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[GLOBAL CROSSING LOGO]
PART 1 - SPECIFIC TERMS
THIS CAPACITY PURCHASE AGREEMENT (as amended, supplemented or otherwise modified
from time to time, this "Agreement"), entered into as of November 10, 2000
between GLOBAL CROSSING BANDWIDTH, INC., a corporation organized and existing
under the laws of California and having its principal office in Goleta,
California , (said company, and any permitted successor or assign hereunder, the
"Grantor") and INTERNATIONAL SATELLITE COMMUNICATION HOLDING LTD., a corporation
organized and existing under the laws of Lichtenstein and having its principal
office in Vaduz, , Lichtenstein (said company, and any permitted successor or
assign hereunder, the "Purchaser"). The Grantor and the Purchaser are herein
sometimes collectively referred to as the "Parties" and each, individually, as a
"Party."
W I T N E S S E T H :
WHEREAS, the Purchaser's affiliate Impsat Fiber Networks, Inc. ("Impsat") and
the Grantor have entered into a Capacity Commitment Agreement of even date (the
"Commitment Agreement") where Impsat has agreed to purchase or procure that its
affiliates will purchase $46,000,000 of Capacity on the Global Crossing Systems.
WHEREAS, in consideration of Impsat's obligation to purchase Capacity under the
Commitment Agreement, the Purchaser desires to acquire and the Grantor desires
to grant rights with respect to Capacity on an indefeasible right of use basis
("IRU") and such Capacity represents capacity on the Global Crossing Network
between the System Interfaces at the applicable Points of Presence (these, and
other capitalized terms are hereinafter defined); and
WHEREAS, Global Crossing Network Center Ltd., a corporation organized and
existing under the laws of Bermuda and having its principal office in Bermuda
(said company, and any permitted successors or assigns, the "Maintenance
Company") has agreed to perform or cause to be performed all operation,
administration and maintenance with respect to the Global Crossing Network;
WHEREAS, Pan American Crossing Ltd. is constructing a fiber optic cable system
connecting California, Mexico, Panama and St. Croix, known as the Pan American
Crossing System or "PAC";
WHEREAS, Grantor is constructing a fiber optic cable system connecting various
principal cities in South America, known as the South American Crossing System
or "SAC";
WHEREAS, Mid-Atlantic Crossing Ltd., Pan American Crossing Ltd., and South
American Crossing Ltd., and each of their respective subsidiaries, are
affiliates hereinafter collectively referred to as the "System Companies" and
MAC-1, PAC and SAC are hereinafter collectively referred to as the "Systems";
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NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, covenant and agree with each other as follows:
A. AGREEMENT.
This Agreement consists of two Parts (Part 1 and Part 2) and various
Annexes and Schedules, all of which, taken together, comprise this
"Agreement." Part 1 contains specific terms and signatures ("Part 1" or
"Specific Terms"). Part 2, which is attached hereto, contains general
terms ("Part 2" or "General Terms"). The provisions of each Part and the
Annexes and Schedules attached thereto are equally binding on the
Parties; provided, however, that, in the case of any inconsistency
between any provisions of the Specific Terms and of the General Terms,
the provisions of the Specific Terms shall govern. For convenience of
reference, provisions of the Specific Terms are referred to as
"Paragraphs" and provisions of the General Terms are referred to as
"Sections".
B. INITIAL COMMITTED CAPACITY.
As of the date of this Agreement the Initial Committed Capacity consists
of the indicated number of MCUs of Capacity on the Traffic Connections
listed on Schedule 1 hereto.
C. PURCHASE PRICE.
(1) The Purchase Price in respect of each MCU of Initial Committed
Capacity shall be the price per MCU indicated in Schedule 1 hereto.
(2) The Purchase Price in respect of each MCU of Capacity to be
purchased pursuant to Section 2(b) of this Agreement (the
"Additional Committed Capacity"), if any, shall be the amount
agreed upon, subject to the terms of Section 2 (b) of the
Commitment Agreement, by the Parties hereto and shall be set forth
in a Schedule 2 executed pursuant to said Section 2(b).
D. INITIAL ANNUAL MAINTENANCE COST PAYMENT.
(1) The Initial Annual Maintenance Cost Payment payable by the
Purchaser with respect to each MCU of Initial Committed Capacity
shall be the amount per MCU indicated in Schedule 1 hereto.
(2) The Initial Annual Maintenance Cost Payment payable by the
Purchaser with respect to each MCU of Additional Committed Capacity
shall be an amount agreed upon, subject to the terms of Section
3(c) of the Commitment Agreement, by the Parties hereto and shall
be set forth in a Schedule 2 executed pursuant to Section 2(b).
E. REQUESTED ACTIVATION DATE.
(1) The Requested Activation Date for each MCU of Initial
Committed Capacity is set forth in Schedule 1 hereto.
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(2) The Requested Activation Date for each MCU of Additional
Committed Capacity shall be agreed upon by the Parties hereto and
set forth in a Schedule 2 executed pursuant to Section 2(b). The
Grantor shall, subject to availability of Capacity on the relevant
System, make Capacity available to the Purchaser POP to POP within
[ ]* days of the Purchaser committing to purchase such Capacity.
Capacity which includes the arrangement of a Local Loop by the
Grantor will, subject to availability of the local loop capacity,
be made available as soon as practicable by the Grantor and in any
case within [ ]* days of the Purchaser's commitment to purchase
such Capacity.
The foregoing referenced dates do not constitute representations,
warranties, covenants or agreements that the Initial Committed
Capacity or Additional Committed Capacity, as the case may be, will
be available on the Requested Activation Date.
F. JAPANESE BACKHAUL
In the event that the Purchaser does not have the necessary
governmental authority to acquire the Committed Capacity on an
IRU basis in one or more jurisdiction(s) in Japan, or if any
jurisdiction(s) in Japan does not currently recognize or does
not recognize in the future the conveyance of
telecommunications facilities on an IRU basis, then as to such
jurisdiction(s) only, the Agreement shall be considered an
agreement for a lease of such Capacity ("Capacity Lease"). The
term of the Capacity Lease shall be the period set forth in
Section 12 of the General Terms. The total lease payments for
any such Capacity Lease shall be the amount set forth in
Paragraph C of the Specific Terms, in addition to any other
payments provided for in the Agreement, including but not
limited to Initial and Annual Maintenance Cost Payments,
Taxes, and "default interest." All amounts owed under the
Agreement shall be paid as provided in the Agreement and
Purchaser shall receive no credit or discount as a result of
the above-described change in status of the rights granted
under the Agreement.
In the event that the Agreement is deemed a Capacity Lease in
one or more jurisdictions, then as to such jurisdictions only,
the terms "purchase". "Purchaser", and any variations thereon
shall mean "lease", "Lessee", or the appropriate variation
thereof, and the terms "indefeasible right of use" and "IRU"
shall mean "Lease". Any other terms and conditions of the
Agreement also shall be deemed modified only to the extent
necessary to be consistent with the grant of a lease to the
Purchaser. All other terms and conditions of the Agreement
shall remain unchanged and fully valid and enforceable.
Purchaser agrees not to make any claim that the Agreement is
invalid or unenforceable as the result of it being deemed a
Capacity Lease in one or more jurisdictions.
It is the intent of the parties that the Purchaser be granted
an IRU or the next highest rights with regard to use of the
Committed Capacity. To the extent that any jurisdiction(s)
recognizes the conveyance of telecommunications facilities on
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* CONFIDENTIAL TREATMENT REQUEST - Confidential portion has been omitted and
filed separately with the Commission.
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an IRU basis at any time during the term of the Agreement,
then for so long as that jurisdiction(s) recognizes such type
of conveyance, this Paragraph shall be of no force or effect
as to such jurisdiction.
G. ADDITIONAL AGREEMENTS.
The Purchaser acknowledges that it may be necessary for the
Parties to enter into additional agreements to allow the
Grantor to grant an IRU or such other right as is available
under Paragraph F in any Capacity hereunder. Therefore, the
Purchaser agrees to enter into any such additional documents,
instruments or certificates as are reasonably required, in the
Grantor's opinion, to consummate any of the transactions
contemplated hereby, provided however, that such agreements
are reasonably acceptable to Purchaser and are no less
favorable, as applicable, to Purchaser than any such agreement
entered into by Grantor for similar purpose. Purchaser's
failure to execute such agreements may constitute a basis for
relieving or excusing Grantor from performing its obligations
hereunder.
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IN WITNESS WHEREOF, the Parties have executed this Agreement effective on the
date first written above.
GLOBAL CROSSING BANDWIDTH, INC.
-----------------------------------
By:
Title:
INTERNATIONAL SATELLITE COMMUNICATION
HOLDING LTD.
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By:
Title:
PURCHASER'S ADDRESS FOR NOTICES:
Attention:
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Telephone:
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Fax:
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PURCHASERS ADDRESS FOR BILLING
Attention:
Telephone:
Fax:
Email:
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The undersigned hereby agrees to the provisions of Sections 7, 8, 10(g), 20(b),
20(g) and 23(b) of this Agreement. All of the provisions of this Agreement which
govern the rights and obligations of the Grantor hereunder shall apply to the
rights and obligations of the Maintenance Company under said Sections 7, 8,
10(g), 20(b), 20 (g) and 23(b). This Agreement shall also apply to any
subsequent purchases of Capacity pursuant to Section 2(b) of this Agreement.
GLOBAL CROSSING NETWORK CENTER LTD.
By: __________________________ Title:
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CAPACITY PURCHASE AGREEMENT
PART 2 - GENERAL TERMS AND CONDITIONS
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1. DEFINITIONS.
Unless otherwise defined herein, all terms which are commonly used in the
telecommunications industry shall have the meanings generally given such terms
in such industry. The terms defined in the preamble and in the recitals of the
Specific Terms and the General Terms, as well as those defined in the text of
this Agreement, shall have their respective meanings when used herein and the
following additional terms shall have the following meanings:
"Activation Date" as defined in Section 6 of the General Terms.
"Actual Availability Date" as defined in Section 6 of the General Terms.
"Affiliate" means in relation to any entity any other present or future
entity controlled by or under common control with such entity. As used in
this definition "control" shall mean as to any Person, (i) any
corporation of which more than 20% of the outstanding stock of any class
or classes having by the terms thereof ordinary voting POWER to elect a
majority of the directors of such corporation (irrespective of whether or
not at the time stock of any class or classes of such corporation shall
have or might HAVE voting power by reason of the happening of any
contingency) is at the time owned by such person and/or one or more
Subsidiaries of such person and (ii) any partnership, association, joint
venture or other entity in which such person and/or one or more
Subsidiaries of such person have more than a 20% equity interest therein.
"Annual Maintenance Cost Payment" means, with respect to each MCU of
Committed Capacity, the amount determined pursuant to Paragraph D of the
Specific Terms and Section 8 of the General Terms, which amount is
payable by Purchaser to Grantor pursuant to Section 8 of the General
Terms.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banks in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ or New York
City are authorized or required to close.
"Capacity" means capacity available on the Global Crossing Network.
"Carrier Party" means any entity authorized or permitted under the laws
of its respective country to acquire and use facilities for the provision
of international telecommunications services.
"Committed Capacity" means Capacity which the Purchaser has at any time
agreed to purchase pursuant to Section 2(a) or 2(b) of the General Terms
or any other provision of this Agreement.
"Customer Information Guide" means the manual which the Grantor and/or
the Maintenance Company shall publish from time to time and which shall
include, among other things, interconnection services ordering
procedures.
"Delayed Availability Date" means, with respect to any Traffic
Connection, the date that is the six-month anniversary of the Requested
Activation Date for such Traffic Connection.
"Dollars" or "$" means United States dollars.
"Force Majeure" means any event or circumstance or combination of events
or circumstances that is beyond the reasonable control of the party
sought to be held liable, including, but not limited to, any: (i) delay
in obtaining or failure to obtain or renew any permit or governmental
authorization, provided that Grantor was reasonably informed of need for
such permit or authorization and timely applied for and diligently
prosecuted procuring the same (ii) act of God or of the public enemy,
(iii) action, or failure to act, of any governmental authority, (iv) war
or warlike operations, (v) civil war or commotion, mobilization, military
call-up and acts of similar nature, (vi) revolution, rebellion, sabotage,
insurrection or riot, (vii) drought, fire, flood, lightning, epidemic or
quarantine restriction, earthquake, unusually severe storm, landslide or
other natural event, (viii) strike or other labor action, (ix) freight
embargo, (x) unworkable weather, (xi) trawler or anchor damage involving
multiple points on the relevant System so that that System is no longer
capable of providing self restoration, (xii) damage caused by other
marine activity such as fishing, marine research or marine development,
or interruptions caused by construction activity of a third party
involving multiple points on the relevant System so that that System is
no longer capable of providing self restoration, (xiii) act or omission
or transporters, (xiv) act, or failure to act, of the Purchaser (in a
case where the Grantor or the Maintenance Company is sought to be held
liable), act, or failure to act of the Grantor (in a case where the
Purchaser is sought to be held liable) or act, or failure to act, of any
representatives or agents of a Party (in a case where the other party is
sought to be held liable).
"Global Crossing Network" means the fiber optic network comprised of the
subsea and terrestrial systems owned by Grantor, or an Affiliate of the
Grantor, and the other fiber optic transmission capacity which Grantor
and/or its Affiliates may own or obtain (at their sole option) from
another service provider, as such network may be expanded by the Grantor
and its Affiliates from time to time.
"Grantor's Account" means the bank account of the Grantor maintained with
The Chase Manhattan Bank at
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1 Chase Manhattan Plaza, New York, NY, or such other account as the
Grantor may designate to the Purchaser in writing. Wire instructions for
the above-referenced account are as follows:
Account Number:[ ]*
Bank Name: The Chase Manhattan Bank
ABA No.: 021 000 021
Chips Participant No. 0002
S.W.I.F.T BIC[ ]*
Reference:[ ]*
Any questions regarding wire transfers to the Grantor's Account should be
directed to the attention of [ ]*.
"Indefeasible Right of Use", or "IRU" means a contractual right for a
defined duration of years in which the Purchaser is authorized to utilize
certain Capacity of the Grantor, and which contractual right of
utilization is not subject to defeasance, denial or withdrawal except on
terms stated in the Agreement.
"Initial Annual Maintenance Cost Payment" as defined in Section 8 of the
General Terms.
"Initial Payment" as defined in Section 3(a) of the General Terms.
"Local Loop" means capacity provided by Grantor to Purchaser from a third
party provider that provides connectivity between the Global Crossing
Point of Presence and a location specified by the Purchaser. "Local Loop"
may be maintained or operated by the Grantor or its Affiliates or by a
third party.
"Maintenance Company" means Global Crossing Network Center Ltd.
"Maintenance Company's Account" means the bank account of the Maintenance
Company maintained with The Bank of Bermuda, ▇▇▇▇▇▇▇▇, Bermuda, or such
other account as the Maintenance Company may designate to the Purchaser
in writing. Wire instructions for the above-referenced account are as
follows:
Citibank N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
FED ABA: ▇▇▇▇▇▇▇▇▇
CHIPS ABA: 0008
S.W.I.F.T. Code: [ ]*
For Credit to:
[ ]*
CHIPS UID: [ ]*
S.W.I.F.T. Code: [ ]*
For Further Credit to: [ ]*
Account Number: [ ]*
Any questions regarding wire transfers to the Maintenance Company's
Account should be directed to the attention of [ ]*.
"Minimum Capacity Unit" or "MCU" means the unit measure of capacity to be
purchased by the Purchaser on the Global Crossing Network. Unless
otherwise specified in the Specific Terms, an STM-1 is designated as the
MCU for purposes of this Agreement.
"Payment Date" means, with respect to each MCU of Capacity to be
purchased by the Purchaser hereunder, the date on which the Purchaser
pays the Grantor, in immediately available Dollars, the amount required
to be paid by the Purchaser for such Capacity pursuant to Section 3(b) of
this Agreement. In the event that the Specific Terms of this Agreement
provide for the payment of the Purchase Price in more than one
installment, any interest conveyed by the Grantor to the Purchaser shall
vest as of date upon which the final payment is made such that Grantor
has received the Total Purchase Price, and such final payment date shall
be deemed the Payment Date for purposes of Section 2(e) of this Part 2 of
the Agreement.
"Payment Due Date" means, with respect to each MCU of Committed Capacity,
the Activation Date and, thereafter, on each January 1, April 1, July 1
and October 1.
"Points of Presence" means the points of presence of the Grantor and/or
its Affiliates on the Global Crossing Network at which Purchaser is
authorized by Grantor to interrconnect to send and receive traffic to and
from the Global Crossing Network. Traffic Connections terminate at the
Points of Presence. Individually, each of the Points of Presence may be
referred to herein as a "Point of Presence."
"Purchased Capacity" means the Capacity on the Traffic Connections as to
which the Purchaser has paid the Purchase Price and has been granted an
IRU in accordance with this Agreement.
"Purchase Price" means, with respect to each MCU of Committed Capacity,
the amount set forth pursuant to Paragraph C of the Specific Terms and
Section 3 of the General Terms, which amount is payable by the Purchaser
to the Grantor pursuant to Section 3(b) of the General Terms.
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* CONFIDENTIAL TREATMENT REQUEST - Confidential portion has been omitted and
filed separately with the Commission.
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"Requested Activation Date" means, with respect to any Committed
Capacity, the date set forth pursuant to Paragraph E of the Specific
Terms.
"System Interface" means the digital/optical input/output ports on the
digital/optical distribution frame (including the digital/optical
distribution frame, itself) where the basic system module connects with
other transmission facilities or equipment.
"Total Purchase Price" means the aggregate amount of purchase price
payable by the Purchaser to the Grantor for any Committed Capacity
(exclusive of any Annual Maintenance Cost Payments in respect of such
Capacity).
"Traffic Connection" means "point-to-point" connectivity for
telecommunications traffic between two Points of Presence. Capacity is or
will be available on Traffic Connections between Points of Presence on
the Global Crossing Network. Any Local Loop capacity provided under this
Agreement shall not be considered to be part of the Traffic Connection.
2. COMMITMENT; CONDITIONS TO
OBLIGATION; IRU FOR
PURCHASED CAPACITY.
(a) Purchase Obligation. The Purchaser hereby irrevocably and
unconditionally (except as provided in Section 2(d) of the General Terms)
agrees to purchase the MCUs of Initial Committed Capacity specified
pursuant to Paragraph B of the Specific Terms hereof for the Purchase
Price and on the other terms and conditions set forth in this Agreement.
(b) Additional Capacity. (i) At any time, so long as the Grantor
determines that Capacity is available on the Global Crossing Network and
so long as the Grantor and Purchaser have mutually agreed upon the
applicable Purchase Price, and Annual Maintenance Cost Payment, subject
to the terms of the Commitment Agreement , the Purchaser may elect to
purchase Capacity pursuant to this Agreement in addition to that provided
for in Section 2(a) hereof. Purchaser agrees that it shall present its
request for Additional Capacity for POP to POP connections no later than
ninety days before the proposed activation date.
(ii) The Purchaser and Grantor shall effect such election by (A) jointly
executing and delivering a written Schedule 2 and (B) the Purchaser's
paying the applicable Initial Payment pursuant to Section 3(a) to the
Grantor's Account. Such Schedule 2A shall be deemed to be an irrevocable,
unconditional agreement of the Purchaser (except as provided by Section
2(d) hereof) to (i) purchase the MCUs of Capacity specified therein for
the Purchase Price specified therein (ii) pay the Purchase Price and
Annual Maintenance Cost Payments specified therein when due, and (iii)
comply with all other terms and conditions set forth in this Agreement.
(c) Condition to Grantor's Obligation. The Grantor's obligation to grant
an IRU in any MCU of Capacity allocated to a Traffic Connection hereunder
is subject to the occurrence of the Actual Availability Date(s) of such
Capacity.
(d) Condition to Purchaser's Obligation. The Purchaser's agreement to
purchase any MCU of Committed Capacity allocated to a Traffic Connection
as to which, at the time in question, an IRU has not been granted
hereunder, shall terminate (unless the Purchaser requests an extension of
time) if the Actual Availability Date for such Committed Capacity has not
occurred by the Delayed Availability Date. In such event, all amounts of
Initial Payment previously received from the Purchaser with respect to
Committed Capacity as to which the Purchaser has not been granted an IRU
(the "Deposit") shall be retained by the Grantor but the Purchaser shall
be entitled to a credit equal to the amount of such Deposit against the
purchase price of any capacity purchased by the Purchaser on the Global
Crossing Network at any future date. Except as set forth herein, the
Purchaser shall not be entitled to any other rights, remedies or damages,
whatsoever, for the delay or non-occurrence of any Actual Availability
Date.
(e) Grant of IRU. Effective on the Payment Date, the Grantor grants to
the Purchaser, for the term set forth in Section 12 of this Agreement, an
IRU in the Purchased Capacity for which payment has been made in
accordance with Section 3(b) of this Agreement.
(f) Quiet Enjoyment. So long as no event has occurred which entitles the
Grantor to suspend service under this Agreement, the Purchaser shall be
entitled to the quiet enjoyment and use of the rights granted hereunder
free from interference by any person claiming through the Grantor, such
as the Grantor's lenders.
(g) Additional Agreements. The Grantor's obligation to grant an IRU in
any Capacity hereunder is subject to the receipt of such additional
documents, instruments or certificates from the Purchaser as are
reasonably required to consummate the transactions contemplated by this
Agreement.
3. PAYMENT FOR CAPACITY.
(a) Initial Payment. Within three (3) Business Days after the date of
this Agreement, in the case of the Initial Committed Capacity and, in the
case of any Additional Committed Capacity, on the date the Purchaser
elects to commit to purchase it in accordance with Section 2(b) of this
Agreement, the Purchaser shall make an initial
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payment to the Grantor's Account, in immediately available Dollars, in an
amount equal to [ ]* percent ([ ]*%) of the Total Purchase Price of such
Committed Capacity (in each case, the "Initial Payment"). Each Initial
Payment shall be non-refundable and shall be credited, pro rata, toward
the payment of the Purchase Price for the Committed Capacity with respect
to which it was paid, but without prejudice to any other legal remedy
available to Purchaser by law.
(b) Payment of Purchase Price. In exchange for the IRU interest granted
pursuant to this Agreement in any MCU of Purchased Capacity, the
Purchaser shall, on or before each Payment Due Date, pay to the Grantor's
Account, in immediately available Dollars, an amount equal to the
Purchase Price for the MCUs of Purchased Capacity to be purchased on such
date, less the amount of any Initial Payment to be credited to such
Purchase Price pursuant to Section 3(a). Each payment made under this
Section 3(b) shall be non-refundable.
4. TAXES
(a) Taxes. All payments made by the Purchaser under this Agreement shall
be made without any deduction or withholding for or on account of any
tax, duty or other charges, of whatever nature (including, without
limitation, any regulatory fees, surcharges or assessments) imposed by
any taxing or governmental authority (collectively, "Taxes"). If the
Purchaser is or was required by law to make any deduction or withholding
from any payment due hereunder to the Grantor or the Maintenance Company,
then, notwithstanding anything to the contrary contained in this
Agreement, the gross amount payable by the Purchaser to the Grantor or
the Maintenance Company, as applicable, will be increased so that, after
any such deduction or withholding for Taxes, the net amount received by
the Grantor or the Maintenance Company, as applicable, will not be less
than the Grantor or the Maintenance Company, as applicable, would have
received had no such deduction or withholding been required. If any
taxing or governmental authority asserts that the Purchaser should have
made a deduction for withholding for or on account of any Taxes with
respect to all or a portion of any payment made hereunder, the Purchaser
hereby agrees to indemnify the Grantor or the Maintenance Company, as
applicable, for such Taxes and to hold the Grantor or the Maintenance
Company, as applicable, harmless on an after-tax basis from and against
any Taxes, interest or penalties levied or asserted against them in
connection therewith.
(b) The Purchaser shall be responsible for and shall pay any applicable
value added taxes or other federal, state or local sales, use, excise,
privileged, gross receipts or other similar taxes, duties or charges
imposed by any governmental authority or regulatory body in connection
with the purchase of any Capacity hereunder. The Grantor shall invoice
the Purchaser for all applicable taxes and such taxes are payable by the
Purchaser in respect of its purchase of Capacity unless the Purchaser
produces to the Grantor applicable valid states' resale certificates
relating to state or local sales, use, gross receipts or similar taxes.
The Purchaser shall be responsible for and shall pay all real property
and ad valorem taxes imposed by any governmental authority in connection
with the Capacity to be purchased pursuant to this Agreement. The payment
of any such taxes, duties or charges will be in addition to the payment
of the Purchase Price and the Annual Maintenance Cost Payments.
5. AVAILABILITY OF CAPACITY; CABLE NETWORK CONFIGURATION; ACCESS
CONNECTIONS.
(a) On the Activation Date, the Grantor will have the right to use and
provide the Purchased Capacity to the Purchaser.
(b) The Grantor and its Affiliates shall have full and complete control,
authority and responsibility for determining any network and system
configuration or designs or changes therein, network and system upgrades,
routing configurations or rearrangement and all related functions with
regard to the provision of Capacity to the Purchaser.
(c) The Purchased Capacity will be made available to the Purchaser at the
applicable Points of Presence.
(d) Access connection services and service orders therefor shall be
provided in accordance with this Agreement and the Customer Information
Guide.
6. ACTUAL AVAILABILITY DATE; ACTIVATION.
(a) The "Actual Availability Date" with respect to any Capacity on a
Traffic Connection shall be the date on which the Traffic Connection is
available for service [ ]*.
(b) The Activation Date shall occur on the later of (i) the Actual
Availability Date and (ii) the Requested Activation Date. [ ]*
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* CONFIDENTIAL TREATMENT REQUEST - Confidential portion has been omitted and
filed separately with the Commission.
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7. OPERATION AND MAINTENANCE OF SYSTEM.
(a) Maintenance.
(i) The Grantor and the Maintenance Company jointly agree to use
reasonable efforts to cause the Global Crossing Network to be maintained
in efficient working order, using the Maintenance Company's standard
maintenance procedures, all in accordance with applicable industry
standards. The Grantor and the Maintenance Company may vary the technical
parameters applicable to the Capacity so long as the quality of such
Capacity is not adversely affected and complies with the SLA.
(ii) The Grantor, the Maintenance Company and their respective Affiliates
will have sole responsibility for negotiating, executing and
administering contracts and all other aspects related to the
construction, operation, maintenance and repair of the Global Crossing
Network.
(iii) Should any condition exist in any portion of the Global Crossing
Network that, in the judgment of the Grantor and the Maintenance Company,
could impair the integrity of the Global Crossing Network, the Grantor
and the Maintenance Company shall initiate and coordinate planned
maintenance, which may include deactivation of such portion of the Global
Crossing Network (or shall cause such action to occur) with respect to
such portion of the Global Crossing Network. The Grantor or the
Maintenance Company shall, to the extent reasonably practicable, advise
the Purchaser in writing at least thirty (30) days prior to initiating a
planned maintenance operation, of the timing and scope of such planned
maintenance operation.
(iv) In the event of disruption of service due to Force Majeure or other
emergency, the Grantor and the Maintenance Company shall cause service to
be restored as quickly as reasonably practicable, and the Grantor and the
Maintenance Company shall take such measures as are reasonably necessary
to obtain such objective.
(b) Customer Care. The Grantor and the Maintenance Company jointly agree
to perform or cause to be performed customary duties and responsibilities
pertaining to a Network Administrator/Customer Care Center for the Global
Crossing Network, as set forth in the Customer Information Guide.
(c) Rules, Regulations and Requirements. The Purchaser understands and
agrees to abide by all generally applicable rules, regulations and
requirements set forth by each entity having rights in any portion of the
Global Crossing Network, and communicated in writing to Purchaser,
including, but not limited to, specifications, equipment and floor
spacing.
(d) No Salvage Rights. Nothing contained in this Agreement shall be
deemed to vest in the Purchaser any salvage rights or any rights other
than those expressly provided for herein, in any portion of the Global
Crossing Network.
8. MAINTENANCE COSTS.
(a) Annual Maintenance Cost Payments. The Purchaser shall be liable to
pay an annual amount for each MCU of Capacity on a Traffic Connection
purchased by the Purchaser hereunder equal to the Annual Maintenance Cost
Payment for such Traffic Connection. The Purchaser shall pay to the
Maintenance Company's Account, in immediately available Dollars, the
Annual Maintenance Cost Payments for each MCU of Capacity in accordance
with this Section 8.
(b) Definitions. For purposes of this Agreement:
(i) "Initial Annual Maintenance Cost Payment" means, with respect to each
MCU of Capacity on a Traffic Connection purchased by the Purchaser, the
annual amount equal to the amount set forth as such pursuant to Paragraph
D of the Specific Terms for such Traffic Connection.
(ii) "Annual Maintenance Cost Payment" means, with respect to each MCU of
Capacity on a Traffic Connection purchased by the Purchaser, for the
calendar year in which the Activation Date occurs, the Initial Annual
Maintenance Cost Payment. For each calendar year following the year in
which the Activation Date occurs, the Annual Maintenance Cost Payment for
each MCU of Capacity on a Traffic Connection will be the Initial Annual
Maintenance Cost Payment, increased by the percentage of inflation in the
US as determined by the official rate specified by the relevant
authorities, or in the case where maintenance is performed in a different
jurisdiction by the applicable rate calculated by the relevant government
or other official source, per year, compounded annually. The annual
amount payable in the year the Activation Date occurs will be reduced pro
rata for the portion of the year prior to the Activation Date of a
Traffic Connection.
(c) Payment Procedure. Payment of the Initial Annual Maintenance Cost
Payment shall be due in the initial Payment Due Date. Payments of the
Annual Maintenance Cost Payment for each MCU of Capacity on a Traffic
Connection shall be due and payable quarterly in advance on each Payment
Due Date, commencing with the first such Payment Due Date after the
Activation Date of each such MCU. For any IRU granted between the Payment
Due Dates, on the date of such grant the Purchaser shall make a
proportional payment for the period from the date of such grant to the
next succeeding quarterly payment date. Each payment
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
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made by the Purchaser hereunder shall be non-refundable.
9. INVOICES; DEFAULT INTEREST.
(a) Invoices. The Grantor, the Maintenance Company or their respective
authorized agents shall render invoices under this Agreement in Dollars,
and the Purchaser shall pay such amount in Dollars. The Purchaser shall
make all payments by means of a wire transfer to the Grantor's Account or
the Maintenance Company's Account, as specified in this Agreement. The
Purchaser shall make all payments required to be made pursuant to this
Agreement, other than the Initial Payment which shall be made in
accordance with the provisions of Section 3(a) hereof, on the later of
(i) the date such payment is due and (ii) fifteen (15) business days
after an invoice is received from the Grantor or the Maintenance Company,
as applicable, by the Purchaser.
(b) Default Interest. Any invoice rendered under this Agreement by the
Grantor, the Maintenance Company or their respective agents which is not
paid when due shall accrue interest at the annual rate of [ ]* percent ([
]*%) above the one month LIBOR rate for the Dollar, as quoted in The Wall
Street Journal on the first business day of the month in which such
payment is due. Such interest shall accrue from the day following the
date payment was due until it is paid in full. In the event that
applicable law does not allow the imposition of "default interest" at the
rate established in accordance with this Section 9(b), such "default
interest" shall be at the highest rate permitted by applicable law. For
purposes of this Section, "paid" shall mean that funds are available for
immediate use by the Grantor or the Maintenance Company, as applicable.
10. DEFAULT.
(a) Purchaser. If the Purchaser fails to make any payment required by
this Agreement on the date that it is due, or if the Purchaser is
otherwise in breach of this Agreement, and such payment default continues
unremedied for a period of at least [ ]* ([ ]*) days or such other breach
continues for a period of at least [ ]* ([ ]*) days, the Grantor, the
Maintenance Company or their respective authorized agents, may notify the
Purchaser in writing of such payment default or other breach and if full
payment is not received, or such other breach is not fully remedied
within [ ]* ([ ]*) days of such notification, unless the Parties agree
otherwise in view of the circumstances, the Grantor and the Maintenance
Company: (i) may suspend all service provided to the Purchaser hereunder
(including suspending the Purchaser's right to use the Purchased
Capacity), until such payment default or other breach has been cured
(including payment of default interest, if any) and (ii) shall be
entitled to pursue any and all rights and legal and equitable remedies,
including its rights and remedies to enforce the Purchaser's obligations
under this Agreement.. After [ ]* days from the date of notification by
the Grantor or the Maintenance Company of such payment default or other
breach described above, and such default or breach remains unremedied,
the Grantor shall have the right to terminate all IRUs granted hereunder
whereby the ownership of such Capacity shall revert back to the Grantor.
(b) Grantor. If the Grantor or the Maintenance Company is in breach of
this Agreement and such breach continues for a period of at least thirty
(30) days, the Purchaser may notify the Grantor or the Maintenance
Company, as applicable, in writing of such breach and if such breach is
not fully remedied within fifteen (15) days of such notification, the
Purchaser shall, for so long as such breach continues, be entitled to
pursue any and all rights and legal and equitable remedies, including its
rights and remedies to enforce the Grantor's or the Maintenance
Company's, as applicable, obligations under this Agreement.
11. USE OF CAPACITY.
(a) The Purchaser's operation of the Purchased Capacity and any equipment
associated therewith shall be such as not to interrupt, interfere with,
or impair service over any of the facilities comprising the Global
Crossing Network, or impair privacy of any communications over such
facilities, cause damage to plant or create hazards to employees,
affiliates or connecting companies of the Grantor or the Maintenance
Company, the Purchaser, or any other user, owner or operator of the
Global Crossing Network or the public. If any of the above occur, the
Purchaser shall bear the cost of any additional protective apparatus
reasonably required to be installed because of the use of such facilities
by the Purchaser, any lessees or permitted transferees of the Purchaser,
or any customer or customers of the Purchaser or of any such lessee or
transferee. The Grantor will use reasonable efforts to cause all other
purchasers of capacity in the Global Crossing Network to undertake
obligations comparable to those of the Purchaser set forth in this
Section, and the Purchaser shall cause all permitted users of any of the
Purchased Capacity to undertake comparable obligations. The Purchaser
represents, warrants and covenants that its ownership and use of the
Purchased Capacity shall comply in all material respects, at all times
with all applicable government codes, ordinances, laws, rules,
regulations and/or restrictions and the terms of this Agreement.
--------------------
* CONFIDENTIAL TREATMENT REQUEST - Confidential portion has been omitted and
filed separately with the Commission.
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(b) The Purchased Capacity shall be made available to the Grantor and the
Maintenance Company (or their respective subsidiaries or agents), at such
times reasonably agreeable to the Purchaser and the Grantor or the
Maintenance Company, as applicable, to permit the Grantor or the
Maintenance Company to conduct such tests and adjustments as may be
necessary for such capacity to be maintained in efficient working order.
12. DURATION OF AGREEMENT; TERM OF IRU.
(a) This Agreement shall become effective as of the day and year set
forth in the preamble to this Agreement and shall continue in effect
until all IRUs granted hereunder have terminated, at which time this
Agreement shall terminate.
(b) The termination of this Agreement (whether under this Section or
otherwise) shall not relieve the Parties from any liabilities arising
prior to such termination.
(c) The term of the IRU granted to the Purchaser in any Traffic
Connection hereunder shall begin on the Activation Date and terminate on
December 31, 2025.
13. APPROVALS; LICENSES.
The performance of this Agreement by each Party hereto is contingent upon
the acquisition, renewal and continuance of such approvals, consents,
governmental authorizations, licenses and permits by such Party and its
Affiliates as may be required or reasonably deemed necessary by such
Party for performance by such Party hereunder and as may be satisfactory
to it. The Parties shall use reasonable efforts to obtain, renew and
continue, and to have renewed and continued, such approvals, consents,
licenses and permits. No license under patents is granted by the Grantor
or shall be implied or arise by estoppel in the Purchaser's favor with
respect to any apparatus, system or method used by the Purchaser in
connection with the use of the capacity granted to it hereunder.
14. DISCLAIMER.
Except as otherwise provided in the Agreement, neither the Grantor, the
Maintenance Company nor any of their respective Affiliates represents,
warrants, covenants or guarantees that the Actual Availability Date for
any Traffic Connection or the completion of any System will occur and the
Grantor, the Maintenance Company and its Affiliates will have no
obligation under this Agreement or otherwise unless and until the
applicable Availability Date occurs. UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT OR THE COMMITMENT AGREEMENT, ANY WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.
15. LIMITATIONS OF LIABILITY.
(a) In no event shall the Purchaser, the Grantor, the Maintenance Company
or any of their respective Affiliates be liable to any party for
consequential, incidental, indirect or special damages, including, but
not limited to, loss of revenue, loss of business opportunity, or the
costs associated with the use of external restoration facilities,
including, without limitation, for any loss or damage sustained by reason
of the unavailability of, or any failure in or breakdown of the Global
Crossing Network, any System, any Traffic Connection, any portion thereof
or the facilities associated with the Global Crossing Network, the
failure of any inland carrier to perform the terms and conditions of any
agreement to which it and the Purchaser are parties or for any
interruption of service, whatever the cause and however long it shall
last. Purchaser's remedies in the event of any failure or unavailability
of the Capacity are limited to those set forth in the SLA.
16. SETTLEMENT OF DISPUTES.
(a) The parties hereto shall endeavor in good faith to settle amicably
and without delay by mutual discussions any disputes, differences or
claims, whatsoever, related to this Agreement.
(b) Failing such amicable settlement, any controversy, claim or dispute
arising under or relating to this Agreement, including, without
limitation, the existence, validity, interpretation, performance,
termination or breach thereof, shall finally be settled by arbitration in
accordance with the International Arbitration Rules of the American
Arbitration Association ("AAA"). There shall be three (3) arbitrators
(the "Arbitration Tribunal"), the first of which shall be appointed by
the claimant in its notice of arbitration, the second of which shall be
appointed by the respondent within thirty (30) days of the appointment of
the first arbitrator and the third of which shall be jointly appointed by
the party-appointed arbitrators within thirty (30) days thereafter,
failing which such third arbitrator will be appointed by the AAA within
thirty (30) days. The language of the arbitration shall be English. The
Arbitration Tribunal shall issue a written opinion and will not have
authority to award punitive damages to either party. Each party shall
bear its own costs and expenses, but the parties shall share equally the
expenses of the Arbitration Tribunal and the AAA. This Agreement shall be
enforceable, any arbitration award shall be final and judgment thereon
may be entered in any court of competent jurisdiction. The arbitration
shall be held in New York, NY, USA.
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17. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
18. WAIVER OF IMMUNITY.
The parties hereto acknowledge that this Agreement is commercial in
nature, and each party hereto expressly and irrevocably waives any claim
or right which it may have to immunity (whether sovereign immunity, act
of state or otherwise) for itself, or with respect to any of its assets,
in connection with an arbitration, arbitral award or other proceeding to
enforce this Agreement, including, without limitation, immunity from
service of process, immunity of any of its assets from pre- or
post-judgment attachment or execution, and immunity from the jurisdiction
of any court or arbitral tribunal.
19. EXPORT CONTROL.
The Parties acknowledge that to the extent any products, software or
technical information provided under this Agreement are or may be subject
to any applicable export laws and regulations, the Parties hereto agree
that they will not use, distribute, transfer or transmit the products,
software or technical information (even if incorporated into other
products) except in compliance with such export laws and regulations (or
licenses or orders issued pursuant thereto). If requested by and Party
hereto the other Parties agree to sign all necessary export-related
documents as may be required to comply therewith.
20. REPRESENTATIONS; INDEMNITY.
(a) The Grantor hereby represents and warrants to Purchaser that (i) the
Grantor is a corporation duly organized and validly existing under the
laws of the State of California; (ii) the execution, delivery and
performance of this Agreement by the Grantor have been duly authorized by
all necessary corporate action on the part of the Grantor and this
Agreement is a valid, binding and enforceable obligation of the Grantor
enforceable against it in accordance with its terms and (iii) the
execution, delivery and performance of this Agreement by the Grantor does
not violate, conflict with or constitute a breach of, its organizational
documents or any order, decree or judgment of any court, tribunal or
governmental authority binding on the Grantor.
(b) The Maintenance Company hereby represents and warrants to the
Purchaser that (i) the Maintenance Company is a corporation duly
organized and validly existing under the laws of Bermuda; (ii) the
execution, delivery and performance of this Agreement by the Maintenance
Company have been duly authorized by all necessary corporate action on
the part of the Maintenance Company and this Agreement is a valid,
binding and enforceable obligation of the Maintenance Company enforceable
against it in accordance with its terms and (iii) the execution, delivery
and performance of this Agreement by the Maintenance Company does not
violate, conflict with or constitute a breach of, its organizational
documents or any order, decree or judgment of any court, tribunal or
governmental authority binding on the Maintenance Company.
(c) The Purchaser hereby represents and warrants to the Grantor that (i)
the Purchaser is a corporation duly organized, and validly existing under
the laws of its jurisdiction of organization; (ii) the Purchaser use of
the Capacity shall comply with relevant laws and regulations in the US or
relevant jurisdiction; (iii) the execution, delivery and performance of
this Agreement by the Purchaser have been duly authorized by all
necessary corporate action on the part of the Purchaser and this
Agreement is a valid, binding and enforceable obligation of the Purchaser
enforceable against it in accordance with its terms; and (iv) the
execution, delivery and performance of this Agreement by the Purchaser
does not violate, conflict with or constitute a breach of, the
organizational documents or any order, decree or judgment of any court,
tribunal or governmental authority binding on the Purchaser.
(d) Each Party hereby represents and warrants to the other Parties that
it has obtained all approvals, consents, governmental authorizations,
licenses and permits as may be required to enter into this Agreement,
and, in the case of the Grantor and the Purchaser, grant or acquire, as
the case may be, the IRU in the Purchased Capacity.
(e) The foregoing representations and warranties shall survive the
execution and delivery of this Agreement.
(f) Subject to Section 15, the Purchaser agrees to indemnify and hold
harmless the Grantor, the Maintenance Company, their respective
Affiliates and any of their respective officers, directors, employees,
agents and representatives from and against any loss, damage, expense or
cost arising out of or in connection with: (i) any breach or violation by
the Purchaser of applicable law or governmental regulation and (ii) any
claims of whatever nature by third parties with respect to the services
provided by the Purchaser or the Purchaser's use of the Purchased
Capacity.
(g) Subject to Section 15, the Grantor and the Maintenance Company agree
to indemnify and hold harmless the Purchaser and its officers, directors,
employees, agents and representatives from and against any loss, damage,
expense or cost arising out of or in connection with: (i) any breach or
violation by the Grantor or the Maintenance Company of applicable law or
governmental regulation, and (ii) any claims of
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
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whatever nature by third parties with respect to the services provided by
the Grantor or the Maintenance Company.
21. RELATIONSHIP OF THE PARTIES.
This Agreement shall not form a joint venture, partnership or similar
business arrangement between the parties hereto, and nothing contained
herein shall be deemed to constitute a partnership, joint venture or
similar business arrangement.
22. NO THIRD PARTY BENEFICIARIES.
This Agreement does not provide and is not intended to provide third
parties (including, but not limited to, customers of the Purchaser, any
permitted transferee of the Purchased Capacity or any other permitted
user of the Purchased Capacity) with any remedy, claim, liability,
reimbursement, cause of action, or any other right. Furthermore, the
Purchaser acknowledges that it is not a third party beneficiary of any
agreement entered into by the Grantor, the Maintenance Company or their
respective Affiliates, including, but not limited to, construction
contracts or any contract for the operation or maintenance of the Global
Crossing Network or any part thereof.
23. ASSIGNMENT.
(a) This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(b) The Grantor shall be solely responsible for complying with all of the
terms binding on the "Grantor" hereunder and the Maintenance Company
shall solely be responsible for complying with all of the terms binding
on the "Maintenance Company" hereunder and shall not be permitted to
assign, transfer or otherwise dispose of any or all of its right, title
or interest hereunder or delegate any or all of its obligations hereunder
to any person or entity except that the Grantor and the Maintenance
Company shall be permitted to (i) effect a collateral assignment of their
respective rights hereunder to one or more lenders to Grantor, the
Maintenance Company or their respective Affiliates and (ii) assign,
transfer or otherwise dispose of any or all of their rights hereunder and
delegate any or all of their obligations hereunder to any present or
future Affiliate of the Grantor or the Maintenance Company. The Grantor
or the Maintenance Company shall give the Purchaser notice of any such
assignment, transfer or other disposition or any such delegation.
(c) The Purchaser shall be solely responsible for complying with all of
the terms binding on the "Purchaser" hereunder and shall not be permitted
to assign, transfer or otherwise dispose of any or all of its right,
title or interest hereunder (except for leases, licenses and transfers of
the right to use Capacity to the extent permitted under Section 23(d)
below) or delegate any or all of its obligations hereunder to any person
or entity except that the Purchaser with prior written notice to Grantor
shall be permitted to: (i) effect a collateral assignment of its rights
hereunder to one or more lenders to Purchaser, or (ii) assign, transfer
or otherwise dispose of any or all its rights hereunder and delegate any
or all of its obligations hereunder to any Affiliate. .
(d) (i) Subject to the limitations set forth in Section 23(d)(ii), the
Purchaser may enter into agreements to lease or license the right to use
or transfer the right to use or otherwise resell any Purchased Capacity.
(ii) [ ]*
(iii) No lease, license or transfer permitted by this Section 23(d) shall
involve any delegation or other transfer of any of the Purchaser's
obligations or liabilities hereunder. Each lessee, licensee and
transferee of any right to use Purchased Capacity shall derive all of its
rights solely through the Purchaser and such rights shall be enforceable
solely against the Purchaser. No such lessee, licensee or transferee
shall become a third party beneficiary of this Agreement or obtain any
right, title or interest in, to or under this Agreement or the ability to
enforce any provision hereof, nor shall any lessee, licensee or
transferee thereof have any rights or claims against the Grantor or the
Maintenance Company for any reason whatsoever. The rights of any lessee,
licensee or transferee of a right to use any Purchased Capacity shall be
subject and subordinate to all the terms of this Agreement (including the
Grantor's and the Maintenance Company's right to suspend service in the
event of a default by the Purchaser hereunder) and the Purchaser shall
remain primarily liable hereunder for the performance of all the terms of
this Agreement to the same extent as if such lease, license or transfer
had not occurred. Any such lease, license or transfer agreement shall
prohibit further assignment, transfer or other disposition of Purchased
Capacity except in accordance with the terms of this Section 23.
(e) Only Carrier Parties which have acquired and hold the right to use
one or more whole MCUs of Capacity shall be entitled to utilize the
services of the Customer Care Center. Every entity which has the right to
utilize the services of the Customer Care Center shall promptly contact
the Customer Care Center and provide all such
--------------------
* CONFIDENTIAL TREATMENT REQUEST - Confidential portion has been omitted and
filed separately with the Commission.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
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information reasonably requested by the Customer Care Center.
(f) Any assignment, transfer or other disposition by any Party which is
in violation of this Section 23 shall be null, void and of no force and
effect.
24. NOTICES.
Each notice, demand, certification or other communication given or made
under this Agreement shall be in writing and shall be delivered by hand
or sent by registered mail or by facsimile transmission to the address of
the respective party as shown below (any change to the name, address and
facsimile numbers may be made at any time by giving fifteen (15) days
prior written notice in accordance with this Section.):
If to the Purchaser at the address set forth in the Specific Terms.
If to the Grantor:
Global Crossing Bandwidth Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Attn: General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Maintenance Company:
Global Crossing Network Center Ltd.
Wessex House
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Attn: President
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any such notice, demand or other communication shall be deemed to have
been received, if (i) delivered by hand, at the time of delivery, (ii)
posted, at the expiration of seven (7) days after the envelope containing
the same shall have been deposited in the post maintained for such
purpose, postage prepaid, or, (iii) sent by facsimile, at the date of
transmission if confirmed receipt is followed by postal notice.
25. SEVERABILITY.
If any provision of this Agreement is found by an arbitral, judicial,
regulatory or other governmental authority having jurisdiction to be void
or unenforceable, such provision shall be deemed to be deleted from this
Agreement and the remaining provisions shall continue in full force and
effect.
26. HEADINGS.
The Paragraph and Section headings of this Agreement are for convenience
of reference only and are not intended to restrict, affect or influence
the interpretation or construction of provisions of such Section.
27. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which when
executed and delivered shall be deemed an original. Such counterparts
shall together (as well as separately) constitute one and the same
instrument.
28. ENTIRE AGREEMENT.
This Agreement supersedes all prior written or oral understandings
between the Parties with respect to the subject matter herein and,
together with the Schedules and the Annexes hereto and the Commitment
Agreement, constitutes the entire agreement with respect to the subject
matter herein. This Agreement shall not be modified or amended except by
a writing signed by authorized representatives of the Parties.
29. PUBLICITY AND CONFIDENTIALITY.
(a) The provisions of this Agreement and any non-public information,
written or oral, with respect to this Agreement ("Confidential
Information") will be kept confidential and shall not be disclosed, in
whole or in part, to any person other than Affiliates, officers,
directors, employees, agents or representatives of a Party (collectively,
"Representatives") who need to know such Confidential Information for the
purpose of negotiating, executing and implementing this Agreement. Each
Party agrees to inform each of its Representatives of the non-public
nature of the Confidential Information and to direct such persons to
treat such Confidential Information in accordance with the terms of this
Section 29. Nothing herein shall prevent a Party from disclosing
Confidential Information (i) upon the order of any court or
administrative agency, (ii) upon the request or demand of, or pursuant to
any regulation of, any regulatory agency or authority, (iii) to the
extent reasonably required in connection with the exercise of any remedy
hereunder, (iv) to a Party's legal counsel or independent auditors, (v)
to prospective lenders to such Party or their Affiliates, and (vi) to any
actual or proposed assignee, transferee or lessee of all or part of its
rights hereunder provided that such actual or proposed assignee agrees in
writing to be bound by the provisions of this Section 29. Notwithstanding
the foregoing, in the event that any Party intends to disclose any
Confidential Information pursuant to clause (i) or (ii) of the preceding
sentence, the disclosing Party agrees to (a) provide the other Parties
hereto with prompt notice before such disclosure in order that the they
may attempt to obtain a protective order or other assurance that
confidential treatment will be accorded such confidential information and
(b) use commercially reasonable efforts to cooperate with the other
Parties in attempting to obtain such order or assurance.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
17
(b) The foregoing shall not restrict either Party from publicly
announcing that it has entered into this Agreement with the Parties.
Notwithstanding the foregoing, no such public announcement shall be
permitted to include any details contained in this Agreement.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
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[GLOBAL CROSSING LOGO]
CAPACITY PURCHASE AGREEMENT
BETWEEN
GLOBAL CROSSING BANDWIDTH, INC.
AND
_INTERNATIONAL SATELLITE COMMUNICATION HOLDING LTD.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION