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<br />4 First Amendment to SL Dark Fiber License Agreement <br /> <br />sufficient to constitute a change in control, SL Dark Fiber must first notify the City. The City <br />shall have the Option and Right of First Refusal for one hundred and eighty (180) days after <br />receipt of such notice within which to elect in writing to purchase some or all of the fiber optic <br />cable and/or associated facilities that make up the Project, including fiber installed in the <br />Expanded Property. The addition of investment capital by a third party shall not trigger the <br />City’s Option and Right of First Refusal. <br />(b) If the City elects to exercise its Option and Right of First Refusal to purchase SL <br />Dark Fiber’s cable and associated facilities, the City’s purchase price shall first be determined <br />through mutual agreement of the parties. If the parties are unable to come to a mutual <br />agreement within 60 days, then both parties agree to engage in the following arbitration <br />procedure to determine the purchase price: <br />Each party will select an independent and reputable third party appraiser of similar fiber optic <br />cable facilities within thirty (30) days after the expiration of the 60-day period. The two <br />appraisers will each independently appraise the fair market value of the Project. Provided that <br />the difference in the two appraisals does not exceed ten percent (10%) of the lower of the two <br />appraisals, the fair market value shall be the average of the two appraisals, and such calculation <br />shall be binding on the parties. If either party fails to select an independent and reputable <br />appraiser within the time required by this covenant, the fair market value will be conclusively <br />deemed to equal the appraisal of the independent and reputable third party appraiser timely <br />selected by the other party. <br />If the difference between the two (2) appraisals referred to above exceeds ten percent (10%) of <br />the lower of the two (2) appraisals, the two (2) selected appraisers will select a third appraiser <br />who will determine which of the two (2) appraisals more closely reflects the fair market value <br />for the Project. <br />The determination of the appraisals described above shall be binding on the parties and not <br />subject to judicial review by arbitration. <br />Each party shall pay for the costs of its own appraisal, and, if applicable, each shall pay for one- <br />half of the cost of the third appraisal. In determining the fair market value, the appraisers <br />selected under this Agreement will consider all opinions and relevant evidence submitted to <br />them by the parties or otherwise obtained by them. The appraisers will set forth their <br />determination in writing, together with their respective opinions and the considerations on <br />which the opinions are based, with a signed counterpart to be delivered to each party within <br />thirty (30) days after commencing the appraisal. <br />(c) If the City elects to exercise its Option and Right of First Refusal to purchase SL <br />Dark Fiber’s fiber optic cable and associated facilities installed in the Expanded Property, it <br />acknowledges and agrees that it will assume and continue to provide facilities to support any <br />unexpired customer(s). The City also agrees to support and honor agreement(s) for <br />telecommunications services provided on SL Dark Fiber’s facilities through any affiliate of SL <br />Dark Fiber or agreements with third parties who were in contract with SL Dark Fiber to use SL <br />Dark Fiber’s facilities to provide telecommunications services, provided such agreements <br />satisfy the terms of this License. The City will continue to support the agreements explained in <br />the preceding sentence only for the remaining terms of such agreements and any prior exercised <br />or in contract extensions and only if such agreements were effective at the time that SL Dark <br />Fiber gave written notice to the City of SL Dark Fiber’s intent to sell, lease or otherwise <br />dispose of its portion of the Project. <br />(d) If the City fails or elects not to exercise its Option and Right of First Refusal <br />after engaging in the procedure described in section 2.8(b), then SL Dark Fiber may proceed to <br />sell, assign or otherwise dispose of the Project upon the City’s written consent, which shall not <br />be unreasonably withheld. The City acknowledges and agrees that the purchasing entity shall <br />have the right to use the portions of the Project that the City does not own to continue providing <br />service to support any unexpired customer agreement for telecommunications services provided <br />by SL Dark Fiber or any affiliate or third party with whom SL Dark Fiber has contracted to <br />provide telecommunications services, provided such agreement satisfies the terms of this <br />License and any extensions. <br />2.10 Termination, Abandonment or Expiration of License or Project.