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EXHIBIT 10.1.2
FIRST MODIFICATION TO
RIGHT OF OCCUPANCY AGREEMENT
THIS AMENDMENT, dated as of the 25th day of September, 1997 between
Niagara Mohawk Power Corporation and its subsidiaries now existing and any
successor(s) thereto which are created as a result of the PowerChoice Case No.
94-E-0098, et al. pending before the New York State Public Service Commission
(NIAGARA), a New York corporation having its principal place of business at 000
Xxxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 and Telergy Joint Venture
(Telergy), a New York joint venture having its principal place of business at
0000 Xxxxxxxxxx xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H
WHEREAS, NIAGARA and Telergy are parties to a certain Right of
Occupancy Agreement dated as of February 2, 1996 (the RO Agreement), whereby,
among other things, Telergy is granted a non-exclusive Right of Occupancy to
install a Backbone Network and Spur Routes consisting primarily of a fiber optic
telecommunications network and facilities in NIAGARA Rights-of-Way, Facilities
and electric distribution conduit along the Backbone Route as those terms are
defined in the RO Agreement; and
WHEREAS, the parties agreed that it would be mutually beneficial to
amend the RO Agreement in certain respects.
NOW, THEREFORE, in consideration of the promises, mutual covenants and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereby agree that,
effective as of the date first written above, the RO Agreement is hereby amended
in the following respects:
1. Notwithstanding anything to the contrary contained in the RO
Agreement, or any other provisions contained in the RO
Agreement:
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A. Section 1, DEFINITIONS, shall be amended by adding
thereto the following definitions:
1.32 "CAPS" is defined to mean Competitive Access
Providers to any other telecommunications
network.
1.33 "LOCAL LOOP" is defined to mean the physical
wires/fibers that run from the subscriber"s
telephone set or PBX or key telephone
system, to the telephone Company central
office.
1.34 "NIAGARA STRANDS" is defined to mean a total
of four fiber optic telecommunications
strands anywhere in Telergy's Facilities
that are installed in NIAGARA's Right of Way
or Facilities as included in Exhibit A as it
may be amended from time to time of the same
type and quality as the Backbone Network and
any spurs or LOCAL LOOPS and such four
strands shall not be damaged in any fashion
and shall consist of 2 pairs of such strands
to be located in separate buffer tubes
anywhere that Telergy or its subsidiaries
have installed fiber optic
telecommunications strands installed in such
separate buffer tubes as included in Exhibit
A as it may be amended from time to time.
1.35 "CLEC" ("Competitive Local Exchange
Carrier") is defined to mean a provider of
local exchange services that is not the
incumbent local exchange carrier
B In Sections 2 take out "internal" and in Sections 2
and 3.1, insert "NIAGARA Facilities in" in the third
line of each section before the words "NIAGARA"s
Rights of Way".
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C. In Section 4.1 on the 5th line, after "occupancy" add
"to construct a fiber Backbone network, LOCAL LOOPS
and Spurs" and continue with the sentence after
"Backbone Route".
Section 4.1 in the RIGHT-OF-OCCUPANCY, "TERM" is
changed to read as follows:
For an Initial Term of twenty-five
(25) years commencing on the date of
approval by the New York State Public
Service Commission (Commencement Date) and
ending on the expiration of the
three-hundredth (300th) month thereafter,
unless earlier terminated or unless extended
pursuant to this Agreement, subject to the
terms and conditions set forth in this
Agreement, NIAGARA hereby grants to TELERGY
a Right-of-Occupancy in, on, upon, under,
over, across, along and through (hereinafter
collectively referred "within") the Backbone
Route and LOCAL LOOPS and spurs within
NIAGARA's Electric Transmissions
Right-of-Way and electric distribution
conduit system, subject to all terms and
conditions of any governing agreements in
addition to this Agreement when conduit,
poles and/or towers are used, except that
compensation for the use of the electronic
distribution and/or transmission conduit
network agreement only has been addressed in
this agreement.
D. Section 5.1 is hereby amended to add the following
paragraph:
The specific Right-of-Way that will
be subject to the Right of Occupancy
Agreement shall be defined in the manner set
forth in Section 6 of the RO Agreement. Maps
showing the revisions to the Backbone Route
as modified by the first Modification to the
RO Agreement shall be prepared and attached
to this Modification to RO Agreement as
Exhibit A, which shall replace the original
Attachment A to the RO Agreement. The
Right-of-Way for the extension to [***]
CONFIDENTIAL
[***] Confidential treatment has been requested with respect to material omitted
on this page. The omitted portions have been filed separately with the
Securities and Exchange Commission.
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and the Rights-of-Way to replace the
extensions to [***] with [***] Operations
Center located in [***] shall be defined by
the parties in the manner set forth in
Section 6 of the RO Agreement within
forty-five (45) working days following the
date of execution of this Modification.
E. Delete Section 7 governing "Additional
Rights-of-Occupancy for Spur Routes.
F. Section 9.5 is hereby modified to replace all
references therein to [***] with [***] to delete the
reference to [***], and to substitute therefor [***]
G. Section 9.5 is hereby modified to add a sentence at
the end of the first paragraph as follows:
Failure to complete Telergy's obligations in
accordance with these dates shall obligate
Telergy to reimburse NIAGARA for any
telecommunications arrangements NIAGARA must
make for its internal telecommunications
needs due to the lack of availability of the
original NIAGARA CAPACITY of [***] to make
up for the telecommunications capacity
currently being provided by NYNEX and AT&T
at Sprint expense through an agreement for
the purchase of the 2 GHz microwave license
from NIAGARA until the NIAGARA CAPACITY is
fully operational; provided, however, that
any delays resulting directly and solely
from NIAGARA's engineering, permitting, and
easement activities shall not constitute a
failure to complete by Telergy, from the
date of last execution of this modification
forward. Telergy agrees to pay directly all
invoices from third parties for any and all
such service within the required days in
such invoices.
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CONFIDENTIAL
[***] Confidential treatment has been requested with respect to material omitted
on this page. The omitted portions have been filed separately with the
Securities and Exchange Commission.
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\ H. Section 9.5 is hereby amended to add the following
paragraph:
Segment III shall connect Albany,
NY to Pleasant Valley, NY, which shall be
constructed at dates and times to be
determined by Telergy, provided, however,
that the extension to Pleasant Valley shall
not interfere with or hinder Telergy's
ability to complete the original Backbone
Route from Buffalo, NY to Albany, NY or to
provide NIAGARA CAPACITY as required in the
RO Agreement.
I. Section 13.1.1 is hereby amended to delete the word
"initially" in the second line and to replace [***]
with [***].
J. Section 13.1.2 is hereby changed to delete the
reference to [***] and substitute [***] in its
place.
K. Section 13.1.3 is hereby amended to delete the word
"initially" in the third line and to replace "[***]"
with "[***]" and to add the following sentence at the
end:
In Syracuse, NY, at the point where
the NIAGARA CAPACITY meets the NIAGARA
dedicated interconnect from Telergy's
Syracuse installation to NIAGARA's Syracuse
facility, the NIAGARA Capacity shall be
engineered and installed to provide NIAGARA
with a cross-section of capacity of [***].
L. Section 13.3 is hereby amended to add ", the NIAGARA
STRANDS" in the first line after the first three
words "The NIAGARA Capacity".
M. Revise Section 14.2 to read as follows: "Should
TELERGY, for its own business requirements, require
or desire additional Rights-of-Occupancy or NIAGARA
Facilities, TELERGY shall notify NIAGARA in writing
and submit a request for Additional
Right-of-Occupancy use,
CONFIDENTIAL
[***] Confidential treatment has been requested with respect to material omitted
on this page. The omitted portions have been filed separately with the
Securities and Exchange Commission.
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if appropriate."
N. Section 14.2.1 in the MODIFYING NIAGARA OR TELERGY
FACILITIES Section is changed as follows:
NIAGARA shall process any request in the
same manner and subject to the same conditions and
provisions set forth in this Agreement as modified,
advising TELERGY of NIAGARA's acceptance, rejection
or modification of said request.
The remainder of Section 14.2 shall remain unchanged.
O. Section 23.1 and 23.2 governing NOTICES is hereby
amended to read as follows:
23.1 Any notice to be given to NIAGARA under
this Agreement shall be sent by certified
mail or overnight express delivery:
(one copy each to):
(1) Director, Telecommunications
Niagara Mohawk Power Corporation
000 Xxxx Xxxxxxxxx Xxxx - X0
Xxxxxxxx, Xxx Xxxx 00000
(2) Assistant General Counsel
Niagara Mohawk Power Corporation
000 Xxxx Xxxxxxxxx Xxxx - X0
Xxxxxxxx, Xxx Xxxx 00000
23.2 Any notice given to Telergy under
this Agreement shall be sent by
certified mail or overnight express
delivery:
(one copy each to):
(1) Chief Executive Officer
Telergy, Inc.
0000 Xxxxxxxxxx Xxxxxxx
0
0
Xxxxxxxx, Xxx Xxxx 00000
(2) General Counsel
Telergy, Inc.
00 Xxxxxxxxx Xxxxx Xxxxx 000
Xxxxxx, Xxx Xxxx 00000
2. Paragraph 31.2 shall be changed to read as follows:
The parties recognize that the compensation
NIAGARA may owe for the RO Agreement is open with the
New York Public Service Commission (PSC) in Case
96-M-0138. The parties also recognize that reasonable
additional compensation is appropriate for NIAGARA's
agreement to the following: [***] All optical fibers
are [***] and will be provided on an "as-where-is"
basis with no warranties express or implied. Unless
otherwise agreed to, all maintenance and/or
construction on strands located on NIAGARA electric
transmission towers that have been allowed to be
installed will be performed by NIAGARA, subject to
the terms and conditions in the applicable electric
transmission structure occupancy agreement.
CONFIDENTIAL
[***] Confidential treatment has been requested with respect to material omitted
on this page. The omitted portions have been filed separately with the
Securities and Exchange Commission.
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As and for compensation for the
modifications herein and to resolve the open
compensation issue in Case 96-M-0138, the
parties agree that Telergy shall provide:
[***]
CONFIDENTIAL
[***] Confidential treatment has been requested with respect to material
omitted on this page. The omitted portions have been filed separately
with the Securities and Exchange Commission.
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This compensation is contingent upon PSC
approval of this Agreement as modified
herein without further modification and
closure of the compensation issue in Case
96-M-0138 without requiring additional
compensation beyond the additional
compensation provided herein. In the event
the PSC conditions its approval of this
Agreement or declines to accept the
additional compensation in its entirety as
and for final compensation for this
Agreement and Case 96-M-0138, the parties
agree to negotiate within thirty (30)
business days of receipt of the written
decision from the Commission such additional
compensation to obtain compliance with any
Commission requirements.
3. The parties further recognize and acknowledge that
Telergy intends to construct and install LOCAL LOOPS
in major cities along the Backbone Route to act as a
CLEC and/or a CAP , including but not
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limited to Buffalo, Syracuse, and Albany, New York,
which LOCAL LOOPS may require Spurs off the Backbone
Route. To the extent Telergy constructs portions of
the LOCAL LOOPS using NIAGARA conduit, poles or
towers, the parties shall execute the applicable
agreement(s) governing each such use and Telergy
shall pay the standard rate(s) for any such uses, and
all such uses and related construction shall be
subject to all necessary governmental approval prior
to start of construction.
4. All terms appearing in this Modification to Right of
Occupancy Agreement and not otherwise defined herein
shall have the same meaning as set forth in the RO
Agreement.
5. Except as modified and amended by this Modification,
all of the terms, covenants and conditions of the RO
Agreement are hereby ratified and confirmed in all
respects and shall continue to be and remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.
TELERGY JOINT VENTURE NIAGARA MOHAWK POWER CORPORATION
By:/s/Xxxxx Xxxxx By:/s/Xxxxxxx X. Synwolst
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Name: Xxxxx Xxxxx Name: Xxxxxxx X. Synwolst
Title: President Title: VP I/T & CIO
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