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132 GRANTOR warrants and covenants that the GRANTEE
<br />Fibers shall be free from material defects in design, materials
<br />and workmanship, shall operate substantially in accordance
<br />with the specifications set forth in Exhibit B and in
<br />accordance with generally accepted industry standards and
<br />shall have been designed, constructed, and installed in
<br />accordance with any and all such specifications, industry
<br />standards and applicable Underlying Rights and that
<br />GRANTOR rill promptly repair (consistent with its
<br />obligations, if any, under any maintenance agreement that
<br />may be executed between the Parties) or replace (as
<br />GRANTOR solely determines) any defective GRANTEE
<br />Fibers. This warranty does not apply to any defects in
<br />materials or design furnished by GRANTEE.
<br />I4.3 EXCEPT AS SPECIFICALLY SET FORTH IN THIS
<br />AGREEMENT, NEITHER PARTY MAKES ANY
<br />WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT
<br />TO ITS SYSTEM, INCLUDING ANY WARRANTY OF
<br />MERCHANTABILITY OR FITNESS FOR PARTICULAR
<br />PURPOSE., AND ALL SUCH WARRANTIES ARE
<br />HEREBY EXPRESSLY DISCLAIMED.
<br />15,0 FORCE MAJEURE
<br />15.1 Neither Party shell be in default under this Agreement if and
<br />to the extent that any failure or delay in such Pany's
<br />performance of one or mot of its obligations hereunder is
<br />caused by any of the following conditions, and such Party's
<br />performance of such obligation or obligations shall be
<br />exeewd and extended for and during the period of any such
<br />delay: act of Gad; fire; Eood; fiber, cable, or other material
<br />failures, shortages or unavailability or other delay in delivery
<br />not resulting from the responsible Partys failure to timely
<br />place orders f erefoq fber cuts, failure of power, systems
<br />failures, lack for delay in transportation; government codes,
<br />ordinanew, laws, cote, regulations or restrictions
<br />(collectively, "Reeuladigo "T war or civil disordeq strikes or
<br />other labor disputes; or any other cause beyond the
<br />reasonable central of such Party. The Parry claiming relief
<br />under this SECTION shall promptly notify the other in
<br />writing of the existence of the event relied on and the
<br />cessation or termination of said event, and such Party shall
<br />exercise reasonable commercial efforts to minimize the time
<br />efany such delay.
<br />16.0 WAIVER OF JURY TRIAL
<br />HIT EACH OF THE PARTIES HERETO HERPBY
<br />IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
<br />TRIAL BY JURY IN ANY LEGAL PROCEEDING
<br />(WHETHER BASED ON CONTRACT, TORT OR
<br />OTHERWISE) ARISING OUT OF OR RELATING TO
<br />THIS AGREEMENT OR THE TRANSACTIONS
<br />CONTEMPLATED HEREBY OR THE ACTION OF
<br />EITHER PARTY M THL NEGOTIATION,
<br />ADMINISTRATION, PERFORNLMNICE AND
<br />ENFORCEMENT HEREOF.
<br />17.0 ASSIGNMENT AND GRANTEE FIBER TRANSFERS
<br />17.1 Neither Party may assign this Agreement without the written
<br />consent of the other Party, which consent shall not be
<br />m reasonably withheld.
<br />IT2 The foregoing notwithstanding, either Party (referred to in
<br />this SECTIO\ 1722 as the "Asshoune Party ") may, without
<br />the prior consent of, but on notice to the other Party, assign
<br />this Agreement to an affiliate of the Assigning Party, or the
<br />parent of the Assigning Party or to any company into which
<br />everstream
<br />the Assigning Party may be merged or consolidated, or that
<br />acquires substantially sll of the assets or stock of Assigning
<br />Party, provided the assignee shall be subject to all the
<br />provisionsofthis Agreement An "affiliate "ofthe Assigning
<br />Party shall mean any corporation which, directly or
<br />indirectly, controls or is controlled by or is under common
<br />mntml with the Assigning Party, or a successor coryoralien
<br />to the Assigning Party by merge,, consolidation, or
<br />non bankmptcyreorganization. Forpurpomm'dedefrifun
<br />of "affiliate," the word "control' (including "controlled by"
<br />and `mider common control with ") means, with respect to
<br />any corporation, partnership, or association, possession,
<br />directly or indirectly, of the power to direct or cause the
<br />direction of the management and policy of is particular
<br />corporation, partnership or association, whether through the
<br />ownership of voting securities or by contract or otherwise.
<br />Neither Party shall atempt to circumvent any of its obligations
<br />under this Agreement, or deprive the other Party of any
<br />anticipated benefit under this Agreement, through the use of
<br />ownership changes, reargenies ions, creation of new entities or
<br />other artificial devices
<br />IT3 Each Party (referred to in this SECTION 17.3 as the
<br />"Asher ne Pand') shall also hare the right, without the other
<br />Party's consent, to assign or otherwise transfer this
<br />Agreement as collateral to any institutional lender to the
<br />Assigning Party (or institutional lender to any permitted
<br />transferee ar assignee of the Assigning Party); provided that
<br />the assignee or transferee in any such circumstance shall
<br />continue to be subject to all of the provisions of this
<br />Agreement, except that any lender shall not incur any
<br />obligations under this Agreement, nor shall it be restricted
<br />from exercising any right of enforcement or foreclosure with
<br />respect to any related security interest or lien, so long as the
<br />purchaser in foreclosure is subject to the provisions of this
<br />Agreement. In the event any such lender assigns any rights it
<br />has under this Agreement, the other Party to this Agreement
<br />agrees to accept performance of this Agreement by the
<br />assignee or long as the assignee is subject to the provisions of
<br />this Agreement Any lien rights claimed by GRANTEE
<br />under this Agreement shall be and are hereby speci0rMly
<br />subordinated to the security interests of the lender(s) of
<br />GRANTOR and its affiliates.
<br />17.4 Nothing contained in this SECTION shall be deemed or
<br />constmed to prohibit GRANTOR from selling, transferring,
<br />leasing, licensing, granting indefeasible rights of use or
<br />entering into similar agreements or anangements with other
<br />persons respecting any fibers and conduit constituting a pan
<br />of the GRANTOR System other than the GRANTER Fibers.
<br />Nothing contained in this SECTION shall be deemed or
<br />construed to prohibit GRANTEE frem leasing, licensing,
<br />subleasing granting indefeasible rights of use or entering into
<br />similar agreements or arrangements with other persons
<br />respecting the GRANTEE Fibers.
<br />18.0 DISPUTES AND ARBITRATION
<br />ISA Except as set forth below, the Parties agree to attempt to
<br />resolve any dispute arising under this Agreement (including
<br />all documents incorporated herein by reference and attached
<br />hereto), under the following procedures. Each Party shall
<br />notify an appropriate representative of the other Party of the
<br />dispute in writing, setting forth relevant facts and explaining
<br />why the Party believes the dispute should be resolved in its
<br />favor. Within five (5) business days after such notice has
<br />been given, representatives for each Party shall meet, by
<br />conference call or in Person, in an effort to resolve the
<br />
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