EXHIBIT 10.6
AGREEMENT FOR LEASE OF
DARK FIBER
This Agreement, made and entered into this 24th day of March 1995 by and
between Electric Lightwave, Inc. a Delaware Corporation (hereinafter referred to
as "XXX"), having an office at 0000 X.X. Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX
00000 and Citizens Utilities Rural Company, Inc. (hereinafter referred to as
"CITIZENS"), a Delaware Corporation, having an office at 0000 Xxxxxxxx Xxxx
Xxxx, Xxxxxxx, Xxxxxxx 00000, XXX and CITIZENS being collectively referred to
herein as the "Parties".
WHEREAS, XXX has designed engineered, constructed or caused to be
constructed, facilities and acquired appropriate interests in real property or
their rights, all as required to provide, and maintain a fiber optics cable
between Las Vegas, Nevada and Phoenix, Arizona (the "Route"); and
WHEREAS, XXX will lease to CITIZENS the following dark fiber facilities
located within the Route (hereinafter referred to as the "Citizens Fibers"):
1. Twelve (12) dark fibers from the Golden Valley Central Office to
Xxxxxx Road - 26.5 route miles;
2. Twelve (12) dark fibers from the Golden Valley Central Office to Xxxxxx
Road - 12.8 route miles;
3. Twelve (12) dark fibers from Xxxxxx Road to the Yucca Central Office -
18.5 miles; and
4. Twelve (12) dark fibers from Yucca Central Office to El Paso - 9.2
route miles.
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE 1. SCOPE OF AGREEMENT
1.1 XXX hereby grants to CITIZENS access to the CITIZENS Fibers,
including, but not limited to, drop and insert capabilities, upgrade capacity
and replacement of the CITIZENS Electronics. Such replacement of the CITIZENS
Electronics will not result in a modification of the payment obligations of
CITIZENS to XXX. XXX or ELI's contractors will, at ELI's sole expense, perform
all maintenance on the CITIZENS Fibers in accordance with industry standards.
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ARTICLE 2. DEFINITIONS
Unless otherwise defined herein, the terms in this Agreement shall have
their normal or customary meanings., In addition, for the purpose of this
Agreement, the following terms shall have the earnings set forth:
CITIZENS Electronics: The fiber optic telecommunications equipment owned and
used by CITIZENS to facilitate the transmission of communications
over the CITIZENS Fibers.
CITIZENS Fibers: As described in the second "Whereas" clause and Article 1.
Dark fibers: Fiber optic facilities provided by XXX without the necessary
electronics and other equipment required for the transmission of
communications services.
Right of Way: Easement or right to use real property owned by railroads,
individual property owners or other entities.
ARTICLE 3. TERM/TERMINATION
The initial Term of this Agreement shall commence as of the date of the Interim
Agreement between the parties, dated November 28, 1994 and shall continue for a
period of ten (10) years thereafter. Thereafter, CITIZENS will have four (4)
five (5) year options to extend the Term. Each option to extend the Term shall
be exercisable by CITIZENS at the present rate with an adjustment to reflect
inflation using the CPI or equivalent index.
ARTICLE 4. COMPENSATION
4.1 LEASE OF DARK FIBER
During the Initial Term of this Agreement, CITIZENS shall pay $30,000.00 per
month to XXX for the lease and maintenance of the dark fibers described in
Article 1 beginning on the date of the Interim Agreement and monthly thereafter
for the term of the Agreement, including all extensions.
XXX shall send all invoices for the charges hereunder to:
Citizens Utilities Rural Company, Inc.
Attn: Xxxx Xxxxx
0000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
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CITIZENS shall send all payments hereunder, to:
Electric Lightwave, Inc.
0000 X.X. Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
ARTICLE 5. WARRANTIES
5.1 The Warranties and remedies set forth in this Agreement constitute the
only warranties and remedies with respect to this Agreement. Such Warranties
are in lieu of all other warranties, written and oral, statutory, express or
implied, including without limitation the Warranty of merchantability and the
Warranty of fitness for a particular purpose.
5.2 XXX represents and warrants to CITIZENS that it has the right to
perform as required hereunder and/or provide to CITIZENS the CITIZENS fibers
specified herein, and that it is an entity duly organized, validly existing and
in good standing under the laws of its origin, with all requisite power to enter
into and perform the obligations under this Agreement in accordance with its
terms.
ARTICLES 6. INDEMNIFICATION
Each party agrees to indemnify and hold harmless the other Party from claims by
persons not a party to this Agreement for injuries or damage from the negligent
or willful actions of the indemnifying Party's employees, agents, contractors or
representatives.
ARTICLE 7. LIABILITIES
Neither Party shall be liable for any consequential, incidental, indirect,
special or punitive damages or lost profits
ARTICLE 8. MISCELLANEOUS
8.1 Any work performed by either party on the premises of the other shall
be performed while taking all necessary precautions to prevent the occurrence of
any injury to persons or property during the progress of such work.
8.2 The invalidity in whole or in part of any provision shall not
affect the validity of any other provision.
8.3 Notices shall be in writing, effective upon receipt and sent to:
CITIZENS: Citizens Utilities Rural Company, Inc.
0000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
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XXX: Electric Lightwave, Inc.
0000 X.X. Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
ARTICLE 9. COUNTERPARTS
To facilitate execution, this Agreement may be executed in as many
counterparts as may be required. It shall not be necessary that the signature
of or on behalf of each party appears on each counterpart, but it shall be
sufficient that the signature of or on behalf of each party appears on one or
more counterparts. All counterparts shall collectively constitute a single
agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first set forth above.
ELECTRIC LIGHTWAVE, INC. CITIZENS UTILITIES RURAL
COMPANY, INC.
By: _______________________ By: __________________________
Name: _______________________ Name: __________________________
Title: _______________________ Title: __________________________
