Common use of Representations, Warranties and Acknowledgments Clause in Contracts

Representations, Warranties and Acknowledgments. 21.1 Each party represents and warrants that: (a) it has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement; (b) this Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights and general equitable principles; and (c) its execution of and performance under this Agreement shall not violate any applicable existing regulations, rules, statutes or court orders of any local, state or federal government agency, court or body. (d) Subject to Section 21.2(d) below as to Pathnet, neither Party shall cause or permit any portion of its interest in the Customer Fibers or its interest in the Pathnet System to become subject to any material mechanics lien, materialmans' lien, vendor's lien or any similar lien whether by operation of law or otherwise. In the event either Pathnet or Customer breaches its obligations in this Section, it shall immediately notify the other in writing, shall promptly cause such lien to be discharged and released of record without cost to the other, and shall indemnify the other against all costs and expenses (including reasonable attorneys fees and court costs at trial and on appeal) incurred in discharging and releasing such lien; provided -------- that: (a) Pathnet and Customer shall each have the right to contest such lien or the validity thereof in good faith by appropriate proceeding which shall operate to prevent the collection or foreclosure of the contested lien; and (b) the contesting party shall cause any such lien to be discharged prior to the commencement of any foreclosure action on such lien. 21.2 Pathnet represents and warrants to Customer that: (a) Pathnet has obtained all permits and other governmental and third-party approvals required for the installation of the Pathnet System and the performance of its obligations under this Agreement. (b) In its ownership, operation and maintenance of the Pathnet System, Pathnet will comply with all applicable local, municipal, state or federal laws, orders and regulations. (c) Notwithstanding anything to the contrary contained herein, that it has obtained, and shall maintain throughout the term, any and all rights of way, easements, licenses and other agreements relating to the grant of rights and interests, and/or access to the real property underlying the Pathnet System (including the Associated Conduit) and such other rights, licenses, permits, authorizations, and approvals that are necessary in order to permit Pathnet to grant the IRUs, and otherwise to perform its obligations hereunder, in accordance with the terms and conditions hereof, and to permit Customer to use the Associated Conduit and Customer Fibers as dark fibers as provided and permitted hereunder and in accordance with the terms and conditions hereof (collectively, the "Underlying Rights"). Underlying Rights shall not be deemed to include franchises, municipal licenses and other approvals or permits issued by governmental authorities that may be necessary for the creation and sale of telecommunications capacity on the Customer Fibers. In the event that Pathnet receives notice that it has not obtained a necessary Underlying Right, or that an Underlying Right is or may be defective, and such failure or defect poses a significant threat to, or actually interferes with, Customer's continued use and enjoyment of the System, Pathnet will take such steps as it reasonable deems appropriate to confirm the integrity of the Underlying Rights, acquire additional Underlying Rights, or take such other action as may be appropriate to protect Customer's rights to exercise its rights hereunder. Notwithstanding the foregoing, if Customer becomes aware that a failure or defect in an Underlying Right poses an imminent threat to Customer's continued ability to exercise its rights hereunder, including, without limitation, an imminent threat of injunction threatening Customer's right to operate the system, Customer will promptly advise Pathnet, either telephonically or in writing, and will discuss in good faith the appropriate actions to be taken. If, in Customer's sole judgment, Pathnet's proposed actions are not adequate to resolve the situation, or if Pathnet takes action but, in Customer's sole judgment, such actions are not resolving the situation satisfactorily, Customer may take such action that it deems appropriate to ensure its continuing right to exercise its rights hereunder, and Pathnet shall reimburse Customer on demand for all costs and expenses incurred in doing so. (d) Pathnet owns clear, exclusive, legal title to the Customer Fibers and Associated Conduit, free and clear of all liens, security interests or other encumbrances, except that the Pathnet System, including the Customer Fibers and Associated Conduit are subject to a lien in favor of certain lenders as more particularly set forth in that certain Amended and Restated Collateral Agency Agreement and Intercreditor Agreement dated as of September 7, 2000 between Pathnet and certain lenders referenced therein that are currently parties to such Agreement or who may be added in the future. Pathnet has all necessary right and authority to perform its obligations pursuant to this Agreement. 21.3 EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE AND IN SECTION 4.2, PATHNET MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER FIBERS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.

Representations, Warranties and Acknowledgments. 21.1 24.1 Each party Party represents and warrants that: (a) it has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement; (b) this Agreement constitutes a legal, valid and binding obligation enforceable against such party Party in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights and general equitable principles; and (c) its execution of and performance under this Agreement shall not violate any applicable existing regulations, rules, statutes or court orders of any local, state or federal government agency, court or body. (d) Subject to Section 21.2(d) below as to Pathnet, neither Party shall cause or permit any portion of its interest in the Customer Fibers or its interest in the Pathnet System to become subject to any material mechanics lien, materialmans' lien, vendor's lien or any similar lien whether by operation of law or otherwise. In the event either Pathnet or Customer breaches its obligations in this Section, it shall immediately notify the other in writing, shall promptly cause such lien to be discharged and released of record without cost to the other, and shall indemnify the other against all costs and expenses (including reasonable attorneys fees and court costs at trial and on appeal) incurred in discharging and releasing such lien; provided -------- that: (a) Pathnet and Customer shall each have the right to contest such lien or the validity thereof in good faith by appropriate proceeding which shall operate to prevent the collection or foreclosure of the contested lien; and (b) the contesting party shall cause any such lien to be discharged prior to the commencement of any foreclosure action on such lien. 21.2 Pathnet 24.2 AT&T represents and warrants to Customer that: (a) Pathnet has obtained all permits that both the Subject Strands and other governmental and third-party approvals required for the installation portion of the Pathnet AT&T System in which the same is located, shall be engineered, constructed and the performance of its obligations under this Agreement. (b) In its ownership, operation and maintenance of the Pathnet System, Pathnet will comply with all applicable local, municipal, state or federal laws, orders and regulations. (c) Notwithstanding anything to the contrary contained herein, that it has obtained, and shall maintain throughout the term, any and all rights of way, easements, licenses and other agreements relating to the grant of rights and interests, and/or access to the real property underlying the Pathnet System (including the Associated Conduit) and such other rights, licenses, permits, authorizations, and approvals that are necessary in order to permit Pathnet to grant the IRUs, and otherwise to perform its obligations hereunder, installed in accordance with the terms specifications set forth in Exhibits D and conditions E, and that any deviation from such specifications have not and shall not result in damage to the Subject Strands; provided that Purchaser's sole rights and remedies with respect to any such damage to the Subject Strands shall be for AT&T to repair and correct any Material Fiber Deviations from the standards set forth in Exhibits D and E at AT&T's sole cost and expense. For purposes hereof, "Material Fiber Deviation" means a deviation, which has or is reasonably likely to have a material adverse affect on the operation or performance of the Subject Strands affected thereby. The representations and warranties set forth in this Section 24.2 shall terminate and be of no further force and effect as of the date thirty (30) days prior to permit Customer the expiration of the "Applicable Period" (as hereinafter defined) except with respect to use claims for breaches of such representation and warranties as to which Purchaser provides notice to AT&T not less than thirty (30) days prior to the Associated Conduit and Customer Fibers as dark fibers as provided and permitted hereunder and in accordance with expiration of the terms and conditions hereof (collectivelyApplicable Period. As used herein, the term "Underlying Rights"). Underlying Rights Applicable Period" shall not mean (i) with respect to Material Fiber Deviations relating to the quality or characteristics of the Subject Strands, the warranty period obtained by AT&T with respect to such Fiber, and (ii) with respect to any other material deviations, the warranty period obtained by AT&T from the applicable contractor performing the services which are allegedly subject to the material deviation; provided, however, that if such services were performed by AT&T, the Applicable Period shall be deemed to include franchises, municipal licenses and other approvals or permits issued the warranty period obtained by governmental authorities that may be necessary for AT&T from the creation and sale contractor providing the largest portion of telecommunications capacity the construction services on the Customer Fibers. In the event that Pathnet receives notice that it has not obtained a necessary Underlying Right, or that an Underlying Right is or may be defective, and such failure or defect poses a significant threat to, or actually interferes with, Customer's continued use and enjoyment of the System, Pathnet will take such steps as it reasonable deems appropriate to confirm the integrity of the Underlying Rights, acquire additional Underlying Rights, or take such other action as may be appropriate to protect Customer's rights to exercise its rights hereunderaffected Link. Notwithstanding the foregoing, if Customer becomes aware that a failure or defect in an Underlying Right poses an imminent threat "Applicable Period" shall be at least equal to Customer's continued ability to exercise its rights hereunder, including, without limitation, an imminent threat of injunction threatening Customer's right to operate thirty (30) days after the system, Customer will promptly advise Pathnet, either telephonically or in writing, and will discuss in good faith the appropriate actions to be taken. If, in Customer's sole judgment, Pathnet's proposed actions are not adequate to resolve the situation, or if Pathnet takes action but, in Customer's sole judgment, such actions are not resolving the situation satisfactorily, Customer may take such action that it deems appropriate to ensure its continuing right to exercise its rights hereunder, and Pathnet shall reimburse Customer on demand for all costs and expenses incurred in doing soapplicable Completion Notice. (d) Pathnet owns clear, exclusive, legal title to the Customer Fibers and Associated Conduit, free and clear of all liens, security interests or other encumbrances, except that the Pathnet System, including the Customer Fibers and Associated Conduit are subject to a lien in favor of certain lenders as more particularly set forth in that certain Amended and Restated Collateral Agency Agreement and Intercreditor Agreement dated as of September 7, 2000 between Pathnet and certain lenders referenced therein that are currently parties to such Agreement or who may be added in the future. Pathnet has all necessary right and authority to perform its obligations pursuant to this Agreement. 21.3 EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE AND IN SECTION 4.2, PATHNET MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER FIBERS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.

Representations, Warranties and Acknowledgments. 21.1 23.01 Each party represents and warrants that: (a) it has the full right and authority to enter into, execute, deliver and perform its obligations under this IRU Agreement; (b) this IRU Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights and general equitable principles; and (c) its execution of and performance under this IRU Agreement shall not violate any applicable existing regulations, rules, statutes or court orders of any local, state or federal government agency, court or body. (d) Subject to Section 21.2(d) below as to Pathnet, neither Party shall cause or permit any portion of its interest in the Customer Fibers or its interest in the Pathnet System to become subject to any material mechanics lien, materialmans' lien, vendor's lien or any similar lien whether by operation of law or otherwise. In the event either Pathnet or Customer breaches its obligations in this Section, it shall immediately notify the other in writing, shall promptly cause such lien to be discharged and released of record without cost to the other, and shall indemnify the other against all costs and expenses (including reasonable attorneys fees and court costs at trial and on appeal) incurred in discharging and releasing such lien; provided -------- that: (a) Pathnet and Customer shall each have the right to contest such lien or the validity thereof in good faith by appropriate proceeding which shall operate to prevent the collection or foreclosure of the contested lien; and (b) the contesting party shall cause any such lien to be discharged prior to the commencement of any foreclosure action on such lien. 21.2 Pathnet 23.02 QWEST represents and warrants that the Segments of the QWEST System that it constructs pursuant hereto shall be constructed substantially and in all material respects in accordance with the specifications set forth in Exhibit B hereto; Provided that BTI's sole rights and remedies with respect to Customer thatany failure to so construct shall be: (a) Pathnet has obtained all permits to inspect the construction, installation and other governmental splicing, and third-party approvals required for participate in the installation acceptance testing, of the Pathnet System BTI Fibers incorporated in each such Segment, during the course and at the performance time of its obligations under this Agreement.the relevant construction, installation and testing periods for each Segment, as provided in Articles 3 and 4, (b) In its ownershipif, operation during the course of such construction, installation and maintenance testing any material deviation from the specifications set forth in Exhibit B is discovered, the construction or installation of the Pathnet Systemaffected portion of the Segment shall be repaired to such specification by QWEST at QWEST's sole cost and expense, Pathnet will comply with all applicable local, municipal, state or federal laws, orders and regulations.and (c) Notwithstanding anything if, at any time prior to the contrary contained hereindate that is twelve (12) months after the Acceptance Date, that it has obtained, and BTI shall maintain throughout notify QWEST in writing of its discovery of a material deviation from the term, any and all rights of way, easements, licenses and other agreements relating to the grant of rights and interests, and/or access to the real property underlying the Pathnet System (including the Associated Conduit) and such other rights, licenses, permits, authorizations, and approvals that are necessary in order to permit Pathnet to grant the IRUs, and otherwise to perform its obligations hereunder, in accordance with the terms and conditions hereof, and to permit Customer to use the Associated Conduit and Customer Fibers as dark fibers as provided and permitted hereunder and in accordance with the terms and conditions hereof (collectively, the "Underlying Rights"). Underlying Rights shall not be deemed to include franchises, municipal licenses and other approvals or permits issued by governmental authorities that may be necessary for the creation and sale of telecommunications capacity on the Customer Fibers. In the event that Pathnet receives notice that it has not obtained a necessary Underlying Right, or that an Underlying Right is or may be defective, and such failure or defect poses a significant threat to, or actually interferes with, Customer's continued use and enjoyment of the System, Pathnet will take such steps as it reasonable deems appropriate to confirm the integrity of the Underlying Rights, acquire additional Underlying Rights, or take such other action as may be appropriate to protect Customer's rights to exercise its rights hereunder. Notwithstanding the foregoing, if Customer becomes aware that a failure or defect in an Underlying Right poses an imminent threat to Customer's continued ability to exercise its rights hereunder, including, without limitation, an imminent threat of injunction threatening Customer's right to operate the system, Customer will promptly advise Pathnet, either telephonically or in writing, and will discuss in good faith the appropriate actions to be taken. If, in Customer's sole judgment, Pathnet's proposed actions are not adequate to resolve the situation, or if Pathnet takes action but, in Customer's sole judgment, such actions are not resolving the situation satisfactorily, Customer may take such action that it deems appropriate to ensure its continuing right to exercise its rights hereunder, and Pathnet shall reimburse Customer on demand for all costs and expenses incurred in doing so. (d) Pathnet owns clear, exclusive, legal title to the Customer Fibers and Associated Conduit, free and clear of all liens, security interests or other encumbrances, except that the Pathnet System, including the Customer Fibers and Associated Conduit are subject to a lien in favor of certain lenders as more particularly specifications set forth in that certain Amended and Restated Collateral Agency Agreement and Intercreditor Agreement dated as Exhibit B with respect to any such Segment (which notice shall be given within thirty (30) days of September 7, 2000 between Pathnet and certain lenders referenced therein that are currently parties such discovery) the construction or installation of the affected portion of such Segment shall be repaired to such Agreement specification by QWEST at QWEST's sole cost and expense. For purposes hereof, "material deviation" means a deviation which is reasonably likely to have a material adverse affect on the operation or who may be added in performance of the future. Pathnet has all necessary right and authority to perform its obligations pursuant to this AgreementBTI Fibers affected thereby. 21.3 23.03 EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE AND IN SECTION 4.21N THE FOREGOING PARAGRAPH 23.02, PATHNET QWEST MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER FIBERSBTI FIBERS OR THE SEGMENTS DELIVERABLE HEREUNDER, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. 23.04 The parties acknowledge and agree that on and after the relevant Acceptance Date BTI's sole rights and remedies with respect to any defect in or failure of the BTI Fibers to perform in accordance with the applicable vendor's or manufacturer's specifications with respect to the BTI Fibers shall be limited to the particular vendor's or manufacturer's warranty with respect thereto, which warranty, to the extent permitted by the terms thereof, shall be assigned to BTI upon its request. In the event any maintenance or repairs to the QWEST System are required as a result of a breach of any warranty made by any manufacturers, contractors or vendors, unless BTI shall elect to pursue such remedies itself, QWEST shall pursue all remedies against such manufacturers, contractors or vendors on behalf of BTI, and QWEST shall reimburse BTI's costs for any maintenance BTI has incurred as a result of any such breach of warranty to the extent the manufacturer, contractor or vendor has paid such costs.

Representations, Warranties and Acknowledgments. 21.1 23.1 Each party represents and warrants that: (a) it has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement; (b) this Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights and general equitable principles; and (c) its execution of and performance under this Agreement shall not violate any applicable existing regulations, rules, statutes statues or court orders of any local, state or federal government agency, court or body. (d) Subject to Section 21.2(d) below as to Pathnet, neither Party shall cause or permit any portion of its interest in the Customer Fibers or its interest in the Pathnet System to become subject to any material mechanics lien, materialmans' lien, vendor's lien or any similar lien whether by operation of law or otherwise. In the event either Pathnet or Customer breaches its obligations in this Section, it shall immediately notify the other in writing, shall promptly cause such lien to be discharged and released of record without cost to the other, and shall indemnify the other against all costs and expenses (including reasonable attorneys fees and court costs at trial and on appeal) incurred in discharging and releasing such lien; provided -------- that: (a) Pathnet and Customer shall each have the right to contest such lien or the validity thereof in good faith by appropriate proceeding which shall operate to prevent the collection or foreclosure of the contested lien; and (b) the contesting party shall cause any such lien to be discharged prior to the commencement of any foreclosure action on such lien. 21.2 Pathnet 23.2 QWEST represents and warrants that the terms of its Agreement with the THIRD PARTY specifically provide that QWEST may grant an IRU in its dark fibers to Customer that: (a) Pathnet has obtained all permits and other governmental and third-a third party approvals required for and, further, that the installation terms of the Pathnet System and Required Rights documents do not preclude the performance assignment of its obligations under this Agreementfibers to NETWORK. (b) In its ownership, operation 23.3 QWEST represents and maintenance of warrants that the Pathnet System, Pathnet will comply with Segment shall be constructed by the THIRD PARTY substantially and in all applicable local, municipal, state or federal laws, orders and regulations. (c) Notwithstanding anything to the contrary contained herein, that it has obtained, and shall maintain throughout the term, any and all rights of way, easements, licenses and other agreements relating to the grant of rights and interests, and/or access to the real property underlying the Pathnet System (including the Associated Conduit) and such other rights, licenses, permits, authorizations, and approvals that are necessary in order to permit Pathnet to grant the IRUs, and otherwise to perform its obligations hereunder, material respects in accordance with the terms and conditions hereof, and to permit Customer to use the Associated Conduit and Customer Fibers as dark fibers as provided and permitted hereunder and in accordance with the terms and conditions hereof (collectively, the "Underlying Rights"). Underlying Rights shall not be deemed to include franchises, municipal licenses and other approvals or permits issued by governmental authorities that may be necessary for the creation and sale of telecommunications capacity on the Customer Fibers. In the event that Pathnet receives notice that it has not obtained a necessary Underlying Right, or that an Underlying Right is or may be defective, and such failure or defect poses a significant threat to, or actually interferes with, Customer's continued use and enjoyment of the System, Pathnet will take such steps as it reasonable deems appropriate to confirm the integrity of the Underlying Rights, acquire additional Underlying Rights, or take such other action as may be appropriate to protect Customer's rights to exercise its rights hereunder. Notwithstanding the foregoing, if Customer becomes aware that a failure or defect in an Underlying Right poses an imminent threat to Customer's continued ability to exercise its rights hereunder, including, without limitation, an imminent threat of injunction threatening Customer's right to operate the system, Customer will promptly advise Pathnet, either telephonically or in writing, and will discuss in good faith the appropriate actions to be taken. If, in Customer's sole judgment, Pathnet's proposed actions are not adequate to resolve the situation, or if Pathnet takes action but, in Customer's sole judgment, such actions are not resolving the situation satisfactorily, Customer may take such action that it deems appropriate to ensure its continuing right to exercise its rights hereunder, and Pathnet shall reimburse Customer on demand for all costs and expenses incurred in doing so. (d) Pathnet owns clear, exclusive, legal title to the Customer Fibers and Associated Conduit, free and clear of all liens, security interests or other encumbrances, except that the Pathnet System, including the Customer Fibers and Associated Conduit are subject to a lien in favor of certain lenders as more particularly specifications set forth in that certain Amended and Restated Collateral Agency Agreement and Intercreditor Agreement dated as of September 7, 2000 between Pathnet and certain lenders referenced therein that are currently parties to such Agreement or who may be added in the future. Pathnet has all necessary right and authority to perform its obligations pursuant to this AgreementExhibit B hereto. 21.3 23.4 EXCEPT AS SPECIFICALLY EXPRESSLY SET FORTH IN THIS ARTICLE AND IN SECTION 4.2, PATHNET AGREEMENT QWEST MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER FIBERSNETWORK FIBERS OR THE SEGMENTS DELIVERABLE HEREUNDER, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. 23.5 The parties acknowledge and agree that on and after the Acceptance Date NETWORK's sole rights and remedies (as between the parties hereto) with respect to any defect in or failure of the NETWORK Fibers (other than any defect or failure caused by the willful or negligent act or omission of QWEST) to perform in accordance with the applicable vendor's or manufacturer's specifications with respect to the NETWORK Fibers shall be limited to the particular vendor's or manufacturer's warranty with respect thereto, which warranty, to the extent permitted by the terms thereof, shall be assigned to NETWORK upon its request. In the event any maintenance or repairs to the New York - Boston Segment are required as a result of a breach of any warranty made by any manufacturers, contractors or vendors, unless NETWORK shall elect to pursue such remedies itself, QWEST shall pursue all remedies against such manufacturers, contractors or vendors on behalf of NETWORK, and QWEST shall reimburse NETWORK's costs for any maintenance NETWORK has incurred as a result of any such breach of warranty to the extent the manufacturer, contractor or vendor has paid such costs.

Representations, Warranties and Acknowledgments. 21.1 Section 12.1 Each party represents and warrants that: (a) it has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement; (b) this Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors' ’ rights and general equitable principles; and (c) its execution of and performance under this Agreement shall not violate any applicable existing regulations, rules, statutes or court orders of any local, state or federal government agency, court or body. (d) Subject to Section 21.2(d) below as to Pathnet12.2 EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, neither Party shall cause or permit any portion of its interest in the Customer Fibers or its interest in the Pathnet System to become subject to any material mechanics lienNEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY, materialmans' lienWHETHER EXPRESS, vendor's lien or any similar lien whether by operation of law or otherwise. In the event either Pathnet or Customer breaches its obligations in this SectionIMPLIED OR STATUTORY, it shall immediately notify the other in writingAS TO THE DESCRIPTION, shall promptly cause such lien to be discharged and released of record without cost to the otherQUALITY, and shall indemnify the other against all costs and expenses (including reasonable attorneys fees and court costs at trial and on appeal) incurred in discharging and releasing such lien; provided -------- that: (a) Pathnet and Customer shall each have the right to contest such lien or the validity thereof in good faith by appropriate proceeding which shall operate to prevent the collection or foreclosure of the contested lien; and (b) the contesting party shall cause any such lien to be discharged prior to the commencement of any foreclosure action on such lienMERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF ANY FIBERS OR ANY SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED. 21.2 Pathnet Section 12.3 County represents and warrants to Customer that: (a) Pathnet ToledoTel that County has obtained granted, or will grant, all permits permits, licenses, authorizations and other governmental and third-party approvals required for the installation of the Pathnet Fiber System and permissible within the performance of its obligations under this Agreement. (b) In its ownership, operation and maintenance confines of the Pathnet System, Pathnet will comply with all applicable local, municipal, state or federal laws, orders law. ToledoTel represents and regulations. (c) Notwithstanding anything to the contrary contained herein, warrants that it has obtained, and shall maintain throughout the term, any and all rights of way, easements, licenses and other agreements relating will seek to the grant of rights and interests, and/or access to the real property underlying the Pathnet System (including the Associated Conduit) and obtain such other rightspermits, licenses, permits, authorizations, and approvals approvals. Section 12.4 ToledoTel represents and warrants to County that are necessary in order to permit Pathnet to grant the IRUsFiber System shall have been designed, engineered, installed constructed, and otherwise to perform its obligations hereunder, maintained in accordance with all applicable building, construction and safety codes for such construction and installation, as well as all other applicable governmental laws, codes, ordinances, statutes and regulations; and the terms and conditions hereof, and to permit Customer to use the Associated Conduit and Customer Fibers as dark fibers as provided and permitted hereunder and in accordance with the terms and conditions hereof (collectively, the "Underlying Rights"). Underlying Rights shall not be deemed to include franchises, municipal licenses and other approvals or permits issued by governmental authorities that may be necessary for the creation and sale of telecommunications capacity on the Customer Fibers. In the event that Pathnet receives notice that it has not obtained a necessary Underlying Right, or that an Underlying Right is or may be defective, and such failure or defect poses a significant threat to, or actually interferes with, Customer's continued use and enjoyment of the System, Pathnet will take such steps as it reasonable deems appropriate to confirm the integrity of the Underlying Rights, acquire additional Underlying Rights, or take such other action as may be appropriate to protect Customer's rights to exercise its rights hereunder. Notwithstanding the foregoing, if Customer becomes aware that a failure or defect in an Underlying Right poses an imminent threat to Customer's continued ability to exercise its rights hereunder, including, without limitation, an imminent threat of injunction threatening Customer's right to operate the system, Customer will promptly advise Pathnet, either telephonically or in writing, and will discuss in good faith the appropriate actions to be taken. If, in Customer's sole judgment, Pathnet's proposed actions are not adequate to resolve the situation, or if Pathnet takes action but, in Customer's sole judgment, such actions are not resolving the situation satisfactorily, Customer may take such action that it deems appropriate to ensure its continuing right to exercise its rights hereunder, and Pathnet shall reimburse Customer on demand for all costs and expenses incurred in doing sofiber manufacturers' specifications. (d) Pathnet owns clear, exclusive, legal title to the Customer Fibers and Associated Conduit, free and clear of all liens, security interests or other encumbrances, except that the Pathnet System, including the Customer Fibers and Associated Conduit are subject to a lien in favor of certain lenders as more particularly set forth in that certain Amended and Restated Collateral Agency Agreement and Intercreditor Agreement dated as of September 7, 2000 between Pathnet and certain lenders referenced therein that are currently parties to such Agreement or who may be added in the future. Pathnet has all necessary right and authority to perform its obligations pursuant to this Agreement. 21.3 EXCEPT AS SPECIFICALLY SET FORTH Section 12.5 IN THIS ARTICLE AND IN SECTION 4.2, PATHNET MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT EVENT WILL EITHER PARTY BE LIABLE TO THE CUSTOMER FIBERSOTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY LOST PROFITS, LOST REVENUES, LOST SAVINGS, OR FITNESS FOR A PARTICULAR PURPOSEHARM TO ITS BUSINESS. EACH PARTY HEREBY RELEASES THE OTHER PARTY, THEIR SUBSIDIARIES AND AFFILIATES, AND ALL THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AND AGENTS, FROM ANY SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMEDCLAIMS. NOTWITHSTANDING THIS PARAGRAPH, IF ONE PARTY’S OR BOTH PARTIES’ ACTIONS RESULT IN CLAWBACK OR FORFEITURE OF PROGRAM GRANT FUNDS, EACH PARTY SHALL INDEMNIFY THE OTHER FOR SUCH CLAWBACK OR FORFEITURE OBLIGATIONS TO THE EXTENT ITS ACTIONS COMPARATIVELY CONTRIBUTED TO THE CLAWBACK OR FORFEITURE.

Representations, Warranties and Acknowledgments. 21.1 Each party represents Borrower and warrants Credit Parties hereby each and individually represent and warrant that: (a) it has the full right execution, delivery and authority to enter into, execute, deliver performance by Borrower and perform its obligations under Credit Parties of this Agreement; (b) Amendment have been duly authorized by all necessary corporate action and this Agreement constitutes Amendment is a legal, valid and binding obligation of Borrower and Credit Parties enforceable against such party Borrower and Credit Parties in accordance with its terms; (b) each of the representations and warranties made by Borrower and Credit Parties contained in the Financing Agreement and the Credit Documents is true and correct in all material respects on and as of the date hereof as if made on the date hereof, subject except to bankruptcy, insolvency, creditors' rights the extent that such representations and general equitable principles; andwarranties expressly relate to an earlier date; (c) its execution of Neither the execution, delivery and performance under of this Agreement Amendment nor the consummation of the transactions contemplated hereby does or shall not contravene, result in a breach of, or violate (i) any applicable existing regulationsprovision of Borrower's or any Credit Parties' certificate or articles of incorporation or bylaws, rules(ii) any law or regulation, statutes or court orders any order or decree of any local, state or federal government agency, court or body.government instrumentality, or (iii) any loan agreement, lease, indenture, mortgage, deed of trust, note, security agreement or pledge agreement to which Borrower or any Credit Party is a signatory or by which Borrower or such Credit Party or any of Borrower's or such Credit Party's assets are bound; (d) Subject to Section 21.2(d) below no Default or Event of Default has occurred and remains outstanding under the Financing Agreement as to Pathnet, neither Party shall cause or permit any portion of its interest in the Customer Fibers or its interest in the Pathnet System to become subject to any material mechanics lien, materialmans' lien, vendor's lien or any similar lien whether by operation of law or otherwise. In the event either Pathnet or Customer breaches its obligations in this Section, it shall immediately notify the other in writing, shall promptly cause such lien to be discharged and released of record without cost to the other, and shall indemnify the other against all costs and expenses (including reasonable attorneys fees and court costs at trial and on appeal) incurred in discharging and releasing such lien; provided -------- that: (a) Pathnet and Customer shall each have the right to contest such lien or the validity thereof in good faith by appropriate proceeding which shall operate to prevent the collection or foreclosure of the contested liendate hereof; and (b) the contesting party shall cause any such lien to be discharged prior to the commencement of any foreclosure action on such lien. 21.2 Pathnet represents and warrants to Customer that: (a) Pathnet has obtained all permits and other governmental and third-party approvals required for the installation of the Pathnet System and the performance of its obligations under this Agreementand. (be) In its ownership, operation Borrower acknowledges and maintenance of the Pathnet System, Pathnet will comply with all applicable local, municipal, state or federal laws, orders and regulations. (c) Notwithstanding anything agrees that pursuant to the contrary contained herein, that it has obtained, and shall maintain throughout the term, any and all rights of way, easements, licenses and other agreements relating to the grant of rights and interests, and/or access to the real property underlying the Pathnet System (including the Associated Conduit) and such other rights, licenses, permits, authorizations, and approvals that are necessary in order to permit Pathnet to grant the IRUs, and otherwise to perform its obligations hereunder, in accordance with the terms and conditions hereof, and to permit Customer to use the Associated Conduit and Customer Fibers as dark fibers as provided and permitted hereunder and in accordance with the terms and conditions hereof (collectively, the "Underlying Rights"). Underlying Rights shall not be deemed to include franchises, municipal licenses and other approvals or permits issued by governmental authorities that may be necessary for the creation and sale of telecommunications capacity on the Customer Fibers. In the event that Pathnet receives notice that it has not obtained a necessary Underlying Right, or that an Underlying Right is or may be defective, and such failure or defect poses a significant threat to, or actually interferes with, Customer's continued use and enjoyment of the System, Pathnet will take such steps as it reasonable deems appropriate to confirm the integrity of the Underlying Rights, acquire additional Underlying Rights, or take such other action as may be appropriate to protect Customer's rights to exercise its rights hereunder. Notwithstanding the foregoing, if Customer becomes aware that a failure or defect in an Underlying Right poses an imminent threat to Customer's continued ability to exercise its rights hereunder, including, without limitation, an imminent threat of injunction threatening Customer's right to operate the system, Customer will promptly advise Pathnet, either telephonically or in writing, and will discuss in good faith the appropriate actions to be taken. If, in Customer's sole judgment, Pathnet's proposed actions are not adequate to resolve the situation, or if Pathnet takes action but, in Customer's sole judgment, such actions are not resolving the situation satisfactorily, Customer may take such action that it deems appropriate to ensure its continuing right to exercise its rights hereunder, and Pathnet shall reimburse Customer on demand for all costs and expenses incurred in doing so. (d) Pathnet owns clear, exclusive, legal title to the Customer Fibers and Associated Conduit, free and clear of all liens, security interests or other encumbrances, except that the Pathnet System, including the Customer Fibers and Associated Conduit are subject to a lien in favor of certain lenders as more particularly set forth in that certain Amended and Restated Collateral Agency Agreement and Intercreditor Agreement special availability reserve letter dated as of September 7January 2, 2000 between Pathnet 2002 regarding the establishment of certain Availability Reserves (the "SPECIAL AVAILABILITY RESERVE LETTER"), the Agent and certain lenders referenced therein that are currently parties Lenders have no obligation to such Agreement advance Revolving Loans or who may be added arrange for the issuance of Letters of Credit other than the Initial Letters of Credit until Borrower furnishes to the Agent and Lenders accurate and verifiable reporting, in form and substance acceptable to the future. Pathnet has all necessary right Agent, concerning the amount of indebtedness secured by the Liens noted on SCHEDULES 7.1.11(i) and authority to perform its obligations pursuant to this Agreement. 21.3 EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE AND IN SECTION 4.2, PATHNET MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER FIBERS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.7.1.11

Representations, Warranties and Acknowledgments. 21.1 26.1 Each party represents and warrants that:: * CONFIDENTIAL TREATMENT APPLIED FOR (a) it has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement; (b) this Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights and general equitable principles; and (c) its execution of and performance under this Agreement shall not violate any applicable existing regulations, rules, statutes or court orders of any local, state or federal government agency, court or body. (d) Subject to Section 21.2(d) below as to Pathnet, neither Party shall cause or permit any portion of its interest in the Customer Fibers or its interest in the Pathnet System to become subject to any material mechanics lien, materialmans' lien, vendor's lien or any similar lien whether by operation of law or otherwise. In the event either Pathnet or Customer breaches its obligations in this Section, it shall immediately notify the other in writing, shall promptly cause such lien to be discharged and released of record without cost to the other, and shall indemnify the other against all costs and expenses (including reasonable attorneys fees and court costs at trial and on appeal) incurred in discharging and releasing such lien; provided -------- that: (a) Pathnet and Customer shall each have the right to contest such lien or the validity thereof in good faith by appropriate proceeding which shall operate to prevent the collection or foreclosure of the contested lien; and (b) the contesting party shall cause any such lien to be discharged prior to the commencement of any foreclosure action on such lien. 21.2 Pathnet 26.2 QWEST represents and warrants to Customer that: (a) Pathnet has obtained all permits and other governmental and third-party approvals required for that the installation Segments of the Pathnet QWEST System that it has heretofore constructed or will construct pursuant hereto have been or shall be designed, engineered, installed, and constructed in compliance with the performance terms and provisions of its obligations under this Agreement. (b) In its ownership, operation Agreement and maintenance of the Pathnet System, Pathnet will comply in material compliance with any and all applicable localbuilding, municipalconstruction and safety codes for such construction and installation, state or federal as well as any and all other applicable governmental laws, orders codes, ordinances, statutes and regulations. (c) Notwithstanding anything 26.3 With respect to each of the Segments that has been constructed prior to the contrary contained hereindate hereof, QWEST represents and warrants that it has obtainedsuch Segment, and shall maintain throughout the termwhen constructed, any and all rights of way, easements, licenses and other agreements relating to the grant of rights and interests, and/or access to the real property underlying the Pathnet System (including the Associated Conduit) and such other rights, licenses, permits, authorizations, and approvals that are necessary in order to permit Pathnet to grant the IRUs, and otherwise to perform its obligations hereunder, generally was constructed substantially in accordance with the terms and conditions hereofspecifications set forth in Exhibit C hereto, and QWEST has no actual knowledge on the date hereof of any material deviation in the construction of such Segment from such specifications. If, within twelve (12) months from the respective Acceptance Date for each of the Segments referred to permit Customer in this Section 26.3 , there is an event or occurrence that is caused by a material deviation in the construction or installation of any of such Segments from such specifications, and which has a material adverse affect on the operation or performance of the FRONTIER Fibers in such Segment, then, promptly following receipt of written notice thereof from FRONTIER, QWEST, at its sole cost and expense, shall undertake to use repair the Associated Conduit affected portion of such Segment to the relevant specifications. 26.4 QWEST represents and Customer Fibers as dark fibers as provided and permitted hereunder and warrants that the Segments of the QWEST System that it constructs pursuant hereto shall be constructed in all material respects in accordance with the terms and conditions hereof (collectively, the "Underlying Rights"). Underlying Rights shall not be deemed to include franchises, municipal licenses and other approvals or permits issued by governmental authorities that may be necessary for the creation and sale of telecommunications capacity on the Customer Fibers. In the event that Pathnet receives notice that it has not obtained a necessary Underlying Right, or that an Underlying Right is or may be defective, and such failure or defect poses a significant threat to, or actually interferes with, Customer's continued use and enjoyment of the System, Pathnet will take such steps as it reasonable deems appropriate to confirm the integrity of the Underlying Rights, acquire additional Underlying Rights, or take such other action as may be appropriate to protect Customer's rights to exercise its rights hereunder. Notwithstanding the foregoing, if Customer becomes aware that a failure or defect in an Underlying Right poses an imminent threat to Customer's continued ability to exercise its rights hereunder, including, without limitation, an imminent threat of injunction threatening Customer's right to operate the system, Customer will promptly advise Pathnet, either telephonically or in writing, and will discuss in good faith the appropriate actions to be taken. If, in Customer's sole judgment, Pathnet's proposed actions are not adequate to resolve the situation, or if Pathnet takes action but, in Customer's sole judgment, such actions are not resolving the situation satisfactorily, Customer may take such action that it deems appropriate to ensure its continuing right to exercise its rights hereunder, and Pathnet shall reimburse Customer on demand for all costs and expenses incurred in doing so. (d) Pathnet owns clear, exclusive, legal title to the Customer Fibers and Associated Conduit, free and clear of all liens, security interests or other encumbrances, except that the Pathnet System, including the Customer Fibers and Associated Conduit are subject to a lien in favor of certain lenders as more particularly specifications set forth in Exhibit C hereto; provided that certain Amended FRONTIER's sole rights and Restated Collateral Agency Agreement remedies with respect to any failure to ------------- so construct shall be (i) to inspect the construction, installation and Intercreditor Agreement dated splicing, and participate in the acceptance testing, of the FRONTIER Fibers incorporated in each such Segment, during the course and at the time of the relevant construction, installation and testing periods for each Segment, as provided in Articles III and IV, (ii) if, during the course of September 7such construction, 2000 between Pathnet installation and certain lenders referenced therein that are currently parties testing any material deviation from the specifications set forth in Exhibit C is discovered, the construction or installation of the affected portion of the Segment shall be repaired to such Agreement specification by QWEST at QWEST's sole cost and expense, and (iii) if, at any time prior to the date that is twelve (12) months after the Acceptance Date, FRONTIER shall notify QWEST in writing of its discovery of a material deviation from the specifications set forth in Exhibit C with respect to any such Segment (which notice shall be given within thirty (30) days of such discovery) the construction or who may installation of the affected portion of such Segment shall be added in repaired to such specification by QWEST at QWEST's sole cost and expense. For purposes hereof, "material deviation" means a deviation which is reasonably likely to have a material adverse affect on the future. Pathnet has all necessary right and authority to perform its obligations pursuant to this Agreementoperation or performance of the FRONTIER Fibers affected thereby. 21.3 26.5 EXCEPT AS SPECIFICALLY SET FORTH IN THE FOREGOING PARAGRAPHS 26.2, 26.3 AND 26.4, AND EXCEPT AS MAY BE SET FORTH SPECIFICALLY AND EXPRESSLY ELSEWHERE IN THIS ARTICLE AND IN SECTION 4.2AGREEMENT, PATHNET QWEST MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER FIBERSFRONTIER FIBERS OR THE SEGMENTS DELIVERABLE HEREUNDER, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. 26.7 The parties acknowledge and agree that on and after the relevant Acceptance Date FRONTIER's sole rights and remedies with respect to any defect in or failure of the FRONTIER Fibers to perform in accordance with the applicable vendor's or manufacturer's specifications with respect to the FRONTIER Fibers shall be limited to the particular vendor's or manufacturer's warranty with respect thereto, which warranty, to the extent permitted by the terms thereof, shall be assigned to FRONTIER upon its request. In the event any maintenance or repairs to the QWEST System are required as a result of a breach of any warranty made by any manufacturers, contractors or vendors, unless FRONTIER shall elect to pursue such remedies itself, QWEST shall pursue all remedies against such manufacturers, contractors or vendors on behalf of FRONTIER, and QWEST shall reimburse FRONTIER's costs for any maintenance FRONTIER has incurred as a result of any such breach of warranty to the extent the manufacturer, contractor or vendor has paid such costs. 26.8 QWEST and FRONTIER acknowledge and agree: (a) that each grant of the IRU in the Frontier Fibers and Associated Property for a Segment hereunder (each herein called a "Grant") will be treated by each of them, vis-a-vis the other, as of and after the relevant effective date thereof as described in Section 6.1, an executed grant to FRONTIER of an interest in real property with respect to such Segment; and (b) that, from and after the effective date of a Grant with respect to a Segment, no material obligation of either QWEST or FRONTIER will remain to be performed with respect to such Grant or Segment; and (c) that, with respect to each such Grant, this Agreement is not intended as an executory contract or unexpired lease subject to assumption, rejection, or assignment by the trustee in bankruptcy of any party to this Agreement, including, without limitation, assumption, rejection, or assignment under Bankruptcy Code Section 365.

Representations, Warranties and Acknowledgments. 21.1 Each party represents Loan Party hereby represents, warrants and warrants thatacknowledges as follows: (a) after giving effect to the amendments set forth herein, each of the representations and warranties made by it has as set forth in Article V of the full right Term Loan Agreement are true and authority correct in all material respects, it being understood and agreed that any representation or warranty that, by its terms, is made as of a specified date will be required to enter into, execute, deliver be true and perform its obligations under this Agreementcorrect in all material respects only as of such specified date; (b) this Agreement constitutes a legalafter giving effect to the amendments set forth herein, valid and binding obligation enforceable against such party no Event of Default exists or has occurred that has not been duly cured or waived in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights and general equitable principles; andthe provisions of each applicable Loan Document; (c) its execution of this Amendment has been duly authorized by all necessary corporate or limited liability company proceedings of, and performance under this Agreement shall not violate any applicable existing regulationsduly executed and delivered by, rules, statutes or court orders of any local, state or federal government agency, court or body.each Loan Party; (d) Subject to Section 21.2(dno further consent, approval authorization, order, registration, or qualification with any governmental authority is required for, and the absence of which would not adversely affect, the valid execution and delivery by any Loan Party of this Amendment or the Term Loan Agreement, as amended by this Amendment; (e) below as to Pathnetthe execution, neither Party shall cause or permit delivery, and performance by the Loan Parties of this Amendment do not and will not (i) contravene the terms of any portion of its interest Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under or require any payment to be made under (A) any Material Contract to which that Person is a party or affecting that Person or the properties of that Person or any of its Subsidiaries, including that certain Amended and Restated Loan and Security Agreement dated as of November 5, 2007 between ThermaClime and the other borrowers party thereto and Xxxxx Fargo Capital Finance, Inc., formerly known as Xxxxx Fargo Foothill, Inc., as the arranger and administrative agent for the lenders party thereto, as amended, or (B) any order, injunction, writ, or decree of any Governmental Authority or any arbitral award to which that Person or its property is subject; or (iii) violate any Law; (f) all representations, warranties and covenants set forth in the Customer Fibers or its interest in the Pathnet System to become subject to any material mechanics lien, materialmans' lien, vendor's lien or any similar lien whether by operation of law or otherwise. In the event either Pathnet or Customer breaches its obligations in this Section, it shall immediately notify the other in writing, shall promptly cause such lien to be discharged and released of record without cost to the other, and shall indemnify the other against all costs and expenses (including reasonable attorneys fees and court costs at trial and on appeal) incurred in discharging and releasing such lien; provided -------- that: (a) Pathnet and Customer shall each have the right to contest such lien or the validity thereof in good faith by appropriate proceeding which shall operate to prevent the collection or foreclosure of the contested lien; and (b) the contesting party shall cause any such lien to be discharged prior to the commencement of any foreclosure action on such lien. 21.2 Pathnet represents and warrants to Customer that: (a) Pathnet has obtained all permits and other governmental and third-party approvals required for the installation of the Pathnet System and the performance of its obligations under this Agreement. (b) In its ownership, operation and maintenance of the Pathnet System, Pathnet will comply with all applicable local, municipal, state or federal laws, orders and regulations. (c) Notwithstanding anything to the contrary contained herein, that it has obtained, and shall maintain throughout the term, any and all rights of way, easements, licenses and other agreements El Dorado Mortgage relating to Environmental Laws regarding or Hazardous Materials at the grant of rights and interests, and/or access to the real property underlying the Pathnet System (including the Associated Conduit) and such other rights, licenses, permits, authorizations, and approvals that are necessary in order to permit Pathnet to grant the IRUs, and otherwise to perform its obligations hereunder, in accordance with the terms and conditions hereof, and to permit Customer to use the Associated Conduit and Customer Fibers as dark fibers as provided and permitted hereunder and in accordance with the terms and conditions hereof (collectively, the "Underlying Rights"). Underlying Rights shall not be deemed to include franchises, municipal licenses and other approvals or permits issued by governmental authorities that may be necessary for the creation and sale of telecommunications capacity on the Customer Fibers. In the event that Pathnet receives notice that it has not obtained a necessary Underlying Right, or that an Underlying Right is or may be defective, and such failure or defect poses a significant threat to, or actually interferes with, Customer's continued use and enjoyment of the System, Pathnet will take such steps as it reasonable deems appropriate to confirm the integrity of the Underlying Rights, acquire additional Underlying Rights, or take such other action as may be appropriate to protect Customer's rights to exercise its rights hereunder. Notwithstanding the foregoing, if Customer becomes aware that a failure or defect in an Underlying Right poses an imminent threat to Customer's continued ability to exercise its rights hereunderEl Dorado Site, including, without limitation, an imminent threat of injunction threatening Customer's right to operate the system, Customer will promptly advise Pathnet, either telephonically or in writing, and will discuss in good faith the appropriate actions to be taken. If, in Customer's sole judgment, Pathnet's proposed actions are not adequate to resolve the situation, or if Pathnet takes action but, in Customer's sole judgment, such actions are not resolving the situation satisfactorily, Customer may take such action that it deems appropriate to ensure its continuing right to exercise its rights hereunder, and Pathnet shall reimburse Customer on demand for all costs and expenses incurred in doing so. (d) Pathnet owns clear, exclusive, legal title to the Customer Fibers and Associated Conduit, free and clear of all liens, security interests or other encumbrances, except that the Pathnet System, including the Customer Fibers and Associated Conduit are subject to a lien in favor of certain lenders as more particularly those set forth in that certain Amended Sections 3.07 and Restated 3.08 thereof, remain true and correct and in full force and effect, and the El Dorado Casualty has not resulted in (i) any violation of Environmental Laws or conditions that, with the passage of time, could reasonably be expected to result in a violation of Environmental Laws, or (ii) any private party complaints, claims or lawsuits regarding potential liability to private parties; (g) all documentation prepared regarding the El Dorado Casualty and Project delivered to Collateral Agency Agreement Agent is true, correct and Intercreditor Agreement dated complete in all material respects and, to the knowledge of the Loan Parties, does not contain incorrect or misleading statements, facts, data or other information; and (h) (i) the K-T Low Density Prilled Ammonium Nitrate Plant and Chemical & Industrial Corporation (C&I Xxxxxxx/Chemico) E2 High Density Prilled Ammonium Nitrate Plant located on the El Dorado Site were not damaged as a result of September 7the El Dorado Casualty; (ii) the Damaged Plants Project (other than the Sulfuric Acid Plant Project) has reached Substantial Completion, 2000 between Pathnet (iii) the Sulfuric Acid Plant Project is estimated by EDCC to reach Substantial Completion by November 30, 2012, and certain lenders referenced therein that are currently parties (iv) the Replacement Plant Project is estimated by EDCC to such Agreement or who may be added in the future. Pathnet has all necessary right and authority to perform its obligations pursuant to this Agreementreach Substantial Completion by May 31, 2015. 21.3 EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE AND IN SECTION 4.2, PATHNET MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER FIBERS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.