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5 First Amendment to SL Dark Fiber License Agreement (a) This First Amendment may be terminated at any time by mutual agreement of the Parties regardless of whether the Original License is terminated. (b) Either Party shall have the right to terminate this License upon the other Party’s material breach of this License in which the breaching Party fails to commence a cure of such breach within ten (10) calendar days of written notice of default from the non-breaching party. SL Dark Fiber shall have the right to terminate this License, effective upon ten (10) days written notice to the City, if the results of its investigation into the feasibility of the Project or the Property inspection described in Section 2.12 below are unsatisfactory or if SL Dark Fiber is unable to obtain other necessary approvals, certifications, rights or interests. Neither Party shall have the right to seek an award of damages as a result of the termination of this License pursuant to this Section 2.9(b). If SL Dark Fiber terminates this First Amendment prior to any portion of the Projects becoming operational (i.e., the Projects are capable of supporting telecommunications services), then ownership of any fiber optic cable or associated facilities already installed in the Expanded Property will transfer automatically to the City. (c) After the first five (5) years of the Initial Term, the City shall have the right to terminate this First Amendment in the event that SL Dark Fiber abandons the Project installed in the Expanded Property for at least one hundred twenty (120) days. For purposes of this Agreement, “abandons” or “abandonment” means the intent to absolutely surrender or relinquish the Projects. Periods of disuse due to force majeure events, or other events causing the Projects to be unusable or in disrepair shall not be interpreted or construed as abandonment. Force majeure is defined as any inability of a Party to perform because it is directly prevented or delayed by reason of strikes, lockouts, labor disputes, supply shortages, utility outages, civil disorders, actions of governmental authorities, actions of civil or military authority, national emergency, insurrection, riots, war, acts of God, fire, floods, epidemics, freight embargoes, power outages or other causes beyond the reasonable control of the party. The City shall attempt to contact SL Dark Fiber at the address contained herein for notices at least once per month during the 120 day period of asserted abandonment to notify SL Dark Fiber that the City believes the Project has been abandoned. (d) Both Parties acknowledge and agree that if telecommunications services are being provided to customers, any termination of this First Amendment (whether by mutual consent or due to breach) that would affect or terminate such telecommunications services is subject to regulatory requirements and that they will comply with such regulatory requirements. In the event of abandonment of SL Dark Fiber, the City shall not be bound to any agreements between SL Dark Fiber and any third parties or affiliates in contract with SL Dark Fiber to access the Project installed in the Expanded Property. (e) Ownership of the Project Upon Termination or Abandonment. Upon termination or expiration of this License, or abandonment of the Project installed in the Expanded Property, ownership shall automatically transfer to the City. (f) Effect of Termination on License. Upon termination as provided herein, or upon the expiration of the Initial Term and any extensions thereof, this First Amendment shall forthwith be void, and there shall be no further liability or obligation on the part of either of the Parties or their respective officers, employees, agents or other representatives; provided however, that certain provisions of this First Amendment shall survive such termination, as specified herein. (g) Access to Unused Conduit Space. After the first five (5) years of the Initial Term, the City may permit others access to unused conduit space in the Expanded Property and such access will not constitute a reduction in capacity of conduit specified for SL Dark Fiber use. 2.11 Nonexclusive License. SL Dark Fiber understands that this License does not provide SL Dark Fiber exclusive use of the Expanded Property and that the City may permit other providers of telecommunications service or other entities to install equipment or devices within or on the Expanded Property. However, in granting others a similar license for access to and use of the Property, or for the City’s own use, the City agrees that it will not make or allow a subsequent change to the Expanded Property that materially affects SL Dark Fiber’s ability to use the Expanded Property for the Project, including the reduction of conduit capacity specified for use by