Exhibit 10.37
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
AGREEMENT FOR THE PROVISION
OF
FIBER OPTIC FACILITIES AND SERVICES
BETWEEN
CENTRAL MAINE POWER COMPANY
AND
FIVECOM OF MAINE LLC
TABLE OF CONTENTS
-----------------
PREAMBLE ..................................................................1
RECITALS ..................................................................1
1. DEFINITIONS...........................................................1
2. GRANTEE'S RIGHT TO USE; OBLIGATION TO BUILD...........................5
3. COSTS.................................................................6
4. THE ROUTE; MODIFICATIONS..............................................6
5. ENGINEERING, DESIGN AND MAKE READY....................................8
6. SELECTION OF CONTRACTORS, INSTALLATION................................9
7. POINT OF DEMARCATION AT BUILDING PATCH PANEL; BUILDING
EXTENSIONS...........................................................10
8. OPERATIONS AND MAINTENANCE...........................................10
9. RELOCATION, REPLACEMENT, REBUILDS OF THE CABLE.......................12
10. INTERFERENCE WITH JOINT USERS........................................13
11. REMOVAL OF THE CABLE.................................................13
12. PERIODIC INSPECTIONS.................................................14
13. APPROVALS AND CONSULTATION...........................................14
14. OWNERSHIP............................................................15
15. USE OF THE CABLE BY GRANTOR..........................................16
16. CASUALTY.............................................................17
17. REPRESENTATIONS AND WARRANTIES.......................................17
18. INSURANCE............................................................18
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19. TERM AND TERMINATION.................................................19
20. ANNUAL FEE...........................................................20
21. FORCE MAJEURE........................................................21
22. PROPRIETARY INFORMATION..............................................22
23. ACCESS AND SECURITY..................................................23
24. NO JOINT VENTURE; COSTS..............................................24
25. RESERVED.............................................................25
26. SEVERABILITY.........................................................25
27. LABOR RELATIONS......................................................25
28. CONSENTS AND WAIVERS.................................................26
29. TAXES AND GOVERNMENTAL CHARGES.......................................26
30. INDEMNIFICATION......................................................26
31. DEFAULT..............................................................27
32. ASSIGNMENT...........................................................28
33. GOVERNMENTAL APPROVALS, PERMITS, AND CONSENTS........................29
34. NOTICES..............................................................31
35. DISPUTE RESOLUTION...................................................32
36. EXERCISE OF RIGHT....................................................32
37. ADDITIONAL ACTIONS AND DOCUMENTS.....................................33
38. SURVIVAL.............................................................33
39. HEADINGS.............................................................33
40. INCORPORATION OF EXHIBITS............................................33
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41. COUNTERPARTS.........................................................33
42. APPLICABLE LAW.......................................................34
43. PRIOR AGREEMENTS.....................................................34
EXHIBIT 2.4 .............................................................33
EXHIBIT 8 ...............................................................34
EXHIBIT 8.1 .............................................................35
EXHIBIT 9.1 .............................................................38
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
PREAMBLE
This Agreement is entered into on January 7, 1997 between Central Maine Power
Company, a Maine corporation, (the "Grantor") and FiveCom of Maine LLC, a
Massachusetts limited liability company (the "Grantee"), (collectively, the
"parties").
RECITALS
WHEREAS, the Grantor is the owner of transmission structures,
subtransmission structures, distribution structures, conduits, and associated
civil works, ("Grantor's Structures") and has certain rights to use easements,
and/or rights of way within which the Grantor's Structures are located in the
State of Maine as part of the Grantor's electric transmission and distribution
system;
WHEREAS, the Grantee seeks to use certain of the Grantor's Structures to
install Cable Accessories and a fiber optic cable which will consist of [**] of
which will be assigned to the Grantor, subject to Section 15 hereof, for CMPNET,
its communication system, and the balance of which will be used by the Grantee
as part of its communication system, New England Optical Network; and
WHEREAS, the Grantor is willing to grant the use of certain of Grantor's
Structures for this purpose and, while legal title to the cable will, following
installation, be in Grantor, to grant the use of certain of the fiber filaments
in the Cable to the Grantee, once it is installed, in exchange for certain
annual fees and the use of CMPNET; and
WHEREAS, Grantee is the exclusive developer of the New England Optical
Network and provider of marketing, sales, operation and maintenance services and
desires to integrate the telecommunication system, which is to be developed
hereunder, as part thereof;
NOW THEREFORE, in consideration of the covenants contained herein, the
parties agree as follows:
1. DEFINITIONS
Actual Cost. The direct cost to a party of performing work under this
Agreement, including any Tax Cost to said party relating to such work, plus
reasonable associated overheads but without xxxx-up and/or profit. The parties
shall use their best efforts to perform the work called for at Actual Cost to be
at the lowest possible cost.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Affiliate. An Organization (i) controlled by such Organization, (ii)
controlling such Organization, or (iii) which is controlled by an Organization
that also controls such Organization. For the purposes hereof, an Organization
is "controlled" by a person who has shares of equity interests with sufficient
voting power to elect a majority of the directors, if a corporation, or
managers, if an LLC, or persons performing comparable roles in other forms of
Organization.
Annual Fee. See Section 20.1.
Building Entry. The Grantor's aerial and underground civil works between
the distribution pole or service manhole, as the case may be, and the building's
electrical or mechanical room.
Cable. Fiber optic filaments containing, in any suitable jacketing or
sheath, either CMPNET, NEON or both.
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 CMPNET and NEON within the Cable including antennas or other
communication devices attached thereto.
Claims. See Section 30.1.
CMPNET. The Grantor's [**] contained within the Cable, the Grantor's
Equipment and the Grantor's Space.
Demarcation Point. See Section 7.1.
Ending Date. See Section 19.1.
Eliot-to-Portland Route. As defined in the definition of "Route."
Entities. See definition of Internal Business Purposes in this Section 1.
Equipment. The power equipment, electronic, multiplex 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, but not including the Cable. The word "equipment" when not capitalized,
refers to equipment of any type.
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Estimated Cost. The reasonable, good faith estimate of the Actual Cost, as
mutually agreed to by the parties, of performing work under this Agreement.
Event of Abandonment. The act of ceasing to maintain or to use the Cable,
Cable Accessories, Equipment, and/or equipment for a continuous period of 180
days or longer.
Extension Period. See Section 19.2.
Favored Customer Rates. See Section 15.4.
Fiber Specifications. The performance specifications for fiber in Exhibit
8.1.
Force Majeure Events. See Section 21.1.
Grantee. See Preamble.
Grantee's Space. Floor space to be provided, at previously market rates
for such space, to the Grantee by the Grantor, as available in the sole judgment
of the Grantor, in existing facilities or in New Buildings of the Grantor along
the Route for the placement of Equipment to be used solely in connection with
NEON.
Grantor. See Preamble.
Grantor's Space. Floor space to be provided to the Grantor by the Grantee
in New Buildings of the Grantee, along the Route for the placement of Equipment
to be used solely in connection with CMPNET.
Grantor's Structures or Structures. The meaning as set forth in the first
"Whereas."
Installation Date. For the purpose of the Agreement, the earliest date on
which a given Route Segment of either NEON or CMPNET is lit in-service.
Internal Business Purposes. All communications carried out in the normal
course of business by Grantor, and between Grantor and (1) Affiliates of
Grantor, and (2) any entities in which Grantor has an equity interest including,
but not limited to, Maine Yankee Atomic Power Company (collectively the
"Entities"). Such communications shall include, without limitation,
intra-company communications, communications with customers, vendors, and
suppliers, communications for security and alarm service providers, meter
reading, conservation and load management, and other electric energy services.
Make Ready Work. See Section 5.2.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
NEON. The optical fiber filaments in the Cable, other than CMPNET, the
Grantee's Equipment and the Grantee's Space.
Network Addition. As defined in the definition of "Route" below.
New Buildings. Buildings and shelters, including repeater housings, that
are to be constructed, erected or positioned on real property to house the
Grantee's and/or the Grantor's Equipment and where either the Grantor or the
Grantee is the owner or lessee of said real property.
Organization. A person other than a natural person. Organization includes,
without limitation, corporations (both non-profit and other corporations),
partnerships (both limited and general), joint ventures, limited liability
companies, and unincorporated associations, but the term does not include joint
tenancies and tenancies by the entirety.
Payment Schedule. The schedule of payments to be made by one party to the
other, as mutually agreed to by the parties, for work to be performed by one
party for the other under this Agreement, which shall be based on the Estimated
Cost of such work, subject to supplementary payments or refunds based on Actual
Cost.
Periodic Inspections. Inspections, at Grantor's sole cost, conducted at
irregular intervals by the Grantor on all or portions of the Route.
Program Managers. See Section 13.1.
Proprietary Information. See Section 22; Proprietary Information includes
this Agreement.
Route. The transmission and, if necessary, distribution corridor that
includes the Grantor's Structures between the substation at [**] at the carrier
points of presence, as shown on Exhibits 2.4 and 4, (the "[**] Route"), together
with any transmission or distribution corridors that include Grantor's
Structures which Grantee makes use of to extend either NEON, CMPNET or both
pursuant to the terms of this Agreement, such extension being defined as a
"Network Addition" and, when installed, shall be considered a part of the Route.
Route Segment. A portion of the Route between any two points.
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Tax Cost. Grantor's total federal and state tax liability for a
Tax-Reimbursed Transaction, calculated at Grantor's tax rates at the time the
taxable event occurs, grossed up based on the same rates so that Grantor will
have no out-of-pocket tax liability from either the transaction in question or
from the receipt of reimbursement for taxes.
Tax Factor. The number calculated by dividing the Tax Cost for a given
Tax- Reimbursed Transaction by the actual tax liability to Grantor for such
transaction.
Tax-Reimbursed Transaction. A transaction for which Grantor's taxes are
reimbursed under this Agreement; see Section 14.
Term. See Section 19.
Third Party. Any party, person or entity that is not a signatory to this
Agreement or an Affiliate of a signatory and any party, person or entity that is
not a successor or permitted assignee of the signatories hereto.
2. GRANTEE'S RIGHT TO USE; OBLIGATION TO BUILD
2.1 Grant of Right. The Grantor grants to the Grantee the right to use the
Cable, except for CMPNET, as it is placed on the Grantor's Structures along the
Route, provided such use shall at all times be subordinate to the Grantor's
obligation to provide a safe and reliable supply of electricity.
2.2 Subordination and Non-disturbance. To the fullest extent permitted by
the General and Refunding Mortgage Indenture dated as of April 15, 1976, between
Central Maine Power Company and The First National Bank of Boston, Trustee, as
amended and supplemented (the "CMP Mortgage"), under which State Street Bank and
Trust Company has succeeded The First National Bank of Boston as Trustee, this
Agreement and the rights granted to the Grantee in Section 2 of this Agreement
(the "Granted Rights") shall remain in full force and effect notwithstanding:
(a) the happening of an event of default under the CMP Mortgage; or (b) any
foreclosure or other action taken to enforce the CMP Mortgage. The Grantor
agrees to use its best efforts to have any subsequent mortgage affecting the
Granted Rights contain protection for the Grantee similar to that contained in
Section 10.02(b) of the CMP Mortgage.
2.3 Limitation on Use. The Grantee shall operate NEON SM in accordance
with all applicable governmental, state and federal regulations.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
2.4 Obligation to Build. Each of the parties shall use its best efforts to
install the Cable within 24 months of the date of the execution of this
Agreement along the [**] Route.
2.5 Measurement. Where applicable, Annual Fees shall be determined on a
linear footage basis, using the right-of-way monumented line-of-location
stationing, when available, and shall be based on NEON as installed along the
Route as of each January 31 date when the Annual Payment shall be due, without
taking into account any extension of NEON contemplated to occur in the future.
2.6 Other Facilities. This Agreement shall not be construed as limiting or
restricting the Grantor in any manner from using, or permitting others to use,
its Structures, easements and/or rights-of-way for any purpose.
3. COSTS
3.1 Costs to be Paid by the Grantee. The Grantee shall pay the Grantor the
Grantor's Actual Cost associated with implementing this Agreement; provided that
neither party shall be entitled to reimbursement from the other for costs
associated with the negotiation or preparation of this Agreement including,
without limitation, in-house labor, and fees for legal and other services.
(a) The Grantor shall not perform any work under this Agreement
until the parties have agreed upon (1) the Estimated Cost for such work,
and (2) a Payment Schedule therefor.
(b) The Grantor will adjust its Estimated Cost quarterly to account
for differences between Actual Cost and Estimated Cost and from time to
time as the Grantor determines is needed to compensate for changes to the
original scope of work including but not limited to unplanned Make Ready
Work. The Grantor will submit the adjustment to Estimated Cost to the
Grantee. The Grantor shall reimburse the Grantee if the Actual Cost of the
work performed up to the date of the adjustment is less than the amount(s)
actually paid by the Grantee based on the Estimated Cost. If the Actual
Cost of the work performed up to the date of the adjustment is greater
than the Estimated Cost, the Grantor shall submit an invoice to the
Grantee for the payment of the difference within the time provided in the
Payment Schedule. The Grantee shall not pay for any of Grantor's work
needed to enable the Grantor to satisfy the requirements of Section 17.3
hereof.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3.2 Property Records Data. If requested to do so by Grantor, the Grantee
shall provide property records data, including cost data, at such level of
detail as is reasonably required by the Grantor to satisfy the Grantor's
property records.
4. THE ROUTE; MODIFICATIONS
4.1 Withdrawal of [**] Route Segments by Grantor. During the sixty-day
period following the date of execution of this Agreement, the Grantor shall have
the right to withdraw any portion of the [**] Route that Grantor deems, at its
sole discretion, not to be suitable for the Cable; provided that the Grantor
will provide Grantee with a substitute Route Segment. Following the conclusion
of the sixty-day period, Grantor shall not withdraw any portion of the [**]
Route Segment, except for the reasons set forth in Section 19.4.1.
4.1.1 Substitute Route Segments. When required to do so under Section
4.1 above, Grantor will provide Grantee with a substitute Route Segment,
reasonably acceptable to the Grantee, to such destinations of the withdrawn
Route Segment, and in every manner replicating the functionality of the Route
Segment withdrawn. Should the substitution of the new Route Segment (1) occur
after the conclusion of the sixty-day period in Section 4.1 above, and (2)
result in any additional cost to Grantee, then (a) such additional cost
resulting from the substitution of the new Route Segment shall be solely borne
by Grantor, and (b) the Annual Fee for the substituted Route Segment shall be
the lesser of the amount due for (i) the Route Segment withdrawn or (ii) the
substituted Route Segment as calculated under Section 20.
4.1.2 Distribution Facilities. Notwithstanding the foregoing, should
Grantor relocate any of its distribution facilities, whether before or after the
expiration of the sixty-day period set forth in Section 4.1 or before or after
the installation of the Cable on any portion of the Route Segment, Grantee shall
pay all costs associated with the relocation of the Cable. If the relocation
occurs prior to the installation of the Cable on the distribution facilities,
Grantee shall be responsible for any additional Make Ready Work cost resulting
from the relocation.
4.2 Network Additions Designated by Grantee. If from time to time, the
Grantee wishes to extend the Route by installing additional Cable on Grantor's
Structures, the Grantee shall submit plans of said Network Addition to the
Grantor for approval, which approval shall not be unreasonably withheld or
delayed. All such Network Additions, if approved, shall be incorporated as part
of the Route, once it is installed, under the Agreement.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
4.2.1 Termination of Network Additions. All Network Additions shall be
approved in writing by Grantor. Once Grantor has issued its written approval for
a Network Addition, Grantor shall not withdraw its approval of the Network
Addition, or, once the Cable is installed, terminate the resulting Route Segment
except pursuant to, and for one or more of the reasons provided in, Section
19.4.1. Grantor shall thereupon provide Grantee with an alternative Route
Segment, if possible. Grantee shall bear the cost of relocating the Cable
Segment, and the Annual Fee shall be based on the new Route Segment.
4.3 Modification of the Route by Grantee. If, prior to the installation of
Cable on any Route Segment or on any Network Addition, Grantee determines, after
reviewing the Estimated Cost, that such installation would require unusual
expense, then the Grantee shall have the right, subject to the Grantor's
approval, to designate a substitute Route Segment.
4.4 Network Additions Designated by Grantor. If the Grantor shall
determine any need for Network Additions for the purpose of expanding the
CMPNET, the Grantee shall have the first right to provide such Network
Additions. If for any reason, the Grantee is unwilling or unable to provide such
Network Additions on the terms requested by the Grantor, the Grantor shall be
free to interconnect additional communications facilities with the CMPNET, or
acquire such additional facilities from Third Parties on substantially the same
or better terms as those proposed to the Grantee. If the Grantor shall obtain
such communications facility from Third Parties, the Grantor shall, if requested
to do so by Grantee, use its best efforts to provide Grantee with the unimpeded
use of not less than [**] in such facilities with Grantee paying the incremental
cost of owning, operating and maintaining its portion of the facilities.
4.5 Cost and Means of Right of Way Acquisitions. The Grantee shall be
responsible for the acquisition of, and payment for, any easement or other
rights that may be required in order to permit the installation, operation and
maintenance of the Cable on the Grantor's Structures.
4.6 Eminent Domain. 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
NEON by the Grantee, then any required condemnation action shall be brought by
the Grantee in its own behalf. Any easement or other property right obtained by
Grantee through eminent domain shall be subsequent and subordinate to any
existing rights of Grantor in the property.
-8-
4.7 Grantee's Right to Build and Connect Third Party Segments. In the
event that the Grantor (i) does not have Structures available for any reason to
the Grantee or (ii) does not provide such Structures to Grantee, the Grantee
shall have the right to build for itself, on right-of-way to be obtained by the
Grantee, or obtain such facilities from Third Parties, at the Grantee's sole
cost and expense, and to connect such Third Party facilities to NEON at a point
of connection approved by the Grantor on the Grantor's property. As set forth in
Section 15.4, Grantee shall use its best efforts to provide Grantor with
communication facilities over such Third Party facilities at i, if requested to
do so by Grantor.
5. ENGINEERING, DESIGN AND MAKE READY
5.1 Obligations. The Grantee, at its sole cost and expense, shall design,
in cooperation with the Grantor, all electronic and optronic equipment and
provide detailed specifications, construction working prints and other necessary
data for CMPNET and NEON. The Grantor shall design all alternating current power
sources and related articles of property and the Grantee shall reimburse Grantor
its Actual Cost.
5.2 Responsibility for Make Ready Work. The Grantor or the Grantor's
contractor shall perform all work required by Grantor to install intermediate or
supplementary Structures, replace existing Structures, make existing Structures
capable of supporting the Cable, (collectively, "Make Ready Work"). The Grantee
shall pay Grantor at Grantor's Actual Cost for all Make Ready Work.
5.3 Condition of Structures. To provide for contiguous locations on which
the Cable can be placed, the Grantor shall make available Grantor's Structures
in a usable condition consistent with the engineering standards in effect at the
time that the Grantor's Structures were installed. The Grantor shall perform
such work, if any, at its expense, as may be required to comply with these
standards.
6. SELECTION OF CONTRACTORS, INSTALLATION
6.1 Contractors. The Grantee shall seek qualified competitive bids for the
installation of the Cable and the Grantor and/or an Entity may competitively bid
such work. The Grantee shall seek qualified competitive bids for engineering,
detailed specifications, construction working prints and other data necessary to
carry out such construction, and the Grantor and/or an Entity may competitively
bid this work. The cost to Grantor of participating in any such bid process
shall be for the account of Grantor and shall not be recoverable from Grantee.
Contracts between the Grantee and the Grantor, or any Entity, for work under
this paragraph shall be made in accordance with negotiated commercial contracts
executed by the parties or the Entity.
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6.1.1 Grantor's Inspector. If Grantee selects a Contractor other than
Grantor for installation, relocation or modification of the Cable or Cable
Accessories, Grantee shall notify Grantor prior to commencement of such work and
Grantor shall have the right to have a qualified inspector present when the work
is being performed. The inspector shall have the right, but not the duty, to
halt work if the inspector believes it may endanger the Grantor's facilities,
the public or Grantee's contractors. Grantee shall reimburse Grantor for the
Actual Cost of this inspection.
6.2 Grantee's Right to Issue Specifications. The Grantee shall have the
right to issue 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 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.
6.3 New Buildings. The Grantor shall have the right but not the obligation
to manage the construction of all New Buildings and modifications to
Grantor-owned buildings located on the Grantor's property. The Grantee shall be
solely responsible for all work and costs associated with all New Buildings and
modifications to buildings not located on the Grantor's property.
6.4 Grantee's Limitation. This Agreement grants no right to Grantee to
locate New Buildings or to modify Grantor's buildings on Grantor's property.
6.5 Agency Fees. Except as provided in Sections 4.5, 14.3 and 6.6 herein,
the Grantee shall be responsible for payment of any fees payable to any federal,
state, local agency or private entities for the use of rights-of-way as a result
of the Grantee's use of or right to use the Cable, except the Grantor shall be
responsible for the portion of the payment determined by the ratio of the number
of fibers in CMPNET divided by the total number of fibers in the Cable.
6.6 Grantor to Obtain Permits. The Grantor shall obtain such governmental
permits and authorizations as may be needed on private rights-of-way in order to
allow the Cable to be installed on the Grantor's Structures, and Grantor's costs
under this paragraph shall be reimbursed by Grantee at Grantor's Actual Cost.
6.7 Public Rights of Way. The Grantee shall, at its sole cost, obtain all
federal, state and municipal occupancies and other governmental permits that may
be required for the installation of the Cable in public rights-of-way or for the
use of the Cable on such rights-of-way.
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7. POINT OF DEMARCATION AT BUILDING PATCH PANEL; BUILDING EXTENSIONS
7.1 Marking. The point of demarcation (the "Demarcation Point") for the
purpose of this Agreement shall be indicated by a visible, indelible xxxx 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 individually
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 Route.
7.2 Equipment. All costs for CMPNET Equipment shall be paid by the
Grantor. All costs for NEON Equipment shall be paid by the Grantee.
7.3 Building Extensions. NEON will be extended by the Grantee for use by
the Grantee within buildings as required. In such extensions the entire cable
containing NEON beyond the building patch panel shall become the property of the
Grantee and the Cable shall extend to the point of the building patch panel. The
Grantee shall obtain approval from the owners of buildings and property for all
such use including the physical location of Cable, installation, maintenance and
operation of the Grantee's facilities upon said property.
8. OPERATIONS AND MAINTENANCE
8.1 Grantee's Obligations. The Grantee, at its sole cost, shall perform
the maintenance and repair of the Cable and, in particular, shall maintain
CMPNET in accordance with the specifications set forth in Exhibit 8.1. In
addition, Grantee shall maintain the Cable in accordance with the maintenance
specifications set forth in Exhibit 8. In the event the Grantee fails to perform
any necessary splicing or maintenance in accordance with procedures and time
frames set forth in this Section 8, including, without limitation Exhibit 8, or
fails to maintain CMPNET so as to comply with the specifications of Exhibit 8.1,
or fails to maintain the Cable so as to comply with the specifications of
Exhibit 8, the Grantor shall have the right but not the obligation to undertake
any necessary maintenance and repair of the Cable, and the Grantee agrees to
reimburse the Grantor for the Grantor's Actual Cost of said maintenance and
repair.
8.2 Grantee's Limit of Repair and Maintenance. The Grantee, at its sole
cost and expense, shall perform the maintenance and repair of CMPNET fibers to
the Demarcation Point.
8.3 Permitted Access for Repair and Maintenance. The Grantor grants the
Grantee the right to enter upon Grantor's property for cable repair and
maintenance, and Grantee grants to Grantor the right to enter upon Grantee's
property for the
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purpose of installing, operating, maintaining and repairing its Equipment.
However, 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 ensure
the safe and reliable operation of its electric system. The Grantee shall
provide notice to the Grantor at least 10 working days in advance of routine
maintenance upon any Route Segment upon which any repair is to be conducted.
Grantor shall confirm the availability of any Route Segment for maintenance
within such 10 working days. In the case of emergency maintenance, Grantee shall
provide notice of maintenance, and Grantor shall confirm its approval, as soon
as possible under the emergency circumstances.
8.4 Grantor's Obligations. The Grantor shall be solely responsible for all
aspects of the operation of CMPNET and the operation and maintenance of
equipment thereon.
8.5 Grantor's Approval of Third Party Work. Prior to the Grantee engaging
the services of a Third Party to commence work to maintain the Cable on the
Route, the Grantee will obtain the Grantor's prior consent of Third Parties
performing such work, and Grantee shall notify Grantor of the date and time when
such work is scheduled to commence and its duration.
8.6 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 electric 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 and the Grantor consents, the Grantee may repair its
facilities concurrently with the Grantor. The Grantee acknowledges that all or a
portion of the Cable will be placed on Structures that are part of the Grantor's
electric delivery 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.
8.7 Emergency Use of Grantor's Property. With the Grantor's prior consent,
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 120 days, or sooner, unless the Grantee applies
for and the Grantor grants permission for such temporary use to be extended.
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9. RELOCATION, REPLACEMENT, REBUILDS OF THE CABLE
9.1 Due to the Requirements of the Grantee. In the event that the Grantee
requests relocation, replacement, or rebuild of the Cable during the term of
this Agreement other than due to damage or destruction of the Cable, the Grantee
shall submit to the Grantor a completed copy of Exhibit 9.1 to request an
acceptable new location. No relocation replacement or rebuild shall be performed
on the Grantor's property or easements or Structures without prior written
approval of the Grantor. The cost of any such work shall be paid by the Grantee.
9.2 Due to the Requirements of 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 or business need to
relocate or modify any or all Structures upon which the Cable is located, all
costs associated with such relocation or modification to the Structures shall be
borne by Grantor. The Grantor and the Grantee shall cooperate in performing such
relocation or modifications so as to minimize any interference with the use of
NEON or CMPNET 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. The Grantee shall relocate the Cable at the
Grantee's sole cost; provided that if the relocation or modification to the
Structures is undertaken to permit a competitor of Grantee to attach to said
Structures, the relocation of the Cable shall be at Grantor's sole cost.
9.3 Due to Damage or Destruction of the Cable. Relocations, replacements,
or rebuilds due to damage or destruction of the Cable other than as described in
Section 9.4 shall be made pursuant to Section 16.
9.4 Emergency Relocations; Third Party Relocations. In the event of an
emergency affecting the Grantor's Structures or public safety, the Grantor shall
be permitted to replace, remove and relocate the Cable or any portion thereof
without prior notice to the Grantee when such notice is not practicable. The
Grantor shall incur no liability for service interruptions in connection with
any such removal or relocation, and under such circumstances the Grantee shall
incur no liability for service interruptions to CMPNET or to other of the
Grantor's services, if so affected. The cost of work performed under this
paragraph shall be for the account of Grantor and shall not be recoverable from
Grantee. The Grantor shall keep Grantee advised of all emergency conditions.
9.5 Cable Failure; CMPNET 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
who may
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be liable. Should the Cable fail to function for any reason, the Grantee shall
have the obligation to expeditiously replace the Cable, subject to the terms and
conditions of this Agreement governing the original installation, and at the
Grantee's sole cost and expense. The Grantee shall have no responsibility for
Equipment to be used solely in connection with CMPNET, including without
limitation, any such equipment installed or located in the Grantor's Space in
any New Building or at 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.
10. INTERFERENCE WITH JOINT USERS
The Grantee shall design, engineer, construct and maintain the Cable on
the Route in a manner not to physically conflict or interfere with the Grantor's
property, including Grantor's Structures or any facilities attached thereon or
placed therein by joint users or others.
11. REMOVAL OF THE CABLE
11.1 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 affects the
Grantor's use of CMPNET.
11.2 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 within twelve months of removal
of the cost of removal, storage and delivery, and all other amounts due the
Grantor. Cable removals that are subject to the provisions of Section 19.5 shall
be returned to Grantee without charge.
11.3 Salvage. Grantor shall credit Grantee for all salvage of all
materials salvaged by Grantor in the course of work performed hereunder by
Grantor.
12. PERIODIC INSPECTIONS
12.1 By Grantor. The Grantor shall have the right, but not the obligation,
to make Periodic Inspections of any part of the Grantee's operations that are
placed on or occupying the Grantor's property. The Grantor will give the Grantee
reasonable advance notice of any Periodic Inspections, except in those instances
where, in the sole judgment of the Grantor, safety considerations justify the
need for an immediate Periodic Inspection. A representative of the Grantee may,
at Grantee's sole cost, accompany the Grantor's representative on all Periodic
Inspections. The cost of
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Periodic Inspections work performed under this Section 12.1 shall be included in
the Grantee's annual payments set forth in Section 20.
12.2 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.
13. APPROVALS AND CONSULTATION
13.1 Role of Program Managers. Each party shall designate a Program
Manager ("Program Manager"). Whenever either party is entitled to approve a
matter, the Program Manager for the party seeking the approval of the other
party shall notify the Program Manager of the other party of the nature of such
matter and the approval requested. The Program Managers shall discuss such
matter, and each Program Manager is authorized to approve such a matter on
behalf of the Program Manager's company. In no event shall Program Managers be
authorized to amend the provisions of this Agreement.
13.2 Definition of Consultation/Cooperation and Approval. Whenever in this
Agreement it is provided that one party will take action "in consultation with
the other party," it is intended that such consultation shall be thorough and
meaningful, and that the views of the each party with regard to the matter under
consultation shall be given the weight appropriate to the experience and
expertise of the Grantee in communications and the Grantor in electric power.
Whenever in this Agreement it is provided that the approval of one party is
required, it is intended that such approval will not be unreasonably withheld or
delayed by the other party.
14. OWNERSHIP
14.1 Title; Tax Cost Reimbursement. Legal title to the Cable and Cable
Accessories on any Route Segment shall be transferred from the Grantee to the
Grantor on the Installation Date of that Route Segment. Both legal and
beneficial ownership of CMPNET, shall, subject to the terms of this Agreement be
transferred to Grantor on the Installation Date of any Route Segment. In the
event the acquisition of (a) legal title to the Cable and Cable Accessories,
and/or (b) the beneficial ownership of CMPNET, constitute(s) a taxable event(s)
to the Grantor, the related Tax Cost of Grantor's acquisition of legal title to
the Cable and Cable Accessories, and/or beneficial ownership of CMPNET, will be
paid by Grantee with respect to each Route Segment.
14.2 Tax Accounting. With respect to NEON fibers contained in the Cable,
and the Cable Accessories installed upon the Grantor's Structures, the Grantor
shall hold legal title to the same as the Grantee's nominee and, with respect to
such
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property, the Grantee will be the beneficial owner, and Grantee will assume such
beneficial ownership of the NEON fibers on the Date of Installation.
Accordingly, the Grantee shall for tax purposes account for the NEON fibers 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 and Cable Accessories. The Grantor agrees that it
will not, for tax purposes, account for the property associated with NEON fibers
and the Cable Accessories 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.
14.3 Income Tax. Pursuant to Section 14.1, Grantee shall reimburse Grantor
for any income tax liability incurred by Grantor as a result of the transfers
described therein. Grantor shall take reasonable efforts suggested by Grantee to
minimize the amount of said tax liability on its return(s), in accordance with
applicable laws and regulations. Within seven days of the execution hereof,
based upon fifteen-year depreciation schedule, the Grantor shall furnish Grantee
an estimate of this tax liability, based on Grantor's allocable share of the
total cost of a Route Segment, such allocation to be derived based on the ratio
of CMPNET to NEON fibers in the Route Segment. Grantee shall hold harmless,
indemnify, and defend Grantor's tax position with respect to the transfers
described in Section 14.1 if challenged by the IRS. In lieu of cash, Grantee
shall provide said reimbursement in the form of additional fiber segments,
engineering services, or other telecommunication services that Grantor may
request from Grantee from time to time and which Grantee agrees to provide,
which segments, and/or services shall have a value (grossed up to take account
for the time value of money and the timing of the actual tax payments)
equivalent to Grantor's tax liability described in this Section 14.3. If said
reimbursement has not been attained on the eighth anniversary of this Agreement,
Grantee agrees to commence the payment specified at a rate sufficient to
liquidate the remaining obligation by the enth anniversary of this Agreement,
provided that such payments do not put the Grantee in default of any financial
agreement then in place. If such payments could cause an event of default under
any financial agreement, the parties agree to use their best efforts to devise
an alternative payment plan that would repay the obligation by the tenth
anniversary of this Agreement without causing such default. Thereafter, the
payment as specified and agreed to by the parties shall be due and owing. In a
given year, however, Grantee shall only be obligated to provide reimbursement
valued up to an amount equal to the actual tax liability incurred by Grantor for
the prior tax year, plus any unused reimbursements amounts from earlier years.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
14.4 Reversion of Beneficial Ownership. Beneficial ownership of the
Grantee's NEON fibers and the Cable Accessories shall revert to the Grantor upon
termination or expiration of the Agreement pursuant to the Term and Termination
Section 19 herein. Reversion of Beneficial Ownership in the NEON fibers and the
Cable Accessories pursuant to this Section 14.4 or Section 16 or as a result of
action taken by federal tax authorities in the form of Internal Revenue Service
audit examination adjustments or other guidance may constitute a taxable event
to the Grantor, in which case Grantee shall not pay to the Grantor the related
Tax Cost.
15. USE OF THE CABLE BY GRANTOR
15.1 CMPNET. The Grantee shall provide [**] in the Cable for the unimpeded
and unrestricted use by the Grantor, subject to Section 15.2 except that the
requirement of usability shall not apply to any fibers located upon a Route
Segment which Grantee is no longer using for NEON purposes.
15.2 Fibers and Use. For a period of [**] commencing upon the Installation
Date, Grantor's use of CMPNET shall be restricted to Grantor's Internal Business
Purposes, except by the written permission of Grantee, such permission not being
subject to reasonableness ("Restricted Period"). Following said period, the
Grantor's use of CMPNET is unrestricted.
15.3 Unrestricted Period. Should Grantor determine, at the conclusion of
the Restricted Period, that it has CMPNET capacity that is excess to its
then-current and then-projected needs, prior to marketing any such excess to
third parties, Grantor shall negotiate in good faith with Grantee to agree on
terms to provide such excess to Grantee.
15.4 Additional Service. In addition to providing CMPNET, Grantee shall,
upon the Grantor's request, provide the Grantor with communication facilities
into all locations served by the Grantee's networks, but not served by CMPNET,
[**].
15.5 Space in Grantee's Locations. Where available and requested by the
Grantor, the Grantee shall provide, or cause to be provided, space to the
Grantor ("Grantor Space") in the Grantee's offices and other common access areas
of the Grantee along the Route in New Buildings, adequate in each case to permit
the Grantor to install its Equipment used to interconnect CMPNET with NEON.
Unless otherwise agreed, the Grantor Space will comply with power, ground,
physical and environmental requirements of industry technical publications.
Grantor Space shall be used by the Grantor to house the Grantor's Equipment
necessary to permit the use
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
of the CMPNET and interconnection with the Grantor's networks. Unless otherwise
agreed, the Grantor's Space in a Grantee facility other than a New Building,
shall be in a common access area of such facility, and to the extent reasonably
practicable, the Grantor's Space in a New 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 [**].
16. CASUALTY
If any portion of the Cable is irreparably damaged or destroyed at any
time during the Term, such portion of the Cable shall be repaired, restored or
replaced in accordance with the terms and conditions of the original
installation set forth in this Agreement.
17. REPRESENTATIONS AND WARRANTIES
17.1 Common Representations. Except as set forth in Exhibit 17.1, 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. Notwithstanding the
foregoing, this Agreement shall be subject to the approval of the Maine Public
Utilities Commission as contemplated in the November 15, 1996 Stipulation,
Section 2, submitted to said Commission, on terms and conditions satisfactory to
each party.
17.2 Representations by Grantor. The Grantor represents and warrants to
the best of its knowledge (1) that the Grantor is a corporation duly organized,
validly existing and in good standing under the laws of the state under which it
is formed; (2) that 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 organizational certificate(s) and will not violate any law,
rule or regulation applicable to the Grantor; and (3) that 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 in Exhibit 17.1.
17.3 Representation by Grantor As to Structures. The Grantor represents
and warrants that the Structures were designed to meet the minimum requirements
of the edition of the National Electrical Safety Code and other applicable
standards in effect at the time the Structures were designed, and that they
remain in compliance with these minimum requirements.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
17.4 Cooperation as to Rights. Grantor shall consult and coordinate with
Grantee regarding the rights, permits and licenses it has in any Route Segment,
which Grantee may make use of hereunder, and will work with Grantee to identify
any rights, permits or license that Grantee may need to obtain in order to place
the Cable on the Grantor's Structures along said Route Segment.
17.5 Representations by Grantee. Subject to Exhibit 17.1, the Grantee
represents and warrants that the Grantee is duly organized, validly existing and
in good standing under the laws of the state in which it was formed and shall be
qualified to do business in Maine prior to the Installation Date, and that the
execution and delivery of this Agreement and the performance thereunder will not
conflict with or violate or constitute a breach or default under its
organizational documents and will not violate any law, rule or regulation
applicable to the Grantee, to the best of its knowledge and that the Grantee has
authority to execute, deliver and perform this Agreement.
18. INSURANCE
18.1 Grantee's 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 [**]. Upon
request of Grantee, and agreement on terms by Grantor, Grantee shall obtain such
insurance for Grantee and Grantee shall comply with the agreed upon terms.
18.2 Certificates. The policy or policies shall include contractual
liability coverage to insure the indemnification agreement and products
completed operations coverage. Certificates evidencing such policy(ies) shall be
delivered to the Grantor within thirty (30) days of the date of this Agreement.
Not less than thirty (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 thirty (30) days written
notice shall be given to the Grantor before such policy(ies) may be canceled,
materially changed or undergo a reduction in Insurance limits provided thereby.
The Grantor shall be named as an additional insured. 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 a reasonable time after
the Grantor's request.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
19. TERM AND TERMINATION
19.1 Period. The term of this Agreement ("Term") shall be for a period of
30 years from the date of execution of the Agreement, commencing on January 7,
1997 and ending on January 7, 2027 (the "Ending Date") unless extended by the
Grantee pursuant to Section 19.2.
19.2 Grantee's Election to Extend. The Grantee may elect to extend the
Term for another 10 years (the "Extension Period") from the Ending Date by
sending written notice thereof to Grantor no later than six months prior to the
Ending Date. If so extended, Grantee shall pay the Grantor for each year of the
Extension Period, [**] as determined by the Grantee's outside auditor, from the
use of NEON on the then-existing Route. This payment shall be made each year for
10 years within 90 days of the end of the Grantee's fiscal year, and shall be in
addition to any Annual Fees due the Grantor under Section 20.
19.3 Reversion of Beneficial Ownership. As set forth in Section 14.4, upon
termination or expiration of this Agreement, beneficial ownership of Grantee's
NEON fibers shall revert to Grantor.
19.4 Early Termination of Agreement. The Agreement may be terminated prior
to the end of the Term, or the Extension Period, as the case may be, upon any of
the following events: (i) by the Grantee upon 180 days prior written notice to
the Grantor; (ii) by Grantor upon 30 days prior written notice to Grantee
following an Event of Abandonment; (iii) by Grantor upon 30 days prior notice
if, within six months of the execution date of the Agreement, the Agreement is
determined to be subject to regulation by the United States Federal Energy
Regulatory Commission or the Maine Public Utilities Commission determines that
the Agreement makes Grantor subject to regulation as a telecommunication
utility; or, (iv) by either Grantor or Grantee if the other Party fails to cure
a breach of the Agreement within the period for cure stated herein.
19.4.1 Termination of a Route Segment. Any Route Segment may be
terminated, (i) by the Grantor upon reasonable notice if it is required by the
United States Federal Energy Regulatory Commission or the Maine Public Utilities
Commission or similar authority to do so in order to provide or continue to
provide safe and economical electrical service; (ii) by the Grantee upon five
days prior written notice if two Cable failures per month for three consecutive
months occur on the Route Segment being terminated by Grantee; or (iii) by the
Grantor at any time if it is unable to obtain and/or maintain any regulatory
approval or property right, required
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
to permit the placement of the Cable on Grantor's Structures in the Route
Segment being terminated, or can obtain and/or maintain them but only on terms
that are unreasonably burdensome on the Grantor, and cannot offer to the Grantee
a substitute Route Segment.
19.5 Cost Reimbursement. In the event of (i) the termination of this
Agreement as a result of a default by Grantor, or (ii) the termination of a
Route Segment pursuant to Section 19.4.1.
(a) The Grantor shall reimburse the Grantee a percentage of the
Grantee's Actual Cost for such terminated portion according to the
following schedule:
Years Elapsed from Portion of Actual Cost
Date of Installation to be Reimbursed
-------------------- ----------------
Year [**] [**]
Year [**] [**]
Year [**] [**]
Year [**] [**]
Year [**] [**]
Year [**] [**]
Year [**] [**] and
(b) The Annual Fee paid by Grantee, described in Section 20, for the
portion of the year beginning on January 31 and ending on the date of
termination of the Agreement or the Route Segment, as the case may be,
shall be subject to refund. The amount of the refund shall be determined
by pro rating the Annual Fee for the terminated Agreement or Route Segment
equally over 365 days. In no event shall the amount of the refund exceed
the amount collected for the corresponding period by the Grantor.
20. ANNUAL FEE
20.1 Amount. By January 31st of each calendar year following the calendar
year in which the Installation Date occurred, the Grantee shall pay Grantor for
its use of Grantor's Structures and the Cable in advance for the following
twelve-month period (ending on January 30 of the next calendar year, or any
portion thereof prior to the expiration of the Agreement) as follows (with all
measurements to be made in accordance with Section 2.5):
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
20.1.1 Where the Cable is attached to Grantor's Structures (aerial
transmission only) [**] with payment commencing on January 31, 1998.
20.1.2 Where the Cable is located in Grantor's Structures (underground
only) [**] plus incentives as set forth below:
20.1.2.1 Incentive for conduit Building Entry to the electrical or
mechanical room equal to an additional [**]
20.1.2.2 Incentive for conduit Building Entry separated by not less
than twenty-five (25) feet from the primary communication conduit equal to an
additional [**]
20.1.3 Where the Cable is attached to Grantor's Structures
(distribution only) and as to Grantor's solely-owned utility distribution poles
located within the public right of ways, private ways, ancient ways, or private
property or on easements, [**]for Route Segments containing CMPNET, or [**] for
Routes not containing CMPNET; or the tariffed fee if governed by tariff.
20.2 CPI Adjustments. The Annual Fee shall be adjusted annually in
December, for effect on the following January 31, by a factor equal to the
change in the Consumer Price Index-All Urban (CPI-U), which shall be calculated
each December, based on changes in the CPI-U from the previous December unless
it results in a smaller future payment.
20.3 Marketing Fee. If service orders are received by the Grantee on NEON
as a direct result of substantive actions by the Grantor or an Entity, excluding
FiveCom, Inc. and Grantee, the Grantee shall pay a marketing fee to the Grantor
as compensation [**]. Marketing Fees shall not be paid for services provided to
Grantor under [**].
21. FORCE MAJEURE
21.1 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 Structures 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 the Route or any Route Segment 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 provide a
substitute Route or Route Segment, or otherwise to
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obtain alternative means of providing service to customers. 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 concerning the
subject matter of this Agreement reasonably beyond the control of either party
and which would have a material adverse effect on the subject matter of this
Agreement.
21.2 Suspension Pending Force Majeure. If a Force Majeure Event should
occur, then the performance of the party or parties affected by the Force
Majeure Event shall be suspended for the duration of the Force Majeure Event,
but only as to the performance obligations affected by the Force Majeure Event,
and the period of time that such performance is so suspended shall be added to
the performance-related deadlines under this Agreement, except that the term of
this Agreement shall remain unchanged. The occurrence of a Force Majeure Event
shall not excuse, or extend the time period for, any payment due hereunder;
except under circumstances in which the Force Majeure event prevents Grantee
from using NEON, in which case the time period for payment shall only be
suspended for the duration of the Force Majeure Event.
22. PROPRIETARY INFORMATION
22.1 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 (a) has
been or is subsequently made public by the other party, (b) is independently
developed by such party, (c) is disclosed pursuant to order by a court or
government agency of competent jurisdiction, (d) is disclosed to avoid
committing a violation of law; provided that 10 days notice first be given to
the non-disclosing party so that a protective order, if appropriate, may be
sought by the non-disclosing party, (e) is disclosed following express, prior
written consent given by the other party, or (f) is
-23-
disclosed to governmental bodies to obtain necessary approvals, provided that a
protective order shall be sought.
22.2 Route Constitutes Proprietary Information. The Route, the identity of
the Grantee's customers and its contracts with customers 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, or as provided in 22.1(f) above.
22.3 Publicity and Advertising Limitations. In connection with this
Agreement, (i) 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(s) without the prior written
approval of the other party; (ii) each party agrees not to issue any such
publicity materials, press releases or material produced by the public relations
department of the other party without written consent; (iii) unless otherwise
agreed, neither party shall disclose the existence of this Agreement or release
any material portion thereof, other than in a form modified to remove all
references to the identity of the other party. The provisions of this paragraph
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.
23. ACCESS AND SECURITY
23.1 Access by Grantor. With respect to any facility controlled by the
Grantee, the Grantee agrees, upon reasonable request, to allow the Grantor
direct ingress and egress to all Grantor Space, and to permit the Grantor to
perform any appropriate maintenance and repair of CMPNET equipment in such
space; provided that a representative of the Grantee must accompany any
representatives of the Grantor having access to such Space, except in buildings
having separate entrances providing access to Grantor's Space only to Grantor.
Employees and agents of the Grantor shall, while on the premises of the Grantee,
comply with all Grantee 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 persons authorized as the Grantor's designee
who are performing work on, or who have access to such Space. The Grantee shall
have the right to notify the Grantor that certain of Grantor's persons 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.
23.2 Access by Grantee. The Grantor agrees, upon reasonable request, to
allow the Grantee direct ingress and egress to all Grantor Space to be provided
to the
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Grantee, and to permit the Grantee to be on the Grantor's premises at a date and
time acceptable to the Grantor for the Grantee to perform any appropriate
maintenance and repair of Equipment located at such space. The Grantor may
require that a representative of the Grantor accompany any representatives of
the Grantee having access to such space. Employees and agents of the Grantee
shall, while on the premises of the Grantor, comply with all of Grantor's 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 designees who are performing work on, or who
have access to Equipment. The Grantor shall have the right to notify the Grantee
that certain Grantee employees or authorized Grantee designees 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.
23.3 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 and the National Electrical Safety Code, and
any employees, agents or contractors retained by Grantee to perform work on
energized Structures must satisfy Grantor's qualifications for such work, as
reasonably determined by Grantor prior to the commencement of such work. 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.
24. NO JOINT VENTURE; COSTS
24.1 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 of and by itself 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.
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24.2 No Joint Venture 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, legal and accounting
fees and disbursements.
25. RESERVED
26. 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.
27. LABOR RELATIONS
27.1 Notice by the parties. Each party agrees to notify the other
immediately whenever it has knowledge that a labor dispute concerning its
employees, its agents' employees or its contractors' employees is delaying or
threatens to delay the timely performance of its obligations under this
Agreement.
27.2 Determination by Grantee. If the Grantee determines that the
Grantor's activities, other than those relating to the transmission,
distribution, or supply of electricity, 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
CMPNET or any portion thereof.
27.3 Determination by Grantor. If the Grantor determines that the
Grantee's activities pursuant to this Agreement in any 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
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activities that may be reasonably necessary to the operation and maintenance of
NEON or any portion thereof.
28. 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.
29. 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 Cable and Cable Accessories. The
Grantee shall pay the Grantor said taxes when they become due.
30. INDEMNIFICATION
30.1 Grantee's Obligation to Indemnify. To the full extent permitted by
law, the Grantee shall 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 the cost of defense thereof
and attorney's fees) incurred by the Grantor, and caused by the Grantee's
maintenance, repair, or use of the Cable, Cable Accessories, Equipment
Buildings, Grantor's Structures or Grantor's property which are asserted by
Third parties except to the extent such claims are caused by or contributed to
by the Grantor's negligence or willful misconduct. Notwithstanding the
foregoing, the Grantee shall assume all risk and shall pay all costs associated
with any challenges to the Grantee's rights to install and operate the Cable,
and shall indemnify the Grantor accordingly.
30.2 Grantor's Obligation to Indemnify. To the full extent permitted by
law, Grantor shall indemnify and hold harmless the Grantee, 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 the cost of defense thereof
and attorney's fees) incurred by the Grantee, and caused by the Grantor's
maintenance, repair, or use of the Cable which are asserted by Third parties,
except to the extent such claims are caused by or contributed to by the
Grantee's negligence or willful misconduct. Notwithstanding the foregoing, the
Grantor shall assume all risk and shall pay all costs associated with
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any challenges to the Grantor's right to permit Grantee to install and operate
the Cable, except as provided in Section 4.5 and 6.7, and shall indemnify the
Grantee accordingly.
30.3 Indemnification Procedures. Each party shall give the other party
prompt notice of any claim for which indemnification is or will be sought under
Section 30.1 or 30.2 and shall cooperate with the other party in the defense of
the claim. The indemnifying party shall bear the cost of the defense, have the
right to control the defense and have the right to select counsel after
consulting with the other party. The obligation to indemnify shall be net of any
tax or insurance benefit obtained by the indemnified party.
30.4 Limitation of Liability. In no event shall either party be liable to
the other party, or to its customers, whether in contract, tort, or otherwise,
including strict liability, for any special, indirect, incidental or
consequential damages, or for any lost business damages in the nature of lost
revenues or profits.
31. DEFAULT
31.1 Default. A party shall be considered in default of this Agreement
should one or more of the following events occur:
31.1.1 Failure of that party to pay amounts not in dispute when and as
due under this Agreement;
31.1.2 Failure of that party to maintain any policy of insurance
required under this Agreement throughout the Term of this Agreement;
31.1.3 Failure to provide necessary documentation regarding the Actual
Cost of that Party's work;
31.1.4 Admission in writing of the party's inability to pay its debts
when due; making a general assignment for the benefit of creditors; the
institution of any proceeding, whether voluntary or involuntary, seeking to
adjudicate that party bankrupt or insolvent; seeking reorganization,
arrangement, adjustment, or composition of it or its debt under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors; seeking
appointment of a receiver trustee, or other similar official for it or for any
substantial part of its property; or taking any action to authorize any of the
actions set forth above;
31.1.5 Assignment by the Grantee of its rights or obligations under
this Agreement without the express prior written approval of the Grantor as set
forth in Section 32; and
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31.1.6 Failure of a party to perform any material obligation under
this Agreement in accordance with the terms hereof.
31.2 Cure Period. If either party shall remain in default under any
provision of this Agreement for a period of 60 days after notice by the other
party of such default, or 30 days with respect to a failure to make any payment
due hereunder or to maintain insurance, the party so notifying the other party
may, at its option, terminate this Agreement; provided, however, that, in the
case of default other than to make any payment due hereunder or to maintain
insurance, where the party in default proceeds with all due diligence to cure
such default and cure is not possible within such 60 days, then the party then
in default shall have such time to cure the default as is reasonably necessary,
but not to exceed an additional 180 days.
31.3 The Grantee shall not make any payments under this Agreement in
advance of the time such payments are due.
32. ASSIGNMENT
32.1 By Grantee. Subject to Section 33, the Grantee may not assign or
otherwise allow use of its rights under this Agreement to any person or entity
other than an Affiliate of Grantee, without the express 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.
32.2 Grantee's 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 interest of the
Grantee in one or more related transactions.
32.3 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 or the Grantee's rights
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.
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32.4 Grantee's Right to Pledge Agreement and Lease Fibers. The Grantee may
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. Nothing herein shall limit or apply
to the Grantee's right to lease or sublease fibers of which it has the use under
this Agreement to Third parties in the normal course of the Grantee's business
provided that such leases or subleases do not interfere or conflict with the
Grantor's rights under this Agreement.
32.5 Right to Assign. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
33. GOVERNMENTAL APPROVALS, PERMITS, AND CONSENTS
33.1 Grantee's Obligations. During the term of this Agreement, the Grantee
shall continuously comply with all governmental laws, regulations or ordinances
as may now or in the future be applicable to the Grantee's use and operation of
NEON and the Cable.
33.2 Grantor's Obligations. During the term of this Agreement, the Grantor
shall continuously comply with all governmental laws, regulations or ordinances
as may now or in the future be applicable to the Grantor's use and operation of
CMPNET and the Cable.
33.3 Opinion. Within 60 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.
33.4 Compliance with Regulatory Conditions. The parties acknowledge that
this Agreement shall be subject to the conditions established by the Maine
Public Utilities Commission in its November 15, 1996 Order in Docket 96-537
approving this transaction, any subsequent orders in said Docket, and any orders
issued by said Commission that directly affect this Agreement (collectively
"Regulatory Conditions"). Subsections 33.4.1 below constitutes the understanding
of the parties as to the implementation, for the purposes of this Agreement, of
the access and relocation conditions included in the Commission's October 29,
1996 Order in Docket 96-421 (the "96-421 Order"), made applicable to this
transaction by the Commission's November 15, 1996 Order in Docket 96-537. (See
Exhibit 17.1 hereof.) With respect to any Regulatory Condition imposed by the
Commission, (i) the parties agree to bargain in good faith to accommodate such
Regulatory Condition in a manner that preserves, to the maximum degree possible,
the parties understandings hereunder
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and which minimizes any expense to be incurred, and (ii) to the degree that any
such accommodation requires Grantor to incur expenses, forego any revenues, or
undertake any duty beyond that contemplated in this Agreement, Grantee shall
reimburse Grantor its Actual Cost associated therewith.
33.4.1 Access. The parties agree to accommodate the Commission's pole,
access and line transfer conditions, set forth in pages 6-7 and page 8 of the
Commission's October 29, 1996 Order in Docket 96-421, as follows:
(a) Route Segment Selection. If requested to do so by Grantee,
Grantor will (a) advise Grantee regarding the degree to which pole or
conduit space will be available for any potential post-Grantee prospective
attacher on any Route Segment which Grantee is considering for a Network
Addition, and (2) will assist Grantee in selecting Route Segments where
additional attachment space is likely to be available following
installation of the Cable along such new Route Segments.
(b) Capacity Availability. In sizing the cable to be installed on
any Route Segment, Grantee will take into consideration the possibility
that it will need to accommodate an entity whose request for attachment to
Grantor's structures along any installed Route Segment cannot be
accommodated due to lack of space on Grantor's structures (a "Disappointed
Attacher").
(c) Provisioning of Fiber Capacity. When requested to do so, Grantee
will make available fiber capacity to any Disappointed Attacher at prices
commensurate with prices charged by Grantee to other similarly situated
entities, provided Grantee has such available capacity and provided that
such Disappointed Attacher's use of said capacity will not cause Grantee
to become a public utility or otherwise a Telephone Company under
governmental regulations.
(d) Rebuilding Structures. Grantor agrees to cooperate with Grantee
and to use its best efforts to accommodate the reasonable requests of any
Disappointed Attacher. In addition, in the event that Grantor considers a
Disappointed Attacher to have acted unreasonably with respect to its
demands as to any Route Segment, Grantor will work with Grantee to obtain
relief from the Public Utilities Commission of any requirement to rebuild
its structures along any Route Segment to accommodate a Disappointed
Attacher. However, in the event that Grantor shall be required by
Commission order, including the terms of the 96-421 Order, to rebuild any
of its Structures due, in whole or in part, to accommodate the Cable on
the Grantor's Structures, Grantee shall reimburse Grantor its Actual Cost
for the rebuild including the cost to transfer existing lines to the new
Structure; provided that if, with respect to any portion of any Route
Segment to which a Regulatory Affiliate of Grantor has a
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cable attached (in addition to the Cable), Grantee shall only reimburse
one-half of Grantor's Actual Cost for rebuilding its Structures and
transferring lines on said portion.
34. NOTICES
34.1 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.
To Grantor: Xx. Xxxxx Xxxxxx
Central Maine Power
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax 000-000-0000
With a copy to: General Counsel
Central Maine Power
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax 000-000-0000
To Grantee: FiveCom of Maine LLC
c/o FiveCom LLC
000 Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: President
Fax 000-000-0000
With a copy to: Xxxxxx Xxxxxx, P.C.
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax 000-000-0000
E-mail: xxxxxxxxxxxx@xxxxxxxx.xxx
34.2 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
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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.
34.3 Damage Notification. In the event that the Cable is damaged for any
reason, the Party discovering such damage shall keep the other Party advised by
telephone of all emergency conditions.
35. DISPUTE RESOLUTION
35.1 Nonbinding Procedure. The purpose of the dispute resolution process
shall be to create a nonbinding procedure to help resolve disputes in excess of
$50,000.00 which cannot be resolved by negotiation between the Grantor and the
Grantee within a reasonable time, but, in no case to exceed 90 days from the
date of first notice of a claim of dispute by either party.
35.2 Mediation. Upon expiration of 45 days after notice of a claim of
dispute by either party to the other, or sooner if agreed by both parties, the
dispute shall be submitted to an independent, neutral Third Party with
recognized knowledge and expertise in the law, utility and telecommunications
industries and the mediation process. The mediator shall be a member to the
American Arbitration Association and shall be chosen by the parties. In the
event that the parties are unable to agree on a mediator, then each Party shall
select a mediator and the two mediators so chosen shall pick a mediator who
shall mediate the dispute.
35.3 Cost. The cost of such mediation shall be born equally by both
parties.
35.4 Confidentiality. The mediation shall be conducted as a strictly
confidential exchange of information. No statements made, opinions expressed, or
admissions of responsibility by either Party or by the mediator shall be
admissible in any subsequent dispute resolution proceeding including, but not
limited to, any judicial or quasi-judicial proceeding. The mediator shall not be
called by either party to testify concerning the mediation or to provide any
materials in any subsequent dispute resolution process, whether litigation or
otherwise. Failure to comply with this paragraph shall void the claim of the
Party so failing to respect the confidentiality of the mediation process with
respect to all aspects of that particular dispute.
35.5 Findings. Either party may reject the findings or recommendations of
the mediator. If such rejection is made, either party shall be free to seek
relief with respect to the subject matter of the dispute in any court of
competent jurisdiction.
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36. 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.
37. ADDITIONAL ACTIONS AND DOCUMENTS
37.1 Additional Actions. 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 efforts 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.
37.2 Network Planning. The parties hereto agree to negotiate special terms
and conditions relating to planning and installing Network Additions that shall
take into account the needs of each party, whether or not contemplated herein,
that are necessary for Grantor to provide reliable electric service and for
Grantee to provision new technologies and serve new markets.
38. 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.
39. 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.
40. 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.
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41. 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 Party.
42. APPLICABLE LAW
This agreement shall be construed under and in accordance with the laws of
the State of Maine.
43. PRIOR AGREEMENTS
This Agreement supersedes all prior or contemporaneous proposals,
communications and negotiations, either oral or written, regarding the rights,
obligations, or performance by the parties hereto relating to the facilities and
services covered by this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
CENTRAL MAINE POWER COMPANY
By: /s/Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx
Title: Vice President, Corporate Services,
Treasurer, and Chief Financial Officer
FIVECOM OF MAINE LLC
By FiveCom, Inc., Its Manager
By: /s/Xxxxxx Xxxxxxxxxx
------------------------------------------
Xxxxxx Xxxxxxxxxx
Title: President
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT 2.4
FIVECOM FIBER OPTIC PROJECT
[**] Route
Beginning Ending
[**]
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EXHIBIT 8.
CABLE MAINTENANCE SPECIFICATIONS
1. Applicable maintenance and service procedures of the Grantor for outside
plant and electrical distribution systems are incorporated in this Exhibit
by reference as maintenance specifications.
2. The following are incorporated by reference as additional maintenance
specifications:
a. The maintenance procedures and service schedules of both the cable
and equipment manufacturers.
b. Applicable Bellcore and Xxxx Practices maintenance standards.
c. All relevant OSHA practices.
d. In addition:
i. All applicable AT&T maintenance practices and services
procedures.
ii. All applicable MCI maintenance practices and service
procedures.
iii. All applicable Sprint maintenance practices and service
procedures.
iv. All applicable WilTel maintenance practices and service
procedures.
v. All applicable NYNEX maintenance practices and services
procedures.
vi. All applicable SNET maintenance practices and service
procedures.
vii. All maintenance and repair procedures, standards and practices
of Dig Safe and The Common Carriers Steering Committee-
Northeast Region.
e. FiveCom, Inc. SONET performance specifications for circuit
availability as of July, 1996.
f. The performance specifications of FOCAS, LUCENT, and AT&T Fitel, as
applicable.
g. FiveCom's service and emergency restoration policies and procedures
as are from time to time in effect.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT 8.1
FIBER ACCEPTANCE AND PERFORMANCE SPECIFICATIONS
FIBER ACCEPTANCE
----------------
[**]
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
FIBER PERFORMANCE SPECIFICATIONS
[**]
-39-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT 8.1 (continued)
FIBER ACCEPTANCE AND PERFORMANCE SPECIFICATIONS
PERFORMANCE PARAMETERS
Error Free Seconds [**]
(measured over [**]
Severely Erred Seconds [**]
(measured [**]
Availability [**]
(measured [**]
Acceptance Limits [**]
[**]
Operational Maintenance Limits [**]
[**]
Immediate Action Limits [**]
(measured [**] [**]
Note:
Performance is based on BellCore Technical Standard PUB 62508
Definitions:
ES-Erred Seconds
LTE-Less than or equal to
GTE-Greater than or equal to
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT 8.1 (continued)
FIBER ACCEPTANCE AND PERFORMANCE SPECIFICATIONS
PERFORMANCE SPECIFICATIONS
--------------------------
1. This listing defines the performance objectives for SONET circuits
provisioned on CMPNET. Maintenance procedures will meet these performance
objectives:
2. [**]
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EXHIBIT 9.1
REQUEST FOR RELOCATION
Request No.
Date:
To: Manager, Transmission Line Engineering
In accordance with the terms of the Agreement between us dated _______________,
1996, this request is hereby made for Cable Relocation on Structures as
indicated on the attachment hereto.
FiveCom of Maine LLC
By:
Title:
Such of the Structures indicated on the reverse hereof can be made
available for Cable attachment thereto subject to your acceptance of necessary
changes and rearrangement at an estimated cost to you of $___________________
payable in accordance with the terms of the Agreement.
Central Maine Power Company
By: Date:
Title:
The above changes and rearrangements are accepted.
FiveCom Of Maine, by its Manager,
FiveCom, Inc.
By: Date:
Title:
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