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Cogent Communications Group - Dark Fiber Iru Agreement
Exhibit 10.2
DARK FIBER IRU AGREEMENT
BETWEEN
WILLIAMS COMMUNICATIONS, INC. ("WILLIAMS")
AND
COGENT COMMUNICATIONS, INC. ("COGENT")
DATED: APRIL 14, 2000
TABLE OF CONTENTS
ARTICLE PAGE ------- ---- ARTICLE I DEFINITIONS ...........................................................................1 ARTICLE II GRANT OF IRU...........................................................................5 ARTICLE III CONSIDERATION..........................................................................8 ARTICLE IV CONSTRUCTION..........................................................................10 ARTICLE V CONNECTION AND ACCESS TO THE SYSTEM...................................................13 ARTICLE VI COLLOCATION; FUTURE AGREEMENTS .......................................................13 ARTICLE VII TERM..................................................................................14 ARTICLE VIII MAINTENANCE AND RELOCATION............................................................15 ARTICLE IX USE OF THE SYSTEM.....................................................................17 ARTICLE X AUDIT RIGHTS..........................................................................18 ARTICLE XI WARRANTIES............................................................................18 ARTICLE XII DEFAULT...............................................................................19 ARTICLE XIII INDEMNIFICATION.......................................................................20 ARTICLE XIV LIMITATION OF LIABILITY...............................................................21 ARTICLE XV INSURANCE.............................................................................22 ARTICLE XVI TAXES AND GOVERNMENTAL FEES...........................................................23 ARTICLE XVII NOTICE................................................................................24 ARTICLE XVIII CONFIDENTIALITY.......................................................................25 ARTICLE XIX PROHIBITION ON IMPROPER PAYMENTS......................................................27 ARTICLE XX FORCE MAJEURE; EMINENT DOMAIN.........................................................27 ARTICLE XXI ARBITRATION AND DISPUTE RESOLUTION....................................................28 ARTICLE XXII RULES OF CONSTRUCTION.................................................................29 ARTICLE XXIII ASSIGNMENT............................................................................31 ARTICLE XXIV ENTIRE AGREEMENT; AMENDMENT; EXECUTION................................................33
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EXHIBITS
Exhibit A System Description
A-1 Map of Major Segments
A-2 Major Segment Listing
Exhibit B Collocation
B-1 Collocation Provisions (Transmission Sites)
B-2 Description of Transmission Sites and POP Collocation Sites;
Cogent Racks
B-3 Collocation Provisions (POPs)
Exhibit C Fiber Splicing, Testing, and Acceptance Standards and Procedures
Exhibit D Fiber Specifications
Exhibit E Cable Installation Specifications
Exhibit F As-Built Drawing Specifications
Exhibit G Operations Specifications
Exhibit H Interconnections
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DARK FIBER IRU AGREEMENT
THIS DARK FIBER IRU AGREEMENT (this "Agreement") is made on this 14th day of April, 2000 (the "Effective Date"), by and between WILLIAMS COMMUNICATIONS, INC., a Delaware corporation ("Williams"), and COGENT COMMUNICATIONS, INC., a Delaware corporation ("Cogent").
W I T N E S S E T H:
WHEREAS, Williams has constructed or acquired, or will construct or acquire, a fiber optic communication system along the route segments described and/or depicted in EXHIBITS A-1 AND A-2 attached hereto;
WHEREAS, Cogent desires to acquire from Williams, and Williams desires to provide to Cogent, rights to use certain optical fibers in the System (hereinafter defined) upon the terms and conditions set forth below; and
WHEREAS, the parties desire to establish additional ongoing obligations and rights that will be in effect during the term of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
In addition to other terms defined elsewhere in this Agreement, where capitalized, the following words and phrases shall be defined as follows:
"ACCEPTANCE" and all capitalized derivations of the word shall have the definition set forth in EXHIBIT C.
"ACCEPTANCE DATE" shall have the definition set forth in EXHIBIT C.
"ACCEPTANCE STANDARDS" means the standards set forth in EXHIBIT C with respect to the testing and condition of the Cogent Fibers.
"ADDITIONAL FIBERS" shall have the definition set forth in Section 2.4(c).
"AFFILIATE" means, with respect to any entity, any other entity controlling, controlled by or under common control with such entity, whether directly or indirectly through one or more intermediaries. "Control" and its derivatives mean legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting capital stock (or other
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ownership interest, if not a corporation) of an entity, or management or operational control over such entity.
"AS-BUILTS" shall have the definition set forth in Section 4.6.
"CABLE" means the fiber optic cable and fibers contained therein, including the Cogent Fibers, and associated splicing connections, splice boxes and vaults, and conduit.
"CLAIM" means any claim, action, dispute, or proceeding of any kind between Cogent (or any of its Affiliates, successors or assigns) and Williams (or any of its Affiliates, successors, or assigns) and any other claim, transaction, occurrence, loss, liability, expense or other matter arising out of, in connection with, or in any way related to, the Cogent Lease/IRU Rights, the Cable, the System, this Agreement or any other instrument, arrangement or understanding related to the Cogent Lease/IRU Rights.
"COGENT" means Cogent Communications, Inc., a Delaware corporation.
"COGENT EQUIPMENT" shall mean optronics (opto-electrical), electronics, or optical equipment, or materials, facilities, or other equipment owned, possessed, or utilized (other than the System) by Cogent.
"COGENT FIBERS" means the Initial Cogent Fiber and the Additional Fibers.
"COGENT IRU" shall have the definition set forth in Section 2.2.
"COGENT LEASE/IRU RIGHTS" shall have the definition set forth in Section 2.3.
"COLLOCATION PROVISIONS" means the collocation provisions for Transmission Sites or POP Collocation Sites as set forth in EXHIBITS B-1 AND B-3, as applicable.
"CONNECTING POINT" means a point where the network or facilities of Cogent will connect to the System (subject to the provisions of Section 5.1 and as more particularly defined in EXHIBIT H.
"CONTRACT PRICE" shall have the definition set forth in Section 3.1.
"COSTS" means actual, direct costs incurred and computed in accordance with the established accounting procedures used by Williams to bill third parties for reimbursable projects and U.S. generally accepted accounting principles. Such costs include the following:
(a) labor costs, including wages, salaries, and benefits plus
overhead allocable to such labor costs (the overhead allocation
shall not exceed thirty percent (30%) of the labor costs computed
without such overhead); and
(b) other costs and out-of-pocket expenses on a pass-through basis
(such as equipment, materials, supplies, contract services, costs
of capital, Required Rights, sales, use or
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similar taxes, etc.) plus ten percent (10%) of such expenses.
"DARK FIBERS" means optical fiber provided without electronics or optronics, and which is not "lit" or activated.
"EFFECTIVE DATE" means the date defined in the introductory paragraph to this Agreement above.
"ESTIMATED COMPLETION DATES" means the dates defined in Section 4.3 below.
"FACILITY OWNERS/LENDERS" means any entity (other than Williams): (a) owning any portion of the System or any property or security interest therein, (b) leasing to Williams, or providing an IRU to Williams in, any portion of the System, or (c) that is a Lender with respect to Williams or any Affiliates of Williams.
"FIBER ACCEPTANCE TESTING" means the fiber acceptance testing described in EXHIBIT C.
"FIBER MILES" means the number of Route Miles in a Major Segment multiplied by the relevant number of Cogent Fibers in such Major Segment. For example, if there are four Cogent Fibers in a Major Segment with 100 Route Miles, there would be 400 Fibers Miles of Cogent Fibers in such Major Segment.
"FIBERS" means any optical fibers contained in the System including the Cogent Fibers, the fibers of Williams and the fibers of any third party in the System excluding, however, any fibers granted (whether through ownership, IRU, lease or otherwise) to governmental entities in exchange for allowing use of streets, rights-of-way or other property under the jurisdiction of such entity.
"FORCE MAJEURE EVENT" shall have the definition set forth in Section 20.1.
"INDEFEASIBLE RIGHT OF USE" or "IRU" means an exclusive, indefeasible right to use the optical fibers or other specified property; provided that the granting of the same does not convey legal title to such fibers or other property. Notwithstanding the above, "Cogent Lease/IRU Rights" refers to both Cogent's lease rights set forth in Section 2.1 and the Cogent IRU granted pursuant to Section 2.2 or Subsection 2.4(c).
"INDEMNIFIED PARTIES" shall have the definition set forth in Section 13.1.
"INDEMNITOR" shall have the definition set forth in Section 13.1.
"INITIAL COGENT FIBER" means that certain one (1) strand of Dark Fiber designated by Williams in the Cable on each Major Segment of the type set forth in Exhibit A-2 and further described in Exhibit D in which Cogent shall be granted the Cogent Lease/IRU Rights hereunder as set forth in Section 2.1.
"INITIAL TERM" shall have the definition set forth in Section 7.1.
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"MAJOR SEGMENTS" means the individual identified portions of the Route between each of the city pairs listed on EXHIBIT A-2.
"NON-ROUTINE MAINTENANCE" shall have the definition set forth in the Section 8.1.
"PER MILE RATE" shall have the definition set forth in Section 3.1.
"POPS" shall mean Williams' designated points of presence at the locations along the Route listed in EXHIBIT A-2.
"POP COLLOCATION SITES" shall mean those specific Williams POPs in which Cogent is granted collocation rights hereunder as listed in EXHIBIT B-2.
"PRO RATA SHARE" means a proportion equal to a fraction, the numerator of which is the number of Cogent Fibers and the denominator of which is: (a) during the Initial Term of a Major Segment all Fibers in the Cable and (b) during any renewal term of a Major Segment all Fibers in the Cable that are in service for Williams, Cogent and/or any third party as of the date such share is being computed. If this fraction varies over a particular Segment, then the Pro Rata Share shall be equal to the weighted average (weighted by length as set forth in Williams' As-Built Drawings) of the relevant portions. For example, if the fraction for 100 feet of the affected Segment is 0.1 and the fraction for the remaining 50 feet of the affected Segment is 0.07, the weighted average for the entire Segment would be 0.09.
"RACK SPACE" means space for a standard non-enclosed equipment rack with outside dimensions measuring twenty-six inches (26") in width, twenty-four inches (24") in depth and either seventy-eight inches (78") or eighty-four inches (84") in height, in Transmission Sites and POP Collocation Sites which are of type, size and quality standard in the telecommunications industry.
"RELEASED PARTY" means each of the following:
(a) any Affiliates or Lenders of the other party and any Facility
Owners/Lenders;
(b) any employee, officer, director, stockholder, partner, member, or
trustee of the other party or of its Affiliates, Lenders, or
Facility Owners/Lenders; or
(c) assignees of the entities included in the above subparagraphs (a)
or (b) and any employee, officer, director, stockholder, partner,
member, or trustee of such assignees.
"RENEWAL TERMS" shall have the definition set forth in Section 7.2 below.
"REPRESENTATIVES" shall have the definition set forth in Section 18.1 below.
"REQUIRED RIGHTS" shall have the definition set forth in Section 4.2 below.
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"RIGHT-OF-WAY AGREEMENTS" means agreements with right of way owners, property owners, utilities, railroads, government entities or other parties that Williams has entered into, or will enter into, to obtain some or all of the Required Rights.
"ROUTE" shall mean the route, including spurs, upon which the System will be constructed and installed consisting of the Major Segments.
"ROUTE MILES" means the actual miles traversed by the Cable along the Route (including spurs) based on the As-builts.
"ROUTINE MAINTENANCE" shall have the definition set forth in Section 8.1.
"SEGMENT" means a discrete portion of the System and may refer to a Span, a portion between two POPs or a POP and a System end point, or a portion of the System affected by a relocation or other circumstance.
"SPAN" means a portion of the System between (a) a Transmission Site, a Williams-designated POP, or a System end point and (b) the next closest Transmission Site, Williams-designated POP, or a System end point along the Route from such site.
"SYSTEM" means Williams' fiber optic communications system constructed or to be constructed along the Route which will contain the Cogent Fibers including, but not limited to, the Cable, fibers, conduits, handholes, manholes and all other appurtenances and components of said communications system.
"TAKING" shall have the definition set forth in Section 20.2.
"TERM" means the Initial Term and any Renewal Term(s) of this Agreement as defined in Sections 7.1 and 7.2.
"TRANSMISSION SITES" shall mean Williams' designated optical amplifier, regenerator or junction sites along the Route as specified in Exhibit B-1.
"WILLIAMS" means Williams Communications, Inc., a Delaware corporation, formerly known as Vyvx, Inc..
ARTICLE II
GRANT OF LEASE/IRU RIGHTS
2.1 LEASE/IRU. Effective as of the Acceptance Date for each Major Segment (or with respect to Additional Fibers, the Acceptance Date of such Additional Fibers), provided that Cogent has made all payments previously due pursuant to Sections 3.2 and 3.3, Williams grants to Cogent (a) an exclusive, but defeasible, lease of the Cogent Fibers on such Major Segment and (b) an associated non-exclusive, but defeasible, lease, for the purposes of and subject to the terms and
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conditions set forth herein, of the tangible and intangible property needed for the operation of the Cogent Fibers, including, but not limited to, the System and Required Rights, subject to underlying real property and contractual limitations and restrictions and excluding any electronic or optronic equipment, all on the terms and subject to the conditions set forth herein. The parties agree that the lease shall constitute a true lease and not a disguised sale for all purposes. Such lease shall terminate upon the first to occur of (x) an event of default and resulting termination of such lease under the terms of Article XII below, or (y) with respect to the affected Cogent Fibers, when Cogent obtains an IRU in such fibers pursuant to Section 2.2 or Subsection 2.4(c).
2.2 GRANT OF IRU IN INITIAL COGENT FIBER. After Williams' receipt of all payments required under Subsections 3.2(a) through 3.2(d) (including any interest and as adjusted pursuant to Section 3.7), or with respect to Additional Fibers after Williams' receipt of all payments required under Section 3.3, Williams shall grant Cogent (a) an IRU in the Initial Cogent Fiber and Additional Fibers, if applicable, without further action required, for the purposes described herein and (b) an associated non-exclusive but Indefeasible Right of Use, for the purposes of and subject to the terms and conditions set forth herein, in the tangible and intangible property needed for the operation of the Initial Cogent Fiber and Additional Fibers, if applicable, including, but not limited to, the System and Required Rights, subject to underlying real property and contractual limitations and restrictions and excluding any electronic or optronic equipment; all on the terms and subject to the conditions set forth herein (the "Cogent IRU") effective as of (x) the Acceptance Date for each such Major Segment subsequently Accepted by Cogent hereunder, or (y) the date on which final payment, as described above, is received by Williams with respect to each Major Segment previously Accepted by Cogent.
2.3 COGENT LEASE/IRU RIGHTS. Cogent's lease rights and the Cogent IRU granted under this Article II shall collectively be referred to as the "Cogent Lease/IRU Rights." Upon the effective date of the Cogent IRU under Section 2.2, Cogent's IRU shall replace Cogent's lease of such Fibers. The Cogent Lease/IRU Rights:
(a) shall be subject to the terms and conditions set forth herein;
(b) do not convey any legal title to any real or personal property,
including the Fibers, the Cable, or the System; and
(c) do not include any optronic or electronic equipment used in
connection with transmitting capacity over or "lighting" the
Fibers except for facilities and services provided by Williams
pursuant to the terms of the Collocation Provisions.
2.4 RIGHT TO REQUEST LEASE/IRU RIGHTS IN ADDITIONAL DARK FIBERS. Cogent may order rights in additional Fibers as follows:
(a) Cogent shall have the right to request Cogent Lease/IRU rights in
one additional Dark Fiber in all of the Major Segments, subject
to availability at the time of exercise, at a price of [*] per
Fiber Mile. Availability of such Dark Fibers will be determined
by Williams in its sole and absolute discretion. Cogent shall
make such request by
[*] Indicates confidential treatment requested.
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giving written notice to Williams within three (3) years after
the Effective Date. If notice is not given within such 3-year
period, any and all of Cogent's rights under this Subsection
2.4(a) shall expire and be of no further force or effect. Within
sixty (60) days after receipt of Cogent's notice requesting
Cogent Lease/IRU Rights in additional Dark Fibers under this
Subsection 2.4(a), Williams shall either (i) inform Cogent in
writing that Dark Fiber is available in all Major Segments, or
(ii) provide Cogent with a written list of all Major Segments in
which there are no Dark Fibers available. In the event Williams
notifies Cogent under clause (ii) that Dark Fibers are not
available in all Major Segments but that the Major Segments in
which Dark Fiber is available total [*] Route Miles or more,
Cogent shall give further written notice to Williams indicating
its intent to obtain Cogent Lease/IRU rights in additional Dark
Fibers with respect to the Major Segments identified as available
by Williams. Alternatively, Cogent may elect to withdraw its
prior notice requesting Cogent Lease/IRU Rights in additional
Dark Fibers under this Subsection 2.4(a) after which Cogent's
rights hereunder shall expire and be of no further force or
effect. In the event Cogent fails to provide such further notice
to Williams within thirty (30) days after Williams' notice under
clause (ii) above, Cogent's rights under this Subsection 2.4(a)
shall expire and be of no further force or effect. If Williams
notifies Cogent under clause (ii) above that there are no Dark
Fibers available in any Major Segment or that the Major Segments
in which Dark Fiber is available total less than [*] Route
Miles within the above-described 60-day period, then Cogent's
rights to obtain Additional Fibers under this Subsection 2.4(a)
shall expire and be of no further force or effect.
(b) In addition to the rights granted under Subsection 2.4(a), Cogent
may request additional Dark Fibers on individual Major Segments
at any time during the Initial Term. Within a reasonable time
after receipt of a written request for such additional Dark
Fibers from Cogent, Williams shall inform Cogent as to whether
such requested additional Dark Fibers are available. Availability
of any requested additional Dark Fibers will be determined by
Williams in its sole and absolute discretion. If such Dark Fibers
are available, as determined by Williams, Williams will use
commercially reasonable efforts to price such fibers in a manner
consistent with the pricing applicable to the Initial Cogent
Fiber under this Agreement so long as Williams is able to
maintain similar economic benefits under such terms. The pricing
for any such additional Dark Fibers requested and provided under
this Subsection 2.4(b) shall be as mutually agreed upon by the
parties.
(c) Dark Fibers in which Cogent obtains Cogent Lease/IRU Rights under
the terms of Subsection 2.4(a) or Subsection 2.4(b) are referred
to herein as "Additional Fibers". Subject to satisfaction of all
payment obligations set forth in Section 3.3, Cogent shall have
the same rights in the Additional Fibers as it has pursuant to
Sections 2.1 through 2.3 with respect to the Initial Cogent Fiber
subject to all applicable terms and conditions of this Agreement.
Upon Cogent's purchase of Cogent Lease/IRU Rights in Additional
Fibers under the terms of Subsection 2.4(a) or Subsection 2.4(b),
the parties shall execute an addendum to this Agreement
incorporating this Agreement
[*] Indicates confidential treatment requested.
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by reference, specifically identifying the Dark Fibers and Major
Segments affected and the price to be paid for the Cogent
Lease/IRU Rights to be granted in and to the Additional Fibers,
and containing such other terms as mutually agreed upon by the
parties. For purposes of this Section 2.4, Williams may consider
intended or planned uses of Fibers which are not consistent with
granting Cogent an IRU and not only whether such Fibers are then
currently in use in determining "availability" of fibers in any
Major Segment under this Section 2.4.
ARTICLE III
CONSIDERATION
3.1 CONSIDERATION FOR COGENT IRU. Subject to performance by Williams of its obligations hereunder and in addition to any other consideration provided for in this Agreement, Cogent agrees to pay to Williams for the Cogent IRU in the Cogent Fibers, a non-recurring payment in the amount of [*] (the "CONTRACT PRICE") which equals [*] per Fiber Mile for the Initial Cogent Fiber constructed, installed, tested and Accepted hereunder (the "Per Mile Rate").
3.2 PAYMENT TERMS. The Contract Price for all Major Segments shall be paid by Cogent to Williams as follows:
(a) The sum of [*] is due and payable within three (3)
banking days after the Effective Date;
(b) The sum of [*] is due and payable on October 16, 2000;
(c) The sum of [*] is due and payable on April 16, 2001;
(d) The sum of [*], is due and payable on October 15, 2001.
Cogent may, at its option, prepay any or all of the payments under (a) through (d) above at any time prior to the applicable due date(s) without penalty.
3.3 CHARGES FOR RIGHTS IN ADDITIONAL FIBERS. The price for Cogent Lease/IRU Rights in Additional Fibers provided under Subsection 2.4(b) shall be negotiated between Williams and Cogent at the time Williams agrees to grant a request for Additional Fibers submitted by Cogent. The total price for Cogent Lease/IRU Rights in Additional Fibers obtained by Cogent under Subsection 2.4(a) shall be computed based upon a [*] per Fiber Mile rate. The charge for Routine Maintenance under Section 3.4 shall not be separately charged or changed for Major Segments in which Cogent obtains Additional Fibers. The total price determined for the Cogent Lease/IRU Rights in any Additional Fibers provided hereunder shall be paid by Cogent to Williams as follows:
(a) twenty-five percent (25%) of the estimated price of the
Additional Fibers (based on the estimated Fiber Miles of the
Major Segments set forth in EXHIBIT A-2 except for Major Segments
for which As-builts have been provided to Cogent hereunder in
[*] Indicates confidential treatment requested.
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which case the price shall be determined using actual Route
Miles) within three (3) banking days after the date the addendum
referred to in Subsection 2.4(c) is executed by the parties; and
(b) the remaining seventy-five percent (75%) of the estimated price
within three (3) banking days after the Acceptance Date of the
Additional Fibers.
3.4 CHARGES FOR ROUTINE MAINTENANCE. Cogent shall pay Williams [*] per Route Mile per month throughout the Term (beginning on the Acceptance Date for each Major Segment) for Routine Maintenance, subject to the adjustments set forth below. Until Williams determines the actual Route Miles, Cogent shall pay estimated Routine Maintenance charges based on the estimated Route Miles set forth in EXHIBIT A-2. The [*] amount shall be increased annually on a date selected by Williams by two percent (2%) of the charges for Routine Maintenance applicable to the immediately preceding annual period. Cogent shall pay such amounts for each Major Segment on or before the first day of each calendar month following the Acceptance Date (with the first payment including amounts accrued during the month in which the Acceptance Date occurs as well as the payment for the first full month after Acceptance). Payments shall be prorated, as necessary, for partial months in which the Acceptance Date occurs or the Term expires.
3.5 CHARGES FOR NON-ROUTINE MAINTENANCE AND RELOCATIONS. Cogent shall pay its Pro Rata Share of Williams' Costs of performing Non-Routine Maintenance and relocations (except voluntary relocations, as described in Section 8.2), if the gross cost of such work relating to any single event or multiple, closely related events is greater than [*]. Notwithstanding the foregoing: (a) Williams shall repair any damage caused by the negligence or willful misconduct of Cogent or its employees, contractors or agents, at Cogent's sole expense and at Williams' then-prevailing rates, and (b) to the extent Cogent is obligated to reimburse Williams for all or a portion of the Costs incurred pursuant to other Articles of this Agreement (including the Collocation Provisions), such alternative reimbursement obligations shall apply instead of the obligations set forth in this Section.
To the extent a third party not having an interest in the System or fibers in the System reimburses some or all of Williams' gross Costs of performing Non-Routine Maintenance or relocations, Williams shall reduce the gross Costs by the amount of such reimbursement for purposes of computing Cogent's Pro Rata Share of Costs; provided that Williams: (a) shall be entitled to reduce such amount by legal and collection costs incurred; and (b) shall have the right to prorate such reimbursement among itself, Cogent and other owners of an IRU or other ownership interest in Fibers within the System. Williams shall either reflect such reduction in its invoice or shall promptly refund such reduction when it receives such reimbursement.
3.6 CHARGES FOR COLLOCATION. The charges for collocation space provided to Cogent in Transmission Sites and POP Collocation Sites hereunder shall be as set forth in the Collocation Provisions.
3.7 METHOD OF PAYMENT. Except for monthly collocation and Routine Maintenance charges, all payments to Williams set forth in this Article III shall be made by wire transfer of
[*] Indicates confidential treatment requested.
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immediately available funds to the account or accounts designated by Williams. In addition to any other remedies set forth in this Agreement, all late payments shall bear interest accruing from the date due until paid at a rate equal to eighteen percent (18%) per annum or, if lower, the highest rate allowed by applicable law. All payments required under this Agreement shall be made in United States Dollars.
3.8 TRUE-UP OF CONTRACT PRICE. In the event the actual Route Miles for any Major Segment, as shown by the As-builts, differ from the estimated Route Miles set forth on EXHIBIT A-2, the Contract Price for such Major Segment shall be recomputed using the actual Fiber Miles based upon the Per Mile Rate. With respect to each Major Segment, any excess of such recomputed Contract Price for such Major Segment over the portion of the Contract Price allocable to such Major Segment previously paid by Cogent shall be paid by Cogent to Williams within thirty (30) days after receipt of the As-builts from Williams. Likewise, any excess of the portion of the Contract Price allocable to such Major Segment previously paid by Cogent over such recomputed Contract Price for such Major Segment shall be refunded by Williams to Cogent within thirty (30) days after delivery of the As-builts to Cogent. Neither Williams nor Cogent shall be liable for interest on such difference prior to the end of such thirty-day period. Notwithstanding the foregoing, the parties agree that for purposes of recomputing the Contract Price under this Section 3.8, the aggregate actual Route Miles of all of the Major Segments shall not be more than 105% or less than 95% of the aggregate estimated Route Miles as set forth in Exhibit A-2. If, after delivery of the As-builts for the last Major Segment to be delivered to and Accepted by Cogent hereunder, either party notifies the other that the aggregate actual Route Miles for all Major Segments is greater than 105%, or less than 95%, of the aggregate estimated Route Miles set forth in Exhibit A-2, then Williams shall refund, or Cogent shall pay, as appropriate, the difference between the Contract Price actually paid by Cogent and 105% or 95%, as applicable, of the estimated Contract Price set forth in Exhibit A-2.
3.9 ADJUSTMENT OF MAINTENANCE CHARGES. When Williams provides the As-builts pursuant to Section 4.6, it shall also provide Cogent a statement of the actual Route Miles of the Major Segment and beginning with the next monthly payment of Routine Maintenance charges due hereunder, Cogent shall pay the adjusted amount for such Major Segment for the remainder of the Term. Cogent shall not be required to pay, and Williams shall not be required to refund, amounts underpaid or overpaid by Cogent for periods prior to the adjustment under this Section.
3.10 TIME OF PAYMENT. Where no due date is specified for any payment obligation under this Agreement, each party shall pay such amounts within thirty (30) calendar days after the invoice delivery date, as determined by Section 17.2.
ARTICLE IV
CONSTRUCTION
4.1 FIBER ACCEPTANCE TESTING. EXHIBIT C sets forth Fiber Acceptance Testing procedures and test deliverables Williams shall provide to Cogent, and procedures for determining the Acceptance Date of a Major Segment.
4.2 ACCEPTANCE DATE OBLIGATIONS. As of the Acceptance Date of any Major Segment:
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(a) Williams or the underlying facility owner shall have obtained all
rights, licenses, authorizations, easements, leases, fee
interests, or agreements that provide for the occupancy by such
Major Segment of real property or fixtures (such as conduit,
bridges, river crossings, or transmission towers) associated with
such Major Segment;
(b) Williams shall have obtained by IRU agreement, lease, or
otherwise the right to use Major Segments it does not own; and
(c) such Major Segment shall be designed, engineered, installed, and
constructed in accordance with the specifications set forth in
Exhibits C, D and E in a workmanlike manner and in accordance
with industry standards and applicable laws; provided that any
portions of the System Williams elects to acquire from third
parties, (whether under a lease, sublease, indefeasible right of
use or otherwise) in lieu of constructing and installing such
portion of the System shall be or have been constructed
substantially in accordance with the specifications and
procedures required by this Agreement except for such deviations
which do not, in the reasonable discretion of Williams,
materially diminish the utility, reliability or expected useful
life of the System.
The rights Williams is required to obtain pursuant to Subsections (a) and (b) above as are necessary for Williams to grant to Cogent the Cogent Lease/IRU Rights are referred to as "Required Rights." Williams shall obtain and maintain in full force and effect all Required Rights through at least the Initial Term of each Major Segment subject to Cogent's obligations specified below in this paragraph and except as provided in and subject to the provisions of Section 8.2 (Relocation Procedures) and Section 20.1 (Excused Performance). In the event title to the System or Required Rights is contested during the Initial Term, or if any third party or government authority contests the property rights or the rights of the parties to use the System for any reason, Williams shall proceed to take all necessary steps to perfect title including, but not limited to, contesting the claims of any such third party or government authority; provided that, if such contest does not result from the negligent acts of Williams, Cogent shall reimburse Williams for its Pro Rata Share of all Costs incurred by Williams in perfecting title as described above.
Notwithstanding any other provision herein to the contrary, Cogent shall be solely responsible for ...
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