Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Fiber Optic Lease Agreement
between
FiveCom, Inc.
and
▇▇▇▇ Communications, Inc.
July 2, 1998
Fiber Optic Lease Agreement
Table of Contents
1. PREAMBLE.................................................................................................1
2. BACKGROUND...............................................................................................1
3. DEFINITIONS..............................................................................................3
4. FIVECOM FIBERS...........................................................................................5
4.1 Content and Route......................................................................5
4.2 Specifications, Codes and Spaces.......................................................6
4.3 Access to Non-Parties and Non-Party Connections........................................6
(a) Connections...................................................................6
(b) Responsibility for Connections................................................6
4.4 Vendors................................................................................7
4.5 FiveCom Facilities and Equipment.......................................................7
4.6 Marketing and Sales....................................................................7
5. SCHEDULE.................................................................................................7
5.1 Completion Date........................................................................7
5.2 Penalty for Late Delivery..............................................................7
5.3 Testing................................................................................7
5.4 Review of the Test Results.............................................................8
5.5 Completion of Remaining Fibers.........................................................8
6. DELIVERABLES.............................................................................................8
6.1 Description............................................................................8
6.2 Delivery Times.........................................................................8
7. HABENDUM AND TERM........................................................................................9
7.1 Term...................................................................................9
7.2 Leasehold..............................................................................9
7.3 Fiber Optic Facilities. ..............................................................9
7.4 Nonexclusivity.........................................................................9
7.5 Right Subject to Utility Agreement. ..................................................9
8. LEASE PAYMENTS..........................................................................................10
8.1 Base Fiber Payments...................................................................10
8.2 Revenue Sharing Payments..............................................................10
8.3 Location Fee..........................................................................12
8.4 When Due..............................................................................12
9. MAINTENANCE AND REPAIR..................................................................................12
9.1 ▇▇▇▇ Com's Obligation.................................................................12
9.2 Maintenance. ........................................................................12
(a) Emergency Maintenance........................................................12
(b) Routine Maintenance..........................................................13
(c) Notice.......................................................................13
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
9.3 Replacement Fiber.....................................................................13
(a) Initial Term [**]............................................................13
(b) Initial Term [**]............................................................13
(c) After Initial Term or Expansion of Cable.....................................14
10. COVENANTS; REPRESENTATIONS..............................................................................14
10.1 ▇▇▇▇ Com's Covenants..................................................................14
10.2 ▇▇▇▇ Com Representations..............................................................14
10.3 FiveCom Representations...............................................................15
11. OWNERSHIP AND TAXES.....................................................................................15
11.1 Title.................................................................................15
11.2 Income Taxes..........................................................................15
11.3 Tax Accounting; Reporting of Income Taxes.............................................15
11.4 Sales Taxes...........................................................................16
11.5 Franchise, Property and Other Taxes or Fees...........................................17
11.6 Levy..................................................................................17
11.7 Reversion.............................................................................17
12. LIMITATION ON LIABILITY.................................................................................18
12.1 Exclusion of Certain Types of Damages.................................................18
12.2 Limitation on ▇▇▇▇ Com Damages........................................................18
12.3 Limitation on FiveCom Damages.........................................................19
12.4 No Limitation on Third-Party Actions..................................................19
13. INDEMNIFICATION.........................................................................................19
13.1 By ▇▇▇▇ Com...........................................................................19
13.2 By FiveCom............................................................................20
13.3 Indemnity Obligation..................................................................21
14. FORCE MAJEURE...........................................................................................21
14.1 Force Majeure Events..................................................................21
14.2 Abatement of Force Majeure............................................................21
14.3 Suspension Pending Force Majeure......................................................21
14.4 Labor Disputes........................................................................22
15. GOVERNMENT APPROVALS, PERMITS AND CONSENTS..............................................................22
15.1 FiveCom Obligations...................................................................22
15.2 ▇▇▇▇ Com's Obligations................................................................23
16. RELOCATION..............................................................................................23
16.1 Relocation for Non-Parties............................................................23
16.2 Relocation for FiveCom................................................................24
16.3 Return of Removed Material............................................................24
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17. EARLY TERMINATION.......................................................................................24
17.1 Early Termination of Agreement........................................................24
17.2 Termination of a Portion of the Route.................................................25
17.3 Alternate Capacity or Facilities......................................................26
17.4 Effect of Termination.................................................................26
18. CONDEMNATION............................................................................................26
18.1 Condemnation of FiveCom Fibers........................................................26
18.2 Condemnation of Other Portions of the FiveCom Network.................................27
18.3 Notice; No Sale.......................................................................27
19. RELATED AGREEMENTS......................................................................................27
19.1 BecoCom/FiveCom Agreement.............................................................27
19.2 Initial Unavailability................................................................27
19.3 Subsequent Unavailability.............................................................28
20. PROPRIETARY INFORMATION.................................................................................28
20.1 Obligation to Maintain as Confidential................................................28
20.2 Obligations Concerning Proprietary Information........................................28
(a) General Restrictions.........................................................28
(b) Additional Marking Requirements..............................................29
(c) Exceptions...................................................................29
(d) Disclosures..................................................................30
21. DEFAULT.................................................................................................30
21.1 By FiveCom............................................................................30
21.2 By ▇▇▇▇ Com...........................................................................30
22. NOTICES.................................................................................................31
22.1 Addresses.............................................................................31
22.2 Means.................................................................................32
22.3 Informal Communications...............................................................32
23. DISPUTE RESOLUTION......................................................................................32
24. LIENS...................................................................................................33
24.1 Future Liens..........................................................................33
24.2 Existing Liens........................................................................34
25. INSURANCE...............................................................................................34
26. ASSIGNMENT..............................................................................................35
26.1 No Assignment.........................................................................35
26.2 Right to Pledge Agreement and Transfer Property.......................................35
26.3 Agreement Binding; Assignees..........................................................35
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27. MISCELLANEOUS...........................................................................................35
27.1 Headings..............................................................................35
27.2 No Third Party Beneficiaries..........................................................35
27.3 Amendments; Waivers...................................................................36
27.4 Entire Agreement......................................................................36
27.5 No Joint Venture......................................................................36
27.6 Governing Law.........................................................................36
27.7 Survival..............................................................................36
27.8 Publicity.............................................................................36
EXHIBITS
Exhibit 2 Route
Exhibit 4.1 Preliminary Route/Engineering Diagram
Exhibit 4.2 Leased Fiber Specifications
Exhibit 4.3(a) Connection/Demarcation Points
Exhibit 5.3 Acceptance Test Plan
Exhibit 6.1 ▇▇▇▇ Com Deliverables
Exhibit 8.2 Annual Report
Exhibit 9.2(a) Emergency Maintenance Standards
Exhibit 9.2(b) Routine Maintenance Standards
Exhibit 16.2 Request for Relocation
Exhibit 20.2 Form Notice of Lease
Exhibit 22.3 Contact List
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
FIBER OPTIC LEASE AGREEMENT
1. PREAMBLE. Effective July 2, 1998, ▇▇▇▇ Communications, Inc. ("▇▇▇▇ Com") and
FiveCom, Inc. ("FiveCom") (collectively "Parties," singularly "Party") agree as
follows:
2. BACKGROUND. FiveCom has or is developing a fiber optic system from Hudson, NH
to Maine and from Hudson, NH to Massachusetts, Connecticut and New York
("FiveCom System"). To the FiveCom System, FiveCom wishes to add a fiber optic
network ("FiveCom Network") from Hudson, NH to Boston and Cambridge [**] to a
FiveCom Point of Presence ("POP") to be built at [**]. The [**]. FiveCom, ▇▇▇▇
Com, and BecoCom, Inc. ("BecoCom") wish jointly to build their respective
portions of this network under the terms of separate agreements between FiveCom
and ▇▇▇▇ Com and between FiveCom and BecoCom. The purpose of the FiveCom Network
is to provide telecommunications capacity between Hudson, NH and the Boston
metropolitan area.
The FiveCom Network is described as follows. [**], is to be installed from the
[**] through [**], an underground fiber optic cable, consisting of [**] single
mode fibers, is to be installed. From the FiveCom POP at [**] an underground
fiber optic cable, consisting of [**], is to be installed connecting the [**]
carrier POPs described above, and returning to the [**]. Exhibit 2 depicts the
FiveCom Network.
FiveCom, ▇▇▇▇ Com, and BecoCom are each responsible for constructing a portion
of this network. These portions are defined by the following demarcation points:
FiveCom - ▇▇▇▇ Com Demarcation Point: This is defined as the splice box
to be located on the [**].
▇▇▇▇ Com - BecoCom Demarcation Point: This is defined as a mid-span
point located above the town line between Burlington (Beco service
territory) and Billerica (NEP service territory). This demarcation
occurs between Transmission Line [**]. Because this demarcation point
is mid-span, joint or closely coordinated construction of the ▇▇▇▇ Com
and BecoCom [**] facilities must occur.
FiveCom - BecoCom Demarcation Points: The "FiveCom - BecoCom
Demarcation Point 'A'" is defined as a mutually acceptable location
along the Cambridge-Somerville city line, depending upon the exact
route taken for the fiber optic cable installed between the FiveCom
[**]. The "FiveCom - BecoCom Demarcation Point 'B'" is defined as a
mutually acceptable location along the Cambridge-Boston city line,
depending upon the exact route taken for the fiber optic cable
installed between [**].
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
There will be additional demarcation points at the [**] carrier locations
specified above. At each location, the demarcation point is defined as a splice
box or patch panel installed in a mutually acceptable manner. If approval of the
building owner is required, FiveCom shall be responsible for securing any
necessary co-location rights.
Having established the demarcation points, each Party's portion of the network
can be described as follows:
▇▇▇▇ Com Portion: A [**] fiber optic cable between the FiveCom - ▇▇▇▇
Com Demarcation Point and the ▇▇▇▇ Com - BecoCom Demarcation Point.
BecoCom Portion: (a) A [**] fiber optic cable between the ▇▇▇▇ Com -
BecoCom Demarcation Point and the Demarcation Point at the FiveCom POP,
plus (b) a [**] fiber optic cable from the Demarcation Point at the
FiveCom POP to the FiveCom - BecoCom Demarcation Point "A," plus (c) a
[**] fiber optic cable from the Demarcation Point at the FiveCom POP to
the Demarcation Point at [**] to FiveCom - BecoCom Demarcation Point
"B."
FiveCom Portion: The initial optronics component of the FiveCom Portion
is intended to be sufficient to operate (a) [**], or equivalent,
between [**], and (b) [**], or equivalent, connecting the [**] carrier
locations described above. FiveCom shall use its best commercial
efforts install this optronic equipment within [**] after the
Completion Date, and shall have some discretion to modify this optronic
equipment to adjust to business conditions, but shall not eliminate or
forgo a substantial portion of its capital investment responsibilities
to install optronic equipment without the approval of ▇▇▇▇ Com. FiveCom
may install additional optronic equipment at its option. The non-
optronic component of the FiveCom Portion shall consist of (a) a [**]
fiber optic [**] from the [**] to the FiveCom - ▇▇▇▇ Com Demarcation
Point, plus (b) a [**] fiber optic cable from the FiveCom - BecoCom
Demarcation Point "A" to [**] to the FiveCom - BecoCom Demarcation
Point "B" plus (c) any necessary wiring on the Non-Network Side of the
applicable demarcation points described above.
-2-
This Agreement shall govern the construction and use of the ▇▇▇▇ Com Portion of
the FiveCom Network.
3. DEFINITIONS.
Acceptance Test Plan or ATP - see Section 5.3
Affiliate - see Section 7.4
Arbitration Act - see Section 23.3
Arbitration Notice - see Section 23.3
Arbitration Panel - see Section 23.3
Award - see Section 23.3
Beco - see Section 2
BecoCom - see Section 2
BecoCom/FiveCom Agreement - see Section 19.1
BecoCom Portion - see Section 2
Cable - see Section 4.1
Cable Accessories - see Section 4.1
Completion Date - see Section 5
Connections - see Section 4.3
Default - see Section 21
Deliverables - see Section 6
Disclosing Party - see Section 20.1
FiveCom - see Section 1
-3-
FiveCom - BecoCom Demarcation Points - see Section 2
FiveCom - BecoCom Demarcation Point "A" - see Section 2
FiveCom - BecoCom Demarcation Point "B" - see Section 2
FiveCom Fibers - see Section 4.1
FiveCom Indemnified Parties - see Section 13
FiveCom - ▇▇▇▇ Com Demarcation Point - see Section 2
FiveCom Network - see Section 2
FiveCom Portion - see Section 2
FiveCom Replacement Fiber - see Section 9.3(b)
Force Majeure Event - see Section 14.1
Initial Term - see Section 7.1
▇▇▇▇ Com - BecoCom Demarcation Point - see Section 2
▇▇▇▇ Com - see Section 1
▇▇▇▇ Com Indemnified Parties - see Section 13
▇▇▇▇ Com Portion - see Section 2
NEP - see Section 2
NEP Fibers - see Section 4.1
Network Side - see Section 4.3
Non-Network Side - see Section 4.3
Non-Parties - see Section 27.2
Party(ies) - see Section 1
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
POP - see Section 2
Proprietary Information - see Section 20.1
Receiving Party - see Section 20.2(a)
Respondent - see Section 23.3
Route - see Section 4.1
Rules - see Section 23.3
Specifications - see Section 4.2
Structures - see Section 4.1
Tax Impact - see Section 11.7(c)
Term - see Section 7.1
Third Party - see Section 27.2
Utility Agreement - see Section 4.1
4. FIVECOM FIBERS.
4.1 Content and Route.
Pursuant to the terms of the Agreement between NEP and ▇▇▇▇ Com dated
June 18, 1998 ("Utility Agreement"), ▇▇▇▇ Com will install and retain beneficial
ownership of fiber optic cable consisting of [**] True Wave(R) Lucent and [**]
Lucent single mode dark optical fibers ("Cable") along the route depicted in
detail in Exhibit 2 ("Route"). The Route begins at the FiveCom-▇▇▇▇ Com
Demarcation Point, and proceeds along transmission lines [**], and then on to
[**], terminating at the ▇▇▇▇ Com-BecoCom Demarcation Point. Of the [**] fibers
installed, ▇▇▇▇ Com will lease to FiveCom pursuant to this Agreement [**] True
Wave(R) non-zero dispersion-shifted fibers and [**] single mode fibers
(collectively, "FiveCom Fibers"). The remaining fibers will be
-5-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
retained by NEP ("NEP Fibers") [**].
As reflected in Exhibit 4.1, ▇▇▇▇ Com shall install the Cable on or in
utility transmission structures, subtransmission structures, and associated
civil works located on or in utility easements, street licenses, and/or
rights-of-way (collectively, "Structures"), and ▇▇▇▇ Com shall employ attachment
and suspension hardware, splice enclosures and other components necessary either
for the placement of the Cable underground or overhead or for the continuity of
the fiber filaments on or within the Structures (collectively, "Cable
Accessories").
4.2 Specifications, Codes and Spaces. ▇▇▇▇ Com shall install and
maintain the FiveCom Fibers in a manner that satisfies the technical
specifications (the "Specifications") set forth in Exhibit 4.2, subject to
variations that may be mutually agreed to from time to time by FiveCom and ▇▇▇▇
Com, and shall comply in all material respects with all legally required
building, construction and safety codes as well as all other legally required
federal, state and local laws, codes, ordinances, statutes and regulations.
4.3 Access to Non-Parties and Non-Party Connections.
(a) Connections. All the points of connection, including the
demarcation points described in Section 2 shall be referred to
as "Connections," and the Connections between the ▇▇▇▇ Com
Portion and other parts of the FiveCom System, excluding the
demarcation points listed in Section 2 above, are specified in
Exhibit 4.3(a). Upon mutual agreement of the Parties to add
new Connections, the Parties shall reflect any new Connections
in an amendment to Exhibit 4.3(a).
(b) Responsibility for Connections. Unless otherwise agreed by
the Parties, ▇▇▇▇ Com shall pay for, install, construct,
maintain, secure rights of way and easements for and otherwise
be responsible for all equipment on the side of the Connection
on which the ▇▇▇▇ Com Portion exists ("Network Side")
including without limitation any liabilities associated with
such equipment, and FiveCom shall pay for, install, construct,
maintain, secure rights of way and easements for and otherwise
be responsible for all equipment on the other side of the
Connection ("Non-Network Side") including without limitation
any liabilities associated with such equipment. FiveCom shall
ensure that the equipment on the Non-Network Side shall not
conflict physically or otherwise interfere with joint users of
the Cable,
-6-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Cable Accessories, Structures or any other property needed in
the installation, construction, maintenance or use of the
Cable. With respect to any equipment on the Non-Network Side,
FiveCom or its customer shall obtain any necessary approvals
from the owners of any property as to any use thereof by
FiveCom or its customers, and for the physical location of,
installation, maintenance and operation of equipment, and
FiveCom shall provide to ▇▇▇▇ Com evidence of all necessary
approvals and permits by such owners and any applicable
government authority.
4.4 Vendors. FiveCom shall have the right to review and approve, which
approval will not be unreasonably withheld or delayed, ▇▇▇▇ Com's major
vendors/suppliers/manufacturers of materials to be used in the installation and
construction of the Cable.
4.5 FiveCom Facilities and Equipment. Pursuant to FiveCom's existing
agreement with Northeast Utilities dated February 27, 1998, FiveCom shall use
its best commercial efforts to complete construction and installation of the
FiveCom Portion and to achieve completion with respect to the FiveCom Portion as
described in Section 2 by December 31, 1998.
4.6 Marketing and Sales. FiveCom shall conduct marketing and sales
activities as part of its business to secure customers for the FiveCom Fibers,
and shall use its best commercial efforts throughout the Term to maximize the
revenues generated by the FiveCom Fibers.
5. SCHEDULE.
5.1 Completion Date. ▇▇▇▇ Com shall use best commercial efforts to
complete construction and installation and to ensure that the Completion Date of
the FiveCom Fibers occurs on or before December 31, 1998. Unless otherwise
determined under Sections 5.3 or 5.4 below, the Completion Date shall be
December 31, 1998.
5.2 Penalty for Late Delivery. For each day after March 31, 1999 until
the Completion Date or the date this Agreement is terminated, ▇▇▇▇ Com will
pay to FiveCom an amount equal to [**] that does not meet the Specifications.
Notwithstanding the foregoing, ▇▇▇▇ Com shall not be obligated to make the
payment provided in the preceding sentence to the extent FiveCom fails, at any
time when such payment would otherwise be due, to
-7-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
have completed installation of, and have available for use or use by others, an
equivalent amount of the non-optronic portion of the FiveCom Portion as
discussed in Section 4.5 above, or otherwise fails to use its best commercial
efforts to install the optronic portion of the FiveCom Portion as described in
Section 2. If the delay in providing at least [**] fibers continues until [**],
then either Party in its sole discretion shall have the right to terminate this
Agreement, provided that any such termination shall not affect whatever rights
either party had obtained under this Agreement prior to such termination.
5.3 Testing. The Completion Date shall be deemed to be the date that
▇▇▇▇ Com has installed the Cable called for in Section 4.1 along the ▇▇▇▇ Com
Portion of the Route as described in that section and that at least [**]of the
FiveCom Fibers satisfy the Specifications. Satisfaction of the Specifications
shall be established specifically for the ▇▇▇▇ Com Portion by testing in
accordance with the Acceptance Test Plan ("ATP") described in Exhibit 5.3. ▇▇▇▇
Com shall provide FiveCom with written notice of the commencement of the
acceptance testing at least [**] prior to that commencement. Subject to the
restrictions, terms and conditions of the Utility Agreement, FiveCom shall have
the right to have representatives present to observe any tests conducted by ▇▇▇▇
Com as part of the ATP. ▇▇▇▇ Com shall be responsible for testing the ▇▇▇▇ Com
Portion of the FiveCom Network, and FiveCom shall be responsible for testing the
entire FiveCom Network on an end-to-end basis. If the end-to-end test reveals
that a particular piece of equipment (including fiber strands and splices) fails
to satisfy the Specifications, the Party responsible for such installation shall
be responsible for fixing it. The failure of FiveCom to complete satisfactorily
the end-to-end testing of the entire FiveCom Network shall not relieve FiveCom's
obligations to make payment under Section 8, unless the failure is due to a
breach by ▇▇▇▇ Com of this Agreement.
5.4 Review of the Test Results. Within [**] of the conclusion of the
ATP, ▇▇▇▇ Com shall provide FiveCom with test results certified by ▇▇▇▇ Com in
accordance with the ATP and pursuant to Exhibit 4.2, Item 3.0. If the certified
test results establish that the FiveCom Fibers satisfy the Specifications, and
if FiveCom shall not object to such conclusion within [**] of its receipt of
such results, then the date of the completion of the ATP testing shall be deemed
to be the Completion Date. If FiveCom shall so object, it shall provide to ▇▇▇▇
Com sufficient technical details of its objection within such [**] period. If
▇▇▇▇ Com disagrees with FiveCom's objections, then the dispute shall be
submitted to the neutral expert mutually agreed by the Parties for resolution
within [**], or if the Parties cannot agree on a neutral expert, then the
dispute will be resolved by arbitration pursuant to Section 23. The neutral
expert or arbitration panel, as the case
-8-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
may be, shall resolve the dispute and determine the Completion Date, including
whether or not any amount is payable pursuant to Sections 8 and 5.2. Use of the
FiveCom Fibers, or any subset thereof, by FiveCom for any purpose other than
testing as provided herein shall constitute acceptance of the fibers so used by
FiveCom, and the Completion Date shall be deemed to have occurred with respect
to such fibers.
5.5 Completion of Remaining Fibers. In the event that the Completion
Date is declared based on ▇▇▇▇ Com's delivery of [**] or more FiveCom Fibers,
but less than all [**] FiveCom Fibers described in Section 4.1, then if
requested by FiveCom, ▇▇▇▇ Com shall use commercially reasonable efforts to
ensure that FiveCom has access to capacity equal to [**] fiber optic strands
that meet the Specifications at the earliest practicable date after the
Completion Date.
6. DELIVERABLES.
6.1 Description. Within the time periods specified in Section 6.2, ▇▇▇▇
Com shall deliver to FiveCom the items listed in Exhibit 6.1 (the
"Deliverables").
6.2 Delivery Times. The Deliverables shall be supplied within 60 days
following the Completion Date except for the items listed in Exhibit 6.1 as
being delivered at other specified times. ▇▇▇▇ Com shall provide five copies of
all material delivered to FiveCom pursuant to this Section 6.
7. HABENDUM AND TERM.
7.1 Term. Subject to the terms and conditions set forth in this
Agreement and the restrictions, terms and conditions of the Utility Agreement,
▇▇▇▇ Com hereby leases to FiveCom the FiveCom Fibers for a term commencing on
the Completion Date and continuing for an initial term of 20 years ("Initial
Term") unless sooner terminated in accordance with the terms of this Agreement.
Subject to ▇▇▇▇ Com's rights and obligations under the Utility Agreement,
FiveCom shall have the right to negotiate with ▇▇▇▇ Com for an extension of this
Agreement for up to two consecutive five-year periods, on an "as-is" basis,
commencing at the expiration of the Initial Term. The Initial Term and any
subsequent extension are referred to in this Agreement as the "Term."
-9-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
7.2 Leasehold. The number, identity, and location of FiveCom Fibers
shall be set forth in a schedule that will be one of the Deliverables to be
provided under Section 6. FiveCom shall only have the right to use the fiber
optic filaments within the Cable designated as FiveCom Fibers on that
Deliverable, and the remaining fiber optic filaments within the Cable shall be
designated as NEP Fibers.
7.3 Fiber Optic Facilities. FiveCom's lease of the FiveCom Fibers is
solely for FiveCom's use in providing fiber optic facilities to its customers.
FiveCom shall exercise such right solely to provide facilities to its customers
in accordance with this Agreement and applicable state, local, and federal laws
and regulations, consistent with FiveCom's obligations in Section 15.
7.4 Nonexclusivity. Although FiveCom's right to use the FiveCom Fibers
shall be exclusive, FiveCom's use of other portions of the Cable, Cable
Accessories, Structures or any related facilities of ▇▇▇▇ Com or its Affiliates
under this Agreement shall be nonexclusive and limited to the use necessary for
incidental support and/or placement of the FiveCom Fibers. Nothing in this
Agreement shall be construed as limiting or restricting ▇▇▇▇ Com or its
Affiliates in any manner from using the Cables, Cable Accessories and the
Structures, or any other facilities, easements and/or rights of way for the
installation of additional fiber optic cables, for use as telecommunications
facilities, or for any other purpose. For purposes of this Agreement, the term
"Affiliate" shall mean: (a) any entity controlling, controlled by or under
common control with a Party, directly or indirectly, or (b) any entity which is
a successor to a Party or any of the foregoing entities by merger, consolidation
or otherwise.
7.5 Right Subject to Utility Agreement. FiveCom acknowledges that ▇▇▇▇
Com's ability to lease to FiveCom the right to use the FiveCom Fibers pursuant
to this Section 7 shall at all times be subject to ▇▇▇▇ Com's rights and
obligations under the Utility Agreement; provided, however, that this Agreement
shall be subject to subsequent amendments to the Utility Agreement if each of
the following conditions has been satisfied: (i) copies of such amendment have
been given to FiveCom, (ii)such amendments [**], (iii) [**], has provided
FiveCom [**] and (iv) [**] related to the amendment of the Utility Agreement. By
virtue of this Agreement, FiveCom shall have no greater rights with respect to
the location and use of the FiveCom Fibers than ▇▇▇▇ Com has under the Utility
Agreement, and FiveCom's leasehold interest is expressly limited by any
applicable restrictions in the Utility Agreement. ▇▇▇▇ Com shall not be liable
for any acts or omissions by ▇▇▇▇
-10-
Com, its employees or Affiliates that interfere with or otherwise affect
FiveCom's use of the FiveCom Fibers to the extent such acts or omissions are
required by the Utility Agreement, including without limitation acts or
omissions that deny the use of, alter or remove the Cable, Cable Accessories and
Structures to preserve ▇▇▇▇ Com's Affiliates' ability to provide safe and
reliable electric service. ▇▇▇▇ Com agrees to use its best commercial efforts to
enforce and to exercise its rights under the Utility Agreement to facilitate the
performance of this Agreement.
8. LEASE PAYMENTS.
8.1 Base Fiber Payments. Commencing on the Completion Date pursuant to
Section 5, FiveCom shall pay ▇▇▇▇ Com [**] that is made available in compliance
with this Agreement for FiveCom's use. In addition, Five Com shall pay to ▇▇▇▇
Com the location fee provided for in Section 8.3; sales taxes provided for in
Section 11.4; and the franchise, property, and other taxes and fees provided for
in Section 11.5. For purposes of this Section 8, the determination whether
fibers are "available in compliance with this Agreement for FiveCom's use" shall
include (i) the determination that FiveCom has or had, at the relevant time,
Third Party customers who would use, or would have used the fibers, but for
their failure to comply with the Specifications or (ii) the determination that
FiveCom would have received revenues from such fibers but for their failure to
comply with the Specifications. Nothing herein shall affect any obligation of
▇▇▇▇ Com with respect to any fibers that do not meet the Specifications pursuant
to any other provision of this Agreement.
8.2 Revenue Sharing Payments. In addition to the payments called for by
Section 8.1, FiveCom shall pay to ▇▇▇▇ Com a portion of the quarterly gross
revenue derived by FiveCom from the sale, use or lease of the FiveCom Fibers by
FiveCom determined as follows:
(a) FiveCom shall determine quarterly the sum of (i) 100% of the
gross revenue received by it for each transmission that uses
only the FiveCom Network and (ii) a pro rata share of the
gross revenue received by FiveCom for any other transmission
that uses the FiveCom Network which pro rata share shall be
determined based on the relative length in miles of the
transmission route on the FiveCom Network as compared to the
length of the transmission route in miles of the FiveCom
System,
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(b) [**] under Section 8.2(a) the following: (i) [**] of the [**]
to Third Parties related to transmission that uses only the
FiveCom Network and a [**] to Third Parties related to any
other transmission that uses the FiveCom Network, which [**]
shall be determined based on the relative length in miles of
the transmission route on the FiveCom Network as compared to
the length of the transmission route in miles on other parts
of the FiveCom System, provided that the [**] (ii) [**] above
levels as described in Section 8.3; (iii) Sales Taxes as
described in Section 11.4; (iv) Franchise, Property and Other
Taxes or Fees as described in Section 11.5 and any other
similar taxes and fees incurred directly by FiveCom; and (v)
any deduction authorized by Sections 8.2(b)(ii) through
8.2(b)(iv) above that was [**] described in Section 8.2(a)
above because at a time when it would have been [**].
(c) determine whether the net amount determined in Sections 8.2(a)
and 8.2(b) [**], and if it does so exceed such amount,
(d) apportion such excess among FiveCom, ▇▇▇▇ Com and Beco Com
based upon the following percentages:
[**] for ▇▇▇▇ Com
[**] for Beco Com
[**] for FiveCom
(e) The amount determined and apportioned as above shall be paid
quarterly to ▇▇▇▇ Com within 45 days of the end of each three
month period for which such amounts are determined.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(f) FiveCom shall provide ▇▇▇▇ Com with an annual report of
telecommunications contracts and revenues that follows
substantially the form provided in Exhibit 8.2 hereto. FiveCom
shall provide annually, subject to a mutually agreed
confidentiality agreement, to ▇▇▇▇ Com's auditors FiveCom's
contracts, books and records to ensure that its payments
pursuant to this Section 8.2 accurately reflect FiveCom's
[**]. Five Com shall reimburse ▇▇▇▇ Com for its costs of such
audits, unless the audit reveals a discrepancy in the amount
[**] determined by FiveCom is less than [**], in which case
▇▇▇▇ Com shall pay for the audit. In addition, subject to a
mutually agreed confidentiality agreement, the respective
presidents of ▇▇▇▇ Com and Beco Com shall be permitted to
review FiveCom's contracts, books and records to ensure that
its payments pursuant to this Section 8.2 accurately reflect
[**].
(g) [**] pursuant to Section 8.2(b)(v) above is for the sole
purpose of [**] under this Section 8.2, and shall not create
any obligation in ▇▇▇▇ Com to make payments to FiveCom with
respect to any amounts [**].
8.3 [**] Fee. In addition to the amounts payable under Sections 8.1 and
8.2, FiveCom shall [**] the FiveCom Fibers leased by it to FiveCom [**], without
regard to future amendments of that provision; provided that (i) such [**] (ii)
[**], has provided FiveCom [**], and (iii) [**]
8.4 When Due. Except as provided in Section 8.2(e) above, FiveCom shall
make all payments required by this Section 8 and any additional amounts payable
to ▇▇▇▇ Com within [**] of the last day of each month in which the FiveCom
Fibers are made available to FiveCom.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
9. MAINTENANCE AND REPAIR.
9.1 ▇▇▇▇ Com's Obligation. All routine maintenance and repair functions
and emergency maintenance and repair functions, including "one-call" responses
and cable locate services, for the FiveCom Fibers shall be provided by ▇▇▇▇ Com,
[**], as described in Exhibits 9.2(a) and 9.2(b). Subject to any restrictions,
terms and conditions in the Utility Agreement and any applicable safety
standards, FiveCom shall have the right to have a representative available, at
FiveCom's expense, to witness ▇▇▇▇ Com in any maintenance or repair of the
FiveCom Fibers.
9.2 Maintenance.
(a) Emergency Maintenance. As provided in Exhibit 9.2(a), ▇▇▇▇
Com shall use best commercial efforts to respond within [**]
to any failure, interruption or impairment in the operation of
the FiveCom Fibers after receiving a report from FiveCom of
any such failure, interruption or impairment. Subject to the
restrictions, terms and conditions of the Utility Agreement,
▇▇▇▇ Com shall use best commercial efforts to correct any
failure, interruption or impairment in the operation of the
FiveCom Fibers as expeditiously as possible in accordance with
the procedures set forth in Exhibit 9.2(a). When trouble is
encountered on the FiveCom Fibers, FiveCom, to assist ▇▇▇▇ Com
in its maintenance activities, will (i) use best commercial
efforts to migrate its customers' communications or other
services that had been provided on the damaged FiveCom Fibers
to any available undamaged FiveCom Fibers, (ii) diagnose the
trouble through OTDR testing, if possible, and (iii) ascertain
and notify ▇▇▇▇ Com of the location address to the nearest
cross street.
(b) Routine Maintenance. ▇▇▇▇ Com will schedule and perform the
maintenance and repair checks and services as set forth in
Exhibit 9.2(b) on the FiveCom Fibers, at ▇▇▇▇ Com's reasonable
discretion and with adequate advance notice to FiveCom and,
from time to time, at FiveCom's reasonable request. FiveCom
may request reasonable routine maintenance by delivering to
▇▇▇▇ Com, [**], a statement detailing the maintenance checks
and services FiveCom desires to be performed on the FiveCom
Fibers.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(c) Notice. ▇▇▇▇ Com shall provide FiveCom with [**] for all
routine maintenance and repair functions by notifying
FiveCom's national Transmission Surveillance Center at
▇-▇▇▇-▇▇▇-▇▇▇▇. In the event of an emergency, FiveCom shall be
notified at this number as soon as the emergency is
discovered.
9.3 Replacement Fiber.
(a) Initial Term [**] In the event all or any part of the FiveCom
Fibers shall require replacement during [**] of the Initial
Term of this Agreement as a result of their failure to satisfy
the Specifications, such replacement shall be made as soon as
reasonably practical, [**]. If replacement of the FiveCom
Fibers is required in accordance with the preceding sentence,
▇▇▇▇ Com shall give FiveCom written notice of such replacement
as soon as reasonably practical before the replacement optical
fiber cable is ordered from the manufacturer. This obligation
to replace only applies to the number of FiveCom Fibers that
meet the Specifications on the Completion Date plus any
additional fiber optic strands leased to FiveCom pursuant to
Section 5.5.
(b) Initial Term [**]. [**] the Initial Term of this Agreement,
the costs of replacing the FiveCom Fibers shall be shared in
accordance with the following schedule:
Year ▇▇▇▇ Com's FiveCom's
Share (%) Share (%)
[**]
FiveCom shall have the option of not replacing the failed
fibers, or of terminating this Agreement prior to the end of
the Initial Term of this Agreement in lieu of sharing in the
cost of replacing the FiveCom Fibers; provided that FiveCom
may only exercise this right to terminate if, prior to any
replacement, [**]FiveCom Fibers meet the Specifications. If
FiveCom opts to replace the fibers, the portion of the
replacement fibers paid for by FiveCom's share of the costs of
such replacement shall be designated as "FiveCom Replacement
Fiber."
-15-
(c) After Initial Term or Expansion of Cable. If FiveCom and ▇▇▇▇
Com mutually agree and if permitted under the Utility
Agreement, ▇▇▇▇ Com may provide replacement fiber after the
Initial Term or may replace all or a portion of the existing
Cable with a new cable having an increased number of fiber
optical strands for FiveCom's use; provided that such
replacement shall be installed at FiveCom's incremental cost
(including provision for any related federal, state, or local
taxes on a grossed-up basis) and under terms mutually agreed
to by FiveCom and ▇▇▇▇ Com.
10. COVENANTS; REPRESENTATIONS.
10.1 ▇▇▇▇ Com's Covenants. ▇▇▇▇ Com covenants that the FiveCom Fibers
shall at all times be in full compliance with and operate within the parameters
of the Specifications; provided, however, that FiveCom's sole and exclusive
remedy for breach of such covenant shall consist of the enforcement of ▇▇▇▇
Com's obligations under Section 9; and provided further that ▇▇▇▇ Com's
liabilities to FiveCom and its customers shall at all times be limited as
provided in Section 12.1.
10.2 ▇▇▇▇ Com Representations. Subject to the restrictions, terms and
conditions provided under the Utility Agreement, ▇▇▇▇ Com represents and
warrants to FiveCom that it has the right and the full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by ▇▇▇▇ Com have
been duly and validly authorized by all necessary corporate action on the part
of ▇▇▇▇ Com. ▇▇▇▇ Com shall use its best commercial efforts to obtain the
necessary government approvals required by it to have constructed and to lease
the FiveCom Fibers.
10.3 FiveCom Representations. FiveCom represents and warrants to ▇▇▇▇
Com that it has the right and the full corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by FiveCom have been duly and validly
authorized by all necessary corporate action on the part of FiveCom. In
addition, FiveCom represents and warrants to ▇▇▇▇ Com that: (1) it owns or has
secured the rights to use fiber optic cable in addition to the FiveCom Fibers
specified herein necessary to complete the entire FiveCom Network; and (2) it
shall use its best commercial efforts to obtain the necessary government
approvals required by it to use and operate the FiveCom Fibers for its
customers.
-16-
11. OWNERSHIP AND TAXES.
11.1 Title. Except as provided Sections 11.3(b): (1) legal title to the
FiveCom Fibers, NEP Fibers, Cable, Cable Accessories, any property installed or
constructed on Structures, and Structures shall be held by ▇▇▇▇ Com or its
Affiliates, pursuant to the terms of the Utility Agreement; (2) FiveCom's rights
hereunder shall be deemed a leasehold interest subject to the terms of this
Agreement; and (3) neither the leasing, rental or other provision of FiveCom
Fibers or any other facilities or services by ▇▇▇▇ Com to FiveCom nor the
payment by FiveCom to ▇▇▇▇ Com of the fees pursuant to Section 8 shall
constitute, create or vest any easement or any other ownership or property
rights in the nature of ownership in the Structures, FiveCom Fibers, Cable,
Cable Accessories or other facilities, except for the rights set forth in this
Agreement.
11.2 Income Taxes. FiveCom and ▇▇▇▇ Com agree that, except as provided
in Sections 11.3(b), 11.5, 16.1 and 16.2 of this Agreement, each Party will be
responsible for paying its own existing or future federal, state and local
income, franchise and/or other similar existing or future taxes imposed on
business activities or entities. ▇▇▇▇ Com and FiveCom agree that ▇▇▇▇ Com will
be responsible for paying any and all existing or future federal, state or local
income taxes imposed on the receipt of payments made by FiveCom to ▇▇▇▇ Com
under this Agreement.
11.3 Tax Accounting; Reporting of Income Taxes.
(a) Except as provided in Section 11.3(b), FiveCom will not, for
any income tax purposes, account for FiveCom Fibers as the
owner thereof and is not entitled to and will not claim any
depreciation deductions and/or other tax attributes, credits
or benefits with respect to ownership of the FiveCom Fibers
for purposes of federal, state and local income taxes.
(b) Subject to the Utility Agreement, ▇▇▇▇ Com or its Affiliate
shall hold legal title to the FiveCom Replacement Fiber, but
FiveCom shall be the beneficial owner of FiveCom Replacement
Fiber for a period of time commencing on the date that the
FiveCom Replacement Fiber is installed and continuing until
the beneficial ownership reverts back to ▇▇▇▇ Com pursuant to
Section 11.7 or Section 17.4(c). As beneficial owner of the
FiveCom Replacement Fiber, FiveCom shall for tax purposes
account for the FiveCom Replacement Fiber as owner thereof
and, as between the Parties shall be entitled to any
investment tax credits, depreciation and any other tax
attributes with respect to the FiveCom Replacement Fiber. ▇▇▇▇
Com agrees that it will not, for tax purposes, account for
such FiveCom
-17-
Replacement Fiber as though it were the owner thereof, and
shall not attempt to claim any of the tax attributes or
liabilities with respect thereto.
(c) The Parties agree they will file all income tax returns and
otherwise take all actions with respect to income taxes in a
manner consistent with the foregoing. Notwithstanding the
foregoing, in the event that a taxing authority with
appropriate jurisdiction determines that ▇▇▇▇ Com is the
beneficial owner of the FiveCom Replacement Fiber for tax
purposes or that the FiveCom Replacement Fiber should be
accounted for in a manner other than the tax accounting
specified in Section 11.3(b), FiveCom agrees to indemnify ▇▇▇▇
Com fully against any and all federal, state and/or local
income tax, interest, and penalty claims incurred as a result
of such taxing authority's determination.
11.4 Sales Taxes.
(a) ▇▇▇▇ Com will be responsible for paying any and all existing
or future sales, excise or other transfer or transactional
taxes imposed or levied by any federal, state or local taxing
authority on purchases of materials and/or equipment for use
in construction of the Cable. ▇▇▇▇ Com anticipates purchasing
all materials and equipment for use in acquiring and
installing the Cable exempt from sales and use tax as a resale
transaction. FiveCom agrees that, if it purchases any
materials for use in the acquisition or installation of the
Cable as ▇▇▇▇ Com's agent, it will provide the vendors with
▇▇▇▇ Com's resale exemption certificate. If FiveCom fails to
provide the vendors with the exemption certificate, ▇▇▇▇ Com
will be under no obligation to reimburse FiveCom for any sales
tax paid to the vendors or any taxing authority related to
such purchases.
(b) FiveCom will be responsible for paying any and all existing or
future sales, excise or other transfer or transactional taxes
imposed or levied by any federal, state or local taxing
authority on the lease payments provided for in Section 8
and/or other payments made by FiveCom to ▇▇▇▇ Com for the use
by FiveCom of FiveCom Fibers. ▇▇▇▇ Com agrees to cooperate at
FiveCom's expense in any proper claim of exemption or
exclusion from such taxes which FiveCom may assert. FiveCom's
obligation to pay for the taxes provided for in this Section
11.4(b), shall be suspended to the extent that FiveCom can
provide to ▇▇▇▇ Com a valid ruling from the appropriate taxing
authority that provides that such taxes are not due;
-18-
provided that FiveCom's obligation shall only be suspended for
the period of time that the tax ruling remains valid and that
FiveCom shall indemnify ▇▇▇▇ Com fully against any and all
such taxes, interest, and penalty claims incurred as a result
of the modification, termination or overruling of such tax
ruling or a finding that the tax ruling was not valid.
11.5 Franchise, Property and Other Taxes or Fees. Upon notice from ▇▇▇▇
Com to FiveCom, FiveCom shall promptly reimburse ▇▇▇▇ Com for any increase in or
addition to any existing federal, state or local excise, franchise, ad valorem,
property or similar taxes, payments or payments in kind, or any similar fees
such as franchise fees, license fees or user fees imposed on ▇▇▇▇ Com or billed
to ▇▇▇▇ Com under Section 27 of the Utility Agreement, which increase or
addition, is attributable to the presence of FiveCom Fibers on Structures, Cable
Accessories, and equipment. ▇▇▇▇ Com agrees to cooperate with FiveCom to the
extent that FiveCom seeks to contest, by appropriate legal process, the
assessment by the relevant governmental authority of any tax, fee or other
charge for which FiveCom becomes liable hereunder; provided that such obligation
to cooperate does not include the obligation of ▇▇▇▇ Com (1) to participate in
any tax contest on FiveCom's behalf; (2) to ensure that FiveCom has the right to
initiate or to participate in such tax contest; or (3) to ensure that its
Affiliates do not take positions in such tax contests that are inconsistent with
FiveCom's position.
11.6 Levy. FiveCom and ▇▇▇▇ Com shall properly remit all tax payments
in a timely manner to the applicable taxing authorities or governmental agencies
and will not cause the Cable to be levied, attached, or otherwise encumbered by
any taxing authority or governmental agency through any failure to remit such
payments.
11.7 Reversion.
(a) FiveCom's right to use the FiveCom Fibers and FiveCom's
beneficial ownership of the FiveCom Replacement Fibers shall
revert to ▇▇▇▇ Com, at no additional cost to ▇▇▇▇ Com, upon
termination of this Agreement.
(b) FiveCom's right to use any fibers within any portion of the
Route shall revert to ▇▇▇▇ Com, at no additional cost to ▇▇▇▇
Com, upon the termination of that portion of the Route
pursuant to Section 17.2.
(c) FiveCom agrees to pay for any federal, state, or local taxes
and the Tax Impact of such taxes incurred by or billed to ▇▇▇▇
Com as a result of the reversion of the FiveCom Replacement
Fiber. For purposes of this Agreement, "Tax Impact" shall mean
an amount equal to the excess of (i) the sum of the federal,
state and local income taxes incurred by ▇▇▇▇ Com
-19-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
or any Affiliate on reimbursements from FiveCom of federal,
state and local income taxes over (ii) the sum of (x) the
present value of the Tax Benefit to ▇▇▇▇ Com or any Affiliate
resulting from the transaction to which the reimbursement
relates, and (y) in the case of replaced property, an amount
equal to the excess of the present value of depreciation
deductions computed using revised (accelerated) useful life of
replaced property over the present value of such depreciation
deductions computed using the original useful life of the
property. "Tax Benefit" shall mean the amount of any
reductions in taxes resulting from any item including, without
limitation, all tax credits, depreciation deductions and other
expense deductions in connection with the purchase or
ownership of the Cable or any other transaction to which the
reimbursement relates. The present valuations described above
shall be determined by applying a discount rate of [**] per
annum.
12. LIMITATION ON LIABILITY.
12.1 Exclusion of Certain Types of Damages. Neither FiveCom nor ▇▇▇▇
Com shall be liable to the other for any indirect, special, punitive, or
consequential damages, or any lost business damages in the nature of lost
revenues or profits (including, but not limited to any claim from any customer
related to loss of service, except to the extent specifically contemplated in
Section 8.2 as a deduction from gross revenue) arising under this Agreement, or
arising out of any act or omission of either Party hereto, its respective
employees, agents, or contractors. NOTHING IN THIS AGREEMENT SHALL MAKE EITHER
PARTY LIABLE TO THE CUSTOMERS OR CONTRACTORS OF THE OTHER PARTY FOR ANY DAMAGES,
WHETHER IN CONTRACT, TORT, OR OTHERWISE FOR ANY OF THE PARTIES' ACTS OR
OMISSIONS ASSOCIATED WITH THIS AGREEMENT.
-20-
12.2 Limitation on ▇▇▇▇ Com Damages. Notwithstanding any other
provision of this Agreement, the total amount of monetary damages to which ▇▇▇▇
Com shall be subject by reason of this Agreement shall not exceed an amount
equal to the greater of (a) $2.5 million or (b) the sum of the amounts paid by
FiveCom to ▇▇▇▇ Com hereunder. Nothing herein shall be deemed a limitation on
FiveCom's right to seek specific performance or injunctive relief for the breach
of any obligation of ▇▇▇▇ Com hereunder.
12.3 Limitation on FiveCom Damages. Notwithstanding any other provision
of this Agreement, the total amount of monetary damages to which FiveCom shall
be subject by reason of this Agreement shall not exceed an amount equal to the
greater of (a) $2.5 million or (b) the sum of the amounts paid by FiveCom to
▇▇▇▇ Com hereunder. Nothing herein shall be deemed a limitation on ▇▇▇▇ Com's
right to seek specific performance or injunctive relief for the breach of any
obligation of FiveCom hereunder.
12.4 No Limitation on Third-Party Actions. Nothing contained in this
Agreement shall operate as a limitation on the right of either Party hereto to
bring an action for damages, including consequential damages, against any Third
Party based on any acts or omissions of such Third Party as such acts or
omissions may affect the construction, operation or use of the FiveCom Fibers.
With the exception of claims against ▇▇▇▇ Com's utility Affiliates, each Party
hereto shall assign such rights or claims, execute such documents, and at the
request of and at the sole cost of the other Party, take such other action as
may be reasonably necessary to enable the injured Party to pursue any such
action against such Third Party.
13. INDEMNIFICATION.
13.1 By ▇▇▇▇ Com. ▇▇▇▇ Com shall indemnify, defend and save FiveCom,
its officers, directors and employees ("FiveCom Indemnified Parties"), harmless
from and against any and all actions, charges, claims, damages, expenses, fines,
penalties and liabilities whatsoever actually incurred by FiveCom Indemnified
Parties arising from, or out of, or in connection with any of the following:
(a) The loss of life, personal injury, or damage to physical
property caused by the act or omission of ▇▇▇▇ Com, its
Affiliates, or their respective employees, agents,
contractors, or any other person acting by or through, or with
the knowledge and approval of ▇▇▇▇ Com, except to the extent
caused by the negligence or willful misconduct of BecoCom,
FiveCom, or their respective Affiliates, employees, agents,
contractors or any other
-21-
person acting by or through, or with the knowledge and
approval of FiveCom or BecoCom;
(b) The violation of federal, state or local law, regulation or
ordinance applicable to the Cable, Cable Accessories,
Structures, and FiveCom Fibers, by ▇▇▇▇ Com, its Affiliates,
or their respective employees, agents, contractors, or any
other person acting by or through, or with the knowledge and
approval of ▇▇▇▇ Com, except to the extent caused by the
negligence or willful misconduct of BecoCom, FiveCom, or their
respective Affiliates, employees, agents, or any other person
acting by or through, or with the knowledge and approval of
FiveCom or BecoCom; and
(c) Any storage, use, spill, discharge or release to the
environment of any oil or hazardous materials or wastes, as
those terms are defined by applicable federal or state law
from time to time, in or upon any property adjacent to the
FiveCom Fibers or the Structures by ▇▇▇▇ Com, its Affiliates,
or their respective employees, agents, contractors, or any
other person acting by or through, or with the knowledge and
approval of ▇▇▇▇ Com, except to the extent caused by the
negligence or willful misconduct of BecoCom, FiveCom, or their
respective Affiliates, employees, agents, contractors, or any
other person acting by or through, or with the knowledge and
approval of FiveCom or BecoCom.
13.2 By FiveCom. FiveCom shall indemnify, defend and save harmless ▇▇▇▇
Com, its Affiliates, officers, directors and employees ("▇▇▇▇ Com Indemnified
Parties"), from and against any and all actions, charges, claims, damages,
expenses, fines, penalties and liabilities whatsoever actually incurred by the
▇▇▇▇ Com Indemnified Parties arising from, or out of, or in connection with any
of the following:
(a) The loss of life, personal injury, or damage to physical
property caused by the act or omission of FiveCom, its
Affiliates or their respective employees, agents, contractors,
or any other person acting by or through, or with the
knowledge and approval of Five Com, except to the extent
caused by the negligence or willful misconduct of ▇▇▇▇ Com,
its Affiliates, employees, agents, contractors or any other
person acting by or through, or with the knowledge and
approval of ▇▇▇▇ Com;
(b) The violation of federal, state or local law, regulation or
ordinance applicable to the Cable, Cable Accessories,
Structures, FiveCom Fibers, and FiveCom's use thereof, by
FiveCom, its Affiliates or their respective employees, agents,
contractors, or any other person acting by or through,
-22-
or with the knowledge and approval of FiveCom, except to the
extent caused by the negligence or willful misconduct of ▇▇▇▇
Com, its Affiliates, employees, agents, contractors or any
other person acting by or through, or with the knowledge and
approval of ▇▇▇▇ Com; and
(c) Any storage, use, spill, discharge or release to the
environment of any oil or hazardous materials or wastes, as
those terms are defined by applicable federal or state law
from time to time, in or upon any property adjacent to the
FiveCom Fibers or the Structures by FiveCom, its Affiliates,
or their respective employees, agents, contractors, or any
other person acting by or through, or with the knowledge and
approval of FiveCom, except to the extent caused by the
negligence or willful misconduct of ▇▇▇▇ Com, its Affiliates,
employees, agents, contractors or any other person acting by
or through, or with the knowledge and approval of ▇▇▇▇ Com.
13.3 Indemnity Obligation. The indemnity obligation includes reasonable
attorneys' fees, investigation costs, and all other reasonable costs and
expenses incurred by the FiveCom Indemnified Party or ▇▇▇▇ Com Indemnified
Party, as the case may be, from the first notice that any claim or demand has
been made or may be made, and is not limited in any way by any limitation on the
amount or type of damages, compensation, or benefits payable under applicable
workers' compensation acts, disability benefit acts, or other employee benefit
acts.
14. FORCE MAJEURE.
14.1 Force Majeure Events. Neither FiveCom nor ▇▇▇▇ Com shall be liable
for any failure or delay in performing its obligations hereunder, or for any
loss or damage resulting therefrom, due to the following Force Majeure Events:
(a) Fire, flood, strike or other labor difficulty, natural
disasters (including, without limitation, tornadoes,
hurricanes, ice storms, and other significant weather
phenomena), equipment failure, war, embargo, riot or
insurrection, acts of God or public enemy, restraint or
hindrance by any governmental or regulatory authority
(including, without limitation, denial of necessary permits or
licenses, imposition of commercially unreasonable conditions,
delays or other failures to act of or by such authorities,
except when the result of a failure to use best commercial
efforts by the Party claiming force majeure); or
(b) any other causes beyond the Parties' reasonable control.
-23-
14.2 Abatement of Force Majeure. To the extent practicable, both
Parties shall be prompt in restoring normal conditions, establishing new
schedules and resuming operations as soon as the Force Majeure Event causing the
failure or delay has ceased. FiveCom shall promptly notify ▇▇▇▇ Com of any delay
constituting a Force Majeure Event, and its effect on the performance by
FiveCom. ▇▇▇▇ Com shall promptly notify FiveCom of any delay constituting a
Force Majeure Event, and its effect on the performance by ▇▇▇▇ Com.
14.3 Suspension Pending Force Majeure. If a Force Majeure Event should
occur, then the Parties' performance of this Agreement, except for payments by
FiveCom to ▇▇▇▇ Com under Section 8.1, shall be suspended for so long as such
Force Majeure Event continues. At the conclusion of a Force Majeure Event, the
period of time during which performance was so suspended shall be added to the
dates, schedules and other performance-related matters under this Agreement. If,
notwithstanding the Parties' efforts under Section 14.2, the Force Majeure Event
continues unabated for more than 6 months, the Party whose performance is
unaffected by the Force Majeure Event shall have the option to terminate this
Agreement.
14.4 Labor Disputes.
(a) If an actual or potential labor dispute delays or threatens
to delay a Party's performance, that Party shall immediately
notify the other Party in writing, stating all relevant
information concerning the dispute and its background. The
Parties shall include this paragraph in any subcontract for
services (with a contractor other than an Affiliate) if a
labor dispute thereunder might delay the timely performance of
the services, and each such subcontract shall provide that if
any actual or potential labor dispute occurs, the lower-tier
subcontractor shall immediately notify the Parties of all
relevant information concerning such dispute.
(b) If ▇▇▇▇ Com reasonably determines that FiveCom's activities
pursuant to this Agreement in or near the Route are causing or
will cause labor difficulties for ▇▇▇▇ Com or its Affiliates,
FiveCom shall discontinue those activities until the labor
difficulties have been resolved; provided, however, that in
any such event and notwithstanding any other provision of this
Agreement, ▇▇▇▇ Com shall during the period of such labor
difficulties perform, or cause to have performed, at FiveCom's
expense (utilizing the lowest market rate reasonably
available) any such activities to the extent reasonably
necessary to the operation and maintenance of the FiveCom
Network or any portion thereof.
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15. GOVERNMENT APPROVALS, PERMITS AND CONSENTS.
15.1 FiveCom Obligations.
(a) FiveCom shall use its best commercial efforts to obtain and
maintain, at its sole cost and expense, any and all necessary
permits, licenses, easements, franchises, and approvals that
may be required by federal, state or local law, statute,
regulation or ordinance and shall continuously comply with all
such laws, statutes, regulations or ordinances as may now or
in the future be applicable to (1) its operation or use of the
FiveCom Fibers installed in connection with this Agreement,
(2) FiveCom's connection, installation, maintenance and
operation of equipment on the Non-Network Side of the each
Connection, and (3) FiveCom's other rights and obligations
under this Agreement.
(b) FiveCom shall ensure that its customers obtain and maintain
any and all necessary permits, licenses, easements, franchises
and approvals that may be required by federal, state or local
law, statute, regulation or ordinance and comply with all such
laws, statutes, regulations or ordinances as may now or in the
future be applicable to the FiveCom's customers' use of,
receipt of service on, or operation of the Cable.
(c) If FiveCom, its customers or any permitted assignee shall at
any time fail to maintain such approvals or comply with all
applicable legal requirements described in paragraphs (a) and
(b) above, ▇▇▇▇ Com may terminate this Agreement under Section
17.1, without liability and without restriction to any other
legal, equitable, or administrative remedy available to ▇▇▇▇
Com. Further, FiveCom shall indemnify and hold harmless ▇▇▇▇
Com and its Affiliates and their respective officers,
directors, employees, agents, and assigns from any loss,
damage, claims or proceedings to the extent resulting from the
failure of FiveCom, its customers, their contractors or their
subcontractors to comply with this Section 15.
15.2 ▇▇▇▇ Com's Obligations.
(a) ▇▇▇▇ Com shall use its best commercial efforts to obtain and
maintain, at its sole cost and expense (except as provided in
Section 11.5), any and all necessary permits, licenses,
easements, franchises and approvals that may be required by
federal, state or local law, statute, regulation or ordinance
and shall continuously comply with all such laws, statutes,
regulations or
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
ordinances as may now or in the future be applicable to the
ownership, installation, maintenance, or replacement of the
FiveCom Fibers on the Network Side as required under this
Agreement.
(b) If ▇▇▇▇ Com or any permitted assignee shall at any time fail
to maintain such approvals or comply with all applicable legal
requirements described in paragraph (a) above, FiveCom may
terminate this Agreement under Section 17.1, without liability
and without restriction to any other legal, equitable, or
administrative remedy available to FiveCom. Further, ▇▇▇▇ Com
shall indemnify and hold harmless FiveCom and its officers,
directors, employees, agents, servants, and assigns from any
loss, damage, claims or proceedings to the extent resulting
from the failure of ▇▇▇▇ Com to comply with this Section 15.
16. RELOCATION.
16.1 Relocation for Non-Parties. If, for any reason, ▇▇▇▇ Com is
required by any Non-Party, including, but not limited to, an Affiliate or a
governmental entity, to relocate any of the facilities used or required in
providing the FiveCom Fibers, ▇▇▇▇ Com shall use best commercial efforts to give
FiveCom at least [**] that ▇▇▇▇ Com may have received) prior written notice of
any such relocation. In the event of [**] Structures, any other property of ▇▇▇▇
Com or its Affiliates, or [**], ▇▇▇▇ Com, through its designated
representatives, [**], unless it is determined that acts or omissions of FiveCom
or its customers caused the situation requiring the relocation, in which case
[**] in the relocation, including provision for any related federal, state, or
local taxes and the Tax Impact of such taxes [**].
16.2 Relocation for FiveCom. In the event that FiveCom requests
relocation of a portion of the Cable during the Term of this Agreement,
including without limitation instances when relocation of the FiveCom Fibers is
necessitated by the relocation of other portions of the FiveCom Network, FiveCom
shall submit to ▇▇▇▇ Com a completed form as specified in Exhibit 16.2, Request
for Relocation, to request an acceptable new location, and FiveCom shall pay the
cost of any such work, including provision for any related federal, state, or
local taxes and the Tax Impact of such taxes incurred by ▇▇▇▇ Com as a result of
FiveCom's payment. The Parties shall attempt to minimize the tax implications of
any such payments by FiveCom for relocation costs. No relocation or
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
replacement of the Cable, Cable Accessories, Structures or related facilities
shall be performed without the prior written agreement of ▇▇▇▇ Com, as evidenced
by its acceptance of the request for relocation, [**] and subject to its rights
and obligations under the Utility Agreement. [**]. ▇▇▇▇ Com and FiveCom shall
cooperate in performing such relocation or modifications, so as to minimize any
interference with the use of the FiveCom Network, the Cable, Cable Accessories
and Structures, to the extent reasonably possible, by either Party and to avoid
conflicting physically or otherwise interfering with other users of the Cable,
Cable Accessories, Structures or any other property needed in the installation,
construction, maintenance or use of the Cable. Any such relocation shall satisfy
the Specifications set forth in Exhibit 4.2.
16.3 Return of Removed Material. In the event ▇▇▇▇ Com, consistent with
the provisions of this Agreement, must remove any equipment or other property of
FiveCom, ▇▇▇▇ Com will deliver to FiveCom the equipment or property so removed
upon payment by FiveCom of the cost of removal, storage and delivery, and all
other amounts due ▇▇▇▇ Com. ▇▇▇▇ Com shall use reasonable care when removing,
storing and delivering such equipment, and shall not be liable for any damage to
such equipment or other property that may occur notwithstanding such reasonable
care.
17. EARLY TERMINATION.
17.1 Early Termination of Agreement. This Agreement may be terminated
prior to the expiration of the Term Date upon any the occurrence of any one of
the following events:
(a) by either Party following a Default by the other Party as set
forth in Section 21, below;
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(b) by ▇▇▇▇ Com upon [**] prior written notice in the event of a
violation by FiveCom of Section 15 which violation remains
uncured during said [**];
(c) by either Party if the other Party (a) consents to the
appointment of, or is taken in possession by, a receiver,
trustee, custodian or liquidator of a substantial part of its
assets, (b) files a bankruptcy petition in any bankruptcy
court proceeding, (c) answers, consents or seeks relief under
any bankruptcy or similar law or fails to obtain a dismissal
of an involuntary petition within [**] of filing, (d) admits
in writing its inability to pay its debts when due, (e) makes
a general assignment for the benefit of creditors, (f) is the
subject of an involuntary proceeding seeking to adjudicate
that Party bankrupt or insolvent, (g) seeks reorganization,
arrangement, adjustment, or composition of it or its debt
under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors.
(d) by either Party if the other Party fails to pay amounts due
and payable when they become due and payable under this
Agreement where such Party is in arrears more than [**] past
the due date, provided that the terminating Party has provided
[**] notice prior to such termination;
(e) by either Party if the other Party makes any representation or
warranty in this Agreement, which is incorrect and has or may
have a material and adverse effect on the other Party (as
reasonably determined by such non- breaching Party), and such
incorrect representation or warranty shall continue unremedied
for a period of [**]after written notice of such incorrect
representation or warranty (except only where this Agreement
specifically provides additional time and/or other options or
remedies for any such failure; or, with respect to an
obligation that is susceptible of cure within a reasonable
time period, so long as such Party is using best commercial
efforts to promptly cure).
17.2 Termination of a Portion of the Route. Any portion of the
Route may be terminated:
(a) by ▇▇▇▇ Com, without liability, except for its obligations
under Section 17.3, and at any time, upon reasonable notice,
to the extent ▇▇▇▇ Com is no longer authorized under the
Utility Agreement to maintain, operate, or
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
convey the right to use the Cable, Cable Accessories or
Structures within that portion of the Route.
(b) by ▇▇▇▇ Com, without liability, except for its obligations
under Section 17.3, and at any time, if, notwithstanding its
best commercial efforts, it cannot maintain any of the
regulatory approvals needed to perform ▇▇▇▇ Com's obligations
under this Agreement with respect to such portion of the Route
or it is prohibited by a governmental authority from
performing such obligations with respect to such portion of
the Route, provided that ▇▇▇▇ Com, to the extent reasonably
practicable, has provided FiveCom prompt notice of any
government proceedings that would require termination of the
portion of the Route and has cooperated with FiveCom's rights
to participate in any such proceedings.
17.3 Alternate Capacity or Facilities. If a portion of the Route is
terminated pursuant to Section 17.2, ▇▇▇▇ Com shall use its best commercial
efforts to [**]; provided that FiveCom may [**] after termination of the portion
of the Route pursuant to Section 17.2, [**].
17.4 Effect of Termination.
(a) FiveCom shall not be entitled to, nor shall ▇▇▇▇ Com
be liable for, any refunds of amounts paid to ▇▇▇▇
Com, by reason of early termination of this Agreement
under Section 17.1 or termination of a portion of the
Route under Section 17.2, unless termination is due
to a breach of this Agreement by ▇▇▇▇ Com.
(b) Except as otherwise provided in this Agreement, a
decision to terminate this Agreement under Sections
17.1 or 17.2 shall not preclude the terminating Party
or the other Party from pursuing any other legal,
equitable or administrative rights and remedies;
provided, however, that such rights and remedies
shall at all times be subject to limitations and
indemnifications under Section 12.
(c) Upon termination of this Agreement or portion of the
Route under Section 17.1 or Section 17.2, the right
to use the FiveCom Fibers or the terminated portion
thereof, as the case may be, shall revert to ▇▇▇▇
Com, at no additional cost to ▇▇▇▇ Com, in accordance
with Section 11.7.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
18. CONDEMNATION.
18.1 Condemnation of FiveCom Fibers. In the event any portion of the
FiveCom Fibers, or the rights-of-way in or upon which they shall have been
installed, become the subject of a condemnation proceeding by any governmental
agency or other party cloaked with the power of eminent domain for public
purpose or use, and such action precludes the continued use of the FiveCom
Fibers by FiveCom, as contemplated by this Agreement, then and in such event, it
is agreed that ▇▇▇▇ Com shall use best commercial efforts to [**]. To the extent
allowed by law and subject to the restrictions, terms and conditions in the
Utility Agreement, FiveCom shall be [**].
18.2 Condemnation of Other Portions of the FiveCom Network. In the
event any portion of the FiveCom Network other than the FiveCom Fibers, or the
rights-of-way in or upon which the FiveCom Network shall have been installed,
become the subject of a condemnation proceeding by any governmental agency or
other party cloaked with the power of eminent domain for public purpose or use,
then and in such event, it is agreed that FiveCom shall use best commercial
efforts to obtain an alternative route over which the FiveCom Network may be
relocated, at no cost to ▇▇▇▇ Com to ensure that FiveCom can maintain its then
existing customers and level of gross revenues. To the extent that FiveCom
Fibers can still be used to serve FiveCom's customers, FiveCom shall continue to
lease the FiveCom Fibers and shall continue to be obligated under terms of this
Agreement, including without limitation its obligations to pay the lease
payments provided for under Section 8; provided, however, that if, after the
first year in the Term of this Agreement, FiveCom's gross revenues derived from
the FiveCom Network in a [**] and subject to sharing under Section 8.2 decrease
as a result of the condemnation, by [**] below the level of gross revenues in
the [**], ▇▇▇▇ Com shall have the option to provide FiveCom notice that FiveCom
will have [**] to secure alternate capacity or facilities to restore its gross
revenues or the Agreement will be terminated.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
18.3 Notice; No Sale. Upon its receipt of a formal notice of
condemnation or taking, the condemnee Party shall notify the other Party
immediately of any condemnation proceeding. The condemnee Party shall also
notify the other Party of any similar threatened condemnation proceeding and
agrees not to sell any property associated with or affecting the FiveCom Fibers
or FiveCom Network to such acquiring agency, authority or other party in lieu of
condemnation without prior written notice to the other Party.
19. RELATED AGREEMENTS.
19.1 BecoCom/FiveCom Agreement. Simultaneously with the execution of
this Agreement, FiveCom is entering into a similar agreement with BecoCom (the
"BecoCom/FiveCom Agreement") pursuant to which FiveCom is leasing fiber optic
facilities from the ▇▇▇▇ Com-BecoCom Demarcation Point to various points in
Boston, Massachusetts. The Parties hereby agree that FiveCom's obligations under
this Agreement are not conditioned upon the execution of, compliance with, or
continued enforceability of the BecoCom/FiveCom Agreement; provided, however,
that the Parties agree to make appropriate changes to the revenue sharing in
Section 8.2 of this Agreement in the event that the BecoCom/FiveCom Agreement is
not executed, is terminated, or ceases to be enforceable.
19.2 Initial Unavailability. If BecoCom shall fail to complete the
installation of fiber optic cable (either on a timely basis or at all) as
required by the BecoCom/FiveCom Agreement, FiveCom's obligation to make payments
under Section 8 of this Agreement shall nevertheless commence on the Completion
Date; provided, however, that if the Completion Date has occurred and the fiber
optic cable under the BecoCom/FiveCom Agreement remains uncompleted for a period
of [**] after the Completion Date hereunder, ▇▇▇▇ Com shall have the option to
provide FiveCom notice that FiveCom will have [**] to secure alternate capacity
or facilities [**] or the Agreement will be terminated.
19.3 Subsequent Unavailability. If following the Completion Date any
portion of the FiveCom Network other than the FiveCom Fibers shall become
unavailable to FiveCom, FiveCom shall continue to be obligated under this
Agreement. In particular, to the extent that FiveCom Fibers can still be used to
serve FiveCom's customers, FiveCom shall continue to lease the FiveCom Fibers
and to be obligated to pay the lease payment provided under Section 8; provided,
however, that if, after the first year in the
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Term of this Agreement, [**] derived from the FiveCom Network in a [**] other
portion of the FiveCom Network by [**] in the prior [**], ▇▇▇▇ Com shall have
the option to provide FiveCom notice that it will have [**] to secure alternate
capacity or facilities [**] or the Agreement will be terminated.
20. PROPRIETARY INFORMATION.
20.1 Obligation to Maintain as Confidential. Each Party acknowledges
that in the course of the performance of this Agreement it may have access to
information that the other Party considers proprietary ("Proprietary
Information"). Propriety Information shall be marked as proprietary with an
appropriate legend, marking, stamp or other obvious written identification prior
to disclosure. All Proprietary Information in tangible form of expression which
has been delivered (or thereafter created by copy or reproduction pursuant to
this Agreement) shall be and remain the property of the person which is
disclosing such Proprietary Information (the "Disclosing Party").
(a) This Agreement shall be treated as Proprietary Information by
the Parties,
(b) Each Party will provide the other Party advance notice of any
compelled disclosure of this Agreement including, but not
limited to, disclosure to the Securities and Exchange
Commission.
20.2 Obligations Concerning Proprietary Information.
(a) General Restrictions. Upon receiving Proprietary Information,
the Party receiving the Proprietary Information ("Receiving
Party") shall keep in strict confidence and not disclose to
any person (with the exception of employees, officers,
directors, agents or representatives, and Affiliates of the
Receiving Party, to the extent each such person or entity has
a need to know in connection herewith) any of the Disclosing
Party's Proprietary Information except as otherwise provided
by the terms and conditions of this Agreement. The Receiving
Party shall not use such Proprietary Information except for
the purposes identified herein without the prior written
approval of the Disclosing Party. The Receiving Party shall be
solely liable for any breach of this Section 20.2 to the
extent caused by its or its Affiliates' employees, officers,
directors, agents or representatives.
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(b) Additional Marking Requirements. In the event either Party
discloses its Proprietary Information to the other Party
unmarked or in oral or visual form, the Disclosing Party shall
notify the Receiving Party in writing that such Information is
deemed proprietary within 48 hours of its disclosure. Such
Proprietary Information shall be treated in the manner set
forth above from the date such written notice is received.
(c) Exceptions. The Receiving Party shall not be precluded from,
nor liable for, disclosure or use of any Proprietary
Information if:
(i) the Proprietary Information is in or enters
the public domain, other than by a breach of
this Agreement;
(ii) the Proprietary Information is known to the
Receiving Party at the time of first
receipt, or thereafter becomes known to the
Receiving Party prior to or subsequent to
such disclosure without similar restrictions
from a source other than the Disclosing
Party, as evidenced by written records;
(iii) the Proprietary Information is developed by
the Receiving Party independently of any
disclosure under this Agreement as evidenced
by written records;
(iv) the Proprietary Information is disclosed
more than 5 years after the date of first
receipt of the disclosed Proprietary
Information; or 5 years after the Term
whichever occurs later;
(v) disclosure of the Proprietary Information is
compelled by a government authority,
including, but not limited to any court or
regulatory body, provided that the Receiving
Party has used its best efforts to resist
disclosure of, redact, or otherwise protect
the confidentiality of the economic terms of
this Agreement, including without limitation
Section 8.
(vi) the Disclosing Party consents to the
disclosure or use of the Proprietary
Information; or
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(vii) the Receiving Party has a reasonable belief
that disclosure of the Proprietary
Information is necessary for public safety
reasons and has attempted to provide as much
advance notice of the disclosure as is
practicable.
(viii) disclosure entails only recordation of this
Agreement by FiveCom with appropriate
registries of deeds or other public records;
provided that ▇▇▇▇ Com has received 30 days
prior notice of such recordation and that
FiveCom records only a notice of lease in
the form provided in Exhibit 20.2 or other
similar short-form record to which ▇▇▇▇ Com
has agreed prior to such recordation.
(d) Disclosures. The disclosure of Proprietary Information
hereunder shall not be construed as granting any right of
ownership in said Proprietary Information.
21. DEFAULT.
21.1 By FiveCom. A breach by FiveCom of any of its representations,
covenants or obligations under this Agreement which is not cured as provided
herein shall constitute a "Default" by FiveCom. FiveCom shall not be in Default
under this Agreement, or in breach of any provision hereof unless and until ▇▇▇▇
Com shall have given FiveCom written notice of such breach and FiveCom shall
have failed to cure the same within [**] after receipt of such notice; provided,
however, that the foregoing notice and cure requirement shall not apply to
FiveCom's obligation to make payments in a timely manner as provided under
Sections 8.2(e) and 8.4 hereof or where Section 17.1 provides for an alternate
notice and cure requirement. Where any such breach, other than a breach of
Sections 8.2(e) and 8.4, cannot reasonably be cured within such [**] period, if
FiveCom shall proceed promptly to cure the same and prosecute such curing with
due diligence, the time for curing such breach shall be extended for such period
of time as may be necessary to complete such curing. Upon the failure by FiveCom
to timely cure any such breach after notice thereof from ▇▇▇▇ Com, ▇▇▇▇ Com
shall have the right, in its sole discretion, to take such action, consistent
with Section 17.1, as it may determine, to be necessary to cure the breach or to
terminate this Agreement upon written notice to FiveCom.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
21.2 By ▇▇▇▇ Com. A breach by ▇▇▇▇ Com of any of its representations,
covenants or obligations under this Agreement which is not cured as provided
herein shall constitute a "Default" by ▇▇▇▇ Com. ▇▇▇▇ Com shall not be in
default under this Agreement or in breach of any provision hereof unless and
until FiveCom shall have given ▇▇▇▇ Com's written notice of such breach and ▇▇▇▇
Com shall have failed to cure the same within [**] after receipt of such notice;
provided, however, that the foregoing notice and cure requirement shall not
apply where Section 17.1 provides for an alternate notice and cure requirement.
Where any such breach cannot reasonably be cured within such [**] period, if
▇▇▇▇ Com shall proceed promptly to cure the same and prosecute such curing with
due diligence, the time for curing such breach shall be extended for such period
of time as may be necessary to complete such curing. Upon the failure by ▇▇▇▇
Com to timely cure any such breach after notice thereof from FiveCom, FiveCom
shall have the right, in its sole discretion, to take such action, consistent
with Section 17.1, as it may determine to be necessary to cure the breach or to
terminate this Agreement upon written notice to ▇▇▇▇ Com; provided that the
foregoing right to self-help shall not be construed to allow FiveCom or its
agents or contractors physical access to the Cable, Cable Accessories, or
Structures.
22. NOTICES.
22.1 Addresses. Unless otherwise provided herein, all notices and
communications concerning this Agreement shall be in writing and addressed as
follows:
If to ▇▇▇▇ Com:
▇▇▇▇ Communications, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
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If to FiveCom:
FiveCom, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as may be designated in writing to the other Party.
22.2 Means. Unless otherwise provided in this Agreement, notices shall
be sent by certified U.S. Mail, return receipt requested, or by commercial
overnight delivery service, or by facsimile (with hard copy to follow), and
shall be deemed delivered: if sent by U.S. Mail, five days after deposit; if
sent by facsimile, upon verification of receipt; or, if sent by commercial
overnight delivery service, one business day after deposit.
22.3 Informal Communications. Additional addresses for informal
communications are set forth in Exhibit 22.3.
23. DISPUTE RESOLUTION.
23.1 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 23 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.
23.2 Should the chief executive officers of the respective Parties fail
to resolve the dispute within 30 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 23 shall apply.
23.3 The arbitration shall be governed by the AAA Commercial
Arbitration Rules (the "Rules") as modified by this Section 16 and by the United
States Arbitration Act, 9 U.S.C. ▇▇.▇▇. 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
-▇▇-
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇. The arbitration shall be conducted, and the final
resolution of the dispute (the "Award") shall be rendered by a panel to be
selected by mutual agreement of the Parties ("Arbitration Panel"), which shall
consist of one arbitrator or, if the dispute involves damages in excess of
$50,000, three arbitrators. If the Parties cannot agree to a mutually acceptable
Arbitration Panel within seven days of Respondent's receipt of the Arbitration
Notice, the Arbitration Panel shall be selected in accordance with rule 13 of
the Rules.
23.4 The Arbitration Notice shall be served on BecoCom. If either Party
reasonably requests or if BecoCom so chooses, BecoCom shall participate in any
arbitration proceedings brought hereunder. ▇▇▇▇ Com hereby agrees to submit to
any arbitration arising under the BecoCom/FiveCom Agreement upon reasonable
request of either FiveCom or BecoCom.
23.5 Prior to the first day of the hearing, each Party shall be
entitled to reasonable document discovery and three depositions of the other
Party's witnesses or employees; provided that the Parties will may conduct
additional discovery upon a finding by the Arbitration Panel that there is good
cause for such additional discovery.
23.6 All hearings shall be held within 120 days following the
appointment of the Arbitrator, or within an earlier time frame mutually agreed
to by the Parties. At a time designated by the Arbitration Panel, each Party
shall simultaneously submit to the Arbitration Panel and exchange with each
other its proposed Award, and in rendering the final Award, the Arbitration
Panel shall be limited to choosing the Award proposed by either of the Parties
without modification; provided that any final Award shall provide an equitable
allocation of the fees and expenses of the arbitration, including without
limitation the arbitration expenses of each Party and of BecoCom; provided
further that the Arbitrator shall not have any authority to make any Award that
provides for punitive, any indirect, special, punitive, or consequential
damages, or any lost business damages in the nature of lost revenues or profits.
The Arbitration Panel shall issue the final Award no later than 15 days from the
completion of the hearings. The Award shall be final and binding. Judgment on
any Award may be entered in any court having jurisdiction thereof.
23.7 Either Party may seek preliminary injunctive relief from a court
of competent jurisdiction, which relief, if granted, shall remain effective
pending resolution of the arbitration, and 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 22 hereof. Nothing in this Section 23.7 shall limit the jurisdiction of
other courts for purposes of enforcement of a final arbitration Award.
-37-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
23.8 The fact that any Party has invoked the provisions of this Section
23 shall be considered to be Proprietary Information under Section 20.1 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.
23.9 This Agreement to arbitrate a dispute in accordance with this
Section 23 and any Award made hereunder shall be binding upon the successors and
assigns and any trustee or receiver of each of the Parties hereto.
24. LIENS.
24.1 Future Liens. In addition to their obligations under Section 15,
the Parties hereby agree that if the Cable, Cable Accessories, Structures, or
FiveCom Fibers are or become subject to any mechanics', artisan's or
materialmen's lien, or other encumbrance chargeable to or through a Party, that
Party shall promptly cause such lien or encumbrance to be discharged and
released of record (by payment, posting of bond, court deposit or other means)
without cost to the other Party and shall indemnify that other Party against all
costs and expenses (including reasonable attorney's fees) incurred in
discharging and releasing such lien or encumbrance; provided, however, that if
any such lien or encumbrance is not so discharged and released within 30 days
after written notice to the Party responsible for the lien, then the other Party
may pay for or secure the release or discharge thereof at the expense of Party
responsible for the lien.
24.2 Existing Liens. To the extent that [**], ▇▇▇▇ Com shall use best
commercial efforts to [**].
25. INSURANCE. Prior to execution of this contract, each Party, at its own
expense, shall provide and maintain in force during the term of this Agreement
insurance in forms acceptable to the other Party, with the following minimum
levels of coverage:
Commercial general
liability and automobile
liability [**] per person per occurrence
Damage to Property
of Third Parties [**] per occurrence
Umbrella/Excess Coverage [**]
Employer's liability: [**] per occurrence;
-38-
Workers compensation: statutory limits, in accordance with the
laws of the states wherein operations
under this Agreement will take place.
Each Party shall be solely responsible for procuring, and paying for, its
respective insurance coverage. Any such policy(ies) shall be procured from an
insurance company with a "Best" rating of A or better, and qualified to do
business in the relevant jurisdiction. Certificates evidencing such policy(ies)
shall be delivered by the Party obtaining the insurance to the other Party
within 30 days of the date of this Agreement. Not less than 30 days prior to the
expiration date of such policies, certificates evidencing the renewal thereof
shall be delivered by the Party obtaining the insurance to the other Party. Such
policies shall further provide that not less than 30 days' written notice shall
be given by the Party obtaining the insurance to the other Party before such
policy(ies) may be canceled, materially changed or undergo a reduction in
Insurance limits provided thereby. The Party obtaining the insurance shall
designate the other Party as an additional insured. The coverage required herein
shall not be deemed to limit either Party's liability under this Agreement. Upon
timely notice to the Party obtaining the insurance, the other Party may request
reasonable increases in the amount of insurance coverage which will be obtained
within 30 days, at the cost of the requesting Party.
26. ASSIGNMENT.
26.1 No Assignment. Neither Party shall assign, transfer, delegate,
sublease, or in any other manner dispose of, any of its rights, privileges or
obligations under this Agreement without the non-assigning Party's prior written
consent, which shall not be unreasonably withheld. Any attempt to make any such
assignment, transfer or disposition without such prior written consent of the
non-assigning Party shall be null and void. Notwithstanding the foregoing,
FiveCom may sublease or otherwise transfer its rights under this Agreement
without ▇▇▇▇ Com's consent if, notwithstanding its best commercial efforts,
FiveCom has been unable to construct and install the non-optronic portion of the
FiveCom Portion as required by Section 4.5 and to the extent necessary to
effectuate its business of providing telecommunications facilities to its
customers, and either Party may assign this Agreement without consent either (i)
to an Affiliate or (ii) in connection with a transaction pursuant to which the
Party sells all or substantially all of its business, assets or equity
interests.
26.2 Right to Pledge Agreement and Transfer Property. Either Party
shall be free to mortgage, pledge, or otherwise assign its interests under this
Agreement to any Non-Party in connection with any borrowing or other financing
activity of that Party provided that such assignment shall not limit or
otherwise affect that Party's obligations under this Agreement. Any transfer of
property of either Party included in or subject to this Agreement may be made by
that Party provided the person acquiring such property takes it subject to this
Agreement. Nothing in this Section 26 shall limit or apply to NEP's right to
lease or sublease the NEP Fibers to Non-Parties.
26.3 Agreement Binding; Assignees. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors and
assigns where
-39-
permitted by this Agreement. In the event of a permitted assignment of this
Agreement, both Parties shall remain bound by their respective obligations under
this Agreement, unless an express release is given by the non-assigning Party.
27. MISCELLANEOUS.
27.1 Headings. The headings of the Sections in this Agreement are for
convenience and shall not be construed as amplifying or limiting any of the
terms, provisions or conditions of this Agreement.
27.2 No Third Party Beneficiaries. This Agreement has been made and is
made solely for the benefits of the Parties, and their respective successors and
permitted assigns. Nothing in this Agreement is intended to confer any
rights/remedies under or by reason of this Agreement on any Third Party. For
purposes of this Agreement, a "Non-Party" shall be any party, person or entity
that is not a signatory to this Agreement, and a "Third Party" shall mean any
Non-Party that is also not an Affiliate of a signatory nor a successor or
permitted assignee of the signatories hereto.
27.3 Amendments; Waivers. This Agreement may be amended only by a
written instrument executed by the Party against whom enforcement of the
modification is sought. No failure to exercise and no delay in exercising, on
the part of either Party of any right, power or privilege under this Agreement
shall operate as a waiver of that right, power or privilege, except as expressly
provided in such waiver.
27.4 Entire Agreement. This Agreement, and the Exhibits attached to it
constitute the entire agreement between the Parties with respect to the subject
matter of this Agreement and supersede any and all prior negotiations,
understandings and agreements with respect to this Agreement, oral or written.
27.5 No Joint Venture. In all matters pertaining to this Agreement, the
relationship of ▇▇▇▇ Com and FiveCom shall be that of lessor and lessee, and
neither ▇▇▇▇ Com nor FiveCom shall make any representations or warranties that
their relationship is other than that of lessor and lessee. This Agreement is
not intended to create nor shall it be construed to create any partnership,
joint venture, employment or agency relationship between FiveCom and ▇▇▇▇ Com,
and no Party shall be liable for the payment or performance of any debts,
obligations, or liabilities of the other Party, unless expressly assumed in
writing herein or otherwise. Each Party retains full control over the
employment, direction, compensation and discharge of its employees, and will be
solely responsible for all compensation of such employees, including social
security, withholding and worker's compensation responsibilities.
-40-
27.6 Governing Law. This Agreement shall be interpreted and construed
in accordance with the internal laws of the Commonwealth of Massachusetts
without giving effect to its principles of conflicts of laws.
27.7 Survival. Notwithstanding the termination of this Agreement, (i)
Sections 12.1 and 20 shall continue to apply; (ii) payments with respect to the
Term of the Agreement shall be made even though the due date for payment shall
be subsequent to the termination of the Agreement; and (iii) subject to the
applicable statutes of limitation, indemnification rights and claims arising
under the Agreement prior to termination shall survive such termination.
27.8 Publicity. Neither Party shall make any public announcement using
the other Party's name or mentioning this Agreement without the written consent
of the other Party. For purposes of this Section 27.8, filings required by
government agencies shall not be considered to be public announcements.
[signatures on the following page]
-41-
Attest: FiveCom, Inc.
By: By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------- ---------------------------------
Title: Title: President
----------------------------
(Corporate Seal)
Attest: ▇▇▇▇ Communications Inc.
By: By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------- ---------------------------------
Title: Title: President
----------------------------
(Corporate Seal)
-42-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 2
[GRAPHIC OMITTED]
Route
[**]
Exhibit 4.1
PRELIMINARY ROUTE/ENGINEERING DIAGRAM
Preliminary Fiber Route Information Required from ▇▇▇▇ Com to be attached prior
to execution of Agreement:
1. Route Plan or Proposed Route.
2. Fiber Type.
Where applicable, sites to be provided with fiber optic entrance facilities
identified with:
Site Name/Identifier
Address:
Street and street number
City
State
Zip
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 4.2
Leased Fiber Specifications
1.0 Fiber Requirements:
-------------------
1.1. Single Mode Fiber (Depressed Cladding, Unshifted Fiber)
[**]
1.2. TrueWave(R) Fiber (NonZero-Dispersion Fiber)
[**]
2.0 Connector Assemblies
[**]
3.0 Splice Specification
[**]
Test data including OTDR hard copies and electronic data must be
submitted to Network Implementation Management before acceptance. Data
should be sent to:
FiveCom Network Implementation Management
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
FiveCom, at its discretion, may choose to witness any / all testing
associated with acceptance of fibers.
4.0 Cable Installation Requirements
Cable must be constructed in accordance with manufacturer installation
instructions and applicable safety codes, as required by law. Where
required, cable sheath must transition from an outside plant to inside
plant material, or be protected in a fire rated conduit or innerduct.
Where applicable, all exposed innerduct which encloses FiveCom fibers
shall be labeled with FiveCom-provided identification labels at
intervals of distance not to exceed [**].
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 4.3(a)
FiveCom Connection Points
(exclusive of Demarcation Points)
BecoCom Route
[**]
▇▇▇▇ Com Route
In the vicinity of [**] (future route) or other connections to be made at that
location. The connection point should be made so that it is accessible from a
public way.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 5.3
Acceptance Test Plan
▇▇▇▇ Com shall conduct on the ▇▇▇▇ Com Portion the following tests as part of
its acceptance test plan:
[**]
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 6.1
▇▇▇▇ Com Deliverables
▇▇▇▇ Com will provide the following items to FiveCom in the time frames
indicated:
1. As-built drawings prepared in hardcopy or electronic format with
five(5) printed copies showing [**].
1.1 Final route maps drawn to scale with miles and linear feet
between each site location.
1.2 Transmission Line T-sheets or mile sheets.
1.3 Where applicable, Conduit Locations and Manhole Identifiers.
1.4 Splice locations including structure identification.
1.5 Where applicable, building entry detail.
2. Names of all manufacturers whose optical fiber cable, associated
splices and other equipment are used in installing and providing the
FiveCom Fibers. [**].
3. Technical specifications of the optical fiber cable, associated splices
and other equipment used in installing and providing the FiveCom
Fibers. [**].
4. A single point of contact capable of mobilizing ▇▇▇▇ Com personnel
responsible for 7-day, 24-hour maintenance and repair of the FiveCom
Fibers.
[**].
5. OTDR traces, end-to-end loss measurements at 1310 and 1550 nm.[**].
6. Fiber assignments within cable(s) [**].
7. A chart prepared providing optical distances between each splice point
and fiber termination.[**].
Exhibit 8.2
Annual Report of Telecommunications Contracts and Revenues
Pursuant to Section 8.2(f) of the Fiber Optic Lease Agreement between
FiveCom, Inc. ("FiveCom") and ▇▇▇▇ Communications, Inc. ("▇▇▇▇ Com") dated July
2, 1998 ("Fiber Lease"), FiveCom hereby certifies to ▇▇▇▇ Com that for the
calendar year ending December 31, ______, that the following constitutes an
accurate summary of its gross revenues and contracts for service routed over the
FiveCom Network, as that term is defined in the Fiber Lease:
A. Annual Gross Revenues By Contract
-------------------------------------------------------------------------------------------------------------------------
Contract Total Annual Annual Revenues Total Length of Length of
Number Revenues Received Allocated under Section Telecommunications Telecommunications
under this Contract 8.2(a) of the Fiber Service (in Miles) Provided Service Provided over the
Lease. under this Contract FiveCom Network (in
Miles)
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
B. Deductions from Gross Revenues
i. Penalties:
-------------------------------------------------------------------------------------------------------------------------
Contract Number Penalty Amount Period of Time Penalty Was Reason for Penalty
Incurred
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
ii. Location Fees
------------------------------------------------------------------------------------------------------------------------
Party Charging Location Fees Amount
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ Com
------------------------------------------------------------------------------------------------------------------------
BecoCom
------------------------------------------------------------------------------------------------------------------------
iii. Sales Taxes
------------------------------------------------------------------------------------------------------------------------
Party Charging Sales Taxes Amount
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ Com
------------------------------------------------------------------------------------------------------------------------
BecoCom
------------------------------------------------------------------------------------------------------------------------
ii. Franchise, Property and Other Taxes
------------------------------------------------------------------------------------------------------------------------
Party Charging Franchise, Property and Other Taxes or Amount
Fees
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ Com
------------------------------------------------------------------------------------------------------------------------
BecoCom
------------------------------------------------------------------------------------------------------------------------
C. Net Amounts
------------------------------------------------------------------------------------------------------------------------
Quarter Q1 Q2 Q3 Q4
------------------------------------------------------------------------------------------------------------------------
Gross Revenues
------------------------------------------------------------------------------------------------------------------------
Deductions from
Gross Revenues
------------------------------------------------------------------------------------------------------------------------
Amount Shared with
▇▇▇▇ Com
------------------------------------------------------------------------------------------------------------------------
Amount Shared with
BecoCom
------------------------------------------------------------------------------------------------------------------------
FiveCom, Inc.
By: _____________________________________
Title: __________________________________
Date: ___________________________________
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 9.2(a)
Emergency Maintenance Standards
Response Time
Emergency response shall be available [**]. ▇▇▇▇ Com will respond
immediately to reported or detected service-affecting network troubles.
Emergency Maintenance personnel, tools and materials will be dispatched to
the trouble site as soon as possible, with best commercial efforts used to
have appropriate personnel on-site to assess the trouble and report a
response plan to the FiveCom contact within a time interval not to exceed
[**] following the initial report.
Service Restoration Objective
The FiveCom Service Restoration Objective: Customer services restored
as soon as possible upon securing safe restoration condition.
Emergency Communications and Incident Reporting
In the event of an Emergency Maintenance situation, ▇▇▇▇ Com will use
best commercial efforts to perform an initial damage / trouble assessment
and report the findings to FiveCom within [**] of the arrival of ▇▇▇▇ Com
personnel at the trouble location. The initial assessment shall minimally
include:
Nature and cause of the service-affecting trouble
Estimated time to achieve restoration of customer service
Requirements for additional / special tools, materials or
personnel to achieve restoration of customer service
Subsequent to the restoration of service, but not later
than [**] following the event, ▇▇▇▇ Com shall provide
FiveCom with documentation of the incident, detailing, at
minimum, the following:
Cause(s) of the service outage
Resolution of the trouble event
Subsequent, or follow-up repair requirements and
schedule of activities
Records updates, as appropriate
Emergency Restoration Parts and Equipment
▇▇▇▇ Com will maintain a local inventory of fiber cable,
materials and tools sufficient to support cable restoration
activities in accordance with Exhibit 9.2(b). This inventory
shall include, but is not limited to:
OTDR test equipment for cable fault identification and
isolation
Emergency restoration cable
Splicing equipment and equipment necessary to provide
communications from the damage location, for coordination
of restoration activities.
Preparedness
▇▇▇▇ Com will maintain a level of preparedness to ensure an
effective and efficient response to meet Emergency Maintenance
situations affecting the FiveCom fiber facilities.
Preparedness shall include, but is not limited to:
Communications plan, advising appropriate ▇▇▇▇ Com personnel
regarding fiber restoration requirements and procedures.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 9.2(b)
Routine Maintenance Standards
1. Cable Plant Identification
▇▇▇▇ Com will place Industry Standards High Visibility Signs
within [**].
▇▇▇▇ Com will provide adequate surveillance, consistent with
industry standards, along the right of way to prevent cable
damage due to erosion or man made activities.
Dig Safe - ▇▇▇▇ Com will maintain membership and take
appropriate/prudent measures to ensure digging activity does
not jeopardize the cable
2. Plant Inspections
2.1 ▇▇▇▇ Com will provide a visual inspection [**]:
(a) aerial cable
(b) utility poles
(c) transmission towers
2.2 Routes will have routine maintenance to clear trees and
brush from right-of-way.
2.3 Preventative Maintenance Program to include [**]
including, but not limited to, [**]. This would also include
[**].
3. ▇▇▇▇ Com Maintenance Plan will include at a minimum
3.1. [**]
3.2. [**]
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3.2 Any equipment [**].
3.3 Test equipment [**].
3.4 Sufficient quantities of [**].
3.5 [**] necessary to provide [**].
4. Materials Available at a Central Location. The list below only
serves as a reference and is not all inclusive:
4.1 [**].
4.2 [**].
4.3 [**]. (If applicable)
4.4 [**]. (If applicable)
5. Training. The training listed below only serves as a reference and is
not all inclusive:
5.1 [**] as required, for the particular type of cable
installation.
5.2 [**] at the discretion of ▇▇▇▇ Com, as necessary,
[**]. FiveCom will be kept apprised of the current
scheduling in advance and may [**].
5.3 [**].
5.4 [**]. Contract employees would be required to meet
the above standards as well, if they are expected to
perform the job function.
Exhibit 16.2
Request for Relocation
Request No._______________
Date:_____________________
To: ▇▇▇▇ Communications, Inc.
In accordance with the terms of the Agreement between ▇▇▇▇ Communications, Inc.
("▇▇▇▇ Com") and FiveCom, Inc. ("FiveCom") dated July 2, 1998, a request is
hereby made for Cable relocation on Structures as indicated on the attachment
hereto.
FiveCom, Inc.
By: __________________________________________
Title: _______________________________________
Such of the Structures indicated on the attached hereto can be made available
for Cable attachment thereto subject to FiveCom's acceptance of necessary
changes and rearrangement at an estimated cost to FiveCom of $_______, which,
unless otherwise provided for in the attached, FiveCom agrees to pay to ▇▇▇▇ Com
half of such costs upon acceptance of this Request for Relocation, and the
remaining half upon completion of the relocation by ▇▇▇▇ Com.
▇▇▇▇ Communications, Inc.
By: ______________________________________
Title: ___________________________________
The above changes and rearrangements are accepted.
FiveCom, Inc.
By: ______________________________________
Title: ___________________________________
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 20.2
Form of Notice of Lease
In accordance with the provisions of Massachusetts General Laws (Ter.
Ed.) Chapter 183, Section 4, as amended, notice is hereby given of the following
described lease:
Parties to Lease:
Lessor: ▇▇▇▇ Communications, Inc. ("▇▇▇▇ Com"), a Massachusetts
corporation, having a place of business in Westboro,
Massachusetts
Lessee: FiveCom, Inc. ("FiveCom"), a Massachusetts corporation,
having a place of business in Waltham, Massachusetts
Date of Execution:
July 2, 1998
Description of Leased Premises:
[**] fiber optic strands in a [**], consisting of [**] and [**], which
will be installed from the splice box to be located on the [**] to a mid-span
point located above the town line between [**]. (This mid-span point occurs
between [**].)
Terms of Lease:
Twenty (20) years commencing on July 2, 1998
Rights of Extension:
Two (2) options to extend for consecutive periods of five(5) years
each.
WITNESS the execution hereof under seal by said parties to said lease.
Acknowledgement
Exhibit 22.3
Contact List
1. Each Party agrees to provide a current contact list to the other, upon
request.
▇▇▇▇ Com:
▇▇▇-▇▇▇-▇▇▇▇
FIVECOM:
▇▇▇-▇▇▇-▇▇▇▇
2. FiveCom Contact for Emergency Repairs
For demand/emergency activity, contact FiveCom's "Transmission Control
Center" at ▇-▇▇▇-▇▇▇-▇▇▇▇ . Address is:
FiveCom, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
3. FiveCom Contact for Scheduled Maintenance
Service affecting work should be scheduled through FiveCom's "Scheduled
Event Management Center" at ▇-▇▇▇-▇▇▇-▇▇▇▇. The fax number is
1-781-890- 8404.