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MCI / FiveCom - Fiber Optic Use Agreement
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
FIBER OPTIC USE AGREEMENT
FIVECOM, INC.
MCI TELECOMMUNICATIONS CORPORATION
FIBER OPTIC USE AGREEMENT
TABLE OF CONTENTS
ARTICLE TITLE PAGE NO.
ARTICLE I FIVECOM SYSTEM AND MCI FIBERS...............................1
ARTICLE II SCHEDULE....................................................2
ARTICLE III ACCEPTANCE..................................................2
ARTICLE IV DELIVERABLES................................................3
ARTICLE V TERM AND INDEFEASIBLE RIGHT OF USE..........................4
ARTICLE VI TERMS OF PAYMENT............................................5
ARTICLE VII MAINTENANCE AND REPAIR OF THE MCI FIBERS....................5
ARTICLE VIII WARRANTIES..................................................7
ARTICLE IX TAXES.......................................................7
ARTICLE X LIABILITY...................................................8
ARTICLE XI FORCE MAJEURE...............................................8
ARTICLE XII PERMITS AND REQUIRED RIGHTS-OF-WAY..........................9
ARTICLE XIII RELOCATION OF THE FlVECOM SYSTEM AND THE MCI
FIBERS......................................................9
ARTICLE XIV CONDEMNATION...............................................10
ARTICLE XV USE OF THE MCI FIBERS......................................10
ARTICLE XVI OWNERSHIP OF THE MCI FIBERS................................10
ARTICLE XVII RIGHT OF FIRST REFUSAL and OPTION TO LEASE
ADDITIONAL DARK FIBERS.....................................11
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ARTICLE XVIII REGENERATORS...............................................11
ARTICLE XIX CONFIDENTIALITY............................................11
ARTICLE XX DEFAULT....................................................12
ARTICLE XXI NOTICES....................................................12
ARTICLE XXII ASSIGNMENT; SUCCESSION.....................................13
ARTICLE XXIII VENDORS....................................................14
ARTICLE XXIV GOVERNING LAW..............................................14
ARTICLE XXV DISPUTE RESOLUTION.........................................14
ARTICLE XXVI LIENS......................................................16
ARTICLE XXVII MISCELLANEOUS..............................................16
ARTICLE XXVIII INSURANCE..................................................17
ARTICLE XXIX ENTIRE AGREEMENT...........................................17
EXHIBIT A MAP OF LOCATION OF MCI FIBER
S EXHIBIT B TECHNICAL SPECIFICATIONS EXHIBIT C ACCEPTANCE TEST PLAN EXHIBIT D ACCEPTANCE NOTICE EXHIBIT E SPECIFICATIONS EXHIBIT F CONSTRUCTION AND MILESTONE SCHEDULE EXHIBIT G EMERGENCY MAINTENANCE PROCEDUR
ES EXHIBIT H ROUTINE MAINTENANCE STANDARDS EXHIBIT I SHELTER EQUIPMENT LAYOUT EXHIBIT J CONFIDENTIALITY AGREEMENT
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FIBER OPTIC USE AGREEMENT
THIS
AGREEMENT (hereinafter referred to as the "Agreement") made and entered into as of the 2nd day of January, 1997, by and between FiveCom, LLC (hereinafter referred to as "FiveCom"), a Massachusetts corporation, having an office at 391 Totten Pond Road, Sui
te 401, Waltham, MA 021541 and MCI TELECOMMUNICATIONS CORPORATION (hereinafter referred to as "MCI"), a Delaware corporation, having an office at 1133 19th Street, N.W., Washington, D.C. 20036.
WHEREAS, MCI is in the business of providing long distance telecommunications services: and
WHEREAS, MCI desires to utilize FiveCom's fiber optic access services for the purpose of providing telecommunications services and FiveCom is willing to provide its fiber optic access services to MCI for that purpose;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the parties hereto hereby expressly agree as follows:
ARTICLE I FIVECOM SYSTEM AND MCI FIBERS
1.1 FiveCom will cons
truct and install four (4) True Wave dark optical fibers between the Lightwave Distribution Frame at MCI's Nashua NH terminal, One Indian Head Plaza, Suite 517 and the Lightwave Distribution Frame at MCI's Portland, ME Terminal at 1 City Center, 4th Floor
including any connectors thereto as depicted in Exhibit A, attached hereto. Four (4) AT&T True Wave dark fibers will be dedicated to MCI's use along the cable system (the "MCI Fibers").
1.2 The MCI Fibers shall be provided to MCI in accordance wi
th the technical specifications (hereinafter referred to as the "Specifications") set forth in Exhibit B, attached hereto and incorporated herein. FiveCom shall comply in all material respects with any and all applicable building, construction and safety
codes for the construction and installation of the MCI Fibers as well as any and all other applicable federal, state and local laws, codes, ordinances, statutes and regulations.
1.3 The MCI Fibers shall be 100% diverse with a minimum of twenty-five (25) feet separation from existing AT&T and Sprint fiber optic facilities.
1.4 MCI shall allow FiveCom to construct the MCI Fibers into MCI's facilities, and shall provide all electricity, sanitary facilities and other utilities at its locations as FiveCom may reasonably require to provide safe and convenient working
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
conditions for its personnel
for the installation of the MCI Fibers into MCI's locations and for the maintenance and repair of the MCI Fibers. FiveCom shall have no responsibility for any damage or loss to the MCI Fibers or any portion or component thereof which is on or in an MCI lo
cation, either before or after installation, if such damage or loss results from a fire, other casualty, theft, mysterious disappearance, vandalism or condemnation.
ARTICLE II SCHEDULE
2.1 FiveCom shall use its best efforts to complete construction and installation and have the MCI Fibers ready for testing no later than April 1,
2.2 In the event the MCI Fibers are not made available for MCI testing by April 1, 1997 then, MCI, in its sole discretion, may deduct the sum of [**
] from the monthly payment described in Article VI for each day beyond April 1, 1997, that the MCI Fibers are not ready for testing. This deduction will be taken as a credit on the front end of the contract. In the event the MCI Fibers are not made availa
ble for testing by June 1, 1997, MCI may choose to continue the [**] deduction or to terminate this agreement.
ARTICLE III ACCEPTANCE
3.1 Upon installation of the MCI Fibers, FiveCom shall conduct acceptance tests in accordance with
the Acceptance Test Plan ("ATP") described in Exhibit C attached hereto and incorporated herein. FiveCom shall provide MCI with written notice of the commencement of the acceptance testing at least seven (7) days prior to said commencement date. MCI shall
have the right, at its sole expense, to have a person or persons present to observe any tests conducted by FiveCom as a part of the ATP. Within ten (10) days of the conclusion of the acceptance testing, FiveCom shall provide MCI with certified test result
s
in accordance with the ATP. In the event MCI does not have observers present at the time FiveCom conducts the acceptance tests, the results of the tests conducted thereunder as certified by FiveCom to MCI shall be deemed valid and binding upon MCI and th
e
MCI Fibers shall be deemed unconditionally accepted by MCI upon receipt of the certified test results and MCI shall provide a written Acceptance Notice within ten (10) days of receipt of such certified test results, provided such certified test results a
re within the parameters of the Specifications.
3.2 In the event MCI has observers present to witness the acceptance tests, MCI and FiveCom shall then jointly evaluate the measured results of the tests section by section. If the measured test results are within the parameters of the
Specifications, then and in such event, MCI shall unconditionally accept the test results and the MCI Fibers and provide a written Acceptance Notice.
3.3 In the event the measured test results are not wi
thin the parameters of the Specifications, then within ten (10) days of its receipt of the certified results from FiveCom, MCI shall notify FiveCom in writing that such results are unacceptable and shall specify in reasonable detail the portions of the MC
I
Fibers that are not within the parameters of the Specifications. Thereupon, FiveCom shall use its best efforts to take such action as shall be necessary to bring the operating standards of the unacceptable portions of the MCI Fibers within the parameters
of the Specifications. If FiveCom shall not have completed corrective action and brought the operating standards of such portions of the MCI Fibers within the parameters of the Specifications within thirty (30) days of said written notice from MCI that su
c
h measured test results are unacceptable, MCI shall have the right to undertake, on its own behalf, any corrective action necessary to bring the operating standards of the MCI Fibers within the parameters of the Specifications, in which event FiveCom shal
l reimburse MCI for any and all reasonable direct costs expended by MCI therefor. Upon completion of corrective action by MCI or FiveCom, MCI shall provide FiveCom with an Acceptance Notice within ten (10) days of completion of such corrective action.
3.4 Upon acceptance by MCI of all the optical fiber strands comprising the MCI Fibers, the MCI Fibers shall be deemed to be installed by FiveCom in accordance with the Specifications, and FiveCom shall have no further liability therefor, except as pr
ovided for under the provisions of Articles VII and VIII, herein.
3.5 Upon successful completion of the ATP and acceptance of the MCI Fibers by MCI, MCI shall provide FiveCom with an "Acceptance Notice" within any applicable period specified by th
is Article III in the form attached hereto as Exhibit D. The date of acceptance set forth in the Acceptance Notice shall be hereinafter referred to as the "Acceptance Date." In no event will MCI be required to supply such Acceptance Notice sooner than six
t
y (60) days after the beginning of acceptance testing by MCI. In the event MCI fails to provide the Acceptance Notice or fails to specify the Acceptance Date, the Acceptance Date shall be deemed to be the date of acceptance as determined pursuant to this
A
rticle III or, in the event a date of acceptance is not specified, the Acceptance Date shall be deemed to be the last day of any Acceptance Notice period required by this Article III. Upon execution, the Acceptance Notice shall be attached to this Agreeme
nt as Exhibit D and shall be incorporated herein by reference.
ARTICLE IV DELIVERABLES
4.1 In accordance with the time frame set forth in Subarticle 4.2, herein, FiveCom shall deliver to MCI complete documentation regarding
the as-built condition of the MCI Fibers. This documentation (hereinafter referred to as the "Deliverables") shall consist of the following:
(a) As-Built Drawings prepared in accordance with the
specifications set forth in Exhibit E, attached
hereto and incorporated herein.
(b) Names of all manufacturers whose optical fiber cable,
associated splices and other equipment are used in
installing and providing the MCI Fibers.
(c) Technical specifications of the optical fiber cable;
associated splices and other equipment used in
installing and providing the MCI Fibers.
(d) List of names and 7 X 24 telephone numbers for
FiveCom personnel responsible for maintaining and
repairing the MCI Fibers.
(e) For purposes of tracking the progress of the
construction activities associated with the MCI
fiber, FiveCom shall develop a milestone schedule,
which shall be attached hereto as Exhibit "F".
4.2 The Deliverables shall be supplied within thirty (30) days after the Acceptance Date, provided, however, 4.1(d) & (e) shall be supplied upon execution of the Agreement. FiveCom shall provide five (5) copies of the Deliverables to MCI.
ARTICLE V TERM AND INDEFEASIBLE RIGHT OF USE
5.1 Unless sooner terminated in accordance with the terms of this Agreement, FiveCom hereby grants to MCI an Indefeasible Right of Use ("IRU") in the MCI Fibers for
an initial term of twenty (20) years (hereinafter referred to as the "Initial Term"), commencing on the Acceptance Date.
5.2 MCI shall have the option to renew this Agreement for one (1) ten (10) year period (the Extension term) commencing at th
e expiration of the Initial Term, the lease rate for the extension term shall be negotiated by the parties, but will in no event be more than the then prevailing market rate on the system for dark fibers excluding any amortization for system construction
costs.
5.3 Notwithstanding any provision contained in this Agreement to the contrary, at any time after the Acceptance Date, and after having satisfied the
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
provisions of ARTICLE VI, MCI shall have the option, in its sole discretion and for any reason, to terminate this Agreement upon one hundred eighty (180) days' prior written notice to FiveCom.
ARTICLE VI TERMS OF PAYMENT
6.1 The lease rate for the MCI Fibers will be [**] per month. The first payment will be due forty-five (45) days after the Acceptance Date.
6.2 FiveCom agrees that the monthly lease rate for the MCI Fibers [**]. Should FiveCom contract to [**]. FiveCom and MCI shall promptly thereafter execute an appropriate amendment to this Agreement [**].
ARTICLE VII MAINTENANCE AND REPAIR OF THE MCI FIBERS
7.1 All routine maintenance and
repair functions and emergency maintenance and repair functions, including "one-call" responses and cable locate services, for the MCI Fibers shall be performed by or under the direction of FiveCom, at FiveCom's sole cost and expense. MCI shall have the
r
ight to have an employee or representative available, at MCI's sole cost and expense, to assist FiveCom in any maintenance or repair of the MCI Fibers. FiveCom shall use best efforts to provide MCI with forty-eight (48) hours advance notice for all routin
e maintenance and repair functions by notifying MCI's national transmission surveillance center at 1-800-873-7366. In the event of an emergency, similar notice shall be given to MCI as soon as the emergency is discovered.
7.2 (a) Emergency Mainten
ance. FiveCom shall use best efforts to respond to any failure, interruption or impairment in the operation of the MCI Fibers within two (2) hours after receiving a report from MCI of any such failure, interruption or impairment and MCI reserves the right
to have a representative present to assist in any maintenance or repair. FiveCom recognizes that MCI company objective is to have all fibers restored within six (6) hours of any failure, interruption or impairment and FiveCom will use its best efforts to
a
ccomplish this objective. When trouble is encountered on the MCI Fibers, MCI, to assist FiveCom in its maintenance activities, will diagnose the trouble through OTDR testing, if possible, and ascertain and notify FiveCom of the location address to the nea
rest cross street. FiveCom shall use its best efforts to perform maintenance and repair to correct any failure, interruption or impairment in the operation of the MCI Fibers in accordance
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
with the procedures set forth in Exhibit G attached hereto and incorporated herein. In the event FiveCom fails to perform any necessary Emergency Maintenance in accordance with
the procedures set forth in Exhibit G, MCI shall have the right, with notice to FiveCom, but not the obligation, to immediately undertake such Emergency Maintenance of the MCI Fibers, at FiveCom's sole cost and expense.
(b) Routine Main
tenance. FiveCom will schedule and perform specific periodic maintenance and repair checks and services, as set forth in FiveCom's Routine Maintenance Standards, attached hereto as part of Exhibit H, from time to time on the MCI Fibers, at FiveCom's reaso
n
able discretion, upon adequate advance notice to MCI, or at MCI's reasonable request. MCI may request reasonable Routine Maintenance by delivering to FiveCom, not more than twice per agreement year, for FiveCom's approval, a statement detailing the mainte
n
ance checks and services MCI desires to be performed on the MCI Fibers. In the event FiveCom fails to perform any Routine Maintenance in accordance with FiveCom's Routine Maintenance Standards, after written notice by MCI, MCI shall have the right, but no
t the obligation, to undertake such Routine Maintenance of the MCI Fibers, at FiveCom's sole cost and expense, using contractors pre-approved by FiveCom.
(c) MCI shall receive a credit ("Outage Credit") against the fiber lease rate owed F
iveCom hereunder in the event that the MCI Fibers do not operate within the parameters of the Specifications. The Outage Credit shall be equal to the proportionate amount of lease fee, for the fibers out of compliance, paid by MCI for the duration of the
noncompliance, as measured from the time MCI notifies FiveCom of the problem until the time FiveCom, or MCI in the event of self help, has corrected the problem. The Outage Credit shall be [**] for each hour or portion thereof of noncompliance.
7.
3 In the event FiveCom, or others acting in FiveCom's behalf, after written notice to MCI, at any time during the term of this Agreement discontinues maintenance and/or repair of the MCI Fibers, MCI, or others acting in MCI's behalf, shall have the right,
but not the obligation, to thereafter provide for the maintenance and repair of the MCI Fibers, at FiveCom's sole cost and expense. Any such discontinuance shall be upon no less than six (6) months' prior written notice to MCI. In the event of such discon
t
inuance, FiveCom shall obtain for MCI, or others acting in MCI's behalf, adequate access to the Rights-of-Way (as hereinafter defined) on or within which the MCI Fibers are located, for the purpose of permitting MCI, or others acting in MCI's behalf, to u
ndertake such maintenance and repair of the MCI Fibers.
7.4 In the event all or any part of the MCI Fibers shall require replacement during the Initial Term of this Agreement, such replacement shall be made as soon as reasonably practical, at Five
Com's sole cost and expense. If replacement of the MCI Fibers is required in accordance with the preceding sentence, FiveCom shall give MCI
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
written notice of such replacement as soon as reasonably practical before the replacement optical fiber cable is ordered from the manufacturer. MCI shall have the option, in its sole discretion, to be exercised by written
notice to FiveCom within twenty (20) days of MCI's receipt of notice from FiveCom to: (a) accept the proposed replacement optical fiber cable per Specifications or; (b) increase the number of optical fiber strands to be installed in such new cable for MCI
's use at MCI's incremental cost.
ARTICLE VIII WARRANTIES
8.1 FiveCom warrants for the Initial Term of this Agreement, that the FiveCom System shall: (a) be in full compliance with and operate within the parameters of the Specificat
ions, and (b) be fit to perform as an optical fiber cable system; provided, however, that such warranties shall in no way be deemed to be a limitation on or in derogation of FiveCom's obligations under Article VII, herein. Any maintenance or repairs to th
e FiveCom System required as a result of a breach of the foregoing warranties shall be performed at FiveCom's sole cost and expense.
8.2 FiveCom represents and warrants to MCI that it has full Corporate power and authority to execute and deliver t
his Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by FiveCom have been duly and validly authorized by all necessary Corporate act
ion on the part of FiveCom
8.3 MCI represents and warrants to FiveCom that it has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this A
greement and the consummation of the transactions contemplated hereby by MCI have been duly and validly authorized by all necessary corporate action on the part of MCI.
ARTICLE IX TAXES
9.1 [**] taxes and franchise, license and permit [**] and/or [**] and/or the physical location and construction thereof in, on, across, along or through public or private roads, highways or rights-of-way.
9.2 If at any time during the Initial Term a federal, state or local government author
ity seeks to impose any new taxes, franchise, license or permit fees on FiveCom because of FiveCom's provision of the MCI Fibers pursuant to this Agreement, FiveCom shall be responsible, at its sole expense, for paying such charges
either with or without a protest to the appropriate administrative jurisdiction or administrative forum.
ARTICLE X LIABILITY
10.1 Neither MCI nor FiveCom shall be liable to the other for any indirect, special, punitive or consequential damages (incl
uding, but not limited to, any claim from any customer for loss of services) arising under this Agreement or from any breach or partial breach of the provisions of this Agreement or arising out of any act or omission of either party hereto, its employees,
servants, contractors and/or agents. Both FiveCom and MCI shall use their best efforts to include in any agreement with any third party relating to the use of the FiveCom System or the MCI Fibers a waiver by such third party of any claim for indirect, spe
c
ial, punitive or consequential damages (including, but not limited to, any claim from any client or customer for loss of services) arising out of or as a result of any act or omission by either party hereto, its employees, servants, contractors and/or age
nts.
10.2 Each party hereto agrees to indemnify, defend, protect and save the other harmless from and against any claim, damage, loss, liability, cost and expense (including reasonable attorney's fees) in connection with any personal injury, inclu
ding death, loss or damage to any property, or facilities of any party (including FiveCom, MCI or any other party operating or using any part of the FiveCom System or the MCI Fibers) arising out of or resulting in any way from the acts or omissions to act
, negligent or otherwise, of such party, its employees, servants, contractors and/or agents in connection with the exercise of its rights and obligations under the terms of this Agreement or any breach by such party of any obligation contained herein.
10.3 Nothing contained herein shall operate as a limitation on the right of either party hereto to bring an action for damages, including consequential damages, against any third party based on any acts or omissions of such third party as such acts o
r
omissions may affect the construction, operation or use of the MCI System or the MCI Fibers; provided, however, that each party hereto shall assign such rights or claims, execute such documents and do whatever else may be reasonably necessary to enable t
he injured party to pursue any such action against such third party.
ARTICLE XI FORCE MAJEURE
11.1 The obligations of the parties hereto are subject to force majeure and neither party shall be in default under this Agreement if any
failure or delay in performance is caused by strike or other labor problems; accidents; acts of God; fire; flood; adverse weather conditions; material or facility shortages or unavailability not
resulting from such party's failure to timely place orde
rs therefore; lack of transportation; the imposition of any governmental codes, ordinances, laws, rules, regulations or restrictions; condemnation or the exercise of rights of eminent domain; war or civil disorder; or any other cause beyond the reasonable
control of either party hereto; provided, however, that the incidence of strikes or other labor unrest shall not delay commencement of the running of time periods which must expire before MCI shall be entitled to itself take corrective action under the te
rms of this Agreement; provided, further, however, that delays in FiveCom securing the necessary Rights-of-Way for installation of the MCI Fibers shall not be deemed to be a force majeure, such delays being otherwise provided for in Article XII, herein.
ARTICLE XII PERMITS AND REQUIRED RIGHTS-OF-WAY
12.1 FiveCom represents that, to the best of its knowledge and belief, FiveCom owns, has obtained or can and will obtain all rights, licenses, franchises, governmental regulatory approval
s, authorizations, rights-of-way, permits and other agreements necessary for the use of poles, conduit, cable, wire or other physical plant facilities, as well as any other such rights, licenses, authorizations, rights-of-way and other agreements necessar
y
for the installation and use of the MCI Fibers (all of which are herein collectively referred to as the "Rights-of-Way"). It is expressly understood that FiveCom's obligations under this Agreement are conditioned upon and shall in all respects be subject
to the continuation or acquisition of such Rights- of-Way. FiveCom shall use its best efforts to obtain or to cause such Rights-of-Way to remain effective through the Initial Term of this Agreement. MCI will be notified in writing by FiveCom concerning an
y delays in obtaining any approval described in 12.1.
ARTICLE XIII RELOCATION OF THE FlVECOM SYSTEM AND THE
MCI FIBERS
13.1 If, for any reason, FiveCom is required by any third party, including, but not lim
ited to, a governmental entity, to relocate any of the facilities used or required in providing the FiveCom System and the MCI Fibers, FiveCom shall give MCI at least sixty (60) days' (or such lesser period of notice that FiveCom may have received) prior
w
ritten notice of any such relocation and MCI shall be entitled to terminate this Agreement, in accordance with the provisions, excluding the notification period, of Subarticle 5.3, herein, by giving at least thirty (30) days' prior written notice to FiveC
o
m. In the event this Agreement is not terminated, FiveCom shall relocate the MCI Fibers and, to the extent FiveCom is not reimbursed for the cost of such relocation by a third party, governmental entity or otherwise, FiveCom shall be responsible for all t
he costs associated with the relocation of the MCI Fibers. If FiveCom desires, for any other reason, to relocate any of the facilities used or
required in providing the MCI Fibers, such relocation shall be undertaken at FiveCom's sole cost and expense.
ARTICLE XIV CONDEMNATION
14.1 In the event any portion of the FiveCom System and/or the MCI Fibers, or the Rights-of-Way in or upon which they shall have been installed, become the subject of a condemnation proceeding which is not
dismissed within one hundred eighty (180) days of the date of filing of such proceeding and which could reasonably be expected to result in a taking, by any governmental agency or other party cloaked with the power of eminent domain for public purpose or
use, then and in such event, it is agreed that MCI shall be entitled to terminate this Agreement by giving at least thirty (30) days' prior written notice to FiveCom and, in that event, both parties shall be entitled, to the extent permitted under applica
ble law, to participate in any condemnation proceedings to seek to obtain compensation by either joint or separate awards for the economic value of their respective interests.
14.2 Upon its receipt of a formal notice of condemnation or taking, Fiv
eCom shall notify MCI immediately of any condemnation proceeding filed against the MCI System, including the MCI Fibers, or the Rights-of-Way in or upon which the MCI Fibers shall have been installed. FiveCom shall also notify MCI of any similar threatene
d condemnation proceeding and agrees not to sell the MCI Fibers or Rights-of-Way to such acquiring agency, authority or other party in lieu of condemnation without prior written notice to MCI.
14.3 If the taking or condemnation requires relocation of the MCI Fibers, FiveCom shall use its best efforts to obtain an alternative route over which the MCI Fibers may be relocated, at no cost to MCI.
ARTICLE XV USE OF THE MCI FIBERS
15.1 MCI shall not use the MCI Fibers in any way which fails to comply with any applicable federal, state or local code, ordinance, law, rule, regulation or restriction or any policy of insurance.
ARTICLE XVI OWNERSHIP OF THE MCI FIBERS
16.1 MCI shall have an undivided right of use of the MCI Fibers. FiveCom shall have an undivided, absolute and legal title to ownership in the MCI Fibers.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
16.2 Except as otherwise provided in this Agreement, MCI shall not represent to any third party that any party other than FiveCom is the legal owner of the MCI Fibers. FiveCom acknowledges that MCI has contracted for the purchase of an IRU
in the MCI Fibers and agrees that it will not take any action which is inconsistent with MCI's said position.
ARTICLE XVII [**]OPTION TO LEASE ADDITIONAL DARK FIBERS
FiveCom hereby grants [**] an Option to License additional dark fibers to MCI upon the following terms and conditions:
17.1 [**] on the MCI route detailed in Exhibit A, FiveCom shall provide [**] received by FiveCom, at any time [**]. In the event MCI [**] during that period, [**]. In the event FiveCom [**].
17.2 In addition [**], MCI shall also have the option to use an additional four (4) fibers along the MCI route detailed in Exhibit A, at any time throughout the term of this agreement, including any extension terms, by paying consideration equal
to the prevailing market rate for dark fiber licenses on the FiveCom System.
ARTICLE XVIII REGENERATORS
18.1 FiveCom shall provide MCI with secure separate caged shelter space for placement of its electronics equipment at the two (
2) regenerator sites located at Manchester and Dover with 7/24 unescorted access. The Shelter Equipment Layout is as identified in Exhibit I. MCI shall pay FiveCom for all incremental actual costs associated with providing MCI with secure separate shelter
space and access. Such cost shall not exceed [**].
18.2 FiveCom will provide MCI with a minimum of twelve (12) hour battery backup and generator power at each regenerator site.
ARTICLE XIX CONFIDENTIALITY
18.1 The Pa
rties executed a Confidentiality Agreement on ________________, attached hereto as Exhibit J. Both parties acknowledge and agree that the terms of that Confidentiality Agreement apply to and are binding as to this Agreement in all respects.
ARTICLE XX DEFAULT
20.1 MCI shall not be in default under this Agreement, or in breach of any provision hereof unless and until FiveCom shall have given MCI written notice of such breach and MCI shall have failed to cure the same within thirty (3
0) days after receipt of such notice; provided, however, that where such breach cannot reasonably be cured within such thirty (30) day period, if MCI shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing
such breach shall be extended for such period of time as may be necessary to complete such curing. Upon the failure by MCI to timely cure any such breach after notice thereof from FiveCom, FiveCom shall have the right, in its sole discretion, to take such
action as it may determine, to be necessary to cure the breach or to terminate this Agreement upon written notice to MCI.
20.2 FiveCom shall not be in default under this Agreement or in breach of any provision hereof unless and until MCI shall ha
ve given FiveCom written notice of such breach and FiveCom shall have failed to cure the same within thirty (30) days after receipt of such notice; provided, however, that where such breach cannot reasonably be cured within such thirty (30) day period, if
FiveCom shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing such breach shall be extended for such period of time as may be necessary to complete such curing. Upon the failure by FiveCom to timely cure
any such breach after notice thereof from MCI, MCI shall have the right in its sole discretion to take such action as it may determine, to be necessary to cure the breach or to terminate this Agreement.
20.3 No remedy provided for herein is intended to be exclusive, but each remedy shall be cumulative and in addition to and may be exercised concurrently with any other remedy available to FiveCom or MCI at law or in equity.
ARTICLE XXI NOTICES
21.1 Unless otherwise provided herein, all notices and communications concerning this Agreement shall be in writing and addressed as follows:
If to FIVECOM:
FiveCom, Inc,
391 Totten Pond Road, Suite 401
Waltham, MA 02154-2014
Attention: ...
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