Common use of Incumbent's Right to Contest Capacity Expansion Clause in Contracts

Incumbent's Right to Contest Capacity Expansion. In the event, after receipt of the test results as set forth above, Incumbent reasonably determines that a proposed Capacity Expansion will degrade the System below the Specifications, Incumbent shall have the right to withhold delivery of any Certificate of Acceptance with respect to such Capacity Expansion and shall hire an independent third party approved by Pathnet (which approval shall not be unreasonably withheld) to perform additional testing on such Capacity Expansion. In the event such independent third party reports that the proposed Capacity Expansion will not result in the degradation of the System below the Specifications, Incumbent (i) shall promptly deliver to Pathnet a Certificate of Acceptance with respect to such proposed Capacity Expansion and (ii) shall pay for the reasonable costs of such independent third party evaluation. In the event that such independent third party reports that the proposed Capacity Expansion will result in the degradation of the System below the Specifications (i) Pathnet shall make all required modifications to the System and the proposed Capacity Expansion such that, in the opinion of such independent third party, the proposed Capacity Expansion shall not degrade the System below the Specifications, (ii) upon verification by such independent third party that the proposed Capacity Expansion, as modified by Pathnet, shall not degrade the System below the Specifications, Incumbent shall promptly deliver to Pathnet a Certificate of Acceptance substantially in the form attached as Exhibit A-9 to this Schedule A with respect to such Capacity Expansion and (iii) Pathnet shall pay for the reasonable costs of such independent third party evaluation.

Incumbent's Right to Contest Capacity Expansion. In the event, after receipt of the test results as set forth above, Incumbent reasonably determines that a proposed Capacity Expansion will degrade the System below the Specifications, Incumbent shall have the right to withhold delivery of any Certificate of Acceptance with respect to such Capacity Expansion and shall hire an independent third party approved by Pathnet PathNet (which approval shall not be unreasonably withheld) to perform additional testing on such Capacity Expansion. In the event such independent third party reports that the proposed Capacity Expansion will not result in the degradation of the System below the Specifications, Incumbent (i) shall promptly deliver to Pathnet PathNet a Certificate of Acceptance with respect to such proposed Capacity Expansion and (ii) shall pay for the reasonable costs of such independent third party evaluation. In the event that such independent third party reports that the proposed Capacity Expansion will result in the degradation of the System below the Specifications (i) Pathnet PathNet shall make all required modifications to the System and the proposed Capacity Expansion such that, in the opinion of such independent third party, the proposed Capacity Expansion shall not degrade the System below the Specifications, (ii) upon verification by such independent third party that the proposed Capacity Expansion, as modified by PathnetPathNet, shall not degrade the System below the Specifications, Incumbent shall promptly deliver to Pathnet PathNet a Certificate of Acceptance substantially in the form attached as Exhibit A-9 A-8 to this Schedule A with respect to such Capacity Expansion and (iii) Pathnet PathNet shall pay for the reasonable costs of such independent third party evaluation.

Incumbent's Right to Contest Capacity Expansion. In the event, after receipt of the test results as set forth above, Incumbent reasonably determines that a proposed Capacity Expansion will degrade not meet the System below the SpecificationsCapacity Expansion Requirements, Incumbent shall have the right to withhold delivery of any Certificate of Acceptance with respect to such Capacity Expansion and shall hire an independent third party approved by Pathnet (which approval shall not be unreasonably withheld) to perform additional testing on such Capacity Expansion. In the event such independent third party reports that the proposed Capacity Expansion will not result in meet the degradation of the System below the SpecificationsCapacity Expansion Requirements, Incumbent (i) shall promptly deliver to Pathnet a Certificate of Acceptance with respect to such proposed Capacity Expansion and (ii) shall pay for the reasonable costs of such independent third party evaluation. In the event that such independent third party reports that the proposed Capacity Expansion will result in not meet the degradation of the System below the Specifications Capacity Expansion Requirements (i) Pathnet shall make all required modifications to the System and the proposed Capacity Expansion such that, in the opinion of such independent third party, the proposed Capacity Expansion shall not degrade violate the System below the SpecificationsCapacity Expansion Requirements, (ii) upon verification by such independent third party that the proposed Capacity Expansion, as modified by Pathnet, shall not degrade meets the System below the SpecificationsCapacity Expansion Requirements, Incumbent shall promptly deliver to Pathnet a Certificate of Acceptance substantially in the form attached as Exhibit A-9 to this Schedule A with respect to such Capacity Expansion and (iii) Pathnet shall pay for the reasonable costs of such independent third party evaluation.

Incumbent's Right to Contest Capacity Expansion. In the event, after receipt of the test results as set forth above, Incumbent reasonably determines that a proposed Capacity Expansion will degrade the System below the Specifications, Incumbent shall have the right to withhold delivery of any Certificate of Acceptance with respect to such Capacity Expansion and shall hire an independent third party approved by Pathnet PathNet (which approval shall not be unreasonably withheld) to perform additional testing on such Capacity Expansion. In the event such independent third party reports that the proposed Capacity Expansion will not result in the degradation of the System below the Specifications, Incumbent (i) shall promptly deliver to Pathnet PathNet a Certificate of Acceptance with respect to such proposed Capacity Expansion and (ii) shall pay for the reasonable costs of such independent third party evaluation. In the event that such independent third party reports that the proposed Capacity Expansion will result in the degradation of the System below the Specifications (i) Pathnet PathNet shall make all required modifications to the System and the proposed Capacity Expansion such that, in the opinion of such independent third party, the proposed Capacity Expansion shall not degrade the System below the Specifications, (ii) upon verification by such independent third party that the proposed Capacity Expansion, as modified by PathnetPathNet, shall not degrade the System below the Specifications, Incumbent shall promptly deliver to Pathnet PathNet a Certificate of Acceptance substantially in the form attached as Exhibit A-9 to this Schedule A with respect to such Capacity Expansion and (iii) Pathnet PathNet shall pay for the reasonable costs of such independent third party evaluation.