Dark Fiber Lease Product Rider

D –Dark Fiber Lease Product Rider

This attachment D – Dark Fiber Lease Product Rider (the “Dark Fiber Lease Product Rider”) is attached to, incorporated into, and deemed part of that certain MSA entered into between FBL and Customer, as expressly authorized by such MSA. Unless otherwise defined herein, capitalized, or defined terms in the MSA have the same meaning in this attachment.

SECTION 1- SERVICE DESCRIPTION
FBL shall design, engineer, install, and construct the FBL System. The specific route and location of each Segment and Ring of the FBL System, including the specific location of Manholes and Handholes, is subject to FBL’s absolute discretion. At the end of each Segment and/or Ring, as applicable, FBL will terminate the Customer Dark Fibers (defined in Section 2.2 below) at a fiber distribution panel (“FDP”), fiber splice kit, or other appropriate terminal apparatus as determined by FBL and specified in the applicable Order. Notwithstanding anything to the contrary, FBL may elect to acquire any portion of the FBL System from Facility Owner(s) (whether by lease, sublease, indefeasible right of use or otherwise) in lieu of constructing and installing the FBL System with respect to such portion. FBL shall use commercially reasonable efforts to deliver to Customer the Customer Dark Fibers as identified in each individual Order by the FOC date provided to Customer. Customer shall use the Customer Dark Fibers and the Associated Property solely for lawful purposes. In no event whatsoever shall Customer directly or indirectly transfer, sell, assign, condo, swap, exchange, lease, sublease, license, sublicense, resell or grant indefeasible or other rights of use in or to all or any part of the Customer Dark Fibers or Customer’s interest therein, or enter into any other arrangement with any Person for such Person’s use of all or any part of the Customer Dark Fibers. Customer agrees and acknowledges that it has no right to use any of the Cable that is part of the FBL System, other than the Customer Dark Fibers. Customer shall keep the FBL System free from any liens, rights, or claims of any third Person attributable to Customer. Any transfer, assignment, or other action in violation of this provision shall constitute a material breach.

SECTION 2 – OWNERSHIP, USAGE, AND CONSTRUCTION
2.1 Ownership. During the Term, legal title to and sole ownership of the Customer Dark Fibers, Innerduct, the Cable, the Manholes, the Handholes, and any property installed or constructed on any Segment and/or Ring, shall be retained and held by FBL, or other Facility Owner(s). Customer’s rights hereunder shall be deemed a leasehold interest in personal property, subject to the terms of this Dark Fiber Lease Product Rider. Neither the leasing, rental or other provisioning of the Customer Dark Fibers or any other facilities or services by FBL to Customer, nor the payment by Customer of the Lease Charge or other charges therefore to FBL shall constitute, create or vest in Customer any easement, license or any ownership interest or real property right or interest whatsoever in the Customer Dark Fibers, Innerduct, Cable, Manholes, Handholes or other facilities. Nothing in this Dark Fiber Lease Product Rider conveys any form or type of title in any real or personal property, including the FBL System, any Ring, any Segment, the Customer Dark Fibers or any portion of any of the foregoing. The leasehold contained in this Dark Fiber Lease Product Rider does not include any equipment used to transmit capacity over or to “light” the Customer Dark Fibers. The Parties intend that this Dark Fiber Lease Product Rider constitutes a true lease of the Customer Dark Fibers and not a sale of the Customer Dark Fibers

2.2 Customer Use. FBL grants to Customer the right to use the number of fiber optic strands of the Cable set forth in each Order, which fibers will be specifically identified by FBL in the FBL System (the “Customer Dark Fibers”), and the associated and nonexclusive limited right to use the Associated Property, all such rights upon and subject to the terms and conditions set forth in this Dark Fiber Lease Product Rider. This Dark Fiber Lease Product Rider does not include the right for Customer to own, control, maintain, modify or revise the Customer Dark Fibers or the Associated Property, the right of physical access to the FBL System, the right to encumber the FBL System in any manner, or the right to use the FBL System. Customer acknowledges and agrees FBL is not supplying nor is FBL obligated to supply to Customer any optronics or electronics or optical or electrical equipment, or other equipment, or any electrical power or power equipment, all of which are solely the responsibility of Customer, nor is FBL responsible for performing any work other than as expressly specified in this Dark Fiber Lease Product Rider.

2.3 Construction. Customer acknowledges that, for portions of the System Route on which construction has not begun, deviations in the actual route of the FBL System (“System Route”) or the route of the Customer Dark Fibers particularly described or depicted or in an Order along which the Customer Dark Fibers are or will be located (“Customer Route”), including material deviations from the Estimated Route Miles, are possible. FBL shall use commercially reasonable efforts to utilize the shortest route available. FBL shall have full and complete control and responsibility for determining any routing configurations of the FBL System and the location and configurations of all Manholes and Handholes (including Customer Manholes and Customer Handholes, if any). Customer shall have full and complete control and sole responsibility for selecting, purchasing and installing all Customer Equipment and Lateral Connection(s), for determining network and service configurations or designs, for regrooming, rearrangement or consolidation of channels or circuits and for all related functions with regard to the use of the Customer Dark Fibers and the Associated Property; provided, that Customer shall not enter a Manhole or access a Handhole. In addition, at the request of Customer from time to time, FBL in its sole discretion may provide construction services in the form of installation of Innerduct, conduit, Lateral Connection(s), optical fibers, splicing and testing of such fibers, and construction of Manholes and Handholes upon mutually agreed upon pricing, terms, and conditions. All splicing, terminating, and connectorization on the backbone will be performed by FBL. Cable splicing services at the backbone include accessing the cable, preparing the splice enclosure, preparing the fibers for splicing, fusion splicing the fibers, installing, and dressing the fibers and splices in the splice trays. FBL is responsible for all set up and closing activities of the work area including securing access to the Manhole or Handhole, closure of the equipment in the Manhole or Handhole, and clean up and removal of any debris. FBL may assign or subcontract to a third Person any or all of FBL’s duties or obligations to Customer under this Dark Fiber Lease Product Rider, provided FBL shall remain obligated to Customer under the terms of this Dark Fiber Lease Product Rider for any such duties.

2.4 Inspection. Customer shall have the right, upon written request, to inspect the installation, splicing, and testing of the Customer Dark Fibers; except Customer shall not enter a Manhole or access a Handhole. Upon receiving Customer’s written request, FBL shall make available for inspection by Customer at Customer’s expense, at FBL’s offices during FBL’s normal business hours, copies of all information, documents, agreements, reports, permits, drawings and specifications that are material to the grant of the Customer Dark Fibers to Customer, excluding any confidential or proprietary business terms which FBL may redact. Customer and FBL shall promptly notify each other of any matters pertaining to, or the occurrence (or impending occurrence) of, any event which would be reasonably likely to give rise to any damage or impending damage to or loss of the FBL System that are known to such Party.

SECTION 3 – TESTING PROCEDURES
3.1 Fiber Acceptance Testing. FBL shall test the Customer Dark Fibers in accordance with the procedures specified in Section 3.2 below (“Fiber Acceptance Testing”). FBL shall provide Customer reasonable advance notice of the date and time of each Fiber Acceptance Testing such that Customer shall have the opportunity to have Customer personnel present to observe the Fiber Acceptance Testing. When FBL has determined that the results of the Fiber Acceptance Testing show that the Customer Dark Fibers have been installed and are operating in conformity with the applicable specifications FBL shall promptly provide Customer a written system acceptance notice (a “System Acceptance Notice” or “SAN”) and a copy of such test results.

3.2 Fiber Specifications. FBL conducts test on the dark fibers leased to the Customer prior to the Service Date. Test results falling within the allowable range indicate that the dark fibers leased to the Customer are in Ready for Use Condition. FBL requires bi-directional Optical Time Domain Reflectometer (“OTDR”) testing of individual splices. To ensure acceptable splices prior to closing and sealing the splice case, FBL uses the OTDR to monitor all splicing activity as it is performed. Splice cases are sealed immediately after testing. The maximum allowable individual splice loss is .35 dB bi-directionally averaged, and the fiber will be re-spliced up to two (2) times if the splice still exceeds .35 dB. Notwithstanding, if the average bi-directional splice loss of all splices across the entire tested span is .2 dB or less, then the individual splice loss of .35 dB or greater will be acceptable. Every fiber of each terminated span is tested in both directions from
end-to-end using a 1550nm stabilized light source and power meter. The total loss of any span shall not exceed the maximum loss per span calculated as: [two (2) connector x .60 dB] + [(#) of splices x .2 dB] + [specified cable loss per km x length of cable in km]. Each fiber will be tested in each direction at 1550nm with an OTDR capable of long range and high-resolution testing.

3.3 System Acceptance. Customer shall follow the steps as set forth in Section 2.6 of the MSA. In the event of any good faith rejection by Customer, FBL shall take such action as reasonably necessary, and as expeditiously as practicable, to correct or cure such defect or failure, and the process of Fiber Acceptance Testing, notice to Customer and acceptance shall be repeated with respect to such rejected Customer Dark Fibers up to three (3) times before the Parties shall mutually agree to updated Fiber Specifications. As soon as reasonably practicable after the Acceptance Date for each Order, FBL shall provide Customer with the as-built Drawings for such Order and technical specifications of the Customer Dark Fibers and associated splices located within such Segment.

3.4 Non-Delivery of Customer Dark Fibers. In the event FBL fails to deliver the Customer Dark Fibers within ninety (90) days of the FOC (as such date may be extended by Force Majeure), then Customer shall have the right, at its option, either (i) to cancel the Order with respect to such portion of the undelivered Customer Dark Fibers and receive a refund of the portion of payments allocable to the Customer Dark Fibers in such Order, or (ii) waive such failure to deliver and accept the Customer Dark Fibers when available. If Customer elects to cancel, neither Party shall have any further duties, liabilities, or obligations to the other Party (except for FBL’s obligation to so refund the appropriate portion of the payments).

3.5 Cancellation Prior to FOC Date Fee. In the event Customer terminates an Order prior to the FOC Date, Customer shall pay FBL a fee equal to six (6) times applicable MRC plus any applicable expenses previously incurred by FBL in the provisioning process.

SECTION 4 – CUSTOMER EQUIPMENT
4.1 Equipment Responsibility. The installation, use, repair, maintenance, and replacement of Customer Equipment shall be the sole responsibility of Customer, and FBL shall have no obligation or liability under this Dark Fiber Lease Product Rider or otherwise to install, maintain, repair, or replace any Customer Equipment. Customer shall not use its facilities, including without limitation the Customer Dark Fibers and the Customer Equipment, in a way that interferes in any way with or adversely affects the use of the FBL System or any Cable therein or other equipment and facilities of any Person (including FBL) using the FBL System. Customer’s facilities, including without limitation the Customer Dark Fibers and the Customer Equipment, shall not endanger or damage the FBL System and shall not create an unreasonable risk of damage to property or injury or death to any individual or to the public. Customer acknowledges that the FBL System includes or will include other participants, including FBL and other owners and Customers of telecommunications systems.

4.2 Health and Safety. Up to the Demarcation Point on the Network Side, FBL shall have the right, but not the duty, to make periodic or spot inspections of, to be present at, and to monitor any access to or work by Customer relating to any Customer Manholes and Customer Handholes. Such inspections and monitoring may be conducted for the purpose of determining whether facilities placed in the Customer Manholes or Customer Handholes and work relating thereto complies. FBL may charge Customer for the Costs of inspection and monitoring only if the inspection or monitoring reflects that Customer is in substantial non-compliance with the terms of this Dark Fiber Lease Product Rider. If FBL reasonably determines that any work or facilities is not in compliance with the terms of this Dark Fiber Lease Product Rider, Customer shall, upon written notice from FBL, bring its work and facilities into material compliance within forty-eight (48) hours of such written notice or, at a minimum, commence curative measures within twenty-four (24) hours and exercise reasonable diligence to complete such measures as soon as possible thereafter. If Customer fails to at least commence corrective measures within twenty-four (24) hours of FBL’s notice, then FBL may take any action it deems appropriate to correct the non-compliance, including directing immediate suspension of work relating to the FBL System. Failure of Customer to bring its work or facilities into compliance as aforesaid shall constitute a material breach under this Dark Fiber Lease Product Rider. If FBL, in its sole discretion, determines that conditions exist within the FBL System that pose an immediate threat of damage to property, injury to or death of any Person, or that a violation exists of any of the Permits, then FBL may direct that all work or use by Customer or others relating to the FBL System, including the Customer Dark Fibers, be immediately suspended until the violation or condition is corrected to FBL’s satisfaction. Neither Party shall be liable for any damages for such suspension. If any condition or violation is a direct or indirect result of Customer’s use of the Customer Dark Fibers or Customer Equipment, Customer shall pay and reimburse FBL for one hundred percent (100%) of all Costs incurred by FBL in taking corrective action within thirty (30) days of the date of FBL’s invoice therefore; otherwise Customer shall reimburse FBL for its proportionate share of such Costs (“Customer Incurred Maintenance Fee”).

SECTION 5 – ELECTIVE MAINTENANCE PROCEDURES AND PERFORMANCE
5.1 Elective Maintenance. Customer shall have no right whatsoever to physically access the FBL System or the Cable, or to maintain, splice, adjust, align, cut, repair or replace the Customer Dark Fibers or FBL System, or attempt to do any of the foregoing. Customer agrees to pay for non-routine maintenance in accordance with the pricing set forth below. To the extent FBL conducts any non-routine maintenance as it relates to (i) work necessitated by Customer’s negligence or willful misconduct or (ii) Customer’s elective maintenance or repair requests, Customer shall pay and reimburse FBL for one hundred percent (100%) of all Costs incurred by FBL in connection with such non-routine maintenance, within thirty (30) days of the date of FBL’s invoice. All times are based on local times, and rates are subject to increase annually based on the Consumer Price Index:

5.2 Service Outage. Each Service Outage Credit occurrence will be calculated using the below table:

5.3 Performance Liquidated Damages. THE CUSTOMER REMEDIES LISTED IN SECTION 5.2 SHALL CONSTITUTE CUSTOMER’S PERFORMANCE LIQUIDATED DAMAGES AND SOLE AND EXCLUSIVE REMEDY FOR ANY PERFORMANCE FAILURE RELATED TO OR ARISING FROM THE SERVICE(S) OFFERED UNDER THIS DARK FIBER LEASE PRODUCT RIDER.
SECTION 6 – UNDERLYING RIGHTS AND COMPLIANCE
6.1 FBL’s Underlying Rights. FBL shall obtain and maintain all Underlying Rights necessary for FBL’s construction, installation, maintenance, and repair of the FBL System and for FBL’s grant to Customer of the use of the Customer Dark Fibers throughout the term of the Order. FBL shall not be in default of the preceding sentence during any period when FBL is seeking to renew or extend existing Underlying Rights, and such Underlying Rights have not yet been renewed or extended,
and the grantor of such Underlying Rights has not given FBL notice of default under or non-renewal of the Underlying Rights; provided, however, that (i) Customer’s use of the Customer Dark Fibers is not in any way impacted or impaired by such delays and (ii) FBL agrees to indemnify, defend, protect and hold harmless the Customer Indemnified Persons from and against, and assumes liability for, all Claims arising out of or related to such delays. The Customer Dark Fibers is subject to the terms of FBL’s Underlying Rights, and subject to the terms under which FBL’s Underlying Rights are owned or held by the grantor of the Underlying Rights, including covenants, conditions, restrictions, easements, reversionary and other interests, bonds, mortgages and indentures, and other matters, whether or not of record, and to the rights of tenants and licensees in possession. The Customer Dark Fibers granted hereunder is further subject and subordinate to the prior right of the grantor of FBL’s Underlying Rights to use the rights-of-way for other activities, including railroad operations, telecommunications uses, pipeline operations, or any other purposes, and to the prior right of FBL to use its rights granted under FBL’s Underlying Rights. If FBL is required by a third party with legal authority to relocate any portion of the FBL System, with respect to such Segment, including any of the facilities used or required in providing the Customer Dark Fibers, FBL shall have the right either to proceed with such relocation, including the right, in good faith, to reasonably determine the extent of, the timing of, and methods to be used for such relocation, or (if applicable) to pay such amounts to the third party requiring such relocation as are necessary to avoid the need for such relocation. In the event of any such relocation, FBL shall use commercially reasonable efforts to minimize any service interruptions.

6.2 Customer’s Compliance. Customer shall responsible for securing all Underlying Rights and Permits necessary or required to be obtained by Customer for the use and operation of the Customer Dark Fibers, prior to the Acceptance Date. Upon request of FBL, Customer will deliver to FBL copies of such Customer Underlying Rights and Permits. Customer agrees to provide to FBL, promptly upon request by FBL, a detailed description of its uses of the Customer Dark Fibers and Associated Property and any other information regarding its use of the Customer Dark Fibers and the Associated Property reasonably requested by FBL in order to enable FBL to comply with any reporting requirements imposed on FBL

SECTION 7 – COLOCATION RULES AND REGULATIONS
7.1. Colocation. In the event an Order requires colocation space, FBL hereby grants to Customer, and Customer hereby leases from FBL a license to occupy the collocation space designated by FBL within the facility or facilities listed in the Order (“Collocation Space”). For Collocation Space set forth in an Order, Customer shall be granted the right to occupy the Collocation Space upon FBL’s completion of any required build-out of the Collocation Space as indicated on the applicable Order. Customer shall use the Collocation Space for the placement and maintenance of the Customer Equipment and not for storage (other than the storage of tools and spare parts for use in maintaining the Customer Equipment). Customer shall be permitted to interconnect, or cause FBL to interconnect, the Customer Equipment with the equipment or networks of FBL, or, to the extent possible, any other customer or parties located within the facility. FBL shall make available the following services for Customer’s use of the Collocation Space, at the rates identified and amount indicated in the applicable Order: (i) power services, (ii) backup power, and (iii) HVAC services. FBL shall perform such janitorial services, environmental systems maintenance, power plant maintenance and other actions as are reasonably required to maintain the facility in which the Collocation Space is located in a condition which is suitable for the placement of telecommunications and internet access equipment. EXCEPT AS EXPRESSLY STATED HEREIN OR IN ANY ORDER, THE COLLOCATION SPACE SHALL BE DELIVERED AND ACCEPTED “AS IS” BY CUSTOMER, AND NO REPRESENTATION HAS BEEN MADE BY FBL AS TO THE FITNESS OF THE COLLOCATION SPACE FOR CUSTOMER’S INTENDED PURPOSE.

7.2 Colocation Access. Customer shall be permitted escorted access to the Collocation Space seven (7) days per week and twenty-four (24) hours per day, subject to all rules, regulations and access requirements reasonably imposed by FBL governing such access. FBL reserves the right, on ninety (90) days’ prior written notice (except in emergency situations), to change the location or configuration of the Collocation Space at FBL’s sole cost and expense (which shall be accomplished only after consultation with Customer (except in emergency situations). FBL and Customer agree to work together in good faith to minimize any disruption of service in connection with such relocation. FBL reserves the right to access the Collocation Space for any legitimate business purpose related to the use, maintenance and/or operation of its own equipment and facilities in the Collocation Space or the facility upon reasonable prior notice to Customer. Customer may not provide or make available any portion of the Collocation Space to any third party. Any violation of this provision shall be deemed a material breach.

7.3 Colocation Removal. Upon expiration or termination of Customer’s right to use Collocation Space, Customer, at its expense, shall remove Equipment and other property from the Collocation Space and return the Collocation Space to FBL in substantially the same condition (reasonable wear and tear excepted) as when Customer first occupied the Collocation Space. In the event Customer fails to vacate the Collocation Space within thirty (30) days from the termination or expiration of the term with respect thereto, FBL shall have the right to remove the Equipment and other property of Customer at Customer’s expense, in accordance with all applicable laws, and FBL shall have no liability for damage or injury to Customer’s property unless caused by the negligence or intentional misconduct of FBL.

7.4 Colocation Termination. FBL shall have the right to terminate, upon thirty (30) days’ written notice (or such shorter period of time as specified below), Customer’s use of the Collocation Space or the Services in the event that: (i) FBL’s right to use the facility within which the Collocation Space is located terminates or expires for any reason; (ii) Customer fails to comply with any material term hereof or of any Order submitted hereunder; (iii) Customer makes any material alterations to the Collocation Space without first obtaining the written approval of FBL; and/or (iv) Customer enters space without FBL authorization or allows unescorted personnel to enter the Collocation Space, other than Customer’s personnel, contractors or technicians who have been approved by FBL. With respect to subsections (ii), (iii) and (iv) above, unless the same materially interferes or has the potential to materially interfere with other FBL customers, FBL shall provide Customer a written notice of the foregoing and a thirty (30) day opportunity to cure the same before terminating Customer’s rights to the Collocation Space. With respect to any Collocation Space the use of which has been terminated in accordance with subsection (i) above, FBL shall use commercially reasonable efforts to provide Customer with Collocation Space within FBL’s new facility where Collocation Space is offered.

7.5 Use of Collocation Space. Customer shall not use the Collocation Space for marketing or other general office purposes. Customer shall place no signs or marking of any kind (except for a plaque or other identification affixed to the Equipment and reasonably necessary to identify the Equipment and which shall include a list of emergency contacts with telephone numbers) in the facility or the Collocation Space. Except as otherwise provided in this Agreement or any Order, Customer is solely responsible for the design, engineering, testing, performance, monitoring, maintenance, and repair of the Equipment and facilities used by Customer in the Collocation Space. Customer shall abide by any posted or communicated rules relating to use of, access to, or security measures respecting the Collocation Space. In the event that unauthorized parties gain access to the Collocation Space through access cards, keys or other access devices provided to Customer as a result of Customer’s negligence or willful misconduct, Customer shall be responsible for any damages incurred as a result thereof. At no time will Customer have access to fiber other than what is licensed to the Customer unless specifically spelled out in the appropriate Order. All outside access to the facility will be maintained and controlled by FBL.