said company.
WITNESS, my hand and notarial seal at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ in said county and state, the day and year last above written.
[SEAL]
-----------------------------------
NOTARY PUBLIC
My Commission Expires:
---------------------------------
Exhibit A-1
-----------
EXISTING BECOCOM FACILITIES
The following is a description of the Existing BecoCom Facilities and
associated properties and rights-of-way. BecoCom will provide to the Company
the ability to use all of the Existing BecoCom Facilities except for any BECO
Dedicated Fibers. BecoCom is providing only those routes where fiber capacity
is available, or where there is commercial potential. The form of this
contribution will be an Indefeasible Right to Use. The Fibers being provided
to the Company include the upgrade to be constructed by BECO in 1997.
Summary by Construction Type
Type ROW miles Available
Fiber-miles
OPGW 84.5 3,654
OH Distrib. ADSS 3.0 36
UG ADSS 38.5 3,282
total 126.0 6,972
Summary by Geography
Type ROW miles Available
Fiber-miles
very dense urban 29.0 2,484
dense urban 9.5 798
suburban 84.5 3,654
distribution 3.0 36
total 126.0 6,972
The BecoCom Contributed Assets shall also consist of the right to locate
Carrier Facilities on 150 square feet of each of the following sites:
Prudential Center (subject to the termination or expiration of the lease at
such site); Station 150 (▇▇▇▇▇); Station 470 (Canton); Station 447 (West
Walpole); Station 446 (West Medway); Station 240 (Framingham); Station ▇▇▇
(▇▇▇▇▇▇▇); ▇▇▇▇▇▇▇ ▇▇▇ (▇▇▇▇ ▇▇▇▇); Station 282 (Waltham); Station 320
(Lexington); Station 391 (Burlington); Station 250 (Mystic & Head House @
Ryan's Plygrd); Station 80 (Mass Ave.); Station 478 (▇▇▇▇▇▇▇▇); Station 146
(Walpole); Station 65 (Medway); Station 274 (Sherborn); Station ▇▇▇ (▇▇▇▇▇
▇▇▇▇▇▇); Station ▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇▇); Station 342 (Sudbury); Station ▇▇▇
(▇▇▇▇▇▇▇ ▇▇▇▇); Station 533 (▇▇▇▇▇▇▇▇ Ave.); Station 211 (Woburn); and Station
514 (Boston).
Exhibit A-2
-----------
INTERIM CONSTRUCTED FACILITIES
[To be provided]
Exhibit B
---------
RELEVANT MARKET
Areas Included in Relevant Market
---------------------------------
The following cities, towns or local municipalities (See Attached Map).
Acton Lexington Walpole
Arlington Lincoln Waltham
Ashland ▇▇▇▇▇▇▇ Watertown
Bedford Medfield Wayland
Bellingham Medway Weston
Boston Millis Westwood
Brookline ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Burlington Natick Woburn
Canton Needham
Carlisle ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Norfolk
Dedham ▇▇▇▇▇▇
▇▇▇▇▇ Sherborn
Framingham Somerville
Holliston Stoneham
Hopkinton Sudbury
Note: Boston shall be defined to include Allston, Brighton, Charleston,
Dorchester, East Boston, Hyde Park, Jamaica Plain, Mattapan, Roslindale,
South Boston and West Roxbury.
Note: The parties, by mutual agreement, may expand the Relevant Market to
include the municipalities of Cambridge, Belmont, Concord, Wellesley,
▇▇▇▇▇▇▇, Braintree, Quincy and Weymouth.
Exhibit C-1
-----------
PAYMENT FOR USE OF BECOCOM FACILITIES
Carrier shall pay to BecoCom, each quarter during the Term, the
following amounts:
1. A Right-of-Way (ROW) use fee calculated as follows:
a. Distribution Poles:
o $10.37 per attachment per year.
o rate subject to change per the then applicable Aerial
License Agreement.
b. Overhead Transmission ROWs:
o $0.58 per ROW foot per year through 12/31/98,
escalating at 2% per year thereafter.
o 10 year minimum term.
o no rate changes for duration of minimum term.
Thereafter, rates shall be recalculated with the same
methodology in which the initial rates were
calculated, subject to any applicable change in law or
regulation.
c. Underground Conduits:
o $0.86 per conduit foot per year through 12/31/98,
escalating at 2% per year thereafter.
o applicable to BECO conduits not constructed at the
request and expense of Carrier.
o 10 year minimum term.
o no rate changes for duration of minimum term.
Thereafter, rates shall be recalculated with the same
methodology in which the initial rates were
calculated, subject to any applicable change in law or
regulation.
2. The amount of all property taxes directly attributable to the
Facilities described in Sections 10(a) and 10(c).
3. Any other fees, charges, costs or expenses directly related to the
BecoCom Facilities.
4. Reasonable charges for general and administrative costs incurred
by BecoCom with respect to the BecoCom Facilities.
BecoCom and its Affiliates shall use their best efforts to
minimize the amounts provided for in clauses (3) and (4) above.
Exhibit C-2
-----------
PAYMENT FOR OPERATION AND MAINTENANCE
1. (a) For so long as BecoCom or one of its Affiliates is a member
of Carrier or a stockholder of Carrier or its Affiliates (or, if longer, 3
years after the Effective Date), Carrier shall pay to BecoCom the actual cost
of operating and maintaining the Facilities described in Section 10(c) (all of
which shall be documented and reasonably efficient and justified); and
(b) After the later of (A) the 3rd anniversary of the Effective
Date and (B) the date on which one of BecoCom or its Affiliates is no longer a
member of Carrier or a stockholder of Carrier or its Affiliates, Carrier shall
pay to BecoCom the actual cost of operating and maintaining the Facilities
described in Section 10(c) plus 25% of such actual cost.
2. The charge for operations and maintenance shall be proportionately
reduced to reflect the use thereof by parties other than Carrier (including
BecoCom and its Affiliates).
Exhibit D
---------
COMPENSATION FOR CONSTRUCTION OF
NEW BECOCOM CONSTRUCTED FACILITIES
For each Project, Carrier shall pay to BecoCom (a) a one-time, lump-sum
payment for Cost of Construction as follows:
Upon the initiation of Work on each Project, there shall be established
a Cost of Construction for such Project. The Cost of Construction shall equal
the actual cost of the Work as set forth in the Scope of Work, provided that
if, at any time any Project commences after July 1, 1998, Carrier has
committed to fewer than 10,000 miles to be subject to this Agreement
(including such Project and Existing BecoCom Facilities), the Cost of
Construction for such Project shall be multiplied by a factor determined as
follows:
Miles Subject to this Agreement Multiplier
------------------------------- ----------
8,500 to 10,000 1.25
6,500 to 8,499 1.50
4,500 to 6,499 2.00
2,500 to 4,499 2.50
500 to 2,499 3.00
below 500 4.00.
The Cost of Construction shall include any costs incurred beyond the Scope of
Work with the consent of Carrier. The amount determined pursuant to this
Exhibit D will be proportionately reduced if BecoCom or its Affiliates
construct, in connection with the Project, any Facilities for use by any party
other than Carrier.
Exhibit E
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EXISTING OBLIGATIONS
1. Agreement between BECO and Teleport Communications Group ("TCG"),
dated 11/29/95.
2. Agreement between BECO and TCG, dated 4/30/96.
3. Agreement between BECO and TCG, dated 8/21/96.
4. Agreement between BECO and TCG, dated 9/1/96.
5. Agreement between BECO and Metropolitan Fiber System, dated
11/30/93.