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Connecting Point that GRANTEE, wishes to utilize.
<br />Notwithstanding the preceding sentence, GRANTEE shall
<br />Aarethe right at its option to haveconnectionse the Grantee
<br />Fibers tothe GRANTEE communication system Performed
<br />(w i contractor selected by GRANTEE, who y approved
<br />(which approval shall not be unreasonably delayed,
<br />conditioned or withheld) an supervised by GRANTOR.
<br />.do
<br />Such connections shall be made is a manner and Bea with
<br />the accordance set forth in Exhibits ic and R and in
<br />accordance with industry accepted practices. GRANTEE
<br />shall pay GRANTOR'S Costs to establish any Connecting
<br />Point. It is the other responsibility is GRANTEE to obtain all
<br />governments] anchor and other approvals and consents necessary to
<br />access EE's interconnect
<br />temat aC the GRANTEE Fibers with
<br />GRANTEE'S t the ter a Connecting) bPoint. war of. (a) all
<br />this Agreement the term "Cost s" shall T the sum of. (a) all
<br />actual costs paid or payable by GRANTOR to third parties
<br />including, without limitation, the cost of labor and materials
<br />on a pass through basis, and(b)an of allocation equal
<br />to fineen percent (I 51,S) at sum of the costs set provide
<br />de
<br />GRANTEE GRANTOR shall at GRANTP. of request, prmide
<br />GRAncing with copier ofinvoices and other documentation
<br />evidencing GRANTPP.'s Cost, .
<br />63 GRANTEE shall provide its own cable from the Connecting
<br />Points to GRANTEE'S system.
<br />7.0 PRR\IITS• IINDRRLYING RIGHT
<br />7.1 GRANTOR represents and warrants that it has obtained all
<br />rights of way, easements, licenses, franchises and other
<br />related err similar rights necessary for construction and
<br />operation of the GRANTOR System and the grant of the IRU
<br />(the "Undedyine Riehtf'). GRANTOR will use its best
<br />efforts to maintain the Underlying Rights for the Term ofthis
<br />Agreement The IRU is subject to the terms of the
<br />Underlying Rights, sad subject to the terms under which the
<br />right of way is owned or held by the grantor of the
<br />Underlying Rights, including, but not limited to, covenants,
<br />conditions, restrictions, easements, reversionary interests,
<br />bonds, mortgages and indentures, and other matters, whether
<br />or not of record, and to the rights of tenants and licensees in
<br />possession. The HOT granted hereunder is further subject and
<br />subordinate to the prior right of the grantor of the Underlying
<br />Rights to use the right of way for other business activities,
<br />including energy or railroad operations, telecommunications
<br />uses, pipeline operations or any other purposes. The rights
<br />granted herein are expressly made subject to each and every
<br />limitation, restriction or reservation affecting the Underlying
<br />Rights. Notwithstanding the foregoing, GRANTOR
<br />represents and warrants that the Underlying Rights contain
<br />no restriction en GRANTOR's right to grant the IRU
<br />contemplated by this Agreement, or any restrletion on
<br />GRANTEE's right to use the GRANTEE Fibers for any
<br />lawful pupose, nor any obligation for GRANTEE to obtain
<br />separate and independent authority from the owner or issuer
<br />of such Underlying Rights.
<br />2 GRANTOR represents and warrants that it has obtained all
<br />rights of way, easements, licenses, franchises and other
<br />related or similar rights necessary for construction and
<br />operation o£the GRANTOR System and the grant ofthe IRU
<br />(the "Underlv'ne Eights''). GRANTOR will use its best
<br />efbns to maintain the Undedydng Rights for the Term of this
<br />A,evermn(. The IRU is subject to the terms of the
<br />Underlying Rights, and subject to the terms under which the
<br />right of way is owned or held by the greater of the
<br />Underlying Rights, including, but not limited to, covenants,
<br />everstrea
<br />conditions, restrictions, easements, reversionary interests,
<br />bonds, mortgages and indentures, and other matters, whether
<br />or not of mmrd, and to the rights of tenants and licmi ea. in
<br />possession. The IRU grained hereunder is further subject and
<br />subordinate to the prior right of the grantor of the Underlying
<br />Rights to use the right of wzy for other business activities,
<br />including energy or milroad operations, telecommunications
<br />uses, pipeline operations or any other purposes. The rights
<br />granted herein are expressly made subject to each and every
<br />limitation, restriction or reservation affecting the Underlying
<br />Rights. Nohvidw aiding the foregoing, GRANTOR
<br />represents and warrims that the Underlying Rights contain
<br />no restriction on GRANTOR's right to grant the IRU
<br />contemplated by this Agreement, nor any restriction on
<br />GRANTEE's right to use the GRANTEE Fibers for any
<br />lawful purpose, nor any obligation for GRANTEE to obtain
<br />separate and independent authority from the owner or issuer
<br />of such Underlying Rights,
<br />73 If, after the Effective Date, GRANTOR is required (i) by any
<br />governmental authority under the power of eminent domain
<br />or otherwise, (ii) by the grantor or provider of any
<br />Underlying Rights, (iii) by any other person having the
<br />authority to so require (each a "Relocating Authority'), or
<br />Ev) by the recurrence of any Force Majeure Event as set
<br />Fifth in Section 15 to relocate the GRANTOR System and
<br />GRANTEE's Fibers or any portion thereof, GRANTOR shall
<br />have the right to either proceed with such relocation,
<br />including, but not limited to, the right, in goad faith, to
<br />reasonably determine the extent and tinting of, and methods
<br />to be used for, such relocation, or to pay such amounts to the
<br />Relocating Authority as are necessary, to avoid the used for
<br />such relocation GRANTEE shall be kept fully informed of
<br />determinations We by GRANTOR in connection with such
<br />relocation, and any such relocation shall incorporate fiber
<br />meeting or exceeding the specifications set Earth in Exhibit
<br />and be subject to Acceptance Testing. If and to the extent
<br />that a relocation is not the result of a bailers by GRANTEE to
<br />observe and perform its obligations under this Agreement or
<br />any of the Underlying Rights, the costs of relocations of the
<br />GRANTOR System are included in the IRU Fee.
<br />GRA \TEE shall reimburse GRANTOR for GRANTOR's
<br />Costs (including but net limited to Acceptance Testing and
<br />including amounts paid to a Relocating Authority to avoid
<br />relocation) to the extent that such relocation is the result of a
<br />failure by GRANTEE to observe and perform its obligations
<br />under this Agreement.
<br />7.4 If any GRANTEE Fibers that are being used to carry traffic
<br />are to be relocates (or for any other reason subject to
<br />substitution), GRANTOR shall submit a plan for relocation
<br />of the GRANTEE Fibera in a manner that substantially
<br />conforms to industry standards for parallel cut -over The
<br />timing fthe transfer shall substantially conform to industry
<br />standards for parallel cat-over, but any GRANTEE Fibers
<br />being disconnected will remain in service until the
<br />replacements are found to be fully operational, and the entire
<br />relocation of GRANTEE's Fibers shall be conducted at a
<br />time and on a day of the week that GRANTER and
<br />GRANTOR agree that the GRANTEE Fibers being relocated
<br />,will becarrying a low volumeoftraftic. GRANTORwillnot
<br />carry out relocation or other substitution until the plan has
<br />been approved by it held, vF.E, which approval shall not be
<br />umeasonably withheld, conditioned delayed. Any
<br />replaced or relocated GRANTEE Fibers shall be tested in
<br />accordance with SECTION 4.
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