Exhibit 10.28
DUCT AGREEMENT
BETWEEN
-------------------------------
AND
NORTHEAST OPTIC NETWORK, INC.
FOR THE
PROVISION OF FIBER OPTIC FACILITIES AND SERVICES
TABLE OF CONTENTS
1. PREAMBLE.................................................................................................1
2. RECITALS.................................................................................................1
3. DEFINITIONS..............................................................................................1
3.1 Activation Date.................................................................................1
3.2 Actual Cost.....................................................................................1
3.3 Affiliate.......................................................................................1
3.4 Annual Fee......................................................................................2
3.5 Cable...........................................................................................2
3.6 Cable Accessories...............................................................................2
3.7 _DN or __Digital Network........................................................................2
3.8 Claims..........................................................................................2
3.9 Demarcation Point...............................................................................2
3.10 Designated City.................................................................................2
3.11 Duct Segment....................................................................................2
3.12 Duct System.....................................................................................2
3.13 Ending Date.....................................................................................2
3.14 Equipment.......................................................................................2
3.15 Favored Customer Rates..........................................................................2
3.16 Force Majeure Events............................................................................2
3.17 Grantee.........................................................................................2
3.18 Grantee Space...................................................................................2
3.19 Grantor.........................................................................................2
3.20 Grantor Space...................................................................................3
3.21 Grantor's Territory.............................................................................3
3.22 In Service Date.................................................................................3
3.23 Make Ready Work.................................................................................3
3.24 Network Addition................................................................................3
3.25 __Net...........................................................................................3
3.26 Periodic Inspection.............................................................................3
3.27 Program Managers................................................................................3
3.28 Proprietary Information.........................................................................3
3.29 Specifications..................................................................................3
3.30 Term............................................................................................3
3.31 Third Party.....................................................................................3
4. GRANTEE'S RIGHT TO USE; OBLIGATION TO BUILD..............................................................3
4.1 Grant of Right..................................................................................3
4.2 Grant Subject to Security Interests.............................................................4
4.3 Limitations.....................................................................................4
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4.4 Obligation to Build.............................................................................4
4.5 Cable Measurement...............................................................................4
4.6 Other Cables/Facilities.........................................................................4
5. MODIFICATIONS TO THE CABLE...............................................................................4
5.1 Withdrawal of Duct Segments by the Grantor......................................................4
5.2 Cost and Means of Right of Way Acquisitions.....................................................5
5.3 Grantee's Right to Build and Connect Third Party Segments.......................................5
5.4 Third Party Connections.........................................................................5
5.5 Connection Grants...............................................................................6
6. ENGINEERING AND DESIGN...................................................................................6
6.1 Grantor's Obligations...........................................................................6
6.2 Grantee's Obligations...........................................................................6
7. MAKE READY WORK..........................................................................................6
7.1 Responsibility for Performance..................................................................6
7.2 Condition of Duct System........................................................................7
7.3 Costs...........................................................................................7
8. INSTALLATION.............................................................................................7
8.1 Grantee's Right to Select Contractors...........................................................7
8.2 Grantee's Right to Issue Specifications.........................................................7
8.3 Grantor's Installation Obligations..............................................................8
8.4 State Fees......................................................................................8
8.5 Public Rights of Way............................................................................8
9. POINT OF DEMARCATION; BUILDING EXTENSIONS................................................................8
9.1 Marking.........................................................................................8
9.2 Building Extensions.............................................................................8
10. MAINTENANCE..............................................................................................8
10.1 Grantee's Obligations...........................................................................8
10.2 Grantor's Obligations...........................................................................9
11. RELOCATION, REPLACEMENT, REBUILDS OF THE CABLE...........................................................9
11.1 By the Grantee..................................................................................9
11.2 By the Grantor..................................................................................9
11.3 Emergency Relocations; Third Party Relocations.................................................10
11.4 Cable Failure; __Net Equipment.................................................................10
12. CONSTRUCTION, MAINTENANCE AND REMOVAL OF THE CABLE......................................................10
12.1 Interference With Other Joint Users............................................................10
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12.2 Grantor's Approval of Third Party Work.........................................................10
12.3 Grantor's Right to Maintain Service............................................................11
12.4 Notice.........................................................................................11
12.5 Emergency Use of the Grantor's Property........................................................11
12.6 Return of Removed Material.....................................................................11
13. PERIODIC INSPECTIONS....................................................................................11
13.1 By the Grantor.................................................................................11
13.2 Grantee's Obligations..........................................................................11
13.3 Cost...........................................................................................12
14. APPROVALS AND CONSULTATION..............................................................................12
14.1 Role of Program Managers.......................................................................12
14.2 Definition of Consultation/Cooperation and Approval............................................12
15. OWNERSHIP OF THE CABLE..................................................................................12
15.1 Title; Tax Accounting..........................................................................12
15.2 Reversion of Beneficial Ownership..............................................................13
16. USE OF THE CABLE BY THE GRANTOR.........................................................................13
16.1 Fibers and Use.................................................................................13
16.2 Option to Purchase Additional Fibers...........................................................13
16.3 Additional Service.............................................................................13
16.4 Space in Grantee's and Grantor's Facilities....................................................14
17. CASUALTY................................................................................................14
18. GENERAL REPRESENTATIONS AND WARRANTIES..................................................................15
18.1 Common Representations.........................................................................15
18.2 General Representations by the Grantor.........................................................15
18.3 Representation by the Grantor As To Duct System................................................15
18.4 Representation by the Grantor As to Right to Place Cable.......................................15
18.5 Work Clearances and Related Delays.............................................................15
18.6 General Representations by the Grantee.........................................................15
19. INSURANCE...............................................................................................16
20. TERM AND TERMINATION....................................................................................16
20.1 Period.........................................................................................16
20.2 Early Termination of Agreement.................................................................16
20.3 Termination of Duct Segment....................................................................17
20.4 Cost Reimbursement.............................................................................17
21. ANNUAL FEE..............................................................................................17
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21.1 Amount.........................................................................................18
21.2 CPI Adjustments................................................................................18
21.3 When Due.......................................................................................18
21.4 Initial Annual Fee.............................................................................18
22. FORCE MAJEURE...........................................................................................18
22.1 Optional Termination...........................................................................18
22.2 Suspension Pending Force Majeure...............................................................19
23. PROPRIETARY INFORMATION.................................................................................19
23.1 Obligation to Maintain as Confidential.........................................................19
23.2 Route Constitutes Proprietary Information......................................................19
24. ACCESS AND SECURITY.....................................................................................19
24.1 Access by the Grantor..........................................................................19
24.2 Access by the Grantee..........................................................................20
24.3 Access by the Grantee to _DN Space.............................................................20
24.4 Grantee's Work.................................................................................21
25. NO JOINT VENTURE; COSTS.................................................................................21
25.1 Relationship...................................................................................21
25.2 Costs..........................................................................................21
26. PUBLICITY AND ADVERTISING...............................................................................21
26.1 Limitations....................................................................................21
26.2 Exceptions.....................................................................................22
27. MARKETING RELATIONSHIP..................................................................................22
28. SEVERABILITY............................................................................................22
29. LABOR RELATIONS.........................................................................................22
29.1 Notice by the Grantor..........................................................................22
29.2 Notice by the Grantee..........................................................................23
29.3 Determination by the Grantee...................................................................23
29.4 Determination by the Grantor...................................................................23
30. CONSENTS AND WAIVERS....................................................................................23
31. TAXES AND GOVERNMENTAL CHARGES..........................................................................24
32. INDEMNIFICATION.........................................................................................24
32.1 By the Grantee.................................................................................24
32.2 Indemnification Procedures.....................................................................24
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32.3 Limitation of the Grantor Liability............................................................25
32.4 Limitation of the Grantee Liability............................................................25
33. DEFAULT.................................................................................................25
34. ASSIGNMENT..............................................................................................25
34.1 By Grantee.....................................................................................25
34.2 Change of Control..............................................................................26
34.3 Grantor's Right to Pledge Agreement and Transfer Property......................................26
34.4 Grantee's Right to Pledge Agreement and Lease Fibers...........................................26
34.5 Right to Assign................................................................................26
35. APPROVALS, PERMITS, AND CONSENTS........................................................................26
35.1 Grantee's Obligations..........................................................................26
35.2 Opinion........................................................................................26
35.3 Grantor's Obligations..........................................................................26
36. NOTICES.................................................................................................27
36.1 Form and Address...............................................................................27
36.2 How Sent.......................................................................................27
36.3 Damage Notification............................................................................28
37. DISPUTE RESOLUTION......................................................................................28
37.1 Arbitration....................................................................................28
37.2 Award; Costs...................................................................................29
38. EXERCISE OF RIGHT.......................................................................................29
39. ADDITIONAL ACTIONS AND DOCUMENTS........................................................................29
40. SURVIVAL................................................................................................29
41. HEADINGS................................................................................................30
42. INCORPORATION OF EXHIBITS...............................................................................30
43. COUNTERPARTS............................................................................................30
44. APPLICABLE LAW..........................................................................................30
45. PRIOR AGREEMENTS........................................................................................30
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AGREEMENT FOR THE PROVISION OF
FIBER OPTIC FACILITIES AND SERVICES
1. PREAMBLE
This Agreement is entered into on ____________ __, 19__ between
____________________, (the "Grantor") and NorthEast Optic Network, Inc., a
Delaware corporation with an address at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ (the "Grantee").
2. RECITALS
2.1 WHEREAS, the Grantor is the owner of subterranean structures, conduits, and
associated civil works (the "Duct System") and has certain rights to use
easements, and/or rights of way within which the Duct System is located in the
State of ________________ as part of the Grantor's electric distribution system;
2.2 WHEREAS, the Grantee seeks to install innerducts and fiber optic cables in
certain portions of the Duct System to be used by the Grantee and the Grantor
for their communication systems; and
2.3 WHEREAS, the Grantor is willing to grant the use of its Duct System and the
use of the fiber filaments in the fiber optic cable once installed in the Duct
System to the Grantee in exchange for certain annual fees and the use of a
portion of the installed cable consisting of __ singlemode fiber optic filaments
in each cable installed in the Duct Systems;
NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions
contained in this Agreement, the parties agree as follows:
3. DEFINITIONS
3.1 Activation Date - The date on which the Cable in a Duct Segment is accepted
by the parties as operational in accordance with the acceptance and performance
specifications set forth in Exhibit 3.29.
3.2 Actual Cost - Reasonable direct cost plus appropriate overhead cost but
without other ▇▇▇▇-up or profit.
3.3 Affiliate - As defined under the Securities Act of 1933, as amended.
3.4 Annual Fee - See Section 21.1.
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3.5 Cable - Fiber optic filaments contained in any suitable jacketing or sheath
and installed by the Grantee in the Grantor's Duct System.
3.6 Cable Accessories - The attachment and suspension hardware, splice closures
and other components necessary either for the placement of the Cable or for the
continuity of the fiber filaments within the Cable.
3.7 DN or Digital Network - All the optical fiber filaments in the Cable
(other than the __ fibers to be used by the Grantor as __Net), the Grantee's
Equipment and the Grantee's Space.
3.8 Claims - See Section 32.1.
3.9 Demarcation Point - See Section 9.1.
3.10 Designated City - _______________, __.
3.11 Duct Segment - That portion of the Duct System between any two designated
manholes.
3.12 Duct System - See Section 2.1.
3.13 Ending Date - See Section 20.1.
3.14 Equipment - The power equipment, electronic and optronic equipment,
including, without limitation, repeaters, junctions, patch panels, alarm
monitoring equipment and other equipment necessary to provide a network of fiber
optic transmission capacity located on the network side of the Demarcation
point. The word "equipment" when not capitalized, refers to equipment of any
type.
3.15 Favored Customer Rates - See Section 16.3.
3.16 Force Majeure Events - See Section 22.1.
3.17 Grantee - See Section 1.
3.18 Grantee Space - Space to be provided by the Grantor to the Grantee, as
available in the sole judgment of the Grantor, in existing facilities of the
Grantor within the Designated City for the placement of Equipment to be used
solely in connection with _DN.
3.19 Grantor - See Section 1.
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3.20 Grantor Space - Space to be provided by the Grantee to the Grantor for the
placement of Equipment used solely in connection with __Net.
3.21 Grantor's Territory - The geographical areas where the Grantor provides
retail or wholesale electric service; owns or operates electric transmission
and/or distribution facilities or has obtained rights, interests or permissions
which would allow the Cable to be installed in such areas.
3.22 In Service Date - A date after the Activation Date when the _DN fibers are
transmitting light from a revenue producing customer including, without
limitation, the Grantor.
3.23 Make Ready Work - See Section 7.1.
3.24 Network Addition - Any Duct Segment not included in the Grantee's initial
building plans.
3.25 __Net - The # fiber optic filaments in one or more single color-coded tubes
within the Cable to be used by the Grantor, the Grantor's Equipment and the
Grantor's Space.
3.26 Periodic Inspection - The inspections conducted at irregular intervals by
the Grantor on all or portions of the Duct System for the sole purpose of
determining that the Grantee's occupancies of the Grantor's property is as
authorized and is maintained in conformance with the terms of this Agreement.
3.27 Program Managers - See Section 14.1.
3.28 Proprietary Information - See Section 23.1.
3.29 Specifications - The specifications set forth in Exhibit 3.29.
3.30 Term - See Section 20.1.
3.31 Third Party - Any party, person or entity other than the Grantor or the
Grantee or an Affiliate of the Grantor or the Grantee and any party, person, or
entity that is not a successor or permitted assignee of the Grantor or the
Grantee.
4. GRANTEE'S RIGHT TO USE; OBLIGATION TO BUILD
4.1 Grant of Right. The Grantor grants to the Grantee the right to install Cable
in portions of the Duct System selected by the Grantee and as approved by the
Grantor in the Designated City and, once installed, the indefeasible right to
use the fiber optic
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filaments within the Cable, except for the # fiber optic filaments reserved for
the Grantor's use.
4.2 Grant Subject to Security Interests. The Grantor has granted to Third
Parties security interests in certain of its real and personal property and
releases, approvals and waivers may therefore be required from the Third Parties
as a result of the grant provided for in Section 4.1. The Grantor agrees to use
its best efforts to secure nondefeasance agreements or other equivalent
releases, approvals or waivers from these Third Parties as may be required or
permitted under the terms of the applicable security agreements within nine
months of the date of this Agreement; provided, however, that if such releases,
approval or waiver cannot be obtained because the Cable has not been installed
in the Duct System then the nine month period shall commence upon such
installation.
4.3 Limitations. The grant in Section 4.1 is solely for the Grantee's use (or
the use by an assignee of the Grantee, pursuant to Section 34.4) in providing
telecommunications services. The Grantee shall exercise the right to use the
Cable solely to operate _DN and to serve its customers in accordance with
applicable state and federal regulations. Each Cable shall not contain more than
XXX fibers.
4.4 Obligation to Build. Both parties agree to use their best efforts to install
the Cable in the Duct System according to a schedule to be subsequently agreed
upon by the parties but in any case the Grantee shall install at least ____ feet
of Cable within 12 months of the date of this Agreement. The parties'
obligations under this Section 4.4 shall be subject to manufacturing or supplier
delays, governmental regulatory delays, delays caused by the Grantor as a
supplier of services or equipment under the terms of this Agreement and to
delays resulting from the Grantor's obligation to maintain reliable electric
service.
4.5 Cable Measurement. All of the Cable within the Duct System shall be measured
on a duct footage basis.
4.6 Other Cables/Facilities. This Agreement shall not be construed as limiting
or restricting the Grantor in any manner from using its structures, Duct System,
easements, franchise rights, and/or rights of way for the installation of its
fiber optic cables or telecommunication facilities for its own use or that of
Third Parties.
5. MODIFICATIONS TO THE CABLE
5.1 Withdrawal of Duct Segments by the Grantor. During the one year period
following the date of this Agreement, the Grantor shall have the right to
withdraw from this Agreement, upon notice to the Grantee, any portion of the
Duct System that it deems, in its sole and absolute judgment, not to have
adequate capacity or
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structural suitability for the Cable. The Grantee shall have no obligations to
the Grantor with respect to that portion of the Duct System so withdrawn.
5.2 Cost and Means of Right of Way Acquisitions. The Grantee shall be
responsible for, and the Grantor shall cooperate in, the acquisition of any
easement or right-of-way rights, or any certificate of public convenience and
necessity or other rights to use public roads that may be required in order to
permit (i) the installation, operation and maintenance of the Cable or (ii) the
use of the _DN fibers by the Grantee. New easements obtained by the Grantee
shall be assignable to the Grantor, if possible. If the use of the power of
eminent domain is necessary in order to acquire any additional right-of-way
rights required for the use of the _DN by the Grantee, then any required
condemnation action shall be brought by the Grantee in its own behalf. The
Grantor will cooperate with the Grantee in obtaining such legal and regulatory
permits and authorizations as are needed in order to allow the Grantee to be an
authorized condemnation party in __. Any easement or right obtained by the
Grantee by using the power of eminent domain shall be subsequent and subordinate
to any existing rights of the Grantor. Except in the case of condemnation by the
Grantee, the Grantor shall exert its best efforts to minimize the cost of such
additional land or rights in land. In the event that additional rights are
required by both parties the cost of the acquisition of such additional rights
shall be shared by the parties pro rata based on the number of fibers controlled
by each party. This Section is not intended as an acknowledgment by either party
that any such acquisition of additional rights is required but only to allocate
the responsibility for such acquisition if required.
5.3 Grantee's Right to Build and Connect Third Party Segments. The Grantee shall
have the right to build or otherwise install Cable on property of Third Parties,
at the Grantee's sole cost and expense. The Grantee may connect such Third Party
facilities to the Duct Segments and Cable subject to the approval by the Grantor
of the Grantee's connection plans. The work to connect such Third Party
facilities located on the Grantor's property shall be performed by the Grantor.
The provisions of the last two sentences of Section 6.1 shall apply to this work
to be performed by the Grantor. The Grantee shall pay all of the Grantor's
Actual Costs to review these connection plans and to oversee the construction of
such connections. If the Grantee interconnects Third Party facilities to the
Cable, the Grantee shall, upon the Grantor's request, use its best efforts to
provide the right to use up to # singlemode fibers on such Third Party's
facilities to maintain the continuity of __Net within the Grantor's Territory
and up to # singlemode fibers outside the Grantor's Territory on terms no less
favorable than those provided the Grantee for _DN.
5.4 Third Party Connections. In the event of use of connections to the Cable
from public and private property, the Grantee shall designate the location and
manner in which the Cable will enter and exit the Grantor's property and
connects to the Cable and shall provide such specifications as needed unless so
provided in the engineering
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plans of the Grantor's property. Such specifications will be subject to change
from time to time by the written consent of the parties hereto. The Grantor
shall have the right to review and approve connections made pursuant to this
Section 5.4.
5.5 Connection Grants. The Grantor hereby grants the Grantee the right to
install, maintain, and operate the connections to the Cable as described in this
Section 5.
6. ENGINEERING AND DESIGN
6.1 Grantor's Obligations. In consultation with the Grantee, and in accordance
with the Specifications, the Grantor and/or its consultants shall engineer,
provide detailed specifications, construction working prints and other data
necessary to permit the construction and installation of the Cable in the Duct
System. The Grantor shall also design all alternating current power sources,
buildings and other necessary and related articles of property which, together
with the articles of property to be designed by the Grantee, are required to
provide usable fiber optic transmission capacity throughout the Grantor's Duct
System. All such detailed specifications, construction working prints and other
information shall be subject to the Grantee's approval. The Grantee shall
reimburse the Grantor for the Grantor's Actual Costs incurred pursuant to this
Section 6.1. The Grantor shall use its best efforts to perform the work called
for by this Section 6.1 at the lowest possible cost to the Grantee. The services
provided by the Grantor in this Section 6.1 shall be performed in a professional
and workmanlike manner.
6.2 Grantee's Obligations. The Grantee, at its sole cost and expense, shall
design, in cooperation with the Grantor, all electronic and optronic equipment
and shall provide detailed specifications, construction working prints and other
necessary data for __Net and _DN including, without limitation, the Cable and
repeaters, patch panels, terminations, terminals, splice cases and closures,
alarm monitoring equipment, Equipment and all other necessary and related
articles of property which, together with the articles of property to be
designed by the Grantor pursuant to Section 6.1 are required to provide fiber
optic transmission capacity throughout the Duct System. All Equipment and other
equipment utilized solely in connection with __Net shall be paid for solely by
the Grantor.
7. MAKE READY WORK
7.1 Responsibility for Performance. In the event the Grantor and the Grantee
determine that any work is required or desirable to install manholes, handholes,
subduct, pulling rope or supplementary civil works, make the existing Duct
System capable of containing the Cable, or provide for alternative Duct Segments
(collectively "Make Ready Work"), the Grantor will either perform such Make
Ready Work or permit the Grantee or its contractor to perform such Make Ready
Work. Any charges for Make Ready Work performed by the Grantor (other than to
satisfy the
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representation made in Section 18.3) will be paid at the Grantor's Actual Costs.
If the Grantor elects to perform any Make Ready Work, the Grantor will either
(i) endeavor to include such work in its normal work load schedule, or (ii) at
the request of the Grantee, based on the availability of the Grantor's manpower,
shall perform such Make Ready Work after normal hours and at prevailing overtime
rates, but not less than straight-time rates.
7.2 Condition of Duct System. The Grantor shall make available its Duct System
and other facilities owned or controlled by the Grantor as required to provide
for continuous locations in which the Cable can be placed. The Grantor shall
perform such work, if any, at its expense, as may be required to satisfy the
representation made in Section 18.3. Any additional improvements necessary to
permit the Duct System to contain the Cable shall be made at the expense of the
Grantee. Work required which is common to both Sections 7.2 and 18.3 shall be
performed at the sole cost of the Grantee.
7.3 Costs. The Grantee shall reimburse the Grantor for the Grantor's Actual Cost
incurred in connection with any Make Ready Work done pursuant to Section 7.1 or
in connection with engineering, construction and installation of the Cable,
including without limitation the labor and equipment cost of removal of existing
facilities. The Grantee shall reimburse the Grantor its Actual Cost of any
upgrading or replacement of Duct System or facilities that is necessary in order
to make such Duct System or facilities capable of containing the Cable (other
than to satisfy the representation made in Section 18.3). The Grantor shall use
its best efforts to perform the work called for by Section 7.1 at the lowest
possible cost to the Grantee. The services provided by the Grantor in Section
7.1 shall be performed in a professional and workmanlike manner.
8. INSTALLATION
8.1 Grantee's Right to Select Contractors. The Grantor shall provide the Grantee
with an estimate of the Grantor's Actual Cost for the installation of the Cable
and Cable Accessories. The Grantee may then request that the Grantor seek bids
from qualified contractors and the Grantor's Actual Cost shall then not exceed
the lowest qualified bid. If an outside contractor is selected, the Grantor may,
however, act as general contractor on the work done under this Section 8. The
provisions of the last two sentences of Section 7.3 shall apply to any work done
under this Section 8.1 by the Grantor.
8.2 Grantee's Right to Issue Specifications. The Grantee shall have the right
but not the obligation to participate in the Grantor's issuance of contracts
containing general provisions, technical specifications, conditions of
installation, work schedules, and construction documentation which may include
design prints, engineering plans, installation procedures and manuals,
construction methods and practices, material
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handling properties, safety procedures, performance standards, payment
schedules, testing and acceptance requirements and other contractual terms and
conditions which may be issued prior to the commencement of any work.
8.3 Grantor's Installation Obligations. The Grantor shall supervise and, in
consultation with the Grantee, be responsible for the construction or oversight
of the construction and installation as necessary to install the Cable and Cable
Accessories, including without limitation installation hardware, required for
_DN and __Net, in accordance with the engineering and design requirements
finalized pursuant to Section 6, and Exhibit 3.29, Cable and Performance
Specifications.
8.4 State Fees. The Grantee shall either pay directly or reimburse the Grantor
for any fees payable to any State agency or other authority for the use of any
public rights-of-way as a result of the Grantee's use of or right to use the
_DN. The Grantee shall reimburse the Grantor for its Actual Costs incurred
pursuant to this Section 8.5.
8.5 Public Rights of Way. The Grantee shall at its sole cost and expense obtain
all federal, state and municipal occupancies and other rights that may be
required for the installation of _DN in public rights-of-way or the use thereof.
9. POINT OF DEMARCATION; BUILDING EXTENSIONS
9.1 Marking. The point of demarcation (the "Demarcation Point") for the purpose
of this Agreement shall be indicated by a visible, indelible ▇▇▇▇ or tag of
long-lasting durability, at a point on one side of which is the Grantee's
responsibility, termed network side, on the other side of the Demarcation Point,
termed premise side. Both the Grantor and the Grantee shall be responsible for
their respective Equipment and any Cable extensions. The color coding of the
tube(s) and fibers dedicated for the Grantor's use shall remain consistent
throughout the Duct System.
9.2 Building Extensions. _DN will be extended by the Grantee for use by the
Grantee within buildings as required. In such extensions the entire Cable beyond
the building patch panel shall remain the property of the Grantee and the
Grantor shall receive an indefeasible right to use # fibers for __Net to the
point of the building patch panel. The Grantee or its customer shall obtain
approval from the owners of the property for all such use and as to the physical
location of Cable and, as to installation, maintenance and operation of the
Grantee's facilities on said property.
10. MAINTENANCE
10.1 Grantee's Obligations. Provided that the Grantee has been given the
permission referred to below in this Section 10, the Grantee shall maintain and
repair the Cable, including emergency repairs and splices, pursuant to the terms
and conditions outlined in Exhibit 10.1 - Maintenance Specifications. In the
event the
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Grantee fails to perform any necessary splicing or maintenance in accordance
with the procedures and time frames set forth therein, the Grantor shall have
the right, but not the obligation, to undertake such splicing or maintenance of
the Cable, at the Grantee's sole cost and expense, as provided for in Exhibit
10.1. In no event shall the Grantee be permitted access to the Grantor's
property without the Grantor's prior permission. The Grantor reserves the right,
but not the obligation, to perform such maintenance with its own crews or
contractor when required by the need to insure the safe and reliable operation
of its electric system. The provisions of the last two sentences of Section 7.3
shall apply to any work done under this Section 10.1. The Grantee shall be
solely responsible for all aspects of the operation of _DN and the operation and
maintenance of Equipment thereon. The Grantee shall perform routine inspections
of the Cable in accordance with its standard maintenance procedures and with the
Grantor's approval. The Grantee shall provide notice to the Grantor at least 10
working days in advance of any maintenance upon any Duct Segment upon which any
repair is to be conducted as a result of such maintenance procedures in
accordance with Section 36. The Grantor shall have 10 working days to confirm
the availability of any Duct Segment for maintenance.
10.2 Grantor's Obligations. The Grantor shall be solely responsible for all
aspects of the operation of __Net and the operation and maintenance of Equipment
thereon. The Grantor shall at its own expense, perform routine inspections of
the Cable in conjunction with the periodic inspection of its electric facilities
and Duct System and routine rights of way maintenance. The Grantor shall provide
notice to the Grantee at least 10 working days in advance of any maintenance
upon any Duct Segment upon which any repair is to be conducted on the Cable as a
result of such maintenance procedures.
11. RELOCATION, REPLACEMENT, REBUILDS OF THE CABLE
11.1 By the Grantee. In the event that the Grantee requests relocation,
replacement, or rebuild of the Cable, the cost of any such work shall be paid by
the Grantee, and the Grantee shall submit to the Grantor a completed copy of
Exhibit 11.1 to request an acceptable new location. No relocation or replacement
shall be performed on the Grantor's property by the Grantee without the prior
written approval of the Grantor.
11.2 By the Grantor. In the event that during the Term of this Agreement the
Grantor is required by public authorities or by lawful order or decree of a
regulatory agency or court to relocate or modify any or all of the Duct System
within which _DN or any part thereof is located, the Grantor and the Grantee
shall cooperate in performing such relocation or modifications so as to minimize
any interference with the use of _DN or __Net by either party and to avoid
unreasonably impairing the ability of each to provide communications services of
the type, quality and reliability contemplated by this Agreement. Any such
relocation shall be accomplished in accordance with the provisions of Exhibit
3.29 Cable Specifications. Unless otherwise
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agreed by the parties, all costs directly associated with the relocation of the
Cable and Equipment shall be shared by the parties on a pro rata basis based on
the number of fiber optic filaments each party controls.
11.3 Emergency Relocations; Third Party Relocations. In the event of an
emergency within the Grantor's Duct System, the Grantor shall have the right to
replace, remove or relocate the Cable or any portion thereof without prior
notice to the Grantee if such notice is not practicable. The Grantor shall incur
no liability for service interruptions in connection with any such removal or
relocation and the Grantee shall incur no liability for service interruptions
pertaining to the Grantor's services, if so affected. If the relocation or
replacement of the Cable is requested or caused by anyone other than the
Grantor, the Grantor shall attempt to obtain reimbursement of the Grantor's
costs from such party. Any costs not recovered from such party shall be shared
by the parties on a pro rata basis based on the number of fiber optic filaments
each party controls.
11.4 Cable Failure; __Net Equipment. The Grantor makes no representations with
respect to the Cable. Should the Cable fail to function according to its design
specifications the Grantor shall assign its warranty enforcement rights to the
Grantee. The Grantee shall be entitled to any recovery and the Grantee shall
have the right, where allowed by law, to recover directly from any person.
Should the Cable fail to function for any reason, the Grantee shall have the
right to expeditiously replace the Cable, subject to the Grantor's review and
approval of the Grantee's replacement plans. The Grantee shall have no
responsibility for Equipment to be used solely in connection with __Net,
including without limitation, any such equipment installed or located in Grantor
Space in any building or in any of the Grantee's facilities. To the extent the
Grantee realizes any proceeds from the Grantor's assignment of its warranty
rights to the Cable that are not expended in replacing Cable, such proceeds
shall be retained by the Grantee.
12. CONSTRUCTION, MAINTENANCE AND REMOVAL OF THE CABLE
12.1 Interference With Other Joint Users. The parties shall design, engineer,
construct and maintain the Cable so as not to physically conflict or interfere
with the Grantor's other property and any facilities attached thereon or placed
therein by joint users or others.
12.2 Grantor's Approval of Third Party Work. Prior to the Grantee engaging the
services of a Third Party to commence work to install, remove, reconfigure or
maintain the Cable in any section or part of the Duct Segments, the Grantee will
obtain the Grantor's prior written consent of any Third Party chosen to perform
such work, and the date when such work is scheduled to commence.
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12.3 Grantor's Right to Maintain Service. The Grantor shall at all times have
the right to take all action necessary to maintain and repair the Grantor's
property and maintain the Grantor's services to its customers, unconstrained by
this Agreement but shall take reasonable precautions to protect the Cable
against damage. In the event of any service outage affecting the Cable, the
Grantor shall have the right to repair its facilities first. If conditions
permit, the Grantee may repair its facilities concurrently with the Grantor. The
Grantee acknowledges that all or a portion of the Cable will be placed in the
Duct System that is part of the Grantor's electric distribution system and that
at all times the safe and continuous operation of such system and the provision
of electric service is the Grantor's foremost priority.
12.4 Notice. The Grantee shall give the Grantor 60 days' prior written notice of
any removal(s) or material modification(s) of the Cable provided that no such
removal or modification will be permitted which adversely effects the Grantor's
use of __Net.
12.5 Emergency Use of the Grantor's Property. With the Grantor's prior written
consent and in its sole discretion, the Grantee may temporarily use any of the
Grantor's available property for emergency restoration and maintenance purposes.
Any such temporary use shall be subject to such reasonable terms and conditions
as may be imposed by the Grantor and shall be terminated within 90 days, or
sooner, unless the Grantee applies for and the Grantor grants permission for
such temporary use to be extended.
12.6 Return of Removed Material. In the event the Grantor under the provisions
of this Agreement shall remove any portion of the Cable from the Grantor's
property, the Grantor will deliver to the Grantee the Cable and Equipment so
removed upon payment by the Grantee of the cost of removal, storage and
delivery, and all other amounts due the Grantor.
13. PERIODIC INSPECTIONS
13.1 By the Grantor. The Grantor shall have the right to make Periodic
Inspections of any part of the Grantee's operations occupying the Grantor's
property. The Grantor will give the Grantee reasonable advance written notice of
any periodic inspections, except in those instances where, in the sole judgment
of the Grantor, safety considerations justify the need for a Periodic Inspection
without the delay of waiting until a written notice has been forwarded to the
Grantee. A representative of the Grantee may accompany the Grantor's
representative on all Periodic Inspections.
13.2 Grantee's Obligations. The making of Periodic Inspections or the failure to
do so shall not impose upon the Grantor any liability of any kind whatsoever nor
relieve the Grantee of any responsibility, obligations or liability assumed
under this Agreement.
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13.3 Cost. The Grantee shall reimburse the Grantor for its Actual Costs of
Periodic Inspections only if material violations are found. Charges for such
inspections shall be at the Grantor's Actual Cost.
14. APPROVALS AND CONSULTATION
14.1 Role of Program Managers. Each party shall designate a Program Manager (a
"Program Manager"). Whenever either party is entitled to approve a matter, the
Program Manager for the party responsible for the matter shall notify the
Program Manager of the other party of the nature of such matter. The Program
Managers shall discuss such matter, and each Program Manager is authorized to
approve such a matter on behalf of his company.
14.2 Definition of Consultation/Cooperation and Approval. Whenever in this
Agreement it is provided that the Grantor will take action "in consultation with
the Grantee," it is intended that such consultation shall be thorough and
meaningful, and that the views of the Grantee with regard to the matter under
consultation shall be given the weight appropriate to the experience and
expertise of the Grantee in telecommunications. Whenever in this Agreement it is
provided that the Grantee will take action "in cooperation with the Grantor," it
is intended that such cooperation shall be thorough and meaningful, and that the
views of the Grantor with regard to the matter under consultation shall be given
the weight appropriate to the experience and expertise of the Grantor in
telecommunications and in the transmission and use of electric power. Whenever
in this Agreement it is provided that the approval or consent of one party is
required, it is intended that such approval or consent will not be unreasonably
withheld or delayed.
15. OWNERSHIP OF THE CABLE
15.1 Title; Tax Accounting. Legal title to the Cable and to any item of
Equipment installed within the Grantor's Duct System shall be held by the
Grantor. With respect to the Cable and __Net, the Grantor shall have absolute
legal and beneficial ownership, subject to the provisions of Section 16.1. With
respect to the _DN fibers installed in the Grantor's Duct System, the Grantor
shall hold legal title to the same as the Grantee's nominee and, with respect to
such property, the Grantee will be the beneficial owner. Accordingly, the
Grantee shall for tax purposes account for such property as the owner thereof
and, as between the parties, shall be entitled to any investment tax credits,
depreciation and any other tax attributes or liabilities with respect to those
fibers. The Grantor agrees that it will not, for tax purposes, account for the
property associated with _DN as though it were the tax owner thereof and shall
not attempt to claim any of the tax attributes or liabilities with respect
thereto. The parties agree they shall file all income tax returns and otherwise
take all actions with respect to taxes in a manner which is consistent with the
foregoing.
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15.2 Reversion of Beneficial Ownership. Beneficial ownership of _DN shall revert
to the Grantor upon termination of this Agreement or of any Duct Segment.
16. USE OF THE CABLE BY THE GRANTOR
16.1 Fibers and Use. The Grantee shall provide not less than # usable singlemode
fibers in the Cable in any Duct Segment for the unimpeded and unrestricted use
by the Grantor, provided however that the requirement of usability shall not
apply to any fibers located in a Duct Segment as to which the Term has expired.
The Grantor may use these # singlemode fibers either (i) for the Grantor's own
business purposes or (ii) may assign any number of the # fibers, or resell
capacity on any of the # fibers, except that during the first ____ years of this
Agreement, the Grantor may assign fibers or sell capacity only to a person,
business, or entity which purchases electric service from the Grantor, provided
however, that during that ____ year period, the Grantor shall not have the
right, directly or indirectly, to assign any number of the # fibers, or resell
capacity on any of the # fibers, to any of the following entities or an
Affiliate of any such entity without the prior written consent (to which Section
30 shall not apply) of the Grantee:
-----------------------------
-----------------------------
-----------------------------
-----------------------------
Notwithstanding the foregoing, in times of emergencies affecting the Grantor's
other telecommunications networks, the Grantor shall have the right to use the #
singlemode fibers for any purpose until alternative arrangements can be made. If
the Grantor violates the provisions of this Section 16.1 and fails to cease such
violation within 90 days following notice of such violation by the Grantee, the
Grantor's right to use the fibers involved in such violation shall cease and the
Grantee shall then have the right to use such fibers for its own purposes.
16.2 Option to Purchase Additional Fibers. The Grantor may purchase, if mutually
acceptable terms can be agreed upon between the Grantee and the Grantor,
additional singlemode fibers from the Grantee at a price that is mutually
acceptable.
16.3 Additional Service. In addition to providing # singlemode fibers, the
Grantee shall, upon the Grantor's request, provide the Grantor with commercial
telecommunication services into all locations served by the Grantee's networks
in the service area at the lower of (i) the Grantee's Actual Cost or (ii) at the
then lowest commercial price that the Grantee offers the same or similar
services to the largest customers ("Favored Customer Rates").
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16.4 Space in the Grantee's and Grantor's Facilities. Where available and
requested by the Grantor, the Grantee shall provide or cause to be provided
Grantor Space in the Grantee's offices and other common access areas in the
Grantee's facilities or along the Duct Segments or in buildings adjacent
thereto, adequate in each case to permit the Grantor to install racks of its
optronics, multiplex and associated equipment used to equip __Net and to
interconnect __Net with _DN. Unless otherwise agreed, the Grantor Space will
comply with power, ground, physical and environmental requirements of the
Grantee technical publications. Such Grantor Space shall be used by the Grantor
to house the Grantor Equipment necessary to permit the use of the __Net and
interconnection with the Grantor's networks. Unless otherwise agreed, the
Grantor Space in the Grantee facility other than a Building, or buildings
adjacent thereto, shall be in a common access area of such facility, and to the
extent reasonably practicable, the Grantor Space in a Building shall be separate
from any area containing the Grantee's Equipment. The Grantee shall provide the
Grantor Space in the common access areas of the Grantee facilities at the then
prevailing rate for such space according to the Grantee's tariff. The Grantor
shall pay the Grantee's Actual Cost of providing the Grantor Space pursuant to
this Section 16.4. The Grantor shall provide the Grantee with Grantee Space on
terms equivalent to those on which the Grantee provides Grantor Space to the
Grantor.
17. CASUALTY
If any portion of the Cable is damaged or destroyed by casualty at any time
during the Term each party shall pay a share of the cost based on the pro rata
percentage of __Net and _DN contained in the Cable. With respect to the Duct
Segment on which such portion of the Cable is installed, the Grantee shall have
the option of having the Grantor repair, restore, or replace such portion of the
Cable (and the Grantee shall reimburse the Grantor's Actual Cost of doing so) or
terminating that Duct Segment. Unless the Grantee notifies the Grantor of its
election to terminate that Duct Segment within 12 business days of the casualty,
the Grantee shall be deemed to have elected repair, restoration and replacement
of the Cable. If the Grantee elects to terminate such Duct Segment as set forth
in the preceding sentence, the _DN fibers upon such portion of the Duct Segment
so effected, shall be available for use by the Grantor and the Grantee shall
assign, at no cost to the Grantor, all its rights and title to all buildings and
Equipment on such Duct Segments so effected immediately thereafter.
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18. GENERAL REPRESENTATIONS AND WARRANTIES
18.1 Common Representations. Each of the parties represents and warrants that it
has full authority to enter into and perform this Agreement, that this Agreement
does not conflict with any other document or agreement to which it is a party or
is bound, and that this Agreement is fully enforceable in accordance with its
terms.
18.2 General Representations by the Grantor. The Grantor represents and warrants
that the Grantor is a corporation duly organized, validly existing and in good
standing under the laws of the state under which it is incorporated. The
execution and delivery of this Agreement and performance thereunder will not
conflict with or violate or constitute a breach or default under the Grantor's
Articles or Certificate of Incorporation and will not violate any law, rule or
regulation applicable to the Grantor. No consents need to be obtained from any
governmental agency or regulatory agency to allow the Grantor to execute,
deliver and perform this Agreement except those for which provision has been
made for in Section 35.1.
18.3 Representation by the Grantor As To Duct System. The Grantor represents and
warrants that the Duct System is suitable for its current use and was designed
and installed at a minimum to meet the requirements of the National Electrical
Safety Code and/or other applicable standards then in effect.
18.4 Representation by the Grantor As to Right to Place Cable. The Grantor
represents and warrants that it has the right to have the Cable placed on or in
the Duct System and to have the Cable used by the Grantor as contemplated by
this Agreement, subject to the governmental approvals for which provision has
been made in Section 35.1 and the approvals from certain lienholders referred to
in Section 4.2.
18.5 Work Clearances and Related Delays. The Grantor represents and warrants
that it cannot guarantee line outages or special contingency line operating
conditions that may be necessary for the installation, maintenance and repair of
the Cable and that delays may be necessary. Such work clearances may be obtained
from regional dispatching organization(s) with authority over the lines. The
Grantee shall be responsible for the Grantor's Actual Costs associated with last
minute delays caused by these regional authorities which are reasonably beyond
the control of the Grantor.
18.6 General Representations by the Grantee. The Grantee represents and warrants
that the Grantee is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and the execution and delivery
of this Agreement and the performance thereunder will not conflict with or
violate or constitute a breach or default under the Certificate of Incorporation
of the Grantee and will not violate any law, rule or regulation applicable to
the Grantee. No
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consents need to be obtained from any government agency or regulatory agency to
allow the Grantee to execute, deliver and perform this Agreement.
19. INSURANCE
The Grantee, at its own expense, shall provide and maintain in force during the
term of this Agreement a policy or policies of general liability insurance with
an aggregate limit of no less than $_____. The policy or policies shall include
contractual liability coverage to insure the indemnification agreement and
products completed operations coverage. Any such policy(ies) shall be procured
by the Grantee from a responsible insurance company with a "Best" rating of A or
better, satisfactory to the Grantor. Certificates evidencing such policy(ies)
shall be delivered to the Grantor 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 to the Grantor.
Such policies shall further provide that not less than 30 days' written notice
shall be given to the Grantor before such policy(ies) may be cancelled,
materially changed or undergo a reduction in Insurance limits provided thereby.
The Grantor shall be named as an additional insured, but this shall not limit
the Grantee's right to also include others as additional named insured. The
coverage required herein shall not be deemed to limit the Grantee's liability as
set forth elsewhere in this Agreement. Upon timely notice to the Grantee, the
Grantor may require reasonable increases in the amount of insurance coverage
which will be obtained by the Grantee within 30 days after the Grantor's
request.
20. TERM AND TERMINATION
20.1 Period. The term of this Agreement shall be for a period of __ years (the
"Term") commencing on _____ __, 19XX, and ending on ______ __, 20XX (the "Ending
Date") and shall automatically renew on ______ __, 20XX and thereafter for ___
year periods until terminated by either party upon notice given one year or more
prior to ______ __, 20XX or any renewal date thereafter.
20.2 Early Termination of Agreement. This Agreement may be terminated prior to
the Ending Date upon any one of the following events:
(i) by the Grantee upon 180 days' prior notice to the Grantor.
(ii) by either party in the event of a default by the other party under
Section 33.
(iii) by the Grantor upon 90 days' prior notice in the event of a
violation of Section 35.1.
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The Grantee shall have the right to cure or correct any default specified under
clauses (ii) or (iii) above within the time period of the notices set forth in
Section 33 or as set forth in clause (iii), and the Grantor shall have a similar
right with respect to clause (ii) above.
20.3 Termination of Duct Segment. Any Duct Segment may be terminated:
(i) by the Grantor upon reasonable notice for the purposes of providing
safe and economical electrical service; or
(ii) by the Grantee upon five days' prior written notice if two Cable
failures per month for three consecutive months occur on a Duct Segment as a
result of the Grantor's electric operations and the Grantor fails to take steps
to cure such failure with due diligence, unless the Grantor shall have cured
such failure prior to the expiration of said five day period, or where cure is
not possible within said five day period, the Grantor is proceeding to cure with
due diligence.
(iii) by the Grantor at any time if it cannot obtain the regulatory
approvals needed by it to perform its obligations under this Agreement with
respect to such Duct Segment or can obtain them but on terms that are unduly
burdensome on the Grantor.
20.4 Cost Reimbursement. In the event of the termination of this Agreement or a
portion of the Duct Segments thereof pursuant to Section 20.3, the Grantor shall
reimburse the Grantee a percentage of the cost of the Cable, for such terminated
portion according to the following schedule:
Year 1 100%
Year 2 80%
Year 3 60%
Year 4 40%
Year 5 20%
Year 6 and thereafter, 0%
Year 1 begins on ______ __, 19XX.
The Annual Fee described below for the portion of the year following termination
of a Duct Segment shall be refunded to the Grantee. The amount of the refund
shall be determined by prorating the Annual Fee for the terminated Duct Segment
equally over 365 days. In no event shall the amount of the refund exceed the
amounts collected on the terminated Duct Segment during that period by the
Grantor.
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21. ANNUAL FEE
21.1 Amount. The Grantee shall pay an annual fee ("Annual Fee") for the grant of
use provided in Section 4.1 of this Agreement at a rate of $___.00 per duct foot
per year per each Cable. A Cable shall not contain more than XXX fibers. The
obligation to pay this Annual Fee and that portion of the Annual Fee for
underground facilities contained in Section 22.1(a) of the Agreement for the
provision of Fiber Optic Facilities and Services between the parties and certain
affiliates dated _____ __, 19XX shall not be cumulative. The payment of the
Annual Fee under this Agreement shall, therefore, be in lieu of any payments due
for the same duct space that would otherwise have been due under the _____ __,
19XX Agreement.
21.2 CPI Adjustments. The Annual Fee shall be adjusted annually by an escalation
factor equal to changes in the Consumer Price Index - All Urban ("CPI-U")
published by the US Department of Labor, Bureau of Labor Statistics, which shall
be calculated each October based on changes in the CPI-U from the previous
October. In no instance shall the CPI-U change be applied if it results in a
smaller payment than the previous year's payment. As to any period during which
fees have been waived, the CPI-U shall accrue to the rate during such waiver
period.
21.3 When Due. All Annual Fees shall be paid on January 1st of each year. All
pro-rata payments made during the year shall be based on this date. All payments
shall be paid within 30 days of invoicing.
21.4 Initial Annual Fee. The initial Annual Fee payment will be due and payable
within 30 days after preliminary engineering work has been accepted by both
parties and shall be based upon the estimated number of duct feet to be utilized
by the Grantee over the remainder of the calendar year.
22. FORCE MAJEURE
22.1 Optional Termination. Should any of the Force Majeure Events defined below
occur and should the Grantor determine that as a direct or indirect result
thereof, the parties' continued performance hereunder or with respect to any
portion of the Duct System and the Cable will be irreparably impaired or
prevented, the parties may mutually agree to terminate this Agreement, in whole
or in part as to any portion of the Duct Segments and the Cable so affected with
no further obligation or liability. The parties will attempt to provide a date
of termination such that the parties will have a reasonable time to obtain
alternative means of providing service to customers, but neither party shall
have an obligation to do so. A Force Majeure Event shall include fire, flood,
strike or other labor difficulty, natural disasters, acts of God or public
enemy, restraint or hindrance by any governmental authority, war, insurrection,
riot, action of any regulating authorities or institution of litigation by any
Third Party, or any other causes of any nature reasonably beyond the control of
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either party which would have a material adverse effect on the subject matter of
this Agreement.
22.2 Suspension Pending Force Majeure. If a Force Majeure Event should occur
then, and for a reasonable time thereafter, the parties' performance of this
Agreement shall be suspended. At the conclusion of a Force Majeure Event the
period of time so suspended shall be added to the dates, schedules and other
performance related matters under this Agreement.
23. PROPRIETARY INFORMATION
23.1 Obligation to Maintain as Confidential. Each party acknowledges that in the
course of the performance of this Agreement it may have access to privileged and
proprietary information claimed to be unique, secret, and confidential, and
which constitutes the exclusive property and trade secrets of the other
("Proprietary Information"). This information may be presented in documents
marked with a restrictive notice or otherwise tangibly designated as proprietary
or during oral discussions, at which time representatives of the disclosing
party will specify that the information is proprietary and shall subsequently
confirm said specification in writing within five days. Each party agrees to
maintain the confidentiality of the Proprietary Information and to use the same
degree of care as it uses with regard to its own proprietary information to
prevent the disclosure, publication or unauthorized use of the Proprietary
Information. Neither party may duplicate, copy or use Proprietary Information of
the other party other than to the extent necessary to perform this Agreement.
Either party shall be excused from these nondisclosure provisions if the
Proprietary Information received from the other party has been or is
subsequently made public by the other party, is independently developed by such
party, disclosed pursuant to order by a court or government agency, or if the
other party gives its express, prior written consent to the disclosure of the
Proprietary Information.
23.2 Route Constitutes Proprietary Information. The routing of _DN and the
conditions of the Grantee's contracts with customers and customer names are
deemed Proprietary Information without further notice and will not be disclosed
by the Grantor absent an order by a court or regulatory body with jurisdiction
over the Grantor.
24. ACCESS AND SECURITY
24.1 Access by the Grantor. The Grantee agrees, upon reasonable request, to
allow the Grantor direct ingress and egress to all the Grantor Space to be
provided to the Grantor as described in Section 16.4, and to permit the Grantor
to be on the Grantee's premises at such times as may be required for the Grantor
to perform any appropriate maintenance and repair of equipment in such Grantor
Space. The
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Grantee may require that a representative of the Grantee accompany any
representatives of the Grantor having access to the Grantor Space except in
buildings having separate entrances providing access only to the Grantor Space
therein. Employees and agents of the Grantor shall, while on the premises of the
Grantee, comply with all rules and regulations, including without limitation
security requirements, and, where required by government regulations, receipt of
satisfactory governmental clearances. The Grantor shall provide to the Grantee a
list of the Grantor's employees or authorized Grantor's designee employees who
are performing work on, or who have access to, the Grantor Space. The Grantee
shall have the right to notify the Grantor that certain Grantor or authorized
Grantor designee employees are excluded if, in the reasonable judgment of the
Grantee, the exclusion of such employees is necessary for the proper security
and maintenance of the Grantee's facilities.
24.2 Access by the Grantee. The Grantor agrees, upon reasonable request, to
allow the Grantee direct ingress and egress to all the Grantee Space to be
provided to the Grantee as described above, and to permit the Grantee to be on
the Grantor's premises at such times as may be required for the Grantee to
perform any appropriate maintenance and repair of Equipment located at such
Grantee Space. The Grantor may require that a representative of the Grantor
accompany any representatives of the Grantee having access to the Grantee Space.
Employees and agents of the Grantee shall, while on the premises of the Grantor,
comply with all rules and regulations, including without limitation security
requirements, and, where required by government regulations, receipt of
satisfactory governmental clearances. The Grantee shall provide to the Grantor a
list of the Grantee's employees or authorized Grantee's designee employees who
are performing work on, or who have access to, the Grantee Space. The Grantor
shall have the right to notify the Grantee that certain Grantee or authorized
Grantee's designee employees are excluded if, in the reasonable judgment of the
Grantor, the exclusion of such employees is necessary for the proper security
and maintenance of the Grantor's facilities.
24.3 Access by the Grantee to _DN Space. The Grantee or its designees shall have
the right to visit the Grantee Space and any facilities of the Grantor utilized
in providing _DN upon reasonable prior written notice to the Grantor; provided,
however, that the Grantor may require that a representative of the Grantor
accompany any representatives of the Grantee or of an authorized Grantee
designee making such visit. Such visitation right shall include the right to
inspect _DN and to review worksheets, to review performance or service data, and
to review other documents used in conjunction with this Agreement. Employees and
agents of the Grantee or of an authorized Grantee designee shall, while on the
premises of the Grantor, comply with all rules and regulations, including
without limitation security requirements and, where required by government
regulations, receipt of satisfactory governmental clearances. The Grantor shall
have the right to notify the Grantee that certain Grantee or authorized Grantee
designee employees are excluded if, in the
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reasonable judgment of the Grantor, the exclusion of such employees is necessary
for the proper security and maintenance of the Grantor's facilities.
24.4 Grantee's Work. The Grantee shall at all times perform its work in
accordance with the Grantor's safety and work procedures and in accordance with
the applicable provisions of OSHA. The Grantor shall have the authority to
suspend the Grantee's work operations in and around the Grantor's property if,
in the sole judgment of the Grantor at any time hazardous conditions arise or
any unsafe practices are being followed by the Grantee's employees, agents, or
contractors. The Grantee agrees to pay the Grantor for having the Grantor's
employee or agent present when the Grantee's work is being done in and around
the Grantor's property. Such charges shall be at the Grantor's Actual Cost. The
presence of the Grantor's authorized employee or agent(s) shall not relieve the
Grantee of its responsibility to conduct all of its work operations in and
around the Grantor's property in a safe and workmanlike manner, and in
accordance with the terms and conditions of this Agreement.
25. NO JOINT VENTURE; COSTS
25.1 Relationship. In all matters pertaining to this Agreement, the relationship
of the Grantor and the Grantee shall be that of independent contractors, and
neither the Grantor nor the Grantee shall make any representations or warranties
that their relationship is other than that of independent contractors. This
Agreement is not intended to create nor shall it be construed to create any
partnership, joint venture, employment or agency relationship between the
Grantee and the Grantor, and no party hereto 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.
25.2 Costs. Except for costs and expenses specifically assumed by a party under
this Agreement each party shall pay its own expenses incident to this Agreement,
including without limitation amendments hereto, and the transactions
contemplated hereunder, including all legal and accounting fees and
disbursements.
26. PUBLICITY AND ADVERTISING
26.1 Limitations. In connection with this Agreement, neither party shall publish
or use any advertising, sales promotions, or other publicity materials that use
the other party's logo, trademarks, or service marks or employee name without
the prior written approval of the other party. Except as provided in Section
26.2 below, each party shall have the right to review and approve any publicity
materials, press
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releases or other public statements by the other party. In connection with this
Agreement, each party agrees not to issue any such publicity materials, press
releases or material produced by the public relations department for the other
party without written consent. Unless otherwise agreed, neither party shall
release the existence of the text of this Agreement or any material portion
thereof, other than in the form modified to remove all references to the
identity of the other party, to any person or entity other than the parties
hereto for any purpose other than those specified in Section 26.2.
26.2 Exceptions. The provisions of Section 26.1 shall not apply to reasonably
necessary disclosures in or in connection with regulatory filings or
proceedings, financial disclosures which in the good faith judgment of the
disclosing party are required by law, or disclosures that may be reasonably
necessary in connection with the performance of this Agreement.
27. MARKETING RELATIONSHIP
Upon the written approval of the Grantor, except for the exemption of customer
prospects and customers of the Grantee as listed in Exhibit 27, Sales Order
Customer Exclusion List, in the event that communication service orders are
received by the Grantee, as a result of the Grantee issuing sales literature or
promotional material in which the name of the Grantor is mentioned or by the
Grantor introducing the Grantee to customer prospects not listed in Exhibit 27,
or by the Grantor undertaking any joint marketing effort with the Grantee
including joint sales calls, the Grantee shall pay to the Grantor compensation
equal to the first month that there is recurring revenue charged by the Grantee
to those customers receiving such sales literature, promotional material or
joint sales calls.
28. SEVERABILITY
If any part of any provision of this Agreement or any other agreement, document
or writing given pursuant to or in connection with this Agreement shall be
invalid or unenforceable under applicable law, said part shall be ineffective to
the extent of such invalidity only, without in any way affecting the remaining
parts of said provision or the remaining provisions of said agreement; provided,
however, that if any such ineffectiveness or enforcement of any provision of
this Agreement, in the good faith judgment of either party, renders the benefits
to such party of this Agreement as a whole uneconomical in light of the
obligations of such party under this Agreement as a whole, then the other party
shall negotiate in good faith in an effort to restore insofar as possible the
economic benefits of this Agreement to such party.
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29. LABOR RELATIONS
29.1 Notice by the Grantor. The Grantor agrees to notify the Grantee immediately
whenever the Grantor has knowledge that a labor dispute concerning its employees
is delaying or threatens to delay the Grantor's timely performance of its
obligations under this Agreement. The Grantor shall endeavor to minimize
impairment of its obligations to the Grantee (by using the Grantor's management
personnel to perform work, or by other means) in event of a labor dispute.
29.2 Notice by the Grantee. The Grantee agrees to notify the Grantor immediately
whenever the Grantee has knowledge that a labor dispute concerning its employees
is delaying or threatens to delay the Grantee's timely performance of its
obligations under this Agreement. The Grantee shall endeavor to minimize
impairment of its obligations to the Grantor (by using the Grantee's management
personnel to perform work, or by other means) in the event of labor dispute.
29.3 Determination by the Grantee. If the Grantee determines that the Grantor's
activities pursuant to this Agreement in any Grantee facility are causing or
will cause labor difficulties for the Grantee, the Grantor agrees to 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, the Grantee shall during the period of such labor difficulties
perform at its own expense any such activities that may be reasonably necessary
to the operation and maintenance of the Grantor's system or any portion thereof.
29.4 Determination by the Grantor. If the Grantor determines that the Grantee's
activities pursuant to this Agreement in any the Grantor facility are causing or
will cause labor difficulties for the Grantor, the Grantee agrees to 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, the Grantor shall during the period of such labor difficulties
perform at its own expense any such activities that may be reasonably necessary
to the operation and maintenance of the Grantee's system or any portion thereof.
30. CONSENTS AND WAIVERS
Whenever any party hereto is asked to consent or waive any action or matter
provided herein or whenever any party has the right to do or refuse to do any
act in its sole judgment or discretion provided herein, said party agrees to act
reasonably and in good faith in making or refusing to consent, in waiving or
refusing to waive, or in making any such judgments.
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31. TAXES AND GOVERNMENTAL CHARGES
The Grantee shall pay the Grantor the pro rata amount based on the number of
fiber optic filaments under each party's control, of all taxes assessed on the
Grantor which are attributable to the Grantee's portion of the Cable, buildings
and Equipment. The Grantee shall pay the Grantor said taxes when they become
due, which shall include all taxes, assessments and governmental charges of any
kind whatsoever lawfully levied or assessed and attributable against the
Grantee's installation, maintenance or operation of the connections to the Cable
or against the Grantee's business with regards to the Cable or the connection
thereto, including without limitation, all franchise and other fees to any
Federal, State, City or other jurisdiction having the authority to tax or assess
other governmental charges. Upon said payment to the Grantor, the Grantor shall
indemnify the Grantee against any and all actions which may be brought against
the Grantor and the Grantee with regard to the Grantor's remittance of said
payments to any taxing authority or governmental agency. The Grantee shall have
the right to pay the tax or charge under protest without being subjected to a
default notice under Section 34. The Grantor shall pay, when they become due,
the pro rata amount based on the number of fiber optic filaments under each
party's control, all taxes, assessments and governmental charges of any kind
whatsoever lawfully levied or assessed against the Cable, installation,
maintenance or operation of the connections to the Cable or against the
Grantor's business with regards to the Cable or the connection thereto,
including without limitation, all franchise and other fees to any Federal,
State, City or other jurisdiction having the authority to tax and assess other
governmental charges. The Grantor shall have the right to pay the tax or charge
under protest without being subjected to a default notice under Section 33. The
Grantor warrants that it shall remit all tax payments to taxing authorities and
governmental agencies and shall not cause the Cable to be levied, attached, or
otherwise encumbered by any taxing authority by not having done so. Each party
shall pay without apportionment any taxes levied on it based on its business
profits.
32. INDEMNIFICATION.
32.1 By the Grantee. The Grantee agrees to indemnify and hold harmless the
Grantor, its employees, contractors, subcontractors, agents, directors,
officers, affiliates, and subsidiaries and their respective employees,
subcontractors, agents, directors and officers from and against any and all
liabilities, damages, losses, claims, demands, judgments, costs, and expenses
(including, subject to Section 32.2, the cost of defense thereof and attorney's
fees) based on the Grantee's use of the Cable including, without limitation, any
claim for infringement of patent or trade secret, made by Third Parties
(collectively, "Claims").
32.2 Indemnification procedures. The Grantor shall give prompt notice of any
Claim for which indemnification is or will be sought under this Section and
shall
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cooperate and assist the Grantee in the defense of the Claim. The Grantee shall
bear the cost of and have the right to control the defense and shall have the
right to select counsel after consulting with the Grantor. The obligation to
indemnify shall be net of any tax or insurance benefit obtained by the Grantor.
32.3 Limitation of the Grantor Liability. In no event shall the Grantor be
liable to the Grantee or to its customers, whether in contract, tort, or
otherwise, including strict liability, for any special, indirect, incidental or
consequential damages or any lost business damages in the nature of lost
revenues or profits, and any such claims by Third Parties against the Grantor
shall invoke the obligations under, but subject to the provisions of, Section
32.1 above.
32.4 Limitation of the Grantee Liability. In no event shall the Grantee be
liable to the Grantor or to its customers, whether in contract, tort, or
otherwise, including strict liability, for any special, indirect, incidental or
consequential damages or any lost business damages in the nature of lost
revenues or profits.
33. DEFAULT
If either party shall allow any payment due hereunder to be in arrears more than
60 days after notice from the other party, shall allow any policy of insurance
provided by Section 19 hereof to expire without renewal, or shall remain in
default under any other provision of this Agreement other than those referred to
in Section 20 for a period of 30 days after notice by the other party of such
default, the party so notifying the other party may, at its option, terminate
this Agreement pursuant to Section 20.2(ii), provided, however, that, in the
case of a default for other than failure of payment or failure to maintain
insurance, where the party in default proceeds with all due diligence to cure
such default and cure is not possible within said 30 days, then the party then
in default shall have such time to cure the default as the defaulted party
agrees is reasonably necessary.
34. ASSIGNMENT
34.1 By the Grantee. Subject to Section 34.4, the Grantee may not assign or
otherwise allow use of its rights under this Agreement to any person or entity
other than an Affiliate without the prior written approval of the Grantor. The
Grantor's approval will be granted provided the new person or entity
demonstrates to the reasonable satisfaction of the Grantor that the proposed
assignee is financially and operationally fit, willing and able to discharge its
obligations under this Agreement, acquires substantially all of the Grantee's
business within the geographic area of such assignment including substantially
all of the assets used in such business, and agrees to be bound directly and
fully by all of the terms and conditions of this Agreement.
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34.2 Change of Control. Any change of control of the Grantee shall be deemed an
assignment if a new person or entity other than an Affiliate, directly or
indirectly, acquires 50% or more of the voting stock of the Grantee in one or
more connected transactions, except that this Section 34.2 shall not apply to
any acquiror of any equity interest in the Grantee, if such other acquiror was
introduced to the Grantee by XXX, Inc., or if XXX, Inc. was acting as an advisor
for such other acquiror.
34.3 Grantor's Right to Pledge Agreement and Transfer Property. The Grantor
shall be free to mortgage, pledge, or otherwise assign its interests under this
Agreement to any Third Party in connection with any borrowing or other financing
activity of the Grantor provided that such assignment shall not limit or
otherwise affect the Grantor's obligations under this Agreement. Any transfer of
property of the Grantor included in or subject to this Agreement may be made by
the Grantor provided the person acquiring such property takes it subject to this
Agreement.
34.4 Grantee's Right to Pledge Agreement and Lease Fibers. The Grantee shall be
free to mortgage, pledge or otherwise assign its interest under this Agreement
to any Third Party in connection with any borrowing or other financing activity
of the Grantee provided that such assignment shall not limit or otherwise affect
the Grantee's obligations under this Agreement. The Grantee shall have the right
to lease or sublease fibers of which it has the use under this Agreement to
Third Parties.
34.5 Right to Assign. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns where
permitted by this Agreement.
35. APPROVALS, PERMITS, AND CONSENTS
35.1 Grantee's Obligations. During the term of this Agreement, the Grantee at
its sole cost and expense shall obtain and maintain any and all necessary
permits, licenses, franchises and approvals that may be required by federal,
state or local law, regulation or ordinance, and shall continuously comply with
all such laws, regulations or ordinances as may now or in the future be
applicable to the Grantee's use and operation of the Cable. If the Grantee or
any permitted assignee shall at any time fail to maintain such approvals, the
Grantor may terminate this Agreement without any liability or obligation to the
Grantee pursuant to Section 20.2(iii).
35.2 Opinion. Within 90 days of the date of this Agreement, the Grantee shall
provide the Grantor with an opinion of counsel, in form and substance
satisfactory to the Grantor, stating the Grantee's compliance with the
provisions of law applicable to the Grantee's use of the Cable and its
obligations under this Agreement.
35.3 Grantor's Obligations. During the term of this Agreement, the Grantor
shall, at its Actual Cost to be paid by the Grantee, obtain all approvals and
consents that
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may be required from all federal, state, and local authorities regarding all or
any portion of the Cable installation or replacement upon the Duct Segments
subject to such jurisdiction. Legal counsel used for this purpose shall be
selected by the Grantor in consultation with the Grantee.
36. NOTICES
36.1 Form and Address. All notices authorized or required by this Agreement
shall be given in writing and delivered to the following addresses, which may
change from time to time by such notice to either party, which addresses shall
also serve as the addresses for the delivery of any amounts due and payable
hereunder:
---------------------------
---------------------------
---------------------------
---------------------------
With a copy to:
---------------------------
---------------------------
---------------------------
---------------------------
NorthEast Optic Network, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
36.2 How Sent. Each notice, demand, request, report approval or communication
which shall be mailed in the manner described above, or delivered by hand or an
insured overnight courier, shall be deemed sufficiently given, served, sent or
received for all purposes at such time as it is delivered to the addressee with
the return receipt or the delivery receipt being deemed conclusive evidence of
such delivery, or at such time as delivery is refused by the addressee upon
presentation.
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36.3 Damage Notification. In the event that the Cable is damaged for any reason,
the party discovering such damage shall notify the other party of said damage by
telephone at:
for the Grantor: (XXX) XXX-XXXX
for the Grantee: (▇▇▇) ▇▇▇-▇▇▇▇
These are 24 hour, 7 day per week emergency notification numbers. Calls shall be
directed to the Supervisor on Duty, and the caller should be able to provide the
following information:
1. Name of company making report;
2. Location reporting problem;
3. Name of contact person reporting problem;
4. Telephone number to call back with progress report;
5. Description of the problem in as much detail as possible;
6. Time and date the problem occurred or began; and
7. If appropriate, a statement that "This is an emergency" and that a
problem presents a jeopardy situation to the physical plant of the
Grantor or the Grantee, as the case may be.
37. DISPUTE RESOLUTION
37.1 Arbitration. If any question shall arise in regard to the interpretation of
any provision of this Agreement or as to the rights or obligations of the
parties hereunder, the question shall be referred by either party to the two
Program Managers who shall deliberate such question for not more than 15 days
following such referral. If a resolution is not forthcoming within said period
the matter shall be deemed to have been further referred to a senior executive
designated by each party who shall, within 30 days of the initial referral which
invoked these dispute resolution procedures, meet with each other to negotiate
and attempt to resolve such question in good faith. Such senior executives may,
if they so desire, consult outside experts for assistance in arriving at such a
resolution. In the event that a resolution is not achieved within 30 days of
such initial referral, then the question shall be deemed referred for final
resolution to arbitrators (all of whom shall be arbitrators certified by the
American Arbitration Association) named as follows:
(i) each party shall name an arbitrator and give written notice thereof
to the other party within 10 days following the expiration of such 30 day
period; and
(ii) the arbitrators so named shall within 15 days after the naming the
latter of them, select an additional arbitrator. If such additional arbitrator
is not selected within such 15 day period, either party may seek to appoint such
third arbitrator by applying to the Boston Office of the American Arbitration
Association who shall
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promptly appoint such third arbitrator. The three arbitrators shall then proceed
promptly to hear and determine the matter in controversy. The arbitration shall
be conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The arbitrators shall be instructed that their decision
must be made within 45 days after the appointment of the third arbitrator,
subject to any reasonable delay due to unforeseen circumstances. If any party
shall fail to appoint an arbitrator within the time specified, the remaining
arbitrator or arbitrators may proceed without that arbitrator having been
appointed.
37.2 Award; Costs. The decision of the arbitrators shall be in writing and
signed by the arbitrators or a majority of them and shall be final and binding
on the parties, and the parties shall abide by the decision and perform the
terms and conditions thereof. Unless otherwise determined by the arbitrators,
the fees and expenses of the arbitration shall be borne by the party losing in
these dispute resolution procedures, or if no party prevails in full, as
allocated by the arbitrators based on the relative merits of the parties'
positions. Judgment upon the award rendered may be issued by any court having
jurisdiction and application may be made to such court for a judicial acceptance
of the award and an order of enforcement. All arbitration shall be conducted in
Worcester, Massachusetts.
38. EXERCISE OF RIGHT
No failure or delay on the part of either party hereto in exercising any right,
power or privilege hereunder and no course of dealing between the parties shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
39. ADDITIONAL ACTIONS AND DOCUMENTS
Each of the parties hereto hereby agrees to take or cause to be taken such
further actions, to execute, acknowledge, deliver and file or cause to be
executed, acknowledged, delivered and filed such further documents and
instruments, and to use its best effort to obtain such consents, as may be
necessary or as may be reasonably requested in order to fully effectuate the
purposes, terms and conditions of this Agreement, whether at or after the
execution of this Agreement.
40. SURVIVAL
It is the express intention and agreement of the parties hereto that all
covenants, agreements, statements, representations, warranties and indemnities
made in this Agreement shall survive the execution and delivery of this
Agreement.
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41. HEADINGS
Article headings contained in this Agreement are inserted for convenience of
reference only, shall not be deemed to be a part of this Agreement for any
purpose, and shall not in any way define or affect the meaning, construction or
scope of any of the provisions hereof.
42. INCORPORATION OF EXHIBITS
The Exhibits referenced in and attached to this Agreement shall be deemed an
integral part hereof to the same extent as if written at length herein.
43. COUNTERPARTS
To facilitate execution, this Agreement may be executed in as many counterparts
as may be required; and it shall not be necessary that the Signatures of or on
behalf of each party appear on each counterpart; but it shall be sufficient that
the signature of or on behalf of each party appear on one or more of the
counterparts. All counterparts shall collectively constitute a single agreement.
It shall not be necessary in any proof of this Agreement to produce or account
for more than the number of counterparts containing the respective signatures of
or on behalf of all of the parties.
44. APPLICABLE LAW
This Agreement shall be construed under and in accordance with the laws of the
State of ____________________.
45. PRIOR AGREEMENTS
This Agreement supersedes all prior or contemporaneous proposals, communications
and negotiations, either oral or written, relating to the rights, obligations,
or performance of this Agreement by the parties hereto, and, as such,
constitutes the complete and entire agreement of the parties.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year first above written.
Witnessed GRANTOR
_____________________ By:__________________________
Title:____________________
NORTHEAST OPTIC NETWORK, INC.
By:__________________________
Title:____________________
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