Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Fiber Optic Use Agreement
between
FiveCom, Inc.
and
BecoCom, Inc.
July 2, 1998
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Fiber Optic Use Agreement
Table of Contents
1. PREAMBLE.................................................................................................1
2. BACKGROUND...............................................................................................1
3. DEFINITIONS..............................................................................................3
4. FIVECOM FIBERS...........................................................................................5
4.1 Content and Route......................................................................5
-----------------
4.2 Specifications, Codes and Spaces.......................................................6
--------------------------------
4.3 Access to Third Parties and Third Party Connections....................................6
---------------------------------------------------
(a) Connections...................................................................6
(b) Responsibility for Connections................................................6
4.4 Vendors................................................................................7
-------
4.5 FiveCom Facilities and Equipment.......................................................7
--------------------------------
4.6 Marketing and Sales....................................................................7
-------------------
5. SCHEDULE.................................................................................................7
5.1 Completion Date........................................................................7
---------------
5.2 Penalty for Late Delivery..............................................................7
-------------------------
5.3 Testing................................................................................8
-------
5.4 Review of the Test Results.............................................................8
--------------------------
5.5 Completion of Remaining Fibers.........................................................9
------------------------------
6. DELIVERABLES.............................................................................................9
6.1 Description............................................................................9
6.2 Delivery Times.........................................................................9
7. TERM.....................................................................................................9
7.1 Term...................................................................................9
----
7.2 Identification of FiveCom Fibers.......................................................9
--------------------------------
7.3 Use of the FiveCom Fibers. ...........................................................9
-------------------------
7.4 Nonexclusivity........................................................................10
--------------
7.5 Right Subject to Utility Agreement. .................................................10
----------------------------------
8. USE FEES................................................................................................11
8.1 Base Fiber Payments...................................................................11
-------------------
8.2 Revenue Sharing Payments..............................................................11
------------------------
8.3 Location Fee..........................................................................13
------------
8.4 When Due..............................................................................13
--------
9. MAINTENANCE AND REPAIR..................................................................................13
9.1 BecoCom Obligation....................................................................13
9.2 Maintenance. ........................................................................14
(a) Emergency Maintenance........................................................14
(b) Routine Maintenance..........................................................14
(c) Notice.......................................................................14
9.3 Replacement Fiber.....................................................................14
-----------------
(a) Initial Term [**]............................................................14
-------------------------------
(b) Initial Term [**]............................................................15
--------------------------------
(c) After Initial Term or Expansion of Cable.....................................15
----------------------------------------
ii
10. COVENANTS; REPRESENTATIONS..............................................................................16
10.1 BecoCom Covenants.....................................................................16
-----------------
10.2 BecoCom Representations...............................................................16
-----------------------
10.3 FiveCom Representations...............................................................16
-----------------------
11. OWNERSHIP AND TAXES.....................................................................................16
11.1 Title.................................................................................16
-----
11.2 Income Taxes..........................................................................17
------------
11.3 Reporting of Income Taxes.............................................................17
-------------------------
11.4 Sales Taxes...........................................................................17
-----------
11.5 Franchise, Property and Other Taxes or Fees...........................................18
-------------------------------------------
11.6 Levy..................................................................................18
----
11.7 Reversion.............................................................................18
---------
12. LIMITATION ON LIABILITY.................................................................................18
12.1 Exclusion of Certain Types of Damages................................................18
--------------------------------------
12.2 Limitation on BecoCom Damages.........................................................19
-----------------------------
12.3 Limitation on FiveCom Damages.........................................................19
-----------------------------
12.4 No Limitation on Third Party Actions..................................................19
------------------------------------
13. INDEMNIFICATION.........................................................................................19
13.1 By BecoCom............................................................................19
----------
13.2 By FiveCom............................................................................20
----------
13.3 Indemnity Obligation..................................................................21
--------------------
14. FORCE MAJEURE...........................................................................................21
14.1 Force Majeure Events..................................................................21
--------------------
14.2 Abatement of Force Majeure............................................................21
--------------------------
14.3 Suspension Pending Force Majeure......................................................22
--------------------------------
14.4 Labor Disputes........................................................................22
--------------
15. GOVERNMENT APPROVALS, PERMITS AND CONSENTS..............................................................22
15.1 FiveCom Obligations...................................................................22
15.2 BecoCom Obligations...................................................................23
16. RELOCATION..............................................................................................24
16.1 Relocation for Third Parties..........................................................24
----------------------------
16.2 Relocation for FiveCom................................................................24
----------------------
16.3 Return of Removed Material............................................................25
--------------------------
17. EARLY TERMINATION.......................................................................................25
17.1 Early Termination of Agreement........................................................25
------------------------------
17.2 Termination of a Portion of the Route.................................................26
-------------------------------------
17.3 Alternate Capacity and Facilities.....................................................26
---------------------------------
17.4 Effect of Termination.................................................................27
---------------------
18. CONDEMNATION............................................................................................27
18.1 Condemnation of FiveCom Fibers........................................................27
------------------------------
18.2 Condemnation of Other Portions of the FiveCom Network.................................27
-----------------------------------------------------
18.3 Notice; No Sale.......................................................................28
---------------
19. RELATED AGREEMENTS......................................................................................28
19.1 XXXX Com/FiveCom Agreement............................................................28
--------------------------
19.2 Initial Unavailability................................................................28
----------------------
19.3 Subsequent Unavailability.............................................................28
-------------------------
iii
20. PROPRIETARY INFORMATION.................................................................................29
20.1 Obligation to Maintain as Confidential................................................29
20.2 Obligations Concerning Proprietary Information........................................29
(a) General Restrictions.........................................................29
--------------------
(b) Additional Marking Requirements..............................................30
-------------------------------
(c) Exceptions...................................................................30
----------
(d) Disclosures..................................................................31
-----------
21. DEFAULT.................................................................................................31
21.1 By FiveCom............................................................................31
21.2 By BecoCom............................................................................31
22. NOTICES.................................................................................................32
22.1 Addresses.............................................................................32
---------
22.2 Means.................................................................................32
-----
22.3 Informal Communications...............................................................33
-----------------------
23. DISPUTE RESOLUTION......................................................................................33
24. LIENS...................................................................................................34
25. INSURANCE...............................................................................................35
26. ASSIGNMENT..............................................................................................36
26.1 No Assignment.........................................................................36
-------------
26.2 Right to Pledge Agreement and Transfer Property.......................................36
-----------------------------------------------
26.3 Agreement Binding; Assignees..........................................................36
----------------------------
27. MISCELLANEOUS...........................................................................................36
27.1 Headings..............................................................................37
--------
27.2 No Third Party Beneficiaries..........................................................37
----------------------------
27.3 Amendments; Waivers...................................................................37
-------------------
27.4 Entire Agreement......................................................................37
----------------
27.5 No Joint Venture......................................................................37
----------------
27.6 Governing Law.........................................................................37
-------------
27.7 Survival..............................................................................37
--------
27.8 No Recording..........................................................................38
------------
27.9 Publicity................................................................................38
---------
EXHIBITS
Exhibit 2 Route
Exhibit 4.1 Preliminary Route/Engineering Diagram
Exhibit 4.2 Fiber Specifications
Exhibit 4.3(a) Connection/Demarcation Points
Exhibit 5.3 Acceptance Test Plan
Exhibit 6.1 BecoCom Deliverables
Exhibit 8.2 Annual Report
Exhibit 9.2(a) Emergency Maintenance Standards
Exhibit 9.2(b) Routine Maintenance Standards
Exhibit 16.2 Request for Relocation
Exhibit 22.3 Contact List
iv
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
FIBER OPTIC USE AGREEMENT
1. PREAMBLE. Effective July 2, 1998, BecoCom, Inc. ("BecoCom") and FiveCom, Inc.
("FiveCom") (collectively "Parties", singularly, "Party") agree as follows:
2. BACKGROUND. FiveCom has or is developing a fiber optic system from [**]
("FiveCom System"). To the FiveCom System, FiveCom wishes to add a fiber optic
network ("FiveCom Network") from [**] to a FiveCom Point of Presence ("POP") to
be built at [**]. The [**]. FiveCom, BecoCom, and XXXX Communications, Inc.
("NEESCom") wish to jointly build their respective portions of this network
under the terms of separate agreements between FiveCom and BecoCom and between
FiveCom and NEESCom. The purpose of the FiveCom Network is to provide
telecommunications capacity between [**].
The FiveCom Network is described as follows: [**], is to be installed from the
[**], an underground fiber optic cable, consisting of [**], is to be installed.
From the [**] an underground fiber optic cable, consisting of [**], is to be
installed connecting the [**] POPs described above, and returning to the [**].
Exhibit 2 depicts the FiveCom Network.
FiveCom, BecoCom, and NEESCom are each responsible for constructing a portion of
this Network. These portions are defined by the following demarcation points:
FiveCom - XXXX Com Demarcation Point: This is defined as the splice box
to be located on the [**].
XXXX Com - BecoCom Demarcation Point: This is defined as a mid-span
point located above the town line between [**]. This demarcation
occurs between Transmission Line [**]
-1-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
[**]. Because this demarcation point is mid-span, joint or closely
coordinated construction of the XXXX Com and BecoCom [**] facilities
must occur.
FiveCom - BecoCom Demarcation Points: the "FiveCom - BecoCom
Demarcation Point `A'" is defined as a mutually acceptable location
along the Cambridge - Somerville city line, depending upon the exact
route taken for the fiber optic cable installed between the FiveCom POP
and Bent Street. The "FiveCom - BecoCom Demarcation Point `B'" is
defined as a mutually acceptable location along the Cambridge - Boston
city line, depending upon the exact route taken for the fiber optic
cable installed between the [**].
There will be additional demarcation points at the FiveCom POP and at
each of the four carrier locations specified above. At each location,
the Demarcation Point is defined as a splice box or patch panel
installed in a mutually acceptable manner. If approval of the building
owner is required, FiveCom shall be responsible for securing any
necessary co-location rights.
Having established the demarcation points, each portion of the Network
can be described as follows:
XXXX Com Portion: A [**] fiber optic cable between the FiveCom - XXXX
Com Demarcation Point and the XXXX Com - BecoCom Demarcation Point.
BecoCom Portion: (a) A [**] fiber optic cable between the XXXX Com -
BecoCom Demarcation Point and the Demarcation Point at the FiveCom POP,
plus (b) a [**] fiber optic cable from the Demarcation Point at the
FiveCom POP to the FiveCom - BecoCom Demarcation Point "A", plus (c) a
[**] fiber optic cable from the Demarcation Point at the FiveCom POP to
the Demarcation Point at [**] to the Demarcation Point at [**] to the
Demarcation Point at [**] to FiveCom - BecoCom Demarcation Point "B".
FiveCom Portion: The initial electronics component of the FiveCom
Portion is intended to be sufficient to operate (a) [**] between [**],
and (b) [**] connecting the [**] carrier locations described above.
FiveCom shall use its best commercial efforts install this electronic
equipment within [**] after the Completion Date, and shall have some
discretion to modify this electronic equipment to adjust to business
conditions, but shall not eliminate or forgo a substantial portion of
its capital investment responsibilities to install
-2-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
electronic equipment without the approval of BecoCom. FiveCom may
install additional electronic equipment at its option. The non-optronic
component of the FiveCom Portion shall consist of (a) a [**] fiber
optic [**] cable from the [**] to the FiveCom - XXXX Com Demarcation
Point, plus (b) a [**] fiber optic cable from the FiveCom - BecoCom
Demarcation Point A" to [**] to the FiveCom - BecoCom Demarcation Point
B," plus (c) any necessary wiring on the Non-Network Side of the
applicable demarcation points described above.
This Agreement shall govern the construction and use of the BecoCom Portion of
the FiveCom Network.
3. DEFINITIONS.
Acceptance Test Plan - see Section 5.3
Affiliate - see Section 7.4
Arbitration Act - see Section 23.3
Arbitration Notice - see Section 23.3
Arbitration Panel - see Section 23.3
Award - see Section 23.3
BECo - see Section 2
BecoCom - see Section 2
BecoCom/FiveCom Agreement - see Section 19.1
BecoCom Portion - see Section 2
Cable - see Section 4.1
Cable Accessories - see Section 4.1
Completion Date - see Section 5
Connections - see Section 4.3
Deliverables - see Section 6
Disclosing Party - see Section 20.1
-3-
FiveCom - see Section 1
FiveCom - BecoCom Demarcation Points - see Section 2
FiveCom - BecoCom Demarcation Point AA" - see Section 2
FiveCom - BecoCom Demarcation Point AB" - see Section 2
FiveCom Fibers - see Section 4.1
FiveCom - XXXX Com Demarcation Point - see Section 2
FiveCom Network - see Section 2
FiveCom Portion - see Section 2
FiveCom System - see Section 2
Force Majeure Event - see Section 14.1
Initial Term - see Section 7.1
Minimum Number of Fibers - see Section 5.3
XXXX Com - BecoCom Demarcation Point - see Section 2
XXXX Com - see Section 1
XXXX Com Portion - see Section 2
NEP - see Section 2
NEP Fibers - see Section 4.1
Network Side - see Section 4.3
Non-Network Side - see Section 4.3
Party(ies) - see Section 1
Permitted Use - see Section 7.3
POP - see Section 2
Proprietary Information - see Section 20.1
-4-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Receiving Party - see Section 20.2(a)
Respondent - see Section 23.3
Route - see Section 4.1
Rules - see Section 23.3
Specifications - see Section 4.2
Structures - see Section 4.1
Term - see Section 7.1
Third Party - see Section 27.2
Utility Agreement - see Section 4.1
4. FIVECOM FIBERS.
4.1 Content and Route.
BecoCom will install, own and maintain a fiber optic cable (the
"Cable") consisting of (a) a [**] fiber optic cable, consisting of [**] True
Wave Lucent and [**] Lucent single mode fibers between the XXXX Com - BecoCom
Demarcation Point and the Demarcation Point at the [**], plus (b) a [**] fiber
fiber optic cable, consisting of [**] Lucent True Wave fibers and [**] Lucent
single mode fibers, from the Demarcation Point at the [**] to the FiveCom -
BecoCom Demarcation Point "A," plus (c) a [**] fiber fiber optic cable,
consisting of [**] Lucent True Wave fibers and [**] Lucent single mode fibers,
from the Demarcation Point at the FiveCom POP to the Demarcation Point at [**],
to the Demarcation Point at [**] to the Demarcation Point at [**] to the FiveCom
- BecoCom Demarcation Point "B" (the "FiveCom Fibers"), such route being
depicted in detail in Exhibit 2 ( the "Route"). The Route begins at the XXXX Com
- BecoCom Demarcation Point, and proceeds along transmission lines owned by
[**], and then on to [**], terminating at the Demarcation Points described
above. Any fibers installed as part of the Cable in excess of the FiveCom Fibers
described above will be retained by BecoCom or its Affiliates (the "BecoCom
Fibers"). will be retained by BecoCom or its Affiliates "BecoCom Fibers").
As reflected in Exhibit 4.1, BecoCom shall install the Cable on or in
utility transmission structures, subtransmission structures, and associated
civil
-5-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
works located on or in utility easements, street licenses, and/or rights-of-way
(collectively, "Structures"), [**] and BecoCom shall employ attachment and
suspension hardware, splice enclosures and other components necessary either for
the placement of the Cable underground or overhead or for the continuity of the
fiber filaments on or within the Structures (collectively, "Cable Accessories").
4.2 Specifications, Codes and Spaces. BecoCom shall install and
maintain the FiveCom Fibers in a manner that satisfies the technical
specifications (the "Specifications") set forth in Exhibit 4.2, subject to
variations that may be mutually agreed to from time to time by FiveCom and
BecoCom, and shall comply in all material respects with all legally required
building, construction and safety codes, as well as all other applicable
federal, state and local laws, legally required codes, ordinances, statutes and
regulations.
4.3 Access to Third Parties and Third Party Connections.
(a) Connections. All the points of connection, including the
demarcation points described in Section 2 ("Connections") of
the BecoCom Portion of the FiveCom Network to other parts of
the FiveCom System are specified in Exhibit 4.3(a). Upon
mutual agreement of the Parties to add new Connections, the
Parties shall reflect any new Connections in an amendment to
Exhibit 4.3(a).
(b) Responsibility for Connections. Unless otherwise agreed by the
Parties, BecoCom shall pay for, install, construct, maintain,
secure rights of way and easements for and otherwise be
responsible for all equipment on the side of the Connection on
which the BecoCom Portion exists ("Network Side") including
without limitation any liabilities associated with such
equipment, and FiveCom shall pay for, install, construct,
maintain, secure rights of way and easements for and otherwise
be responsible for all equipment on the other side of the
Connection ("Non-Network Side") including without limitation
any liabilities associated with such equipment. FiveCom shall
ensure that the equipment on the Non-Network Side shall not
conflict physically or otherwise interfere with joint users of
the Cable, Cable Accessories, Structures or any other property
needed in the installation, construction, maintenance or use
of the Cable. With respect to any equipment on the Non-Network
Side, FiveCom or its customer shall obtain any necessary
approvals from the owners of any property as to any use
thereof by FiveCom or its customers, and for the physical
location of, installation, maintenance and operation of
equipment, and FiveCom shall provide to BecoCom evidence of
all necessary approvals and permits by such owners and any
applicable government authority.
-6-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
4.4 Vendors. FiveCom shall have the right to review and approve, which
approval will not be unreasonably withheld or delayed, BecoCom's major
vendors/suppliers/manufacturers of materials to be used in the installation and
construction of the Cable.
4.5 FiveCom Facilities and Equipment. Pursuant to FiveCom's existing
Agreement with Northeast Utilities dated February 27, 1998, FiveCom shall use
its best commercial efforts to complete construction and installation of the
FiveCom Portion and to achieve completion with respect to the FiveCom Portion as
described in Section 2 by [**].
4.6 Marketing and Sales. FiveCom shall conduct marketing and sales
activities as part of its business to secure customers for the FiveCom Fibers,
and shall use its best commercial efforts throughout the Term to maximize the
revenues generated by the FiveCom Fibers.
5. SCHEDULE.
5.1 Completion Date. BecoCom shall use best commercial efforts to
complete construction and installation and to ensure that the Completion Date of
the FiveCom Fibers occurs on or before [**]. Unless otherwise determined under
Sections 5.3 or 5.4 below, the Completion Date shall be [**].
5.2 Penalty for Late Delivery. For each day after [**] until the
Completion Date or the date this Agreement is terminated, BecoCom will pay to
FiveCom an amount equal to the sum of (a) [**] between the FiveCom - BecoCom
Demarcation Point "A", the [**], and the FiveCom - BecoCom Demarcation Point "B"
that does not meet the Specifications, plus (b) [**] and the NEESCom - BecoCom
Demarcation Point, that does not meet the Specifications. As an illustration, if
none of the FiveCom Fibers described above meet the Specifications, BecoCom will
pay FiveCom [**] per day. Notwithstanding the foregoing, BecoCom shall not be
obligated to make the payment provided in the preceding sentence to the extent
that FiveCom fails, at any time when such payment would otherwise be due, to
have completed installation of, and have available for use or use by others, an
equivalent amount of the non-optronic portion of the FiveCom Portion as
discussed in Section 4.5 above, or otherwise fails to use its best commercial
efforts to install the optronic portion of the FiveCom Portion, as described in
Section 2. If the delay in providing at least the number of fibers required for
Completion Date to occur continues until [**], then either party in its sole
discretion shall have the right to terminate this Agreement, provided
-7-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
that any such termination shall not affect whatever rights either party had
obtained under this Agreement prior to such termination.
5.3 Testing. The Completion Date shall be deemed to be the date that
BecoCom has installed the Cable called for in Section 4.1 along the BecoCom
Portion of the Route as described in that Section and that (a) at least [**] of
the [**] fibers in the BecoCom Portion between the FiveCom - BecoCom Demarcation
Point "A", the [**], and the FiveCom - BecoCom Demarcation Point "B" meet the
Specifications, and (b) at least [**] of the [**] fibers in the BecoCom Portion
between [**] and the XXXX Com - BecoCom Demarcation Point meet the
Specifications ("Minimum Number of Fibers"). Compliance of the FiveCom Fibers
with the Specifications shall be determined specifically by testing in
accordance with the Acceptance Test Plan ("ATP") described in Exhibit 5.3.
BecoCom shall provide FiveCom with written notice of the commencement of the
acceptance testing at least [**] prior to that commencement. Subject to the
restrictions, terms and conditions of the Utility Agreement, FiveCom shall have
the right to have representatives present to observe any tests conducted by
BecoCom as part of the ATP. BecoCom shall be responsible for testing the BecoCom
Portion of the FiveCom Network, and FiveCom shall be responsible for testing the
entire FiveCom Network on an end-to-end basis. If the end-to-end test reveals
that a particular piece of equipment (including fiber strands and splices) fails
to satisfy the Specifications, the party responsible for such installation shall
be responsible for fixing it. The failure of FiveCom to complete satisfactorily
the end-to-end testing of the entire FiveCom Network shall not relieve FiveCom
of its obligations to make payment under Section 8, unless the failure is due to
a breach by BecoCom of this Agreement.
5.4 Review of the Test Results. Within [**] of the conclusion of the
ATP, BecoCom shall provide FiveCom with test results certified by BecoCom in
accordance with the ATP and pursuant to Exhibit 4.2, Item 3.0. If the certified
test results establish that the FiveCom Fibers satisfy the Specifications, and
if FiveCom shall not object to such conclusion within [**] of its receipt of
such results, then the date of the completion of the ATP testing shall be deemed
to be the Completion Date. If FiveCom shall so object, it shall provide to
BecoCom sufficient technical details of its objection within such [**] period.
If BecoCom disagrees with FiveCom's objections, then the dispute shall be
submitted to the neutral expert mutually agreed by the Parties for resolution
within [**], or if the Parties cannot agree on a neutral expert, then the
dispute will be resolved by arbitration pursuant to Section 23. The neutral
expert or arbitration panel, as the case may be, shall resolve the dispute and
determine the Completion Date, including whether or not any amount is payable
pursuant to Section 5.2 or Section 8. Use of the FiveCom Fibers, or any subset
thereof, by FiveCom for any purpose other than testing as provided herein shall
constitute acceptance of
-8-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
the fibers so used by FiveCom, and the Completion Date shall be deemed to have
occurred with respect to such fibers.
5.5 Completion of Remaining Fibers. In the event that the Completion
Date is declared based on BecoCom's delivery of the Minimum Number of Fibers,
but less than all [**] FiveCom Fibers described in Section 4.1, then, if
requested by FiveCom, BecoCom shall use commercially reasonable efforts to
ensure that FiveCom has access to capacity equal to the full number of fiber
optic strands described in Section 4.1 that meet the Specifications at the
earliest practicable date after the Completion Date.
6. DELIVERABLES.
6.1 Description. Within the time periods specified in Section 6.2,
BecoCom shall deliver to FiveCom the items listed in Exhibit 6.1 (the
"Deliverables").
6.2 Delivery Times. The Deliverables shall be supplied within sixty
(60) days following the Completion Date, except for the items listed in Exhibit
6.1 as being delivered at other specified times. BecoCom shall provide five (5)
copies of all material delivered to FiveCom pursuant to this Section 6.
7. TERM.
7.1 Term. Subject to the terms and conditions set forth in this
Agreement and the restrictions, terms and conditions of the Utility Agreement,
BecoCom hereby grants to FiveCom an indefeasible and noncancelable license or
right to use (IRU) the FiveCom Fibers for a term commencing on the Completion
Date and continuing for an initial term of twenty (20) years ("Initial Term"),
unless sooner terminated in accordance with the terms of this Agreement. Subject
to BecoCom's rights and obligations under the Utility Agreement, FiveCom shall
have the right to negotiate with BecoCom for an extension of this Agreement for
up to two (2) consecutive five-year periods, on an "as-is" basis, commencing at
the expiration of the Initial Term. The Initial Term and any subsequent
extension are referred to in this Agreement as the "Term."
7.2 Identification of the FiveCom Fibers. The number, identity, and
location of FiveCom Fibers shall be set forth in a schedule that will be one of
the Deliverables to be provided under Section 6. FiveCom shall only have the
right to use the fiber optic filaments within the Cable designated as FiveCom
Fibers on that Deliverable, and the remaining fiber optic filaments within the
Cable shall be designated as BecoCom or BECo Fibers, as determined by BecoCom.
7.3 Use of the FiveCom Fibers. FiveCom's IRU with respect to the
FiveCom Fibers is solely for FiveCom's use in providing fiber optic facilities
to its
-9-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
customers for [**]. Specifically, the Permitted Use shall [**]. FiveCom shall
exercise such right solely to provide facilities to its customers for the
Permitted Use in accordance with this Agreement and applicable state, local, and
federal laws and regulations, consistent with FiveCom's obligations in Section
15.
7.4 Nonexclusivity. Although FiveCom's right to use the FiveCom Fibers
shall be exclusive, FiveCom's use of other portions of the Cable, Cable
Accessories, Structures or any related facilities of BecoCom or its Affiliates
under this Agreement shall be nonexclusive and limited to the use necessary for
incidental support and/or placement of the FiveCom Fibers. Nothing in this
Agreement shall be construed as limiting or restricting BecoCom or its
Affiliates in any manner from using the Cables, Cable Accessories and the
Structures, or any other facilities, easements and/or rights of way for the
installation of additional fiber optic cables, for use as telecommunications
facilities, or for any other purpose; provided, that BecoCom or its Affiliates
shall not use the BecoCom Fibers for the Permitted Use for their customers. For
purposes of this Agreement, the term "Affiliate" shall mean: (a) any entity
controlling, controlled by or under common control with a Party, directly or
indirectly, or (b) any entity which is a successor to a Party or any of the
foregoing entities by merger, consolidation or otherwise.
7.5 Right Subject to Utility Agreement. FiveCom acknowledges that
BecoCom's ability to grant an IRU to FiveCom for the FiveCom Fibers pursuant to
this Section 7 shall at all times be subject to BecoCom's rights and obligations
under the Utility Agreement; provided, however, that this Agreement shall be
subject to subsequent amendments to the Utility Agreement if each of the
following conditions has been satisfied: (i) copies of such amendment have been
given to FiveCom, (ii) such amendments [**] (iii) [**] has provided FiveCom
[**], and (iv) [**] related to the amendment of the Utility Agreement. By virtue
of this Agreement, FiveCom shall have no greater rights with respect to the
location and use of the FiveCom Fibers than BecoCom has under the Utility
Agreement, and FiveCom's IRU is expressly limited by any applicable restrictions
in the Utility Agreement. BecoCom shall not be liable for any acts or omissions
by BecoCom, its employees or Affiliates that interfere with or otherwise affect
FiveCom's use of the FiveCom Fibers to the extent such acts or omissions are
required by the Utility Agreement, including without limitation
-10-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
acts or omissions that deny the use of, alter or remove the Cable, Cable
Accessories and Structures to preserve the Affiliate's ability to provide safe
and reliable electric service. BecoCom agrees to use its best commercial efforts
to enforce and to exercise its rights under the Utility Agreement to facilitate
the performance of this Agreement.
8. USE FEES.
8.1 Base Fiber Payments. Commencing on the Completion Date pursuant to
section 5, FiveCom shall pay to BecoCom the following amount [**]: The
sum of (i) [**] for each of the [**] fibers available in compliance
with this Agreement for FiveCom use between the FiveCom - BecoCom
Demarcation Point "A", the [**], and the FiveCom - BecoCom Demarcation
Point "B", plus (ii) [**] for each of the [**] fibers available in
compliance with this Agreement for FiveCom use between [**] and the
XXXX Com - BecoCom Demarcation Point, plus (iii) the Excess Location
Fee provided for in Section 8.3, Sales Taxes provided for in Section
11.4, and the Franchise, Property, and Other Taxes and Fees provided
for in Section 11.5.
As an illustration, if all of the fiber capacity described in Section 2
as the BecoCom Portion of the network is available in compliance with this
Agreement, the monthly payment should equal [**], exclusive of any Excess
Location Fee specified in Section 8.3, Sales Taxes specified in section 11.4,
and Franchise, Property, and Other Taxes and Fees specified in section 11.5. For
purposes of this Section 8. only, the determination whether fibers are
"available in compliance with this Agreement for FiveCom use" shall include (i)
the determination that FiveCom has, or had, at the relevant time, Third Party
customers who would use, or would have used, the fibers, but for their failure
to comply with the Specifications, or (ii) the determination that FiveCom would
have received revenues from such fibers, but for their failure to comply with
the Specifications. Nothing herein shall affect any obligation of BecoCom with
respect to any fibers that do not meet Specifications pursuant to any other
provision of this Agreement.
8.2 [**] Payments. In addition to the payments called for by Section
8.1, FiveCom shall pay to BecoCom [**] as follows:
(a) FiveCom shall determine [**] received by it [**] and (ii) [**]
received by FiveCom [**] shall be determined based
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
on the [**] on the FiveCom Network as compared to the [**] of
the FiveCom System,
(b) [**] under Section 8.2(a) the following: (i) [**] of the [**]
to Third Parties [**] and a [**] to Third Parties [**] shall
be determined based on the [**] on the FiveCom Network as
compared to the [**] of the FiveCom System, provided that the
[**]; (ii) [**] above levels as described in Section 8.3;
(iii) Sales Taxes as described in Section 11.4: (iv)
Franchise, Property and Other Taxes or Fees as described in
Section 11.5 and any other similar taxes and fees incurred
directly by FiveCom; and (v) any deduction authorized by
Sections 8.2(b)(ii) through 8.2(b)(iv) above that was [**]
described in Section 8.2(a) above because at a time when it
would have been [**]
(c) determine whether the [**] determined in Sections 8.2(a)
and 8.2(b) [**], and if it does [**],
(d) [**] based upon the following [**]:
[**]
(e) The amount determined [**] to BecoCom within [**] of the end
of each [**] period for which such amounts are determined.
(f) FiveCom shall provide BecoCom with an annual report of
telecommunications contracts and revenues that follows
substantially the form provided in Exhibit 8.2 hereto. FiveCom
shall provide annually, subject to a mutually agreed
confidentiality agreement, to BecoCom's auditors FiveCom's
contracts, books and records to ensure that its payments
pursuant to this Section 8.2 accurately reflect FiveCom's
[**]. FiveCom shall
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
reimburse BecoCom for its costs of such audits, unless the
audit reveals a discrepancy in the amount of [**] determined
by FiveCom is less than [**], in which case BecoCom shall pay
for the audit. In addition, subject to a mutually agreed
confidentiality agreement, the respective presidents of XXXX
Com and BecoCom shall be permitted to review FiveCom's
contracts, books and records to ensure that its payments
pursuant to this Section 8.2 accurately reflect [**].
(g) [**] pursuant to Section 8.2(b)(v) above is for the sole
purpose of [**] under this Section 8.2, and shall not create
any obligation in BecoCom to make payments to FiveCom with
respect to any amounts [**].
8.3 [**] Fee. The amount payable under Section 8.1, include a [**] the
FiveCom Fibers, as specified Paragraphs 1(b) and 1(c) of Schedule 6.1, [**],
without regard to future amendments of that provision [**]. In addition to the
[**], FiveCom shall pay [**] provided that (i) such [**]; (ii) [**] has provided
FiveCom [**] and (iii) [**].
8.4 When Due. Except as provided in Section 8.2(e) above, FiveCom shall
make all payments required by this Section 8 and any additional amounts payable
to BecoCom within [**] of the last day of each month in which the FiveCom Fibers
are made available to FiveCom.
9. MAINTENANCE AND REPAIR.
9.1 BecoCom's Obligation. All routine maintenance and repair functions
and emergency maintenance and repair functions, including "one-call" responses
and cable locate services, for the FiveCom Fibers shall be provided by BecoCom,
[**], as described in Exhibits 9.2(a) and 9.2(b). Subject to any restrictions,
terms and conditions in the Utility Agreement and any applicable safety
standards, FiveCom shall have the right to have a representative available, at
FiveCom's expense, to witness BecoCom in any maintenance or repair of the
FiveCom Fibers.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
9.2 Maintenance. (a) Emergency Maintenance. As provided in Exhibit
9.2(a), BecoCom shall use best commercial efforts to respond
within [**] to any failure, interruption or impairment in the
operation of the FiveCom Fibers after receiving a report from
FiveCom of any such failure, interruption or impairment.
Subject to the restrictions, terms and conditions of the
Utility Agreement, BecoCom shall use best commercial efforts
to correct any failure, interruption or impairment in the
operation of the FiveCom Fibers as expeditiously as possible
in accordance with the procedures set forth in Exhibit 9.2(a).
When trouble is encountered on the FiveCom Fibers, FiveCom, to
assist BecoCom in its maintenance activities, will (i) use
best commercial efforts to migrate its customers'
communications or other services that had been provided on the
damaged FiveCom Fibers to any available undamaged FiveCom
Fibers, (ii) diagnose the trouble through OTDR testing, if
possible, and (iii) ascertain and notify BecoCom of the
location address to the nearest cross street.
(b) Routine Maintenance. BecoCom will schedule and perform the
maintenance and repair checks and services as set forth in
Exhibit 9.2(b) on the FiveCom Fibers, at BecoCom's reasonable
discretion and with adequate advance notice to FiveCom and,
from time to time, at FiveCom's reasonable request. FiveCom
may request reasonable routine maintenance by delivering to
BecoCom, [**], a statement detailing the maintenance checks
and services FiveCom desires to be performed on the FiveCom
Fibers.
(c) Notice. BecoCom shall provide FiveCom with [**] for all
routine maintenance and repair functions by notifying
FiveCom's national Transmission Surveillance Center at
0-000-000-0000. In the event of an emergency, FiveCom shall be
notified at this number as soon as the emergency is
discovered.
9.3 Replacement Fiber.
(a) Initial Term [**]. In the event all or any part of the FiveCom
Fibers shall require replacement during [**] of the Initial
Term of this Agreement as a result of their failure to satisfy
the Specifications, such replacement shall be made as soon as
reasonably practical, [**]. If replacement of the FiveCom
Fibers is required in accordance with the preceding sentence,
BecoCom shall give FiveCom written notice of such replacement
as soon as reasonably practical before the replacement optical
fiber cable is ordered from the manufacturer. This
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
obligation to replace only applies to the number of FiveCom
Fibers that meet the Specifications on the Completion Date
plus any additional fiber optic strands made available for
use to FiveCom pursuant to Section 5.5.
(b) Initial Term [**]. [**] of the Initial Term of this Agreement,
the costs of replacing the FiveCom Fibers shall be shared in
accordance with the following schedule:
Year BecoCom's FiveCom's
Share (%) Share (%)
[**] [**]
[**]
[**] [**]
[**]
[**] [**]
[**]
[**] [**]
[**]
[**] [**]
[**]
[**] [**]
[**]
[**] [**]
[**]
[**] [**]
[**]
[**] [**]
[**]
[**] [**]
[**]
Provision for any federal, state or local taxes and the Tax
Impact of such taxes incurred by BecoCom as a result of
FiveCom's payment of FiveCom's share shall be added to
FiveCom's share. For purposes of this Agreement, "Tax Impact"
means federal, state and local income taxes incurred on
reimbursement of federal, state and local income taxes. This
amount shall be reduced by the net present value of tax
benefits receivable on future tax depreciation deductions for
the replacement fibers. In addition, this amount shall be
reduced by the tax benefit due to any acceleration of tax
depreciation deductions for FiveCom Fibers replaced. FiveCom
shall have the option of not replacing the failed fibers, or
of terminating the Agreement prior to the end of the Initial
Term of this Agreement in lieu of sharing in the cost of
replacing the FiveCom Fibers; provided that FiveCom may
exercise this right to terminate only if, prior to any
replacement, less than the Minimum Number of Fibers meet the
Specifications.
(c) After Initial Term or Expansion of Cable. If FiveCom and
BecoCom mutually agree and if permitted under the Utility
Agreement, BecoCom may provide replacement fiber after the
Initial Term or may replace all or a portion of the existing
Cable with a new cable having an increased number of fiber
optical strands for FiveCom's use; provided that such
replacement shall be installed at FiveCom's
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incremental cost (including provision for any related federal,
state, or local taxes on a grossed-up basis) and under terms
mutually agreed to by FiveCom and BecoCom.
10. COVENANTS; REPRESENTATIONS.
10.1 BecoCom's Covenants. BecoCom covenants that the FiveCom Fibers
shall at all times be in compliance with and operate within the parameters of
the Specifications; provided, however, that FiveCom's sole and exclusive remedy
for breach of such covenant shall consist of the enforcement of BecoCom's
obligations under Section 9; and provided further that BecoCom's liabilities to
FiveCom and its customers shall at all times be limited as provided in Section
12.
10.2 BecoCom Representations. Subject to the restrictions, terms and
conditions provided under the Utility Agreement, BecoCom represents and warrants
to FiveCom that it has the right, and the full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by BecoCom have been duly
and validly authorized by all necessary corporate action on the part of BecoCom.
BecoCom shall use its best commercial efforts to obtain the necessary government
approvals required by it to have constructed and to grant an IRU to FiveCom in
the FiveCom Fibers. BecoCom represents that the Structures and the Cable
Accessories used for the installation of the FiveCom Fibers are not subject to
the lien of any indenture, mortgage, or similar consensual security interest
granted by BecoCom or its Affiliates.
10.3 FiveCom Representations. FiveCom represents and warrants to
BecoCom that it has the right, and the full corporate power and authority to
execute and deliver this 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 action on the part of FiveCom.
In addition, FiveCom represents and warrants to BecoCom that: (1) it owns or has
secured the rights to use fiber optic cable in addition to the FiveCom Fibers
specified herein necessary to complete the entire FiveCom Network; and (2) it
shall use its best commercial efforts to obtain the necessary government
approvals required by it to use and operate the FiveCom Fibers for its
customers.
11. OWNERSHIP AND TAXES.
11.1 Title. Title to the FiveCom Fibers, BecoCom Fibers, Cable, Cable
Accessories, any property installed or constructed on Structures, and
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Structures shall be held by BecoCom or its Affiliates. FiveCom's rights
hereunder shall be deemed an Indefeasible license or Right to Use (IRU) the
FiveCom Fibers, subject to the terms of this Agreement. Neither the IRU nor
other provision of FiveCom Fibers or any other facilities or services by BecoCom
to FiveCom, nor the payment by FiveCom to BecoCom of the fees pursuant to
Section 8 shall constitute, create or vest any leasehold, easement or any other
ownership or property rights in the nature of ownership in the Structures,
FiveCom Fibers, Cable, Cable Accessories or other facilities, except for the
rights set forth in this Agreement.
11.2 Income Taxes. FiveCom and BecoCom agree that, except as provided
in Sections 9.3(b), 11.5, 16.1 and 16.2 of this Agreement, each Party will be
responsible for paying its own existing or future federal, state and local
income, franchise and/or other similar existing or future taxes imposed on
business activities or entities. BecoCom and FiveCom agree that BecoCom will be
responsible for paying any and all existing or future federal, state or local
income taxes imposed on the receipt of payments made by FiveCom to BecoCom under
this Agreement.
11.3 Reporting of Income Taxes. FiveCom will not, for any income tax
purposes, account for FiveCom Fibers as the owner thereof and is not entitled to
and will not claim any depreciation deductions and/or other tax attributes,
credits or benefits with respect to ownership of the FiveCom Fibers for purposes
of federal, state and local income taxes. The Parties agree they will file all
income tax returns and otherwise take all actions with respect to income taxes
in a manner consistent with the foregoing.
11.4 Sales Taxes.
(a) BecoCom will be responsible for paying any and all existing or
future sales, excise or other transfer or transactional taxes
imposed or levied by any federal, state or local taxing
authority on purchases of materials and/or equipment for use
in construction of the Cable. FiveCom agrees to cooperate at
BecoCom's expense in any proper claim of exemption or
exclusion from such taxes which BecoCom may assert for such
purchase; such cooperation shall include (but not be limited
to) providing any required certificates and/or other
documentation of such purchases to which it may be a party.
FiveCom agrees to provide BecoCom with all documentation of
any such purchases to which it may be a party and agrees that
XxxxXxx has no obligation to reimburse FiveCom for any such
taxes without such documentation.
(b) FiveCom will be responsible for paying any and all existing or
future sales, excise or other transfer or transactional taxes
imposed or levied by any federal, state or local taxing
authority on the fees
-17-
provided for in Section 8 and/or other payments made by
FiveCom to BecoCom for the use by FiveCom of FiveCom Fibers.
XxxxXxx agrees to cooperate at FiveCom's expense in any proper
claim of exemption or exclusion from such taxes which FiveCom
may assert.
11.5 Franchise, Property and Other Taxes or Fees. Upon notice from
BecoCom to FiveCom, FiveCom shall promptly reimburse BecoCom for any increases
in, or additions to, any existing federal, state or local excise, franchise, ad
valorem, property or similar taxes, payments or payments in kind, or any similar
fees such as franchise fees, license fees or user fees imposed on BecoCom, which
increase or addition is attributable to the presence of FiveCom Fibers on
Structures, Cable Accessories, and equipment. BecoCom agrees to cooperate with
FiveCom to the extent FiveCom seeks to contest, by appropriate legal process,
the assessment by the relevant governmental authority of any tax, fee or other
charge for which FiveCom becomes liable hereunder; provided that such obligation
to cooperate does not include the obligation of BecoCom (1) to participate in
any tax contest on FiveCom's behalf; (2) to ensure that FiveCom has the right to
initiate or to participate in such tax contest; or (3) to ensure that its
Affiliates do not take positions in such tax contests that are inconsistent with
FiveCom's position.
11.6 Levy. FiveCom and BecoCom shall properly remit all tax payments in
a timely manner to the applicable taxing authorities or governmental agencies
and will not cause the Cable to be levied, attached, or otherwise encumbered by
any taxing authority or governmental agency through any failure to remit such
payments.
11.7 Reversion. FiveCom's right to use the FiveCom Fibers shall revert
to BecoCom, at no additional cost to BecoCom, upon termination of this
Agreement. FiveCom's right to use any fibers within any portion of the Route
shall revert to BecoCom, at no additional cost to BecoCom, upon the termination
of that portion of the Route pursuant to Section 17.2.
12. LIMITATION ON LIABILITY.
12.1 Exclusion of Certain Types of Damages. Neither FiveCom nor BecoCom
shall be liable to the other for any indirect, special, punitive, or
consequential damages, or any lost business damages in the nature of lost
revenues or profits (including, but not limited to any claim from any customer
related to loss of service, except to the extent specifically contemplated in
Section 8.2 as a deduction from gross revenue) arising under this Agreement, or
arising out of any act or omission of either Party hereto, its respective
employees, agents or contractors. NOTHING IN THIS AGREEMENT SHALL MAKE EITHER
PARTY LIABLE TO THE CUSTOMERS OR CONTRACTORS OF THE OTHER PARTY FOR ANY DAMAGES,
WHETHER IN CONTRACT, TORT, OR OTHERWISE FOR ANY OF THE PARTIES' ACTS OR
OMISSIONS ASSOCIATED WITH THIS AGREEMENT.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
12.2 Limitation on BecoCom Damages. Notwithstanding any other provision
of this Agreement, the total amount of monetary damages to which BecoCom shall
be subject by reason of this Agreement shall [**] (a) [**], or (b) [**]
hereunder. Nothing herein shall be deemed a limitation on FiveCom's right to
seek specific performance or injunctive relief for the breach of any obligation
of BecoCom hereunder.
12.3 Limitation on FiveCom Damages. Notwithstanding any other provision
of this Agreement, the total amount of monetary damages to which FiveCom shall
be subject by reason of this Agreement shall [**] (a) [**], or (b) [**]
hereunder. Nothing herein shall be deemed a limitation on BecoCom's right to
seek specific performance or injunctive relief for the breach of any obligation
of FiveCom hereunder.
12.4 No Limitation on Third Party Actions. Nothing contained in this
Agreement 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 or
omissions may affect the construction, operation or use of the FiveCom Fibers.
Each Party hereto shall assign such rights or claims, execute such documents
and, at the request of and at the sole cost of the other Party, take such other
action as may be reasonably necessary to enable the injured Party to pursue any
such action or claim against any such Third Party.
13. INDEMNIFICATION.
13.1 By BecoCom. BecoCom shall indemnify, defend and save FiveCom, its
officers, directors and employees ("FiveCom Indemnified Parties"), harmless from
and against any and all actions, charges, claims, damages, expenses, fines,
penalties and liabilities whatsoever actually incurred by the FiveCom
Indemnified Parties arising from, or out of, or in connection with Third Party
claims or actions with respect to any of the following:
(a) The loss of life, personal injury, or damage to physical
property caused by the act or omission of BecoCom, its
Affiliates, or their respective employees, agents,
contractors, or any other person acting by or through, or with
the knowledge or approval of BecoCom, except to the extent
caused by the negligence or willful misconduct of NEESCom,
FiveCom, or their respective Affiliates,
-19-
employees, agents, contractors, or any other person acting by
or through, or with the knowledge or approval of FiveCom;
(b) The violation of federal, state or local law, regulation or
ordinance applicable to the Cable, Cable Accessories,
Structures, and FiveCom Fibers by BecoCom, its Affiliates, or
their respective employees, agents, contractors, or any other
person acting by or through, or with the knowledge or approval
of BecoCom, except to the extent caused by the negligence or
willful misconduct of NEESCom, FiveCom, or their respective
Affiliates, employees, agents, contractors or any other person
acting by or through, or with the knowledge or approval of
FiveCom; and
(c) Any storage, use, spill, discharge or release to the
environment of any oil or hazardous materials or wastes, as
those terms are defined by applicable federal or state law
from time to time, in or upon any property adjacent to the
FiveCom Fibers or the Structures by BecoCom, its Affiliates,
or their respective employees, agents, contractors, or any
other person acting by or through, or with the knowledge or
approval of BecoCom, except to the extent caused by the
negligence or willful misconduct of NEESCom, FiveCom, or their
respective Affiliates, employees, agents, contractors or any
other person acting by or through, or with the knowledge or
approval of FiveCom.
13.2 By FiveCom. FiveCom shall indemnify, defend and save BecoCom, its
Affiliates, officers, directors and employees ("BecoCom Indemnified Parties"),
harmless from and against any and all actions, charges, claims, damages,
expenses, fines, penalties and liabilities whatsoever actually incurred by the
BecoCom Indemnified Parties arising from, or out of, or in connection with Third
Party actions or claims with respect to any of the following:
(a) The loss of life, personal injury, or damage to physical
property caused by the act or omission of FiveCom, its
Affiliates or their respective employees, agents, contractors,
or any other person acting by or through, or with the
knowledge or approval of Five Com, except to the extent caused
by the negligence or willful misconduct of BecoCom, its
Affiliates, employees, agents, contractors or any other person
acting by or through, or with the knowledge or approval of
BecoCom;
(b) The violation of federal, state or local law, regulation or
ordinance applicable to the Cable, Cable Accessories,
Structures, FiveCom Fibers, and FiveCom's use thereof, by
FiveCom, its Affiliates or their respective employees, agents,
contractors, or any other person acting by or through, or with
the knowledge or approval of FiveCom,
-20-
except to the extent caused by the negligence or willful
misconduct of BecoCom, its Affiliates, employees, agents,
contractors or any other person acting by or through, or with
the knowledge or approval of BecoCom; and
(c) Any storage, use, spill, discharge or release to the
environment of any oil or hazardous materials or wastes, as
those terms are defined by applicable federal or state law
from time to time, in or upon any property adjacent to the
FiveCom Fibers or the Structures by FiveCom, its Affiliates
and their respective employees, agents, contractors, or any
other person acting by or through, or with the knowledge or
approval of FiveCom, except to the extent caused by the
negligence or willful misconduct of BecoCom, its Affiliates,
employees, agents, contractors or any other person acting by
or through, or with the knowledge or approval of BecoCom.
13.3 Indemnity Obligation. The indemnity obligation includes reasonable
attorneys' fees, investigation costs, and all other reasonable costs and
expenses incurred by the Indemnified Parties from the first notice that any
claim or demand has been made or may be made, and is not limited in any way by
any limitation on the amount or type of damages, compensation, or benefits
payable under applicable workers' compensation acts, disability benefit acts, or
other employee benefit acts.
14. FORCE MAJEURE.
14.1 Force Majeure Events. Neither FiveCom nor BecoCom shall be liable
for any failure or delay in performing its obligations hereunder, or for any
loss or damage resulting therefrom, due to the following Force Majeure Events:
(a) Fire, flood, strike or other labor difficulty, natural
disasters (including, without limitation, tornadoes,
hurricanes, ice storms, and other significant weather
phenomena), equipment failure, war, embargo, riot or
insurrection, acts of God or public enemy, restraint or
hindrance by any governmental or regulatory authority
(including, without limitation, denial of necessary permits or
licenses, imposition of commercially unreasonable conditions,
delays or other failures to act of or by such authorities,
except when the result of a failure to use best commercial
efforts by the Party claiming force majeure); or
(b) any other causes beyond the Parties' reasonable control.
14.2 Abatement of Force Majeure. To the extent practicable, both
Parties shall be prompt in restoring normal conditions, establishing new
schedules and resuming operations as soon as the Force Majeure Event causing the
failure or
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delay has ceased. FiveCom shall promptly notify BecoCom of any delay
constituting a Force Majeure Event, and its effect on the performance by
FiveCom. BecoCom shall promptly notify FiveCom of any delay constituting a Force
Majeure Event, and its effect on the performance by BecoCom.
14.3 Suspension Pending Force Majeure. If a Force Majeure Event should
occur, then the Parties' performance of this Agreement, except for payment by
FiveCom to BecoCom under section 8.1, shall be suspended for so long as such
Force Majeure Event continues. At the conclusion of a Force Majeure Event, the
period of time during which performance was so suspended shall be added to the
dates, schedules and other performance-related matters under this Agreement. If,
notwithstanding the parties' efforts under Section 14.2, the Force Majeure Event
continues unabated for more than six (6) months, the Party whose performance is
unaffected by the Force Majeure Event shall have the option to terminate this
Agreement.
14.4 Labor Disputes.
(a) If an actual or potential labor dispute delays or threatens to
delay a Party's performance, that Party shall immediately
notify the other Party in writing, stating all relevant
information concerning the dispute and its background. The
Parties shall include this paragraph in any subcontract for
the services (with a contractor other than an Affiliate) if a
labor dispute thereunder might delay the timely performance of
the services, and each such subcontract shall provide that if
any actual or potential labor dispute occurs, the lower-tier
subcontractor shall immediately notify the Parties of all
relevant information concerning such dispute.
(b) If BecoCom reasonably determines that FiveCom activities
pursuant to this Agreement in or near the Route are causing or
will cause labor difficulties for BecoCom or its Affiliates,
FiveCom shall 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, BecoCom shall during the period of such labor
difficulties perform, or cause to have performed, at FiveCom's
expense (utilizing the lowest market rate reasonably
available) any such activities to the extent reasonably
necessary to the operation and maintenance of the FiveCom
Network or any portion thereof.
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15. GOVERNMENT APPROVALS, PERMITS AND CONSENTS.
15.1 FiveCom Obligations.
(a) FiveCom shall use its best commercial efforts to obtain and
maintain, at its sole cost and expense, any and all necessary
permits, licenses, easements, franchises and approvals that
may be required by federal, state or local law, statute,
regulation or ordinance and shall continuously comply with all
such laws, statutes, regulations or ordinances as may now or
in the future be applicable to (1) its operation or use of the
FiveCom Fibers installed in connection with this Agreement,
(2) FiveCom's connection, installation, maintenance and
operation of equipment on the Non-Network Side of the each
Connection, and (3) FiveCom's other rights and obligations
under this Agreement.
(b) FiveCom shall ensure that its customers obtain and maintain
any and all necessary permits, licenses, easements, franchises
and approvals that may be required by federal, state or local
law, statute, regulation or ordinance and comply with all such
laws, statutes, regulations or ordinances as may now or in the
future be applicable to the FiveCom's customers' use of or
receipt of service on the Cable.
(c) If FiveCom, its customers or any permitted assignee shall at
any time fail to maintain such approvals or comply with all
applicable legal requirements described in paragraphs (a) and
(b) above, BecoCom may terminate this Agreement under Section
17.1, without liability and without restriction to any other
legal, equitable, or administrative remedy available to
BecoCom. FiveCom shall indemnify and hold harmless BecoCom and
its Affiliates and their respective officers, directors,
employees, agents, and assigns from any loss, damage, claims
or proceedings to the extent resulting from the failure of
FiveCom, its customers, their contractors or their
subcontractors to comply with this Section 15.
15.2 BecoCom's Obligations.
(a) BecoCom shall use its best commercial efforts to obtain and
maintain, at its sole cost and expense (except as provided in
Section 11.5), any and all necessary permits, licenses,
easements, franchises and approvals that may be required by
federal, state or local law, statute, regulation or ordinance
and shall continuously comply with all such laws, statutes,
regulations or ordinances as may now or in the future be
applicable to the ownership, installation, maintenance, or
replacement of the FiveCom Fibers on the Network Side, as
required under this Agreement.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(b) If BecoCom or any permitted assignee shall at any time fail to
maintain such approvals or comply with all applicable legal
requirements described in paragraph (a) above, FiveCom may
terminate this Agreement under Section 17.1, without liability
and without restriction to any other legal, equitable, or
administrative remedy available to FiveCom. BecoCom shall
indemnify and hold harmless FiveCom and its officers,
directors, employees, agents, and assigns from any loss,
damage, claims or proceedings to the extent resulting from the
failure of BecoCom to comply with this Section 15.
16. RELOCATION.
16.1 Relocation for Third Parties. If, for any reason, BecoCom is
required by BECo or any Third Party, including, but not limited to, a
governmental entity, to relocate any of the facilities used or required in
providing the FiveCom Fibers, BecoCom shall use its best commercial efforts to
give FiveCom at least [**] that BecoCom may have received) prior written notice
of any such relocation. In the event of [**] Structures, any other property of
BecoCom or its Affiliates, or [**], BecoCom, through its designated
representatives, shall be [**], unless it is determined that acts or omissions
of FiveCom or its customers caused the situation requiring the relocation, in
which case [**] in the relocation, including provision for any federal, state or
local taxes and the Tax Impact of such taxes [**].
16.2 Relocation for FiveCom. In the event that FiveCom requests
relocation of a portion of the Cable during the Term of this Agreement,
including without limitation instances when relocation of the FiveCom Fibers is
necessitated by the relocation of other portions of the FiveCom Network, FiveCom
shall submit to BecoCom a completed form as specified in Exhibit 16.2, Request
for Relocation, to request an acceptable new location, and FiveCom shall pay the
cost of any such work, including provision for any related federal, state, or
local taxes (and the Tax Impact of such taxes) or other fees incurred by BecoCom
or its Affiliates as a result of FiveCom's payment. The Parties shall attempt to
minimize the tax implications of any such payments by FiveCom for relocation
costs. No relocation or replacement of the Cable, Cable Accessories, Structures
or related facilities shall be performed by BecoCom without the prior written
agreement of BecoCom, as evidenced by its acceptance of the request for
relocation, [**] and subject to its rights and obligations under the Utility
Agreement. [**]. BecoCom and FiveCom shall
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
cooperate in performing such relocation or modifications, so as to minimize any
interference with the use of the FiveCom Network, the Cable, Cable Accessories
and Structures, to the extent reasonably possible, by either Party and to avoid
conflicting physically or otherwise interfering with other users of the Cable,
Cable Accessories, Structures or any other property needed in the installation,
construction, maintenance or use of the Cable. Any such relocation shall satisfy
the Specifications set forth in Exhibit 4.2.
16.3 Return of Removed Material. In the event BecoCom, consistent with
the provisions of this Agreement, must remove any equipment or other property of
FiveCom, BecoCom will deliver to FiveCom the equipment or property so removed
upon payment by FiveCom of the cost of removal, storage and delivery, and all
other amounts due BecoCom. BecoCom shall use reasonable care when removing,
storing and delivering such equipment, and shall not be liable for any damage to
such equipment or other property that may occur notwithstanding the use of
reasonable care.
17. EARLY TERMINATION.
17.1 Early Termination of Agreement. This Agreement may be terminated
prior to the expiration of the Term upon the occurrence of any one of the
following events:
(a) by either Party following a Default by the other Party, as set
forth in Section 21, below;
(b) by BecoCom upon [**] prior written notice in the event of a
violation by FiveCom of Section 15 which violation remains
uncured during said [**];
(c) by either Party if the other Party (a) consents to the
appointment of, or is taken in possession by, a receiver,
trustee, custodian or liquidator of a substantial part of its
assets, (b) files a bankruptcy petition in any bankruptcy
court proceeding, (c) answers, consents or seeks relief under
any bankruptcy or similar law or fails to obtain a dismissal
of an involuntary petition within [**] of filing, (d) admits
in writing its inability to pay its debts when due, (e) makes
a general assignment for the benefit of creditors, (f) is the
subject of an involuntary proceeding seeking to adjudicate
that Party bankrupt or insolvent, (g) seeks reorganization,
arrangement, adjustment, or composition of it or its debt
under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors.
(d) by either Party if the other Party fails to pay amounts due
when they become due and payable under this Agreement where
such
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Party is in arrears more than [**] past the due date
provided BecoCom has provided [**] notice prior to such
termination;
(e) by either Party if the other Party makes any representation or
warranty in this Agreement, which is incorrect and has or may
have a material and adverse effect on the other Party (as
reasonably determined by such non-breaching Party), and such
incorrect representation or warranty shall continue unremedied
for a period of [**] after written notice of such incorrect
representation or warranty (except only where this Agreement
specifically provides additional time and/or other options or
remedies for any such failure; or, with respect to an
obligation that is susceptible of cure within a reasonable
time period so long as such Party is using best commercial
efforts to promptly cure).
17.2 Termination of a Portion of the Route. Any portion of the
Route may be terminated:
(a) by BecoCom, without liability except for its obligations under
section 17.3 and at any time, upon reasonable notice, to the
extent BecoCom is no longer authorized under the Utility
Agreement to maintain, operate, or grant the right to use the
Cable, Cable Accessories or Structures within the portion of
the Route.
(b) by BecoCom, without liability except for its obligations under
section 17.3 and at any time, if it cannot maintain any of the
regulatory approvals needed to perform BecoCom's obligations
under this Agreement with respect to such portion of the Route
or it is prohibited by a governmental authority from
performing such obligations with respect to a portion of the
Route, provided that BecoCom, to the extent reasonably
practicable, has provided FiveCom prompt notice of any
government proceedings that would require the termination of
the portion of the Route and has cooperated with FiveCom's
rights to participate in any such proceedings.
17.3 Alternate Capacity or Facilities. If a Portion of the Route is
terminated pursuant to Section 17.2, BecoCom shall use its best commercial
efforts to [**]; provided that FiveCom may [**] after termination of the portion
of the Route pursuant to Section 17.2, [**].
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
17.4 Effect of Termination.
(a) FiveCom shall not be entitled to, nor shall BecoCom
be liable for, any refunds of amounts paid to
BecoCom, by reason of early termination of this
Agreement under Section 17.1, or termination of a
portion of the Route under Section 17.2, unless
termination is due to a breach of this Agreement by
BecoCom.
(b) Except as otherwise provided in this Agreement, a
decision to terminate this Agreement under Sections
17.1 or 17.2 shall not preclude the terminating Party
or the other Party from pursuing any other legal,
equitable or administrative rights and remedies;
provided, however, that such rights and remedies
shall at all times be subject to limitations and
indemnifications under Section 12.
(c) Upon termination of this Agreement or portion of the
Route under Sections 17.1 or 17.2, the right to use
the FiveCom Fibers or the terminated portion thereof,
as the case may be, shall revert to BecoCom, at no
additional cost to BecoCom, in accordance with
Section 11.7.
18. CONDEMNATION.
18.1 Condemnation of FiveCom Fibers. In the event any portion of the
FiveCom Fibers, or the rights-of-way in or upon which they shall have been
installed, become the subject of a condemnation proceeding by any governmental
agency or other party cloaked with the power of eminent domain for public
purpose or use, and such action precludes the continued use of the FiveCom
Fibers by FiveCom, as contemplated by this Agreement, then and in such event, it
is agreed that BecoCom shall use best commercial efforts to [**]. To the extent
allowed by law and subject to the restrictions, terms and conditions in the
Utility Agreement, FiveCom shall be [**].
18.2 Condemnation of Other Portions of the FiveCom Network. In the
event any portion of the FiveCom Network other than the FiveCom Fibers, or the
rights-of-way in or upon which the FiveCom Network shall have been installed,
become the subject of a condemnation proceeding 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 FiveCom shall use best commercial
efforts to obtain an alternative route over which the FiveCom Network may be
relocated, at no cost to BecoCom to ensure that FiveCom can maintain its then
existing customers and level of gross revenues.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
To the extent that FiveCom Fibers can still be used to serve FiveCom's
customers, FiveCom shall continue to use the FiveCom Fibers and shall continue
to be obligated under terms of this Agreement, including without limitation its
obligations to pay the fees provided under Section 8; provided, however, that
if, after the first year in the Term of this Agreement, FiveCom's gross revenues
derived from the FiveCom Network in a [**] and subject to sharing under Section
8.2 decrease as a result of the condemnation, by [**] below the level of gross
revenues in the prior [**], BecoCom shall have the option to provide FiveCom
notice that FiveCom will have [**] to secure alternate capacity or facilities to
restore its gross revenues, or the Agreement will be terminated.
18.3 Notice; No Sale. Upon its receipt of a formal notice of
condemnation or taking, the condemnee Party shall notify the other Party
immediately of any condemnation proceeding. The condemnee Party shall also
notify the other Party of any similar threatened condemnation proceeding, and
agrees not to sell any property associated with or affecting the FiveCom Fibers
or FiveCom Network to such acquiring agency, authority or other party in lieu of
condemnation without prior written notice to the other Party.
19. RELATED AGREEMENTS.
19.1 XXXX Com/FiveCom Agreement. Simultaneously with the execution of
this Agreement, FiveCom is entering into a similar agreement with NEESCom (the
"NEESCom Agreement") pursuant to which FiveCom is leasing fiber optic facilities
from [**]. The Parties hereby agree that FiveCom's obligations under this
Agreement are not conditioned upon the execution of, compliance with, or
continued enforceability of the NEESCom Agreement; provided, however, that the
Parties agree to make appropriate changes to the revenue sharing in Section 8.2
of this Agreement in the event that the NEESCom Agreement is not executed, is
terminated, or ceases to be enforceable.
19.2 Initial Unavailability. If NEESCom shall fail to complete the
installation of fiber optic cable (either on a timely basis or at all) as
required by the NEESCom Agreement, FiveCom's obligation to make payments under
Section 8 of this Agreement shall nevertheless commence on the Completion Date;
provided, however, that if the Completion Date has occurred under this Agreement
and the fiber optic cable under the NEESCom Agreement remains uncompleted for a
period of [**] after the Completion Date hereunder, BecoCom shall have the
option to provide FiveCom notice that FiveCom will have [**] to secure alternate
capacity or facilities [**], or this Agreement will be terminated.
19.3 Subsequent Unavailability. If, following the Completion Date, any
portion of the FiveCom Network other than the FiveCom Fibers shall become
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
unavailable to FiveCom, FiveCom shall continue to be obligated under this
Agreement. In particular, to the extent that FiveCom Fibers can still be used to
serve FiveCom's customers, FiveCom shall continue to use the FiveCom Fibers and
to be obligated to pay the fees provided under Section 8; provided, however,
that if, after the first year of the Term of this Agreement, [**] derived from
the FiveCom Network in a [**] of the other portion of the FiveCom Network by
[**] in the prior [**], BecoCom shall have the option to provide FiveCom notice
that FiveCom will have [**] to secure alternate capacity or facilities [**] or
the Agreement will be terminated.
20. PROPRIETARY INFORMATION.
20.1 Obligation to Maintain as Confidential. Each Party acknowledges
that in the course of the performance of this Agreement it may have access to
information that the other Party considers proprietary ("Proprietary
Information"). Propriety Information shall be marked as proprietary with an
appropriate legend, marking, stamp or other obvious written identification prior
to disclosure. All Proprietary Information in tangible form of expression which
has been delivered (or thereafter created by copy or reproduction pursuant to
this Agreement) shall be and remain the property of the person which is
disclosing such Proprietary Information (the "Disclosing Party").
(a) This Agreement shall be treated as Proprietary Information by
the parties,
(b) Each party will provide the other party advance notice of any
compelled disclosure of this Agreement by legal or regulatory
process, including, but not limited to, disclosure to the
Securities and Exchange Commission.
20.2 Obligations Concerning Proprietary Information.
(a) General Restrictions. Upon receiving Proprietary Information,
the Party receiving the Proprietary Information ("Receiving
Party") shall keep in strict confidence and not disclose to
any person (with the exception of employees, officers,
directors, agents or representatives, and Affiliates of the
Receiving Party, to the extent each such person or entity has
a need to know in connection herewith) any of the Disclosing
Party's Proprietary Information, except as otherwise provided
by the terms and conditions of this Agreement. The Receiving
Party shall not use such Proprietary Information except for
the purposes identified herein without the prior written
approval of the Disclosing Party. The Receiving Party
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shall be solely liable for any breach of this Section 20.2 to
the extent caused by its, or its Affiliates', employees,
officers, directors, agents or representatives.
(b) Additional Marking Requirements. In the event either Party
discloses its Proprietary Information to the other Party
unmarked or in oral or visual form, the Disclosing Party shall
notify the Receiving Party in writing that such Information is
deemed proprietary within forty-eight (48) hours of its
disclosure. Such Proprietary Information shall be treated in
the manner set forth above from the date such written notice
is received.
(c) Exceptions. The Receiving Party shall not be precluded from,
nor liable for, disclosure or use of any Proprietary
Information if:
(i) the Proprietary Information is in or enters
the public domain, other than by a breach of
this Agreement;
(ii) the Proprietary Information is known to the
Receiving Party at the time of first
receipt, or thereafter becomes known to the
Receiving Party prior to or subsequent to
such disclosure without similar restrictions
from a source other than the Disclosing
Party, as evidenced by written records;
(iii) the Proprietary Information is developed by
the Receiving Party independently of any
disclosure under this Agreement as evidenced
by written records;
(iv) the Proprietary Information is disclosed
more than five (5) years after the date of
first receipt of the disclosed Proprietary
Information; or five (5) years after the
Term whichever occurs later;
(v) disclosure of the Proprietary Information is
compelled by a government authority,
including, but not limited to any court or
regulatory body, provided that the Receiving
Party has used its best efforts to resist
disclosure of, redact or otherwise protect
the confidentiality of the economic terms of
this Agreement, including, without
limitation, Section 8.;
(vi) the Disclosing Party consents to the
disclosure or use of the Proprietary
Information; or
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(vii) the Receiving Party has a reasonable belief
that disclosure of the Proprietary
Information is necessary for public safety
reasons and has attempted to provide as much
advance notice of the disclosure as is
practicable.
(d) Disclosures. The disclosure of Proprietary Information
hereunder shall not be construed as granting any right of
ownership in said Proprietary Information.
21. DEFAULT.
21.1 By FiveCom. A breach by FiveCom of any of its representations,
covenants or obligations under this Agreement which is not cured as provided
herein shall constitute a Default by FiveCom. FiveCom shall not be in Default
unless and until BecoCom shall have given FiveCom written notice of such breach
and FiveCom shall have failed to cure the same within [**] after receipt of such
notice; provided, however, that the foregoing notice and cure requirement shall
not apply to FiveCom's obligation to make payments in a timely manner as
provided under Sections 8.2(e) and 8.4 hereof. Where any breach, other than a
breach of Section 8.2(e) and 8.4, cannot reasonably be cured within such [**],
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 BecoCom,
BecoCom 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 FiveCom. The Parties intend that the notice and cure
provisions of this Section 21.1 apply only to the extent specific notice and
cure provisions are not provided elsewhere in this Agreement.
21.2 By BecoCom. A breach by BecoCom of any of its representations,
covenants or obligations under this Agreement which is not cured as provided
herein shall constitute a Default by BecoCom. BecoCom shall not be in Default
unless and until FiveCom shall have given BecoCom's written notice of such
breach and BecoCom shall have failed to cure the same within [**] after receipt
of such notice; provided, however, that where such breach cannot reasonably be
cured within such [**] period, if BecoCom 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 BecoCom 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 BecoCom; provided
that the foregoing right to self-help shall not be
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construed to allow FiveCom or its agents or contractors access to the BecoCom
Portion of the Cable, Cable Accessories and Structures. The Parties intend that
the notice and cure provisions of this Section 21.2 apply only to the extent
specific notice and cure provisions are not provided elsewhere in this
Agreement.
22. NOTICES.
22.1 Addresses. Unless otherwise provided herein, all notices and
communications concerning this Agreement shall be in writing and addressed as
follows:
If to BecoCom:
BecoCom, Inc.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, President
Facsimile Number: (000) 000-0000
If to FiveCom:
FiveCom, Inc.
000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000-2014
Attention: Xxxxxxx X. Xxxxx
Facsimile Number: (000) 000-0000
with a copy to:
Xxxxxxxxx X. Xxxxxxxx, Esq.
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile Number: (000) 000-0000
or at such other address as may be designated in writing to the other Party.
22.2 Means. Unless otherwise provided in this Agreement, notices shall
be sent by certified U.S. Mail, return receipt requested, or by commercial
overnight delivery service, or by facsimile (with a hard copy to follow), and
shall be deemed delivered: if sent by U.S. Mail, five days after deposit; if
sent by facsimile, upon verification of receipt; or, if sent by commercial
overnight delivery service, one business day after deposit.
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22.3 Informal Communications. Additional addresses for informal
communications are set forth in Exhibit 22.3.
23. DISPUTE RESOLUTION.
23.1 In the event of any dispute between the Parties hereto as to a
matter referred to herein or as to the interpretation of any part of this
Agreement, including but not limited to this Section 23 or as to the
determination of any rights or obligations or entitlements arising from or
related to this Agreement or as to the calculation of any amounts payable under
this Agreement, the Parties shall refer the matter to their respective chief
executive officers for resolution.
23.2 Should the chief executive officers of the respective Parties fail
to resolve the dispute within thirty (30) days from such referral, the Parties
agree that such dispute will not be referred to any court but will be referred
to binding arbitration, and the provisions of this Section 23 shall apply.
23.3 The arbitration shall be governed by the AAA Commercial
Arbitration Rules (in each case, the "Rules") as modified by this Section 16 and
by the United States Arbitration Act, 9 U.S.C. s. 1 et seq. (The "Arbitration
Act"). Any conflict between the Rules and the Arbitration Act shall be decided
in favor of the Rules. The Party wishing to submit such matter to arbitration
shall give written notice (the "Arbitration Notice") to the other Party (the
"Respondent") of its intention to arbitrate. The place of the arbitration shall
be Boston, Massachusetts. The arbitration shall be conducted, and the final
resolution of the dispute (the "Award") shall be rendered by a panel to be
selected by mutual agreement of the Parties ("Arbitration Panel"), which shall
consist of one arbitrator or, if the dispute involves damages in excess of
$50,000, three arbitrators. If the Parties cannot agree to a mutually acceptable
Arbitration Panel within seven days of Respondent's receipt of the Arbitration
Notice, the Arbitration Panel shall be selected in accordance with rule 13 of
the Rules.
23.4 The Arbitration Notice shall be served on NEESCom. If either Party
reasonably requests or if NEESCom so chooses, NEESCom shall participate in any
arbitration proceedings brought hereunder. BecoCom hereby agrees to submit to
any arbitration arising under the NEESCom/FiveCom Agreement upon reasonable
request of either FiveCom or NEESCom.
23.5 Prior to the first day of the hearing, each Party shall be
entitled to reasonable document discovery and three depositions of the other
Party's witnesses or employees; provided that the Parties will may conduct
additional discovery upon a finding by the Arbitration Panel that there is good
cause for such additional discovery.
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23.6 All hearings shall be held within one hundred twenty (120) days
following the appointment of the Arbitrator, or within an earlier time frame
mutually agreed to by the parties. At a time designated by the Arbitration
Panel, each Party shall simultaneously submit to the Arbitration Panel and
exchange with each other its proposed Award, and in rendering the final Award,
the Arbitration Panel shall be limited to choosing the Award proposed by either
of the Parties without modification; provided that any final Award shall provide
that an equitable allocation of the fees and expenses of the arbitration,
including without limitation the arbitration expenses of each Party and of
BecoCom; provided further that the Arbitrator shall not have any authority to
make any Award that provides for punitive, any indirect, special, punitive, or
consequential damages, or any lost business damages in the nature of lost
revenues or profits. The Arbitration Panel shall issue the final Award no later
than fifteen (15) days from the completion of the hearings. The Award shall be
final and binding. Judgment on any Award may be entered in any court having
jurisdiction thereof.
23.7 Either Party may seek preliminary injunctive relief from a court
of competent jurisdiction, which relief, if granted, shall remain effective
pending resolution of the arbitration, and each Party consents and submits to
the non-exclusive jurisdiction of and venue in the federal courts located in
Boston, Massachusetts (or, in case such a federal court does not have
jurisdiction, the state courts located in Boston, Massachusetts). Each Party
consents to service of the notice of arbitration, and any other paper in the
arbitration, by registered mail or personal delivery at its address specified in
Section 22 hereof. Nothing in this subsection 23.7 shall limit the jurisdiction
of other courts for purposes of enforcement of a final arbitration Award.
23.8 The fact that any Party has invoked the provisions of this Section
23 shall be considered to be Proprietary Information under Section 20.1 of this
Agreement and shall not relieve either Party of any obligations it may otherwise
have to continue performance in accordance with the provisions of this
Agreement.
23.9 This agreement to arbitrate a dispute in accordance with this
Section 23 and any Award made hereunder shall be binding upon the successors and
assigns and any trustee or receiver of each of the Parties hereto.
24. LIENS. In addition to their obligations under Section 15, the Parties hereby
agree that if the Cable, Cable Accessories, Structures, or FiveCom Fibers are or
become subject to any mechanics', artisan's or materialmen's lien, or other
encumbrance chargeable to or through a Party, that Party shall promptly cause
such lien or encumbrance to be discharged and released of record (by payment,
posting of bond, court deposit or other means) without cost to the other Party
and shall indemnify that other Party against all costs and expenses
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(including reasonable attorney's fees) incurred in discharging and releasing
such lien or encumbrance; provided, however, that if any such lien or
encumbrance is not so discharged and released within thirty (30) days after
written notice to the Party responsible for the lien, then the other Party may
pay or secure the release or discharge thereof at the expense of Party
responsible for the lien.
25. INSURANCE.
Prior to execution of this Agreement, each Party, at its own expense, shall
provide and maintain in force during the term of this Agreement insurance, with
the following minimum levels of coverage:
Commercial general
liability and automobile
liability [**] per person per occurrence
Property damage [**] per occurrence
to property of Third Parties
Umbrella/Excess Coverage [**]
Employer's liability: [**] per occurrence;
Workers compensation: statutory limits, in accordance with the
laws of the states wherein operations
under this Agreement will take place.
Each Party shall be solely responsible for procuring, and paying for, its
respective insurance coverage. Any such policy(ies) shall be procured from a
insurance company with a "Best" rating of A or better, and qualified to do
business in the relevant jurisdiction. Certificates evidencing such policy(ies)
shall be delivered by the Party obtaining the insurance to the other Party
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 by the Party obtaining the insurance to the
other Party. Such policies shall further provide that not less than thirty (30)
days' written notice shall be given by the Party obtaining the insurance to the
other Party before such policy(ies) may be canceled, materially changed or
undergo a reduction in Insurance limits provided thereby. The Party obtaining
the insurance shall designate the other Party as an additional insured. The
coverage required herein shall not be deemed to limit either Party's liability
under this Agreement. Upon timely notice to the Party obtaining the insurance,
the other Party may request reasonable increases in the amount of insurance
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coverage which will be obtained within thirty (30) days, at the cost of the
requesting party.
26. ASSIGNMENT.
26.1 No Assignment. Neither Party shall assign, transfer, delegate,
sublease, apportion, or in any other manner dispose of, any of its rights,
privileges or obligations under this Agreement without the non-assigning Party's
prior written consent, which shall not be unreasonably withheld. Any attempt to
make any such assignment, transfer or disposition without such prior written
consent of the non-assigning Party shall be null and void. Notwithstanding the
foregoing, FiveCom may sublease or otherwise transfer its rights under this
Agreement without BecoCom's consent if, notwithstanding its best commercial
efforts, FiveCom has been unable to construct and install the FiveCom Portion as
required by Section 4.5, and to the extent necessary to effectuate its business
of providing telecommunications facilities to its customers, and either Party
may assign this Agreement without consent either (i) to an Affiliate or (ii) in
connection with a transaction pursuant to which the Party sells all or
substantially all of its business, assets or equity interests. In addition,
nothing in this Section 26 shall limit or apply to BecoCom's right to lease,
sublease or grant to Affiliates or Third Parties rights to use the BecoCom
Fibers.
26.2 Right to Pledge Agreement and Transfer Property. Either Party
shall be free to mortgage, pledge, or otherwise assign its interests under this
Agreement for collateral purposes to any Third Party in connection with any
borrowing or other financing activity of that Party, provided that such
assignment shall not limit or otherwise affect that Party's obligations under
this Agreement. Any transfer of property of either Party included in or subject
to this Agreement may be made by that Party provided the person acquiring such
property takes it subject to this Agreement.
26.3 Agreement Binding; Assignees. This Agreement shall be binding upon
and inure to the benefit of the Parties and their respective successors and
assigns where permitted by this Agreement. In the event of a permitted
assignment of this Agreement, both Parties shall remain bound by their
respective obligations under this Agreement, unless an express release is given
by the non-assigning Party.
27. MISCELLANEOUS.
27.1 Headings. The headings of the Sections in this Agreement are for
convenience and shall not be construed as amplifying or limiting any of the
terms, provisions or conditions of this Agreement.
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27.2 No Third Party Beneficiaries. This Agreement has been made and is
made solely for the benefits of the Parties, and their respective successors and
permitted assigns. Nothing in this Agreement is intended to confer any
rights/remedies under or by reason of this Agreement on any Third Party. For
purposes of this Agreement, a "Third Party" shall mean 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.
27.3 Amendments; Waivers. This Agreement may be amended only by a
written instrument executed by the Party against whom enforcement of the
modification is sought. No failure to exercise and no delay in exercising, on
the part of either Party of any right, power or privilege under this Agreement
shall operate as a waiver of that right, power or.
27.4 Entire Agreement. This Agreement, and the Exhibits attached to it
constitute the entire agreement between the Parties with respect to the subject
matter of this Agreement and supersede any and all prior negotiations,
understandings and agreements with respect to this Agreement, oral or written.
27.5 No Joint Venture. In all matters pertaining to this Agreement, the
relationship of BecoCom and FiveCom shall be that of independent contractors,
and neither BecoCom nor FiveCom shall make any representations or warranties
that their relationship is other than that of independent contractors. This
Agreement is not intended to create nor shall it be construed to create any
partnership, joint venture, employment or agency relationship between FiveCom
and BecoCom, and no Party shall be liable for the payment or performance of any
debts, obligations, or liabilities of the other Party, unless expressly assumed
in writing herein. Each Party retains full control over the employment,
direction, compensation and discharge of its employees, and will be solely
responsible for all compensation of such employees, including social security,
withholding and worker's compensation responsibilities.
27.6 Governing Law. This Agreement shall be interpreted and construed
in accordance with the internal laws of the Commonwealth of Massachusetts
without giving effect to its principles of conflicts of laws.
27.7 Survival. Notwithstanding the termination of this Agreement, (i)
Sections 12.1 and 20 shall continue to apply; (ii) payments with respect to the
Term of the Agreement shall be made even though the due date for payment shall
be subsequent to the termination of the Agreement; and (iii) subject to the
applicable statutes of limitation, indemnification rights and claims arising
under the Agreement prior to termination shall survive such termination.
27.8 No Recording. This Agreement shall not be recorded in any Registry
of Deeds or other public record.
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27.9 Publicity. Neither Party shall make any public announcement using
the other Party's name or mentioning this Agreement without the written consent
of the other Party. For the purposes of this section 27.9, filings required by
governmental agencies shall not be considered to be public announcements.
[signatures on the following page]
-38-
FiveCom, Inc.
By: /s/ Xxxxxx Xxxxxxxxxx
---------------------
Title: President
BecoCom, Inc.
By: /s/ Xxxxxxx Xxxx
---------------------
Title: President
-39-
Exhibit 2
Route
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Exhibit 4.1
Preliminary Fiber Route Information Required from BecoCom to be attached prior
to execution of Agreement:
1. Route Plan or Proposed Route.
2. Fiber Type.
Where applicable, sites to be provided with fiber optic entrance facilities
identified with:
Site Name/Identifier
Address:
Street and street number
City
State
Zip
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 4.2
Fiber Specifications
1.0 Fiber Requirements:
1.1. Single Mode Fiber (Depressed Cladding, Unshifted Fiber)
[**]
1.2. True Wave Fiber (NonZero-Dispersion Fiber)
[**]
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
[**]
2.0 Connector Assemblies
[**]
3.0 Splice Specification
[**]
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
[**]
Test data including OTDR hard copies and electronic data must be
submitted to Network Implementation Management before acceptance. Data
should be sent to:
FiveCom Network Implementation Management
000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX, 00000
FiveCom, at its discretion, may choose to witness any / all testing
associated with acceptance of fibers.
4.0 Cable Installation Requirements
Cable must be constructed in accordance with manufacturer installation
instructions and applicable safety codes, as required by law. Where
required, cable sheath must transition from an outside plant to inside
plant material, or be protected in a fire rated conduit or innerduct.
Where applicable, all exposed innerduct which encloses FiveCom fibers
shall be labeled with FiveCom -provided identification labels at
intervals of distance not to exceed [**].
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 4.3(a)
FiveCom Connection/Demarcation Points
BecoCom Route
[**]
[**]
[**]
[**]
XXXX Com Route
In the vicinity of [**] or other connections to be made at that location. The
connection point should be made so that it is accessible from a public way
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 5.3
Acceptance Test Plan
BecoCom shall conduct the following tests as part of its acceptance test plan:
[**]
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 6.1
BecoCom Deliverables
BecoCom will provide the following items to FiveCom in the time frames
indicated:
1. As-built drawings prepared in hardcopy or electronic format with
five(5) printed copies showing [**].
1.1 Final route maps drawn to scale with miles and linear feet
between each site location.
1.2 Transmission Line T-sheets or mile sheets.
1.3 Where applicable, Conduit Locations and Manhole Identifiers.
1.4 Splice locations including structure identification.
1.5 Where applicable, building entry detail.
2. Names of all manufacturers whose optical fiber cable, associated
splices and other equipment are used in installing and providing the
FiveCom Fibers. [**].
3. Technical specifications of the optical fiber cable, associated splices
and other equipment used in installing and providing the FiveCom
Fibers. [**].
4. A single point of contact capable of mobilizing BecoCom personnel
responsible for [**] maintenance and repair of the FiveCom
Fibers. [**].
5. OTDR traces, end-to-end loss measurements at [**].
6. Fiber assignments within cable(s) [**].
7. A chart prepared providing optical distances between each splice point
and fiber termination. [**].
8. A Fiber Maintenance and Emergency Restoration Plan, consisting of
Exhibits 9.2(a) and (b).
Exhibit 8.2
Annual Report of Telecommunications Contracts and Revenues
Pursuant to Section 8.2(f) of the Fiber Optic Use Agreement between
FiveCom, Inc. ("FiveCom") and BecoCom, Inc. ("BecoCom") dated July 2, 1998
("Fiber Use Agreement"), FiveCom hereby certifies to BecoCom that for the
calendar year ending December 31, ______, that the following constitutes an
accurate summary of its gross revenues and contracts for service routed over the
FiveCom Network, as that term is defined in the Fiber Use Agreement.
A. Annual Gross Revenues By Contract
Contract Total Annual Revenues Total Length of Length of
Number Annual Allocated under Telecommunications Telecommunications
Revenues Section 8.2(a) of Service (in Miles) Service Provided
Received the Fiber Lease Provided under this over the FiveCom
under this Contract Network (in Miles)
Contract
-----------------------------------------------------------------------------------------------
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B. Deductions from Gross Revenues
i. Penalties:
----------
Contract Number Penalty Amount Period of Time Penalty Reason for Penalty
Was Incurred
-----------------------------------------------------------------------------------------------
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-----------------------------------------------------------------------------------------------
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ii. Location Fees
--------------------------------------------------------------------------------------------------------------
Party Charging Location Fees Amount
--------------------------------------------------------------------------------------------------------------
XXXX Com
--------------------------------------------------------------------------------------------------------------
BecoCom
--------------------------------------------------------------------------------------------------------------
iii. Sales Taxes
--------------------------------------------------------------------------------------------------------------
Party Charging Sales Taxes Amount
--------------------------------------------------------------------------------------------------------------
XXXX Com
--------------------------------------------------------------------------------------------------------------
BecoCom
--------------------------------------------------------------------------------------------------------------
ii. Franchise, Property and Other Taxes
--------------------------------------------------------------------------------------------------------------
Party Charging Franchise, Property and Other Taxes or Amount
Fees
--------------------------------------------------------------------------------------------------------------
XXXX Com
--------------------------------------------------------------------------------------------------------------
BecoCom
--------------------------------------------------------------------------------------------------------------
C. Net Amounts
--------------------------------------------------------------------------------------------------------------
Quarter Q1 Q2 Q3 Q4
--------------------------------------------------------------------------------------------------------------
Gross Revenues
--------------------------------------------------------------------------------------------------------------
Deductions from
Gross Revenues
--------------------------------------------------------------------------------------------------------------
Amount Shared with
XXXX Com
--------------------------------------------------------------------------------------------------------------
Amount Shared with
BecoCom
--------------------------------------------------------------------------------------------------------------
FiveCom, Inc.
By:
-------------------------
Title:
----------------------
Date:
------------------------
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 9.2(a)
Emergency Maintenance Standards
Response Time
Emergency response shall be available [**]. BecoCom will
respond immediately to reported or detected service-affecting network
troubles. Emergency Maintenance personnel, tools and materials will be
dispatched to the trouble site as soon as possible, with best
commercial efforts used to have appropriate personnel on-site within a
time interval not to exceed [**] following the initial report.
Service Restoration Objective
The FiveCom Service Restoration Objective: Customer services
restored as soon as possible upon securing safe restoration condition.
Emergency Communications and Incident Reporting
In the event of an Emergency Maintenance situation, BecoCom
will use best commercial efforts to perform an initial damage / trouble
assessment and report the findings to FiveCom within [**] of the
arrival of BecoCom personnel at the trouble location. {Confirm that
this is acceptable to BecoCom.} The initial assessment shall minimally
include:
Nature and cause of the service-affecting trouble
Estimated time to achieve restoration of customer service
Requirements for additional / special tools, materials or
personnel to achieve restoration of customer service
Subsequent to the restoration of service, but not later than
[**] following the event, BecoCom hall provide FiveCom with
documentation of the incident, detailing, at minimum, the
following:
Cause(s) of the service outage
Resolution of the trouble event
Subsequent, or follow-up repair requirements and schedule of
activities
Records updates, as appropriate
Emergency Restoration Parts and Equipment
BecoCom will maintain a local inventory of fiber cable,
materials and tools sufficient to support cable restoration
activities in accordance with Exhibit 9.2(b). This inventory
shall include, but is not limited to:
OTDR test equipment for cable fault identification and
isolation
Emergency restoration cable
Splicing equipment and equipment necessary to provide
communications from the damage location, for coordination of
restoration activities.
Preparedness
BecoCom will maintain a level of preparedness to ensure an
effective and efficient response to meet Emergency Maintenance
situations affecting the FiveCom fiber facilities.
Preparedness shall include, but is not limited to:
Communications plan, advising appropriate BecoCom personnel
regarding fiber restoration requirements and procedures.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 9.2(b)
Routine Maintenance Standards
1. Cable Plant Identification
BecoCom will place Industry Standards High Visibility Signs
[**].
BecoCom will provide adequate surveillance, consistent with
industry standards along the right of way to prevent cable
damage due to erosion or man made activities.
Dig Safe - BecoCom will maintain membership and take
appropriate/prudent measures to ensure digging activity does
not jeopardize the cable
2. Plant Inspections
2.1 BecoCom will provide a visual inspection [**]:
(a) aerial cable
(b) utility poles
(c) transmission towers
2.2 Routes will have routine maintenance to clear trees and
brush from right-of-way.
2.3 Preventive Maintenance Program to include [**]
including, but not limited to, [**]. This would also
include [**].
3. BecoCom Maintenance Plan will include at a minimum
3.1. [**].
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3.2. [**].
3.2 Any equipment [**].
3.3 Test equipment [**].
3.4 Sufficient quantities of [**].
3.5 [**] necessary to provide [**]
4. Materials Available at a Central Location. The list below only serves
as a reference and is not all inclusive:
4.1 [**].
4.2 [**]. (If applicable)
4.3 [**]. (If applicable)
4.4 [**]. (If applicable)
5. Training. The training listed below only serves as a reference and is not
all inclusive:
5.1 [**] as required, for the particular type of cable
installation.
5.2 [**] at the discretion of BecoCom, as necessary, [**].
FiveCom will be kept apprised of the current scheduling
in advance and may [**].
5.3 [**].
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
5.4 [**]. Contract employees would be required to meet the
above standards as well, if they are expected to perform
the job function.
Exhibit 16.2
Request for Relocation
Request No._______________
Date:_____________________
To: BecoCom, Inc.
In accordance with the terms of the Agreement between BecoCom, Inc. and FiveCom
dated July 2, 1998, a request is hereby made for Cable relocation on Structures
as indicated on the attachment hereto.
FiveCom, Inc.
By:
----------------------------------------
Title:
-------------------------------------
Such of the Structures indicated on the attached hereto can be made available
for Cable attachment thereto subject to FiveCom's acceptance of necessary
changes and rearrangement at an estimated cost to FiveCom of $ , which, unless
otherwise provided for in the attached, FiveCom agrees to pay to BecoCom half of
such costs upon acceptance of this Request for Relocation, and the remaining
half upon completion of the relocation by BecoCom.
BecoCom, Inc.
By:
------------------------
Title:
---------------------
The above changes and rearrangements are accepted.
FiveCom, Inc.
By:
-----------------------
Title:
--------------------
Exhibit 22.3
Contact List
1. Each party agrees to provide a current contact list to the other, upon
request.
BecoCom:
000-000-0000
FIVECOM:
000-000-0000
2. FiveCom Contact for Emergency Repairs
For demand/emergency activity, contact FiveCom's "Transmission Control
Center" at 0-000-000-0000 . Address is:
FiveCom, Inc.
000 Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx, XX, 00000
3. FiveCom Contact for Scheduled Maintenance
Service affecting work should be scheduled through FiveCom's "Scheduled
Event Management Center" at 0-000-000-0000. The fax number is
0-000-000-0000.
