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Exhibit 10.2
TRANSITION AGREEMENT
THIS TRANSITION AGREEMENT (this " Transition Agreement ")
is made and entered into effective as of February 6, 2007 (the "
Effective Date ") by and between Hawaiian Telcom
Communications, Inc, a Delaware corporation (" HT "), and
BearingPoint, Inc., a Delaware corporation (" BE ").
HT and BE are collectively referred to herein as the "
Parties ."
RECITALS
WHEREAS , effective as of the Effective Date, HT and BE have
executed and delivered a Settlement Agreement (the " Settlement
Agreement ") providing, among other things, for the resolution
of certain disputes between the Parties, including those under and
in connection with the Master Services Agreement, effective as of
August 2, 2004 (together with any amendments thereto or change
requests executed thereunder, the " MSA "), between HT and
BE;
WHEREAS , as part of the Settlement Agreement, HT and BE
desire to document their agreement for the provision by BE of
certain transition assistance services (the " Transition
Services ") during the disengagement and transition of the
services provided under the MSA to HT’s successor service
provider (the " Transition ");
WHEREAS , certain capitalized terms used in this
Transition Agreement shall have the respective meanings set forth
in Article X and other capitalized terms are defined in the
context in which they are used in this Transition Agreement;
and
WHEREAS , any capitalized terms used in this Transition
Agreement that are not otherwise defined in this Transition
Agreement shall have the respective meanings (1) set forth in the
Settlement Agreement, or (2) to the extent not defined in the
Settlement Agreement, set forth in the MSA.
NOW, THEREFORE , in consideration of the premises, the
terms and conditions set forth herein and of the mutual covenants
of the parties hereinafter expressed, the Parties hereby agree as
follows:
ARTICLE I.
TERM
1.1.
Initial Term . The initial term of
this Transition Agreement will commence on the Effective Date and
end at midnight on May 2, 2007 (the " Initial Term ").
1.2.
Renewal Term . HT may renew this
Transition Agreement to provide for continuing support personnel
for one additional period of up to 60 additional days (a "
Renewal Term " and, together with the Initial Term, the "
Term "). No less than 21 days before the scheduled
expiration of the Initial Term, HT will notify BE in writing if HT
desires to renew this Transition Agreement as to part or all of the
Transition Services. If HT gives such notice of renewal of
this Transition Agreement, the term of this Transition
Agreement
will renew as to the Transition Services and the
BE personnel identified in the Personnel Plan (as defined below),
all as specified in the renewal notice for the time period
specified in the renewal notice. This Transition Agreement
may not be renewed for any additional periods after the first
Renewal Term.
ARTICLE II.
TRANSITION SERVICES
2.1.
Transition Services . Subject to
Section 2.2 , BE shall provide certain Transition Services for HT
or its designated successor service provider (the " Successor
Provider ") consisting of the following:
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(a)
those functions listed in the IM Services SOW, ADM
Services SOW and Cross Functional SOW set forth as Attachments
1 , 2 and 3 hereto (collectively, the "
Operate Services ");
(b)
those activities listed on the Knowledge Transfer
Plans attached as Attachment 4 (collectively, the "
Knowledge Transfer Services "); and
(c)
those activities listed on the Remediation Priority
List attached as Attachment 5 (collectively, the "
Remediation Services ").
In no event will BE provide any Build Services during the Term
(other than any task expressly set forth in the Remediation
Priority List as a Remediation Service).
2.2.
Nature of Obligation to Provide Transition
Services .
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(a)
BE will provide the Operate Services in accordance
with the terms of this Transition Agreement.
(b)
BE will provide the Knowledge Transfer Services in
accordance with the terms of this Transition Agreement.
(c)
BE will provide the Remediation Services only on a
"level of effort" basis, such that to the extent that adequate
numbers of BE personnel included in the Personnel Plan are
available after providing Operate Services and Knowledge Transfer
Services on a priority basis, BE will provide the Remediation
Services in the order of their priority reflected on the
Remediation Priority List. Notwithstanding anything to the
contrary in this Transition Agreement, BE will undertake only those
Remediation activities that BE can reasonably complete using the
level of support contemplated by the Personnel Plan after providing
Operate Services and Knowledge Transfer Services. The Parties
acknowledge that BE may not complete all the items on the
Remediation Priority List. BE will provide all such
Remediation Services in accordance with the terms of this
Transition Agreement.
(d)
BE will provide Transition Services to HT keeping
work hours that are consistent with general industry standards or
as otherwise provided in this paragraph
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(d) with respect to BE personnel with a principal
work location in Denver. BE personnel with a principal work
location in Denver and a home city outside the Denver area (the "
Traveling Resources ") will generally work in accordance
with the following schedule, subject to normal and customary
fluctuations and contingencies. Traveling Resources will
travel to Denver on an early flight on Monday morning, targeted to
arrive in BE’s Denver office prior to 12:00 noon, Mountain
Time. Traveling Resources will depart BE’s Denver
office no earlier than 4:00 p.m., Mountain Time on Thursdays.
Traveling Resources will work until 5:00 p.m. Mountain Time on
Mondays, from 8:30 a.m. until 6:00 p.m. Mountain Time on Tuesdays
and Wednesdays, and will work from their home city locations on
Fridays from 8:30 until 6:00 p.m. Local Time. BE personnel
living in the Denver area will work professional workdays, Monday
to Friday, in BE’s Denver office. The foregoing will be
appropriately adjusted if any week during the Term is not composed
of five business days.
(e)
On each Wave Transition Date, HT (directly, through
one or more Successor Providers or through some combination of the
foregoing), will assume plenary responsibility for the software and
platforms to be transitioned from BE on such Wave Transition
Date. BE’s obligation to provide Transition Services
(including Remediation Services) relating to the software and
platforms constituting each Service Wave shall cease on the
applicable Wave Transition Date. On and after each Wave
Transition Date, BE’s sole obligation for the Transition
Services to be performed in respect of the software and platforms
transitioned in the applicable Service Wave shall be to provide
personnel resources in accordance with Section 3.1(b) , if
any, at the direction of HT or the Successor Provider.
Notwithstanding the foregoing, the Parties agree that prior to the
occurrence of any Wave Transition Date, the applicable Knowledge
Transfer Services to be performed prior to the transition of such
Service Wave shall have been completed unless HT elects to
transition such Service Wave prior to the completion thereof.
If HT elects to transition any Service Wave prior to the completion
of the associated Knowledge Transfer Services, BE will cooperate
with HT or the Successor Provider to complete such Knowledge
Transfer Services during the Term of this Transition
Agreement.
(f)
In order to better coordinate the transition
activities before HT assumes responsibility for each Service Wave,
as contemplated in paragraph (e) above, the Parties agree that
prior to introducing any change or modification in software
utilized in HT’s production environment and constituting part
of such Service Wave, each of BE and HT will give their respective
written approval of such change or modification.
2.3.
Reprioritization; Other Tasks .
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(a)
HT (or the Successor Provider) will establish
priorities for BE personnel and may reprioritize the activities to
be performed by such personnel to the extent such work activities
can be performed with the same level of support contemplated by the
Personnel Plan and provided that any such activities constitute
Transition Services. Without BE’s prior written
consent, no such reprioritization may
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require BE to incur additional costs or to devote
additional or different resources to provide the Transition
Services.
(b)
Unless otherwise agreed in writing by the Parties,
BE shall have no obligation to perform any services, tasks or
functions not constituting Transition Services or set forth in this
Transition Agreement, even if directed to do so by HT or the
Successor Provider.
2.4.
Contract Executives . Each of HT and
BE will designate and maintain one or two individual(s) to serve as
a principal point of contact for the other Party and to whom the
other Party may address contract and operational communications
regarding this Transition Agreement (each, a " Contract
Executive "). The initial Contract Executive for HT is David
Torline and the initial Contract Executives for BE are Tom McKelvey
and Paul Ciandrini (it being understood that HT may direct
communications to either and rely on the determinations of either
with respect to matters that are to be handled by the Contract
Executive).
2.5.
Third-Party Agreements . BE will
provide to HT complete copies of those third-party agreements to be
assigned pursuant to the MSA to HT or the Successor Provider.
To the extent HT elects to assume or have the Successor Provider
assume such agreements, BE will have the financial and
administrative responsibility to assign such Third-Party Agreements
to HT or the Successor provider as designated by HT, but BE shall
not be obligated to (and without HT’s consent, will not)
renegotiate any terms of such agreements.
2.6.
Account Documentation .
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(a)
As part of the Transition Assistance, BE has
provided, or will provide, to HT or the Successor Provider the
items identified in Attachment 6 hereto (the " Account
Documentation ").
(b)
The Account Documentation will be provided to HT in
the state they presently exist and on an "AS IS, WHERE IS’
basis. BE makes no representations or warranties, express or
otherwise, with respect to the Account Documentation, including
with respect to the condition, state of repair, quality, fitness
for particular purpose, or merchantability of such items. BE
will provide to HT all Account Documentation in existence as of the
Effective Date and will cooperate with HT and the Successor
Provider as part of the Knowledge Transfer Services to provide
information and other documentation in its possession, if any, to
assist the Successor Provider in its completion of the Account
Documentation in accordance with the Transition Plan.
(c)
Set forth on Attachment 6A are the items of
documentation that the Parties have agreed BE will complete during
the Transition. BE acknowledges that nothing in this
Section 2.6 shall be construed to limit BE’s
obligations as set forth in Section 2.1 of this Transition
Agreement.
2.7.
Transition Plan . HT agrees that it
will and will require the Successor Provider to:
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2.8.
Record Retention; Audit Rights
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(a)
Audit Rights .
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(i)
Subject to Section 2.8(a)(v) , BE will
provide HT, and any HT auditors (including internal audit staff and
external auditors), inspectors, regulators or other representatives
as HT may from time to time designate in writing (collectively, "
Auditors "), with access, subject to the conditions
specified in Section 2.8(a)(v) to any of the following for
the purpose of performing audits (" Audits "): (i) any
facility or part of a facility, including data centers, at which
any Transition Services are provided; (ii) Supplier Personnel; or
(iii) data and records relating to the Services and the Transition
Services (which after the Term shall consist of data and records to
be retained by BE pursuant to Section 2.8(b)
below).
(ii)
HT will have the right to conduct such Audits during
the Term of this Transition Agreement and for the period BE is
required to maintain records pursuant to Section 2.8(b)
below; provided , however , that HT will not conduct
any Audit (other than an audit undertaken by Regulators as provided
for herein) more frequently than one time per calendar year. Audits
may be undertaken by Regulators as and when determined by such
Regulators.
(iii)
Audits may be conducted for the purpose of
confirming:
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a.
the accuracy of charges and invoices under this
Transition Agreement;
b.
exemptions, deductions, credits or incentives
related to Taxes relating to the Transition Services;
c.
BE’s compliance in its relevant operations
with the requirements of this Transition Agreement, including with
respect to security, privacy, contractual obligations (including
compliance with Law and Hawaiian Telcom Policies) and other such
matters; or
d.
Audits and such other matters as are required by any
of HT’s regulators or other government entities having
jurisdiction over
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(iv)
BE will provide the Regulators with access to
Supplier Personnel, Supplier Equipment, Supplier Software, Supplier
Facilities, and data and records relating to the Services and the
Transition Services, for the purpose of performing the
Audits.
(v)
Unless otherwise required pursuant to Section
2.8(a)(iv) :
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a.
BE will be provided a minimum of three Business
Days’ notice of Audits to be performed pursuant to this
Section 2.8(a) ;
b.
Audits will be conducted during business hours
(except with respect to Transition Services that are performed
during off-hours) and in such a fashion so as not to unreasonably
interfere with BE’s ability to perform the Transition
Services or any activities for other BE customers;
c.
Auditors must comply with all applicable reasonable
BE security and confidentiality requirements including, where
appropriate, execution of a confidentiality agreement in the form
formerly attached as of Exhibit M (Form of Confidentiality
Agreement) to the MSA or a non-disclosure agreement supplied by the
Auditor that is reasonably acceptable to BE. Subject to the
foregoing, HT’s Auditors will be provided access to shared
systems or shared BE facilities used in the performance of the
Transition Services, provided that nothing in this Section
2.8(a)(v)(c) will be construed to give Auditors access to any
data of any customer of BE other than HT;
d.
Auditors will not have access to BE’s
underlying costs except for timesheets and similar substantiating
data relating to charges for Transition Services which are charged
on a Time and Materials Basis; and
e.
Auditors will comply with reasonable facility use
regulations applicable to the Supplier Facilities accessed during
the course of Audits.
(vi)
All Audit rights of HT set forth in this Section
2.8 will apply to any subcontractor (including any Affiliate of
BE that is then providing Transition Services).
No Auditors selected by HT to perform any Audits in connection
with this Transition Agreement may be compensated on a contingency
basis.
(b)
Records Retention . Until the
three-year anniversary of the expiration or termination of this
Transition Agreement, BE will maintain and, subject to the
next
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sentences, provide access to, upon request, all
records, data, documents and reports maintained in the ordinary
course by HT’s program management office for the HT
engagement (the "PMO"). Notwithstanding the foregoing, BE
shall not be obligated to provide to HT, any Auditor or any
Regulator with access to, any of the following: (i) any document or
information that is protected under the attorney — client
privilege, (ii) any information relating to BE’s costs, (iii)
any information relating to BE’s relationship with any other
customer, and (iv) any information which BE is prohibited, by
contract or law, from providing to any such entities. In
addition, BE shall not be required to save or provide to HT or to
any Auditor or any Regulator any document that has been previously
provided to HT or the Successor Provider during the Transition or
otherwise.
(c)
Costs . During the Initial Term, any
support, assistance and documents to be provided under this
Section 2.8 shall be provided at no cost. During any Renewal
Term, such support shall be provided by BE at the rates set forth
in Attachment 10 hereto, together with reimbursement of
BE’s reasonable, actual out-of-pocket costs and expenses
incurred in connection with the provision of such support,
assistance and documents. After the expiration or termination
of this Transition Agreement, such support shall be provided at
BE’s standard commercial rates, together with reimbursement
of BE’s reasonable, actual out-of-pocket costs and expenses
incurred in connection with the provision of such support,
assistance and documents.
2.9.
Confidentiality . Sections 15.2
and 15.3 of the MSA shall be deemed to be incorporated
herein by reference ( mutatis mutandis ) and shall be deemed
to apply both (i) with respect to the Parties’ performance of
their respective obligations under this Transition Agreement from
and after the Effective Date and (ii) with respect to the
information obtained by each Party during the term of the MSA.
2.10.
Disabling Code . As of the date
hereof, BE represents and warrants to HT that, BE did not, during
the term of the MSA, maliciously insert into the Software any code
whose intended purpose was to disable or otherwise shut down all or
any portion of the Services.
2.11.
Cooperation with Regulatory Investigations
. BE will reasonably cooperate with HT until May 30, 2007
(the scheduled expiration of the initial discovery period as
proposed by the parties to the Hawaii Public Utilities Commission
(the " HPUC ") in Docket No. 2006-0400, "In the Matter of the
Public Utilities Commission Instituting a Proceeding Regarding
Hawaiian Telcom, Inc.’s Service Quality and Performance
Levels and Standards of Performance in Relation To Its Retail and
Wholesale Customers") by (a) responding to requests for information
and documentation filed by other parties and the HPUC and (b)
assisting HT in its development of factual responses to such
information requests, as reasonably required by HT in order to
respond in an accurate and timely manner. BE’s cooperation
with HT shall be at no cost during the Initial Term.
Thereafter, BE shall provide such cooperation at the rates set
forth in Attachment 10 hereto, together with reimbursement
of BE’s reasonable, actual out-of-pocket costs and expenses
incurred in connection therewith. For the avoidance of doubt,
the Parties agree that BE’s cooperation with HT pursuant to
this Section 2.11 shall not require BE personnel to travel
(including to Hawaii) or to present
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testimony or to attend any hearing, deposition or
meeting of the HPUC. This Section 2.11 does not affect
in any way BE’s individual obligations to respond to any
subpoenae or other lawful requests made by the HPUC directly to BE
in conducting its investigation and review in this
Docket.
2.12.
Insurance and Risk of Loss .
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(a)
BE will, during the Term of this Transition
Agreement, maintain in full force and effect at least the following
insurance coverages, on behalf of itself and its
Affiliates:
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(i)
Workers’ Compensation and Employers’
Liability, including coverage for occupational injury, illness and
disease, and other similar social insurance in accordance with Law
(including the Law of any location in which any BE employee
provides Transition Services to the extent such location exercise
jurisdiction over the BE employee) with Workers’ Compensation
coverage as required by Law and, with respect to Employers’
Liability coverage, minimum limits per BEemployee and per event
(after self-insuring the first $500,000) of one million dollars
($1,000,000) and a minimum aggregate limit of ten million dollars
($10,000,000) or the minimum limits required by Law, whichever are
greater.
(ii)
Commercial General Liability Insurance, including
Products and Completed Operations, Premise and Operational
liability, Personal and Advertising Injury, Contractual Liability
and Broad Form Property Damage Liability coverages, on an
occurrence basis, with a minimum combined single limit per
occurrence of five million dollars ($5,000,000) and a minimum
annual aggregate limit of five million dollars ($5,000,000). This
coverage will be endorsed to name HT as additional
insured.
(iii)
Property Insurance, including Extra Expense and
Business Income coverage, for "All Risks" of physical loss of or
damage to, including caused by terrorism, of BE’s business
property and equipment used in connection with the Transition
Services. Such insurance will have a minimum limit adequate to
cover risks on a replacement costs basis and time element insurance
on an actual loss sustained basis.
(iv)
Automotive Liability Insurance covering use of all
owned, non-owned and hired automobiles for bodily injury, property
damage, uninsured motorist and underinsured motorist liability with
a minimum combined single limit per accident of two million dollars
($2,000,000)or the minimum limit required by applicable law,
whichever limit is greater. This coverage will be endorsed to name
HT as additional insured
(v)
Crime Insurance with a minimum combined single limit
per occurrence of five million dollars ($5,000,000).
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The limits specified above may be satisfied by BE
using a single policy or a combination of primary and umbrella
and/or excess policies.
(b)
The insurance coverages under
Sections 2.12(a)(i) through 2.12(a)(v) will be
primary, as it relates to any BE performance on HT premises where
BE is not in control of the premises), and all coverage will be
non-contributing with respect to any other insurance or self
insurance which may be maintained by HT. All coverage required by
Section 2.12(a) will include a waiver of subrogation
and, with respect to the coverages under Sections
2.12(a)(ii) and 2.12(a)(iv) , will be endorsed for
cross-liability coverage. To the extent any coverage is written on
a claims-made basis, it will have a retroactive date prior to the
Effective Date and will allow for reporting of claims for at least
one year after the Term.
(c)
BE will cause its insurers to issue certificates of
insurance or other similar forms evidencing that the coverages and
policy endorsements required under this Transition Agreement are
maintained in force within 30 days after the Effective Date and
thereafter on an annual basis (unless BE has previously done so
during the term of the MSA). The insurers selected by BE will have
(unless HT, acting reasonably, agrees otherwise) an A.M. Best
rating of A-VII or better, or, if such ratings are no longer
available, with a comparable rating from a recognized insurance
rating agency; provided, however, that BE uses a single-owner,
captive insurance company to re-insure its property. In the United
States of America, the captive issues the certificate and is not
A.M. Best rated. BE will assure that its subcontractors, if
any, maintain insurance coverages as specified in this Section
2.12 naming BE as an additional insured or loss payee where
relevant.
(d)
In the case of loss or damage or other event that
requires notice or other action under the terms of any insurance
coverage specified in this Section 2.12 , BE will be
solely responsible to take such action. BE will provide HT with
contemporaneous notice and with such other information as HT may
reasonably request regarding the event.
(e)
BE will promptly inform HT during the Term each time
a minimum limit in one or more of the coverages in Section
2.12(a)(i) through 2.12(a)(iv) is reduced.
(f)
None of BE’s obligations specified in this
Section 2.12 as to types, limits and approval of
insurance coverage to be maintained by BE are intended to, and will
not in any manner, limit or expand the liabilities and obligations
assumed by BE under this Transition Agreement.
2.13.
Assistance with Source Code and IP Ownership
Matters .
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the extent it exists and is in BE’s
possession or control within a reasonable period of time in
response to reasonably specific requests from HT to provide such
information.
(b)
To the extent BE has not provided certain source
code required to be provided by it to HT pursuant to Section
11.2.6 of the MSA, BE shall provide such source code through
the 18-month anniversary of the Final Wave Transition Date to the
extent it exists and is in BE’s possession or control within
a reasonable period of time in response to reasonably specific
requests from HT to provide such information.
(c)
Nothing in Sections 2.13(a) or (b) above
shall be construed to limit BE’s obligations to provide such
information as elsewhere required by this Transition
Agreement.
ARTICLE III.
PERSONNEL MATTERS
3.1.
Personnel .
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(a)
Attached hereto as Attachment 8 , is a plan
(the " Personnel Plan ") reflecting the planned deployment
of a specified number of BE personnel and contractors, categorized
by relevant area of expertise, for a scheduled period of
time. Subject to Section 3.1(c), BE may withdraw or re-assign
each of the BE personnel and contractors set forth on the Personnel
Plan, only after the applicable duration commitment set forth in
the Personnel Plan (or such later date as may become applicable as
a result of any Holdover Period).
(b)
No less than 14 days before the scheduled
redeployment of personnel off the HT account, as such scheduled
redeployment dates are set forth in the Personnel Plan (as such
date may be extended in connection with any extension of a related
Wave Transition Date as permitted in the definition of Wave
Transition Date), HT may notify BE in writing if HT desires for BE
to retain such personnel on the HT account for an additional period
(for so long as each such retention continues, a " Holdover
Period ") as specified in such notice. No Holdover Period
may extend beyond the expiration of the then-existing Initial Term
or if applicable, Renewal Term. If HT issues one or more
Holdover Notices during the Initial Term or upon any Renewal Term,
the notice for the Renewal Term may extend the Holdover Period on
an employee-by-employee basis. Upon receipt of any such request
with respect to individuals who are BE employees, BE shall not
redeploy such personnel to a different account until the earlier of
(i) the expiration of the Holdover Period so requested by HT, or
(ii) the expiration of the then-existing Initial Term, or if
applicable, Renewal Term.
(c)
With respect to individuals identified in the
Personnel Plan, BE will initially staff the Personnel Plan with the
personnel identified therein. Without HT’s prior
written consent, BE will not withdraw or re-assign any of such
personnel during the Term before their respective planned
redeployment dates as reflected in the Personnel Plan (or such
later date as may become applicable as a result of any
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Holdover Period). The previous sentence
will not apply where any such personnel (1) voluntarily resigns
from BE, (2) is dismissed by BE for misconduct, (3) fails to
perform his or her assigned duties and responsibilities, (4) dies
or is unable to work due to disability, or (5) is placed on an
approved leave of absence for documented health or extenuating
circumstances that require the employee to devote his or her time
to other unanticipated personal or family matters that are outside
of the reasonable control of the individual involved. In any
such event, BE will have no responsibility therefor other than to
use commercially reasonable efforts to expeditiously identify and
deploy replacement personnel having similar or better
qualifications than the departing personnel. The foregoing
sentence shall not affect BE’s continuing obligation to
perform the Transition Services in accordance with this Transition
Agreement. If any personnel that depart the project are
rehired by BE prior to the expiration of the Initial Term or, if
applicable, the Renewal Term, BE shall promptly inform HT (to the
extent either BE Contract Executive becomes aware of such rehiring)
and, upon HT’s request (without regard to how HT learns of
such rehiring), return such personnel to the project.
3.2.
Employee Solicitation . HT (or the
Successor Provider) will have the right to extend offers of
employment to any or all of BE personnel identified in
Attachment 9 hereto subject to the terms set forth in Attachment
9 .
3.3.
Incentive Program . The Parties will
cooperate to encourage retention and performance of BE personnel on
the HT account during the Transition. As part of these
efforts, each Party will:
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(a)
Cooperate to implement the Transition Bonus plan
described in Attachment 9 .
(b)
Designate an executive sponsor to oversee matters
related to personnel retention during the Transition and make such
executive sponsor available periodically to discuss personnel and
retention issues. The initial executive sponsor for HT is
Loren Tobey and the initial executive sponsor for BE is David
Frey;
(c)
Coordinate communications to BE personnel regarding
Transition and the Transition Bonus, including communications made
at the time the Transition Bonus is announced; and
(d)
Participate in periodic meetings with BE personnel
to discuss issues of morale and other matters.
ARTICLE IV.
PAYMENT
4.1.
Payment
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(a)
In consideration for the mutual covenants set forth
in the Settlement Agreement and this Transition Agreement, BE will
provide the Transition Services, as specified herein, at no charge
during the Initial Term.
(b)
After the expiration of the
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