[GRAPHIC] MASTER FIBER LICENSE AGREEMENT

Exhibit 10.39

[GRAPHIC]

MASTER FIBER LICENSE AGREEMENT

This Master Fiber Agreement (this "Agreement") is entered into by and between Salt River Project Agricultural Improvement and Power District, an agricultural improvement district organized and existing under the laws of the State of Arizona ("SRP"), and Mountain Telecommunications of Arizona, Inc., an Arizona corporation. ("Licensee") (each a "Party"; jointly, the "Parties").

RECITALS

A.    SRP’s Business . SRP is a supplier of water and electric power in portions of Maricopa County, Pinal County and Gila County, Arizona.

B.    SRP Telecom . SRP’s Telecom Department provides communications infrastructure, including parts of SRP’s fiber optic cable network, and related services to the extent that SRP has excess capacity on its network and its water and electric operations are not adversely affected.

C.    Licensee’s Business . Licensee is a provider of telecommunications services in the Phoenix, Arizona metropolitan area.

D.    This Agreement . Licensee desires to obtain a license to use fiber from SRP, and SRP is willing to license fiber to Licensee, on the terms and conditions herein. This Agreement is a Master Agreement, containing terms and conditions that will apply to multiple fiber segments. Specific terms and conditions applicable to any given segment will be stated in Product Orders executed by the Parties from time to time.

AGREEMENT

In consideration of the mutual promises and covenants herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.

ARTICLE 1. DEFINITIONS

As used in this Agreement, the following terms shall have the meanings specified below:

"Accept" or "Acceptance" means the issuance by Licensee of written notice to SRP in the form of a signed Acceptance Package stating that Licensee approves the Fibers as being in compliance with the executed Product Order and/or this Agreement.

"Acceptance Package" means the document delivered by SRP to Licensee that demonstrates compliance with the Specifications and Product Order(s) as set forth in Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing).

"Administration Charge" means a charge payable to SRP for the costs of activities associated with SRP’s preparation of a Formal Price Quote.

"Affected Portion" means the portion of any Segment that is or may; (i) be affected by a Taking; (ii) become the subject of a lien or transfer; or (iii) be damaged or destroyed as the result of the occurrence of an event of casualty.

"Affiliate" means, with respect to either Licensee or SRP, any corporation that controls such Party, is controlled by such Party, or is with such Party under common control of another entity.

"Agreement" means this Master Fiber License Agreement.

"Approvals" means all permits, approvals and licenses from all government authorities or other Parties having jurisdiction or approval rights respecting; (i) the use and occupation of any Right of Way where Facilities are located or to be constructed; (ii) the use of Facilities; and (iii) "Blue Stake" clearances.

"Building Entrance" means that portion of the Fiber which runs from a connection point on the Fiber System to the point-of-presence inside a customer’s building, including all Rights of Way, conduit, Fiber, fiber optic patch panel and other Facilities necessary to establish the connection from a connection point on the Fiber to the customer’s building.

"Building Entrance Fee" means cost associated with the securing of access rights to a building.

"Commencement Date" means the date the license of Fibers under a Product Order commences, as established in an Acceptance Package executed by the Parties pursuant to Section 5.3 (Acceptance of Fiber) and Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing).

"Completion Interval" has the meaning as set forth in Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing).

"Connection Charge" means a one-time charge payable for Make Ready Work.

"Deficiency Notice" means written notice that the Fibers as Delivered do not conform to the Specifications or Product Order and as further set forth in Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing).

"Deliver" or "Delivery" means SRP’s delivery of an Acceptance Package to Licensee demonstrating compliance with the Product Order and Specifications.

"Delivery Date" means the date specified in a Product Order by which SRP is obligated to Deliver the Fibers to Licensee in compliance with the Product Order.

"Demarcation Point" means the point that defines where ownership and maintenance obligations begin and end as generally defined in Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing) and as specifically defined in any Product Order(s).

"Discovery" means detection of a discontinuity of signal transmitted over Fiber, or other evidence of a service interruption and as further set forth in Exhibit B (Service Interruption Credits).

"Electric Services" means electric power generation, transmission and distribution services and other services relating to the generation, transmission and distribution of electric power.

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"Facilities" means manholes, conduit, innerduct, risers, collocation equipment and space, switching facilities, fiber termination equipment, splice cases, interconnection equipment, racks, or other equipment associated with Fiber.

"Fiber(s)" means fiber optic cable provided without electronics or optronics.

"Force Majeure" has the meaning given in Article 10 (Force Majeure).

"Installation Charge" means a one-time charge payable for the construction and installation of a Lateral Connection, Building Entrance or Facilities.

"Lateral Connection" means the Segments of Fiber and Facilities that connect from SRP Fiber to an off-network location.

"License Fee" means (i) the periodic recurring charges under Product Orders (excluding Maintenance Charges), or (ii) where the Parties have agreed that Licensee will pay all or any part of such recurring charges in a lump-sum payment payable on the Commencement Date, the up-front lump sum payments (excluding Installation Charges, Administration Charges and Connection Charges) and any periodic recurring charges (excluding Maintenance Charges) under Product Orders.

"LEC" means a Local Exchange Company (e.g., Qwest, and competitive local exchange companies or other carriers).

"Make Ready Work" means the Services, including but not limited to pre-design, design, splicing, testing and other related services, generally associated with reconfiguring or rerouting Fiber, interconnecting Fiber with Lateral Connections, and otherwise putting Fiber into service.

"Maintenance Charge" means a periodic recurring charge or a lump sum charge payable for maintenance of the Fibers.

"Method of Procedure (MOP)" means a standard operating procedure for conducting Scheduled Maintenance between and among SRP, Licensee and the LEC (if applicable) to be prepared by both Parties using the form (A-2) and procedures as referenced in Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing).

"Point-Of-Interconnection (POI)" means the location and Facilities where the Licensee Fiber System and SRP Fiber System meet and as further defined in Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing), and as specifically defined in an executed Product Order.

"Product Order" means an order for (i) Fibers, (ii) Lateral Connections, (iii) Make Ready Work, or (iv) other Services, executed from time to time by both Parties.

"Pro Rata Share" means a proportion equal to a fraction, the numerator of which is the number of Fibers and the denominator of which is all Fibers in the affected portion of a Segment. If this fraction varies over a particular Segment, then the Pro Rata Share shall be equal to the weighted average (weighted by length as set forth in SRP’s installation records) of the relevant portions. For example, if the fraction for one hundred (100) feet of the affected Segment is 0.1 and the fraction

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for the remaining fifty (50) feet of the affected Segment is 0.07, the weighted average for the entire Route would be 0.09.

"Right-Of-Way (ROW)" means SRP owned or controlled right of ways, easements, licenses or rights to use or occupy real property owned, licensed, or licensed by others, including corporations, railroads, individuals, or other entities, including a LEC.

"Scheduled Maintenance" means planned outages that may occur for the purpose of maintaining, repairing, or enhancing SRP’s electrical system or for Licensee defined maintenance work. Scheduled Maintenance will occur according to a mutually approved Method-of-Procedure and as further set forth in Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing).

"Segment" means Fiber delineated by specific end points ("Demarcation Points").

"Services" means the provision of maintenance and repair of the Fibers, Make Ready Work, the construction of Lateral Connections, acquisition of Approvals, and other ancillary services provided or to be provided under Product Orders.

"Service-Affecting Condition" means a discontinuity on both paths of a diversely routed physical fiber ring causing loss of internal or external traffic, except that SRP Scheduled Maintenance or Force Majeure events that cause a loss of such traffic shall not constitute a Service Affecting Condition.

"Service Interruption Credit" has the meaning set forth in Exhibit B (Service Interruption Credits).

"Single Point of Failure" means any point where a single fiber cut would cause a Service-Affecting Condition.

"Specifications" means the Fiber specifications as set forth in Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing).

"Splice Point" means a point where the Licensee’s fiber network interconnects with SRP’s Fiber System.

"Taking" means the exercise of the power of eminent domain by any public or quasi-public authority, other than an exercise by SRP in accordance with statutory authority.

"Telecommunications Services" means all services delivered by Licensee including, without limitation, the two-way transmission of signals, messages, images, sounds, data and other information of any nature transmitted to customers, excluding the license of Fiber.

"Term" means the Initial Term and any renewal term of this Agreement as specified in Article 3.

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ARTICLE 2. LICENSE; SCOPE OF AGREEMENT

2.1          Fiber . On the terms and conditions herein and in each Product Order, SRP licenses to Licensee, and Licensee licenses from SRP, the right to use the Fiber specifically described in each Product Order (the " Fiber ") and any equipment described in the Product Order as being licensed to Licensee. All right, title and interest in the Fiber and any Equipment shall at all times remain exclusively with SRP (or with any third party from whom SRP obtains the rights to the Fiber), except for the rights granted to Licensee to use the Fiber and Equipment under this Agreement and the applicable Product Order. Licensee may use the Fiber solely for providing Telecommunications Services, in accordance with applicable laws, rules, regulations, orders and other regulatory requirements, now or later in effect, of any governmental authority having jurisdiction over Licensee, the Fiber or the use thereof. This Agreement and the license granted hereunder are subject to termination or expiration as provided herein, and shall have no force or effect thereafter, except as provided in Section 2.3 (Product Orders) with respect to any Product Order that may continue to remain effective.

2.2           Agreement and Exhibits . This Agreement consists of the body of this Agreement, all executed Product Orders, and the following attached Exhibits:

2.3          Product Orders. From time to time during the term of this Agreement, the Parties may execute Product Orders under which SRP will license Fibers to Licensee and SRP will provide such other Services related to the Fibers as may be specified in the Product Order. The term of a given Product Order may extend beyond the term of this Agreement, in which case the provisions of this Agreement shall continue to apply for the remaining term of any Product Order. The Parties shall generally follow the Product Order Process set forth in Exhibit C (Product Order Process) when requesting, or responding to requests for quotations for the purposes of licensing Fiber or related Services under this Agreement. The execution of this Agreement does not obligate either Party to execute a Product Order.

2.4          Conflicts Between Product Order, Agreement, or Exhibits. If there is an inconsistency or conflict between the terms contained in this Agreement or any Exhibit to this Agreement and the terms contained in a Product Order, the terms in this Agreement or the Exhibit will govern unless (a) the Product Order clearly identifies the specific provision of the Agreement that the Parties intend to amend or modify, and (b) the Product Order sets forth the specific amendment or modification. If there is an inconsistency or conflict between the body of this Agreement and the terms contained in an Exhibit, the terms in the body of this Agreement will govern.

2.5          Property of the United States. Licensee acknowledges that SRP manages certain properties owned by the United States of America, such as SRP canal banks. Notwithstanding anything to the contrary in this Agreement, if any Segment of Fiber is located on U.S.A. property,

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the license grant under this Agreement and any Product Order executed hereunder is, with respect to such Segment, subject to the paramount rights of the U.S.A., federal reclamation law and all existing and future agreements concerning such properties among the U.S.A., SRP and the Salt River Valley Water Users’ Association. In addition, Licensee shall be required to execute a separate license agreement in substantially the form approved by the U.S.A. for each Segment of Fiber located on U.S.A. Property. If there is any conflict or inconsistency between the provisions of this Agreement and the provisions of the U.S.A. -approved license, the latter shall govern and prevail with respect to any Segment of Fiber located on U.S.A. Property.

ARTICLE 3. TERM

This Agreement becomes effective as of the date on which it has been signed by both Parties (the "Effective Date") and shall continue for a term of two (2) years (the " Initial Term "), unless sooner terminated under this Agreement. After the Initial Term, this Agreement shall be automatically renewed for successive one year periods unless either Party provides written notice of non-renewal to the other Party not more than sixty (60) days and not less than thirty (30) days before the expiration of the Initial term or the then-current renewal term. If at any time this Agreement is not renewed, the terms of this Agreement (as were most recently in effect) shall remain effective with respect to and so long as any Product Order remains effective.

ARTICLE 4. FEES, CHARGES, PAYMENT TERMS AND CREDITS

4.1          Fees and Charges . SRP shall invoice Licensee, and Licensee shall pay as applicable the License Fees, Administration Charges, Installation Charges, Connection Charges, Maintenance Charges and any other charges payable by Licensee and listed in each Product Order in accordance with the terms and conditions of this Article 4, the applicable Product Order and as described in Exhibit D (Fees and Charges Schedule). SRP shall issue invoices at the times stated in this Agreement or the applicable Product Order. Licensee shall pay each invoice within thirty (30) days after the date of the invoice. Payment of all fees and other payments required herein shall include the remittance invoice, or reference to the SRP invoice number.

SRP shall send invoice to Licensee at the following address:

Mountain Telecommunications of Arizona, Inc.
1430 W. Broadway, Ste. A206
Tempe, Arizona 85282

All payments shall be sent to one of the following addresses:

4.2          Late Payment Fees. Any payment required hereunder shall be delinquent if it is not paid in full by the due date, except to the extent Licensee disputes the invoice in accordance with Section 4.3. If any payment is delinquent, Licensee shall pay SRP a monthly late payment fee equal to One and One-Half Percent (1 1 / 2 %) of any delinquent amount or the highest interest rate

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permitted by law, whichever is less. The monthly late payment fee shall be due and payable on the first day of delinquency and on the same day of each month thereafter until all delinquent amounts (including late payment fees) are paid in full.

4.3          Payment Disputes. In the event of a billing dispute, the disputing Party shall promptly give written notice of the dispute to the other Party. The Parties shall first attempt to resolve the dispute within ten (10) calendar days after such notice through meetings between the respective representatives of the Parties and any other representatives of a Party deemed necessary by that Party for these discussions. If such first attempt is unsuccessful in resolving the dispute, the Parties agree to escalate negotiations to the next level according to each Party’s chain of command. This will be accomplished upon written notice from one Party to the other, and upon the determination of a reasonable mutually agreed schedule and timetable for such negotiation. If unsuccessful, or if thirty (30) calendar days have passed since the initial notice of the dispute, the Parties may jointly agree to submit the matter to non-binding mediation upon mutually agreeable terms. The mediator will be requested to conclude such mediation no later than thirty (30) days following the mediator’s appointment. If the Parties are unable to agree to mediate the dispute within sixty (60) days after the initial notice of the dispute, either may exercise any rights or remedies available under this Agreement or otherwise available at law or in equity. During dispute resolution proceedings, the Parties shall continue to perform their obligations under this Agreement except for those obligations directly related to the pending dispute.

In the event that a dispute is resolved against Licensee and Licensee has withheld payment, Licensee shall pay such amounts plus interest equal to one and one-half percent (1 1 ¤ 2 %) monthly beginning from the date first due until paid in full. In the event that the dispute is resolved in favor of Licensee and Licensee has made payment, SRP shall credit such amounts plus interest equal to one and one-half percent (1 1 ¤ 2 %) monthly.

4.4          Security Deposits. In the event a Product Order contains recurring charges (monthly or annual), then at any time during the term of such Product Order, SRP may, in its reasonable discretion, require Licensee to pay a security deposit ("Deposit") to SRP, to secure timely payment of amounts due and full performance of other Licensee obligations under this Agreement or any Product Order. If required, the Deposit shall be in an amount equal to the total recurring amounts payable by Licensee under this Agreement and all Product Orders pro-rated to cover a three-month period. SRP shall give written notice to Licensee of a Deposit requirement, and Licensee shall remit the Deposit amount to SRP within ten (10) days of Licensee’s receipt of the notice, or by such later date as may be stated in the notice. Licensee acknowledges that SRP uses a proprietary credit scoring system to evaluate the creditworthiness of its customers, and periodically reviews such credit ratings (currently semi-annually). If, after a Deposit is required, Licensee’s credit rating score improves to the point that it meets SRP’s requirements, SRP will eliminate the Deposit requirement and refund to Licensee any Deposit and accrued interest. SRP may reinstate the Deposit requirement at any time the Licensee fails to meet SRP’s credit requirements. If SRP applies all or any part of the Deposit to Licensee’s obligations, Licensee shall restore the Deposit to its original amount within ten (10) days after SRP notifies Licensee of such application. The Deposit shall earn interest at the standard rate established by SRP for deposits held for its electric customers. The interest rate is based on CD rates at local banks, and is adjusted each December 31. The rate for calendar year 2005 is 0.77%. All accrued interest shall be credited to Licensee as of December 31 of each year or upon refund of the deposit, whichever occurs first. If not returned sooner, SRP will return the Deposit to Licensee upon expiration or termination of the applicable Product Order after first applying the Deposit and accrued interest to any remaining amounts owed to SRP under this Agreement, the applicable Product Orders, or both.

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4.5          Taxes, Charges and Expenses . If Licensee claims an exemption from any sales tax, transfer tax,. use tax, gross receipts tax, excise tax, business and occupation tax, or other similar Federal, state and local taxes or charges, including any charge for the use of city or federal property or any franchise or other similar fee, (but excluding taxes imposed on SRP’s net income) imposed by any governmental authority upon SRP or Licensee in connection with any payments due from Licensee to SRP under this Agreement or under any Product Order, or as a result of this Agreement or any Product Order, or imposed upon or with respect to the Fiber (collectively, "Taxes"), Licensee shall provide a written notice of such claim of exemption to SRP. If no exemption applies, or if any claim of exemption made by Licensee is disallowed, Licensee shall pay or reimburse SRP, as applicable, for any and all Taxes, which shall include any and all interest related to Taxes assessed SRP due to disallowance of Licensee’s claimed exemption.

4.6          Service Interruption Credits . SRP agrees to provide Service Interruption Credits to Licensee according to the provisions in Exhibit B (Service Interruption Credits).

ARTICLE 5. MAINTENANCE, REPAIR AND OPERATIONS

5.1.         General . SRP will perform all maintenance and repairs of Fibers in accordance with the standards and terms of Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing).

5.2          Demarcation Points . Demarcation Points define the respective ownership and maintenance responsibilities and obligations of the Parties. The Parties’ obligations with respect to Demarcation Points are generally set forth in Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing), and specifically defined in attachments to each Product Order.

5.3          Acceptance of Fiber . Acceptance of Fiber will occur according to Product Orders and the provisions of Exhibit A (Fiber, Specifications, Demarcation, Maintenance, Acceptance and Acceptance Testing)

5.4          Services . The Parties contemplate adding Lateral Connections, modifying network topologies and other Services, from time to time, to make use of Fiber. All Services shall be specified in an executed Product Order. Licensee acknowledges that due to electric safety concerns, only SRP can perform Make Ready Work. SRP will provide such Services according to an executed Product Order.

5.5          Lateral Connections . If an executed Product Order specifies that Licensee shall provide a Lateral Connection to SRP Fiber, Licensee shall comply with the following:

(a)           Licensee shall provide the appropriate Demarcation Points and Facilities in either public ROW, or in a private easement obtained by Licensee, at the closest available location to the SRP Splice Point designated by SRP.

(b)           SRP shall provide interconnection Services and Facilities (e.g., fiber termination cabinet, conduit, fiber, fiber splicing) on its ROW between the SRP Splice Point and the Demarcation Point at its Installation Charge as specified in the applicable Product Order.

(c)           Licensee shall be solely responsible for obtaining all Approvals applicable to such Lateral Connections, and this provision shall not be construed as a grant by SRP or an undertaking or

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agreement by SRP to grant any easement, license or other right of way on lands owned or controlled by SRP.

5.6          Substitution . Upon not less than sixty (60) days written notice from SRP to Licensee, SRP may, at its option, substitute for the Fibers within any Segment or Segments or Route, or any portions thereof, an equal number of alternative Fibers within such Segment or Segments or Route, or any portions thereof, provided that in such event, such substitution; (i) shall be at the sole cost of SRP; (ii) shall use Fiber meeting or exceeding the Specifications, and be tested in accordance with the Acceptance provisions; (iii) shall not change any Demarcation Points; (iv) shall not cause a Service Affecting Condition, and (v) shall be effected according to Scheduled Maintenance standards and procedures and to an approved MOP, Licensee’s approval of which will not be unreasonably withheld.

At any time during the Term, Licensee may submit a Request for Quote pursuant to Exhibit C (Product Order Process) requesting SRP to replace a Segment of Fiber under an existing Product Order with a different Segment or additional Fiber strands on an existing Segment ("Replacement Fiber"). SRP shall be under no obligation to enter into a Product Order to provide Replacement Fiber. If Licensee notifies SRP in writing that the Request for Quote is being submitted because of an early termination of service by Licensee’s customer, SRP will use commercially reasonable efforts to accommodate Licensee’s request for Replacement Fiber, provided that (i) SRP has excess fiber available, (ii) the Replacement Fiber is substantially equivalent to the replaced Fiber in terms of total route miles, strand miles, configuration and Facilities, and (iii) Licensee shall pay for any necessary and appropriate Services required to be performed by SRP in connection with the decommissioning of the replaced Fiber and the commissioning of the Replacement Fiber, as specified in the Product Order. Licensee shall continue to pay the related portion of the License Fee (the "Original License Fee") until the earlier of (i) the date that SRP delivers the Replacement Fiber; or (ii) the Delivery Date agreed to by the Parties for the Replacement Fiber. Upon the date that SRP delivers the Replacement Fiber, Licensee shall begin paying the related License Fee for the Replacement Fiber as specified in the Product Order.

5.7          Best Interest of SRP’s Electric System . Notwithstanding any provision of this Agreement, SRP reserves the right to act in the best interest of its primary function as an electrical utility provider. As such, electrical utility events may dictate emergency Fiber outages. SRP will work with Licensee to minimize any Service Affecting Conditions. Licensee acknowledges that for safety reasons, normal electrical utility line work occurs during daylight and normal business hours. This Section 5.7 shall not be construed to (i) relieve SRP of its obligations to provide Service Interruption Credits under Article 4 (Fees, Charges, Payment Terms and Credits) or (ii) to permit SRP to unilaterally amend or terminate this Agreement or any Product Order hereunder.

ARTICLE 6. ACCESS TO FACILITIES

6.1          Installation Rights . To the extent that any Product Order provides for SRP to do any installation of Fiber or Facilities or to perform Services on the property of an owner other than Licensee (an "Owner"), Licensee and/or SRP will need to secure access for SRP to the Owner’s property identified in the Product Order (the "Property") and any buildings on the Property (the "Buildings"). If new easements or rights of way are necessary for the installation, Licensee shall make reasonable efforts to obtain and grant an access easement, license or right of way, and/or will cooperate with SRP in obtaining same from any necessary other Party or governmental authority, on terms satisfactory to Owner, Licensee and SRP in their reasonable discretion. If SRP elects not to secure access, Licensee shall make reasonable efforts to secure the access, and

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SRP shall not be responsible for any inability to obtain or any delay in obtaining such access. Upon obtaining access to the Property and Buildings, Licensee and its successors and assigns shall be obligated to (i) provide SRP with the documentation showing the terms and conditions of the access grant, and (ii) grant to SRP and its agents and third party contractors the non-exclusive right to conduct such installation on the Property, in the Buildings, and on or within any like Facilities or property of Licensee. SRP shall have no obligation to perform an installation unless all necessary rights are granted by Owner and/or Licensee and any other Party as SRP deems necessary, and, if access rights have been secured by Licensee, it has provided SRP with the documentation of the access grant.

6.2          Access to Property, Buildings and Facilities . Upon execution of a Product Order that provides for an installation of Fiber or Facilities or to perform Services, Licensee shall, as described in Section 6.1 above, provide SRP with access to the Property, Buildings and Facilities (" Access ") for purposes of planning the installation. Throughout the term of this Agreement and upon reasonable notice under the circumstances, Licensee shall provide Access from time to time to SRP and its agents and third party contractors, employees, officers, lessees and authorized vendors, in connection with the construction, installation, modification, operation, maintenance, repair, update, disconnection, replacement and removal of the installation and equipment. Licensee shall cooperate with SRP to secure Access for SRP (at no charge) to the Property, Buildings, Facilities and the equipment, Facilities and buildings of Licensee’s customers, and space therein for SRP racks and other equipment as necessary for SRP to perform its obligations under this Agreement.

6.3          Scope and Design . To the extent that a Product Order provides for SRP to do any installation, SRP shall provide Owner and Licensee with technical drawings showing the planned path for installation of conduit and fiber optic cable, connection points and the other initial Equipment to be installed on the Property and in the Buildings or other Facilities (the "Preliminary Drawings"). The final drawings shall be satisfactory to Owner and Licensee, in their reasonable discretion (the "Approved Drawings"). The Preliminary Drawings and the Approved Drawings shall be added as Exhibits to the Product Order. Conduit shall generally be installed in rights of way on the Property. Upon completion of the Installation, SRP shall provide Owner and Licensee "field installation record" drawings of the Installation, and on request will provide them with updated drawings to show subsequent changes made.

6.4          Installation on Site and in Buildings . To the extent that a Product Order provides for SRP to do any installation, the installation shall be performed at no cost to Owner and shall substantially conform to the specifications in the Approved Drawings. No material alterations to the Approved Drawings and no material alterations to the Buildings shall be made without the prior written consent of Owner and Licensee, in their reasonable discretion. SRP shall seek to minimize, and shall give two (2) business days prior notice of interference with other construction activities and normal business operations of building owners and tenants. Owner and Licensee will also seek to minimize, and shall give two (2) business days prior notice of interference with SRP’s Installation.

ARTICLE 7. PROPERTY RIGHTS AND OBLIGATIONS

7.1          Encumbrances. Licensee shall not create or grant any lien, encumbrance, security interest or other property interest against any of the Fiber.

7.2          Maintain Property Rights. Subject to the provisions of Section 8.2 (Relocation), the Parties shall timely perform all of their respective obligations pertaining to the use of such Fiber, in

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accordance with all applicable terms and conditions of the grants and property conveyances by which it holds a property interest therein, and shall take such other actions as may reasonably be necessary to prevent the lapse, forfeiture or termination of any such property interests.

7.3          Defense of Property Interest. Should the right of either Party to use, in accordance with the terms and conditions of this Agreement, any Fiber be challenged by the holder or alleged holder of a property interest in such Right of Way or Building Entrance, excluding property owned by the United States, the Parties shall defend the right to so use the Fiber. The Parties shall take all actions and execute such additional documents as are deemed reasonably necessary in connection with the establishment or defense of the challenged rights. Neither Party makes a warranty to the other regarding the adequacy of any property rights that support the installation or use of any Fiber.

7.4          Franchise Rights and Licensing Costs. Each Party shall each be responsible for all franchises and licenses as may be necessary for its operations.

7.5          Liens. In the event any of the Fiber becomes subject to any mechanics’, artisans’ or materialmen’s lien, the responsible Party shall promptly cause the same to be discharged and released of record (by payment, posting of bond, court deposit or other means) without cost to the other. The responsible Party shall indemnify the other against all costs and expenses (including reasonable attorney fees) reasonably incurred in discharging and releasing such lien. If any such lien is not so discharged and released within ninety (90) days after notice thereof by the responsible Party, then one Party may pay or secure the release or discharge thereof at the expense of the responsible Party. Nothing in this Agreement shall preclude either Party from contesting any lien described above or the contract or action upon which the same arose after the same shall have been bonded or otherwise released of record, as provided above.

ARTICLE 8. CONDEMNATION AND RELOCATION

8.1          Taking. Should any portion of the Fiber be made the subject of a Taking, the License granted to Licensee under the terms of this Agreement with respect to the Affected Portion, to the extent appropriated by such Taking, shall terminate. SRP shall notify Licensee immediately of any Taking threatened or filed against any portion of the Fiber. In addition, SRP agrees not to sell or convey any portion of the Fiber to such acquiring authority in lieu of condemnation without giving prior notice to and the opportunity to Licensee to participate in the negotiations with respect to such conveyance. In the proceeding for any such Taking (or an involuntary discontinuance of the use of a Segment in anticipation of a Taking), the interests of Licensee and SRP in and to the Affected Portion of the Segment shall be severed. Any awards resulting from the proceeding shall be allocated between and payable in accordance with the respective interests of Licensee and SRP (both physical and occupational, including any incremental value of the Right of Way by virtue of the installation therein of the Fiber).

8.2          Relocation. SRP may relocate all or any portion of the Fiber: (i) if a third party with legal authority to do so orders such relocation or exercises its power of eminent domain (e.g., through filing or threatening to file a condemnation suit), or (ii) in order to comply with applicable laws, or (iii) if SRP determines that relocation is necessary or desirable for the operation of its business. Any relocation or portion thereof made pursuant to clause (ii), which is necessary to comply with laws that were in effect at the time of Fiber Acceptance, or any relocation or portion thereof made pursuant to clause (iii), shall be considered a "Voluntary Relocation".

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In the case of a Voluntary Relocation, SRP will reimburse Licensee for any reasonable direct costs incurred by Licensee as a result of the relocation, provided that, upon request by SRP, Licensee shall provide supporting documentation of such costs. SRP shall have the right to direct such relocation or Voluntary Relocation, including, but not limited to, the right to determine the extent of, the timing of, and methods to be used for such relocation provided that any such relocation: (a) shall be constructed in accordance with the specifications and requirements set forth in this Agreement; and (b) shall not unreasonably interrupt service or use of Licensee’s Fiber. SRP shall deliver to Licensee updated route and access point maps and ring diagrams with respect to a relocated portion of the Fiber not later than one hundred eighty (180) days following the completion of such relocation. Voluntary Relocation of the Licensed Fiber will be at SRP’s sole expense and SRP will give Licensee at least one hundred eighty (180) days prior written notice of any such Voluntary Relocation.

For relocations other than Voluntary Relocations, SRP will give Licensee at least one hundred eighty (180) days (or such lesser period of notice that SRP may have received) prior written notice of any such relocation and such notice shall include an estimate of the costs which are likely to be incurred in connection with such relocation. Licensee will have the option, exercisable in writing within fifteen (15) days after receipt of written notice of such relocation from SRP, to participate in the relocation with respect to the affected Segment. In the event that Licensee chooses not to participate in the relocation, then Licensee will be permitted (at Licensee’s cost) to connect into the remaining Segments at mutually agreeable Splice Points. If Licensee chooses to participate in the relocation, Licensee shall reimburse SRP (to the extent SRP has not been reimbursed by third Parties requiring said relocation) for a Pro Rata Share of the costs incurred by SRP for relocating the Fiber and any amounts that SRP is contractually required to pay any third party Facility Owner (provided such third party costs were identified in SRP’s cost estimate), provided that, upon request by Licensee, SRP shall provide supporting documentation of all such costs and amounts.

ARTICLE 9. CONFIDENTIALITY

All information furnished by the Parties to each other, or by or to their respective representatives, whether or not reduced to writing or specifically identified as non-public, confidential, or proprietary, and all analyses, compilations, data, studies, or other documents prepared by the Parties containing, or based in whole or in part on, any such furnished information, or reflecting review of, or interest in, all or part of such information, and the existence and terms of this Agreement, are hereinafter collectively referred to as the "Information." As used in this Agreement, a "representative" of the Party shall mean any and all directors, officers, employees, agents or representatives, including, without limitation, attorneys, accountants, consultants and financial advisors of a Party. In consideration of being furnished with the Information, the recipient of such Information agrees that:

(a)           Nondisclosure . The Information will be kept confidential and will not, without the prior written consent of the Party providing the information, be disclosed by the other Party or any of its representatives, in any manner whatsoever, in whole or in part, and will not be used by a Party or any of its representatives directly or indirectly for any purpose other than activities contemplated by this Agreement. Moreover, the recipient will transmit the Information only to those representatives who need to know the Information for the purpose of performing or exercising such Party’s obligations and rights under this Agreement, who have been informed of the confidential nature of the Information, and who have agreed to be bound by the terms of this Agreement.

(b)           Authorized Disclosure . Without the prior written consent of the other Party, neither Party or its representatives will disclose to any other person the fact that the Information has been made

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available, or any of the terms, conditions or other facts with respect to this Agreement, except as required by law and then only with prior written notice given, as soon as possible, to the other Party and in compliance with the provisions of Section 17.3 (Notices) of this Agreement. The term "person" as used in this Agreement shall be interpreted broadly to include, without limitation, any corporation, company, group, partnership or individual.

(c)           Nonconfidential Information . This Article (Confidentiality) shall be inoperative as to any portion of the Information which: (1) is or becomes generally available to the public other than as a result of a disclosure by the recipient or its representatives; (2) becomes available to a Party in good faith from a third-party not subject to a confidentiality obligation to the disclosing Party; or (3) was known to a Party on a nonconfidential basis prior to its disclosure by the other Party or one of its representatives.

(d)           Compelled Disclosure . In the event that either Party or anyone to whom the Party transmits the Information relating to this Agreement is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, or any similar process) to disclose any of the Information, the Party so compelled will provide prompt written notice of such event to the other Party so that the notified Party may seek a protective order or other appropriate remedy, waive compliance with the provisions of this Agreement or both. In the event that such protective order or other remedy is not obtained or that the notified Party waives compliance with the provisions of this Agreement, the legally compelled Party will furnish only that portion of the Information which is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Information.

(e)           Public Records Law . Licensee understands that SRP is or may be subject to in the future, public records disclosure laws, and that these laws will govern the disclosure responsibilities of SRP notwithstanding the terms of this Agreement. SRP agrees that to the extent reasonably practical, it will notify the Licensee of any public records requests of any part of the Information, and will give the other Party a reasonable opportunity to contest the public records request.

(f)            Equitable Relief . A Party shall be entitled to equitable relief, including injunctive relief and specific performance, in the event of any breach or threatened breach of the provisions of this Agreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by a Party or its representatives, but shall be in addition to all other remedies available by law or equity. For purposes of equitable relief, the Parties agree that breach of the provisions of this Agreement may subject the disclosing Party to irreparable harm and injury.

(g)           Ownership of Information . The Information acquired from the disclosing Party or any of its representatives shall be and shall remain the exclusive property of the disclosing Party. Neither the disclosure of Information, nor the execution of this Agreement shall be construed as a license or other authorization to the Party receiving Information to make use of or sell the Information or products derived from the Information, or to make use of it in any way that damages or competitively disadvantages the disclosing Party.

ARTICLE 10. FORCE MAJEURE

Notwithstanding anything in this Agreement to the contrary, neither SRP nor Licensee shall be liable or responsible for a delay or failure in performing or carrying out any of its obligations (other than obligations to make payments) under this Agreement caused by force majeure. For purposes of this Agreement force majeure shall mean any cause beyond the reasonable control of SRP or

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Licensee, as applicable, or beyond the reasonable control of any of their respective contractors, subcontractors, suppliers or vendors, including without limitation:

A.            Acts of God, including, but not necessarily limited to, lightning, earthquakes, adverse weather of greater duration or intensity than normally expected for the job area and time of year, fires, explosions, floods, wind, other natural catastrophes;

B.            Sabotage, acts of a public enemy, acts of government or regulatory agencies, wars, blockades, embargoes, insurrections, riots, or civil disturbances;

C.            Labor disputes, including, but not necessarily limited to, strikes, work slowdowns, work stoppages, or labor disruptions, labor or material shortages, or delays or disruptions of transportation;

D.            Orders and judgments of any federal, state or local court, administrative agency or governmental body;

E.             The adoption of or change in any federal, state or local laws, rules, regulations, ordinances, permits or licenses, or changes in the interpretation of such laws, rules, regulations, ordinances, permits or licenses, by a court or public agency having appropriate jurisdiction after the date of the execution of this Agreement; or

F.             Any suspension, termination, interruption, denial or failure to issue or renew by any governmental authority or other Party having approval rights of any approval required or necessary hereunder for construction, installation or operation of any Fiber and equipment or for either Party to perform its obligations hereunder, except when such suspension, termination, interruption, denial or failure to issue or renew results from the negligence or failure to act of the Party claiming the occurrence of an event of force majeure.

If either SRP or Licensee is rendered unable to fulfill any of its obligations under this Agreement by reason of force majeure, such Party shall promptly notify the other and shall exercise due diligence to remove such inability with all reasonable dispatch; provided, that nothing contained in this paragraph shall be construed as requiring SRP or Licensee to settle any strike, work stoppage or other labor dispute in which it may be involved, or to accept any permit, certificate, license or other approval on terms deemed unacceptable to such Party, or to enter into any contract or other undertaking on terms which the Party deems to be unduly burdensome or costly.

11. LICENSEE WARRANTY OF LAWFUL RIGHT TO USE

Licensee hereby warrants and represents to SRP that it is, and shall remain at all times during the term of this Agreement and any Product Order, fully licensed by all governmental entities with jurisdiction over its activities, shall have all permits or authorizing documentation required thereby, and that its use of the Fiber and any related equipment as provided herein shall be lawful in all respects.

ARTICLE 12. LIMITATION OF LIABILITY; WARRANTY DISCLAIMERS

Except to the extent specifically provided elsewhere in this Agreement, including without limitation Exhibit A attached hereto, SRP shall not be liable for any service interruption in SRP’s Fiber Network, the Fiber, another provider’s network being used to provide Fiber (a "Service Interruption") caused because of reasonable maintenance of SRP’s Fiber Network or its

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communications or electric systems in the ordinary course of business, unless the Service Interruption is caused as a result of a material deviation from the MOP, SRP’s failure to obtain a MOP when required under this Agreement, or SRP’s negligence or intentional wrongful conduct. If a Service Interruption is caused as a result of a material deviation from the MOP, SRP’s failure to obtain a MOP when required under this Agreement, or SRP’s negligence or intentional wrongful conduct, SRP’s liability shall be limited to providing Service Interruption Credits. Except for a breach of a Party’s confidentiality obligations or in the case of personal injury or death, in no event will either Party have liability to the other or its customers for consequential, exemplary, special, incidental, indirect and/or punitive damages, even if such Party has been advised of the possibility of such damages, including without limitation, loss of actual or anticipated profits or revenue, loss by reason of shut-down, loss of use or Interest, non-operation or increased expense of manufacturing or operation, or any costs, labor or materials required for reconstruction or repairs. The liability and damages limitations in this Section apply to all causes of action, including without limitation breach of contract, warranty, negligence, strict liability, misrepresentation and any torts. SRP EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

ARTICLE 13. INDEMNIFICATION

13.1        By Licensee . To the fullest extent permitted by law, Licensee shall indemnify, hold harmless, and defend SRP and the Salt River Valley Water Users’ Association, members of their governing bodies, directors, officers and employees, for, from and against all claims, damages, losses, and expenses (including, but not limited to, attorneys’ fees) arising out of or resulting from the use of the Fiber and any Equipment, or any condition created in or about the Property, Buildings and Facilities, including without limitation any accident, injury, or damage whatsoever occurring on or in the Property, Buildings and the Facilities, to the extent that any such claim, damage, loss, or expense is caused by any act or omission of Licensee, or its employees and agents. The agreement whereby Licensee agrees to hold SRP and the Association harmless shall include latent defects

In addition, Licensee shall indemnify, hold harmless, and defend SRP and the Salt River Valley Water Users’ Association, members of their governing bodies, directors, officers and employees for, from and against all claims, damages, losses, and expenses (including, but not limited to, attorneys’ fees) arising out of or relating to the following:

• • (a) The use or provision of services or the content of any transmission; or

    (b) Any claim for interruption of service or in respect of service quality.

Licensee shall have charge of all such proceedings and shall reimburse to SRP any amount that SRP is required to pay for any such damage, injury or claim, including, but not limited to costs, attorney’s fees and other expenses incurred in connection with any such damage, injury or claim, the investigation thereof, or defense. The obligation of indemnity by Licensee shall not apply to claims by SRP employees that are covered by workers’ compensation insurance.

13.2        By SRP . Subject to the limitations of Article 12 (Limitation of Liability; Warranty Disclaimers), to the fullest extent permitted by law, SRP shall indemnify, hold harmless, and defend Licensee and its directors, officers and employees, for, from and against all claims, damages, losses, and expenses including, but not limited to, attorneys’ fees arising out of or resulting from

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the use of the Fiber and Equipment, or any condition created in or about the Property, Buildings and Facilities, or any accident, injury, or damage whatsoever occurring on or in the Property, Buildings and Facilities, provided that a