CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS
DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
GLOBAL CROSSING NETWORK AGREEMENT
THIS NETWORK AGREEMENT (as amended, supplemented or otherwise modified
from time to time, this "AGREEMENT"), entered into as of this 30th day of July,
1999, between GLOBAL CROSSING USA INC., a company organized and existing under
the laws of the State of Delaware and having its principal office in Beverly
Hills, California (said company, and any permitted successor or assign
hereunder, the "GRANTOR"), and URSUS TELECOM CORPORATION, a corporation
organized and existing under the laws of the State of Florida and having its
principal office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ (said company, and any permitted successor or assign hereunder, the
"PURCHASER"). Grantor and 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, Atlantic Crossing Ltd. is constructing a fiber optic cable
system connecting the United States, the United Kingdom, the Netherlands and
Germany known as the Atlantic Crossing System or "AC-1";
WHEREAS, Pacific Crossing Ltd. is constructing a fiber optic cable
system connecting the United States and Japan known as the Pacific Crossing
System or "PC-1";
WHEREAS, Mid-Atlantic Crossing Ltd. is constructing a fiber optic
cable system connecting New York, Florida and St. Croix, known as the
Mid-Atlantic Crossing System or "MAC-1";
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, South American Crossing Ltd. is constructing a fiber optic
cable system connecting various principal cities in South America, known as the
South American Crossing System or "SAC";
WHEREAS, Global Crossing Pan European Crossing Holdings B.V. is
constructing a fiber optic cable network connecting various principal cities in
Europe, known as Pan European Crossing or "PEC";
WHEREAS, Atlantic Crossing Ltd, Pacific Crossing Ltd., Mid-Atlantic
Crossing Ltd., Pan American Crossing Ltd., South American Crossing Ltd., and
Global Crossing Pan European Crossing Holdings B.V. are hereinafter collectively
referred to as the "SYSTEM COMPANIES" and AC-1, PC-1, MAC-1, PAC, SAC and PEC
are hereinafter collectively referred to as the "SYSTEMS";
WHEREAS, additional companies under common control with Grantor may in
the future construct other Systems, though there is no obligation to do so, in
which case such companies will be deemed to be System Companies under this
Agreement;
WHEREAS, Purchaser desires to acquire rights with respect to capacity
on one or more of the Systems on an indefeasible right of use basis ("IRU"); and
WHEREAS, Grantor is affiliated with each of the System Companies and
can cause IRUs to be granted in capacity on the Systems to Purchaser.
NOW, THEREFORE, the Parties, 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:
1. DEFINITIONS. Unless otherwise defined herein, all terms which are
commonly used in the telecommunications industry shall have the
meanings commonly given such terms in such industry. In addition to
terms defined in the preamble, the recitals and in the text of this
Agreement, the following terms shall have the following meanings:
"ANNUAL PERIOD" means, for the first such period, the period beginning
*** and ending twelve months later and, thereafter, each successive
twelve month period occurring during the term of the Capacity Purchase
Agreement.
"CAPACITY PURCHASE AGREEMENT" means an agreement(s) to be entered into
between the Parties, pursuant to which Purchaser shall acquire and
Grantor shall grant any IRUs contemplated by this Agreement. Such
agreement shall be on terms substantially similar to those contained
in the Capacity Purchase Agreement attached hereto as Exhibit A (which
Purchaser acknowledges that Grantor may revise, from time to time).
"DOLLARS" or "$" means United States dollars.
"MINIMUM CAPACITY UNIT" or "MCU" means the minimum amount of capacity
that may be purchased by Purchaser in any System. Grantor shall
designate the MCU.
*** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
"PUBLISHED PRICES" means the Global Crossing prices at the date of
this agreement as may be supplemented from time to time to include new
Systems and to reflect any price changes.
2. PURCHASE AGREEMENT.
*** , Purchaser hereby unconditionally and irrevocably agrees to
purchase MCUs on the Systems in an aggregate amount of $30,000,000
(the "MINIMUM CAPACITY COMMITMENT") during the period commencing ***
and ending 36 months later (the "MINIMUM CAPACITY PURCHASE PERIOD").
In order to fulfill the Minimum Capacity Commitment, Purchaser agrees
to purchase MCUs on the Systems in an average amount of not less than
$10,000,000 during each Annual Period. Such average amount shall be
determined on a rolling two year basis. For example, if, during the
first Annual Period, Purchaser purchases $15,000,000 of capacity,
then, during the second Annual Period it need only purchase $5,000,000
of capacity; HOWEVER, if, during the first Annual Period, Purchaser
purchases only $5,000,000 of capacity, then, during the second Annual
Period, Purchaser must purchase at least $15,000,000 of capacity.
(b) Purchaser shall have the option to elect (by written notice to
Grantor) to increase the Minimum Capacity Commitment to $80,000,000
(the "Increased Capacity Commitment"). If Purchaser elects the
Increased Capacity Commitment, then the Minimum Capacity Purchase
Period shall be extended to 48 months and the average amount of
Capacity (calculated as provided in Section 2(a)) to be purchased
during each Annual Period shall be not less than $20,000,000. If
Purchaser elects the Increased Capacity Commitment, it shall make
purchases in such amounts so as to retroactively comply with the
purchase requirements of this Section 2(b) (giving credit for
purchases made under Section 2(a)).
In the event that within twelve (12) months from the date hereof,
Purchaser elects to commit to the Increased Capacity Commitment,
Purchaser will receive a credit (the "Capacity Credit"), which shall
be applied to future MCU purchases made by Purchaser under the
Increased Capacity Commitment. The Capacity Credit shall equal the
difference between the amount Purchaser actually paid for such
capacity under the Minimum Capacity Commitment and the amount
Purchaser would have paid for such capacity had the Increased Capacity
Commitment been in effect during such time.
MCUs of capacity purchased pursuant to Section 2(a) hereof shall be priced
at the lower of (i) ten percent (10%) off of the Global Crossing
Retail Prices available on the date hereof and (ii) ten percent (10%)
off of the Global Crossing Retail Prices thirty (30) days prior to
activation of such MCUs.
*** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
MCUs of capacity purchased pursuant to Section 2(b) hereof shall be priced
at the lower of (i) twenty percent (20%) off of the Global Crossing
Retail Prices available on the date hereof and (ii) twenty percent
(20%) off of the Global Crossing Retail Prices thirty (30) days prior
to activation of such MCUs.
***
Purchases of capacity on any System pursuant to this Agreement shall be
effected by Purchaser executing, delivering and complying with a
Capacity Purchase Agreement.
***
***
3. REPRESENTATIONS
(a) Grantor hereby represents and warrants to Purchaser that (i) Grantor
is a corporation duly organized and validly existing under the laws of
the State of Delaware; (ii) the execution, delivery and performance of
this Agreement by Grantor has been duly authorized by all necessary
corporate action on the part of Grantor and this Agreement is a valid,
binding and enforceable obligation of Grantor enforceable in
accordance with its terms and (iii) the execution, delivery and
performance of this Agreement by Grantor 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 Grantor.
(b) Purchaser hereby represents and warrants to Grantor that (i) Purchaser
is a corporation duly organized and validly existing under the laws of
its jurisdiction of organization; (ii) the execution, delivery and
performance of this Agreement by Purchaser has been duly authorized by
all necessary corporate action on the part of Purchaser and this
Agreement is a valid, binding and enforceable obligation of Purchaser
enforceable in accordance with its terms and (iii) the execution,
delivery and performance of this Agreement by 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 Purchaser.
*** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
4. SETTLEMENT OF DISPUTES.
(a) The Parties shall endeavor to settle amicably 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 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. 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 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, New York, USA.
5. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA.
6. WAIVER OF IMMUNITY.
The Parties 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.
7. NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and is not intended to provide third
parties (including, but not limited to, customers of Purchaser) with any
remedy, claim, liability, reimbursement, cause of action, or any other
right.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
8. 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) Grantor shall solely be responsible for complying with all of the
terms binding on the "Grantor" 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 Grantor shall be ------
permitted to (i) effect a collateral assignment of its rights
hereunder to one or more lenders to Grantor or its affiliates and (ii)
assign, transfer or otherwise dispose of any or all of its rights
hereunder and delegate any or all of its obligations hereunder to any
present or future entity controlling, controlled by or under common
control with Grantor. Grantor shall give Purchaser notice of any such
assignment, transfer or other disposition or any such delegation.
(c) Purchaser shall solely be 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 or delegate any or all of its obligations
hereunder to any person or entity; PROVIDED, that Purchaser may assign
the right to enter into the Capacity Purchase Agreement with System
Companies to any present or future entity controlling, controlled by
or under common control with Purchaser.
(d) Any assignment, transfer or other disposition by either Party which is
in violation of this Section shall be void and of no force and effect.
9. 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 (or such other address as may be designated
in writing to the other Party hereto in accordance with the terms of this
Section):
If to Purchaser: Ursus Telecom Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Fax No: ▇▇▇-▇▇▇-▇▇▇▇
If to Grantor: Global Crossing USA Inc.
▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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. Any such notice, demand or other communication shall be
deemed to have been received, if delivered by hand, at the time of delivery
or, if 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, if sent by facsimile, at the date of
transmission if confirmed receipt is followed by postal notice.
10. SEVERABILITY.
If any provision of this Agreement is found by an arbitral, judicial or
regulatory authority having jurisdiction to be void or unenforceable, such
provision shall be deemed to have been deleted from this Agreement and the
remaining provisions shall continue in full force and effect.
11. HEADINGS
The 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.
12. 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.
13. ENTIRE AGREEMENT
This Agreement supersedes all prior oral or written understandings between
the Parties hereto and constitutes the entire agreement with respect to the
subject matter contained herein. This Agreement shall not be modified or
amended except by a writing signed by authorized representatives of the
Parties hereto.
14. 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. 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 Grantor, 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.
(b) The foregoing shall not restrict either Party from publicly announcing
that it has entered into this Agreement with the other Party hereto,
however, no such announcement shall include any details contained in
this Agreement.
15. LIMITATION OF LIABILITY.
In no event shall Purchaser or Grantor be liable to the other for
consequential, incidental, indirect or special damages, including, but not
limited to, loss of revenue, loss of business opportunity, or the costs
associated therewith.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
IN WITNESS WHEREOF, the Parties have executed this Agreement in the
jurisdictions set forth beneath their signatures, effective on the date first
written above.
GLOBAL CROSSING USA INC.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President of Global Sales and
Marketing
Jurisdiction: Delaware
URSUS TELECOM CORPORATION
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Jurisdiction: Florida
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
EXHIBIT A
CAPACITY PURCHASE AGREEMENT
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
[GRAPHIC OMITTED]
PART 1 - SPECIFIC TERMS
THIS CAPACITY PURCHASE AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this "AGREEMENT"), entered into as of ____ ____, ___
between GLOBAL CROSSING USA INC., a corporation organized and existing under the
laws of the State of Delaware and having its principal office in Beverly Hills,
California (said company, and any permitted successor or assign hereunder, the
"GRANTOR") and ______________, a corporation organized and existing under the
laws of ___________ and having its principal office in _________ (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 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;
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 1A 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 1A hereto.
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 an amount agreed upon by the Parties
hereto and set forth in a Schedule 2A 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 1A 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 by the Parties hereto and set forth in a Schedule
2A 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 1A hereto.
(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 2A executed pursuant to Section 2(b).
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. ANTICIPATED AVAILABILITY DATE.
(1) The Anticipated Availability Date for each Traffic Connection
constituting Initial Committed Capacity is set forth in Schedule 1A
hereto.
(2) The Anticipated Availability Date for each Traffic Connection on which
Additional Committed Capacity is to be purchased shall be the date
specified by the Grantor pursuant to Section 2(b) of this Agreement
and set forth in a Schedule 2A executed pursuant to said Section 2(b).
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
The foregoing referenced dates do not constitute representations,
warranties, covenants or agreements that any Anticipated Availability
Date will be met.
G. ANTICIPATED ROUTE
(1) On the date hereof, the Grantor anticipates that the Initial Committed
Capacity will be routed across the Systems and/or other parts of the
Global Crossing Network as set forth in Schedule 1B hereto.
(2) The anticipated route for each MCU of Additional Committed Capacity,
if any, shall be the anticipated route specified by the Grantor and
set forth in a Schedule 2B prepared by the Grantor.
(3) Schedules 1B and 2B shall be completed by and at the sole discretion
of the Grantor. The routes, if any, set forth in Schedule 1B or 2B are
solely for the internal purposes of the Grantor, and they are not
representations, warranties, covenants or agreements of the Grantor or
conditions to the obligations of the Purchaser. Failure of the Grantor
to complete Schedule 1B or 2B shall not affect the Purchaser's rights,
obligations or liabilities under this Agreement.
(4) The Route for each MCU of Capacity shall be identified in the
Activation Notice. The Activation Notice shall be sent to Purchaser
within 5 days of the Activation Date.
H. 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 in
any Capacity hereunder. As a result, 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.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
IN WITNESS WHEREOF, the Parties have executed this Agreement effective on the
date first written above.
GLOBAL CROSSING USA INC.
By:
---------------------------
Title:
[PURCHASER]
-----------------------------------
By:
-------------------------------
Title:
PURCHASER'S ADDRESS FOR NOTICES:
-------------------------------
-------------------------------
-------------------------------
Attention:---------------------
Telephone:---------------------
Fax:---------------------------
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
The undersigned hereby agrees to the provisions of Sections 7, 8,
20(a) and 20(f) 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,
20(a) and 20(f). 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:
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
Schedule 1A
DESCRIPTION OF INITIAL COMMITTED CAPACITY
Traffic Connections are to be described as Point of Presence to Point
of Presence (for example, New York - Tokyo). If more than one location for
connectivity exists in a particular city, the specific address of the intended
Point of Presence should be set forth in a footnote to this Schedule.
INITIAL ANNUAL
PURCHASE PRICE PER MAINTENANCE COST ANTICIPATED REQUESTED ACTIVATION
TRAFFIC CONNECTION NUMBER OF MCUS MCU PAYMENT PER MCU AVAILABILITY DATE DATE
------------------ ------------- ------------------ --------------- ----------------- ---------------------
$ $
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CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
Schedule 1B
ANTICIPATED ROUTES
[Set forth the anticipated route for each Traffic Connection]
TRAFFIC CONNECTION SYSTEMS CROSSED
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----------------------------- . . . . . . . . . ------------------------
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----------------------------- . . . . . . . . . . ------------------------
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CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
Schedule 2A
COMMITMENT FOR ADDITIONAL CAPACITY
This Commitment is executed and delivered pursuant to Section 2(b) of
the Capacity Purchase Agreement, dated _____ __, ____, between the undersigned.
The undersigned hereby agree that all the terms and conditions of such Capacity
Purchase Agreement shall apply to the purchase of the Capacity set forth below.
Traffic Connections are to be described as Point of Presence to Point of
Presence (for example, New York - Tokyo). If more than one location for
connectivity exists in a particular city, the specific address of the intended
Point of Presence should be set forth in a footnote to this Schedule.
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INITIAL ANNUAL
PURCHASE PRICE PER MAINTENANCE COST ANTICIPATED REQUESTED ACTIVATION
TRAFFIC CONNECTION NUMBER OF MCUS MCU PAYMENT PER MCU AVAILABILITY DATE DATE
------------------ -------------- ------------------ ----------------- ----------------- --------------------
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GRANTOR
By:
---------------------
Title:
PURCHASER
By:
----------------------
Title:
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
Schedule 2B
ANTICIPATED ROUTES
[Set forth the anticipated route for each Traffic Connection]
TRAFFIC CONNECTION SYSTEMS CROSSED
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----------------------------- . . . . . . . . . ------------------------
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----------------------------- . . . . . . . . . ------------------------
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----------------------------- . . . . . . . . . ------------------------
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CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
Schedule 3
CONFIGURATION OF THE SYSTEM (subject to change)
1. The following is a description of the segments that make up each System.
Atlantic Crossing - 1 shall be regarded as consisting of the following Segments:
Segment S-1: A submarine cable linking Segments T-1 and
T-2.
Segment S-2: A submarine cable linking Segments T-1 and
T-3.
Segment S-3a: A submarine cable linking Segments T-2 and
T-4.
Segment S-3b: A submarine cable linking Segments T-3 and T-4.
Segment S-3c: A submarine cable linking Segments T-2 and T-3
(which goes through Segment T-4).
Segment S-4: The portion of the System linking Segments T-1
and T-4
Segment T-1: A cable station in Brookhaven, New York, United
States, together with that portion of the System
which is located between such cable station
and the point which is one-half mile beyond the
United States territorial limit.
Segment T-2: A cable station in White Sands, United Kingdom,
together with that portion of the System which is
located between such cable station and the point
which is one-half mile beyond the United Kingdom
territorial limit.
Segment T-3: A cable station in Sylt, Germany, together with
that portion of the System which is located
between such cable station and the point which is
one-half mile beyond the Germany territorial
limit.
Segment T-4: A cable station in Beverwijk, Netherlands,
together with that portion of the System which is
located between such cable station and the point
which is one-half mile beyond the Netherlands
territorial limit.
Inland Capacity: All capacity provided by Global Crossing,
including third party capacity, as backhaul
services to connect (i) the cable station in
Brookhaven, New York, United States with locations
in New York, New York, including but not limited
to, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, and
(ii) the cable station in White Sands, United
Kingdom with locations England, including but not
limited to, ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and
Porthcurno, Cornwall.
Mid-Atlantic Crossing shall be regarded as consisting of the following Segments:
Segment S-1: A submarine cable linking Segments T-1 and
T-2.
Segment S-2: A submarine cable linking Segments T-1 and
T-3.
Segment S-3: A submarine cable linking Segments T-2 and
T-3.
Segment T-1: A cable station in Brookhaven, New York, United
States, together with that portion of the System
which is located between such cable station and
the point which is one-half mile beyond the United
States territorial limit.
Segment T-2: A cable station in Hollywood, Florida, United
States together with that portion of the System
which is located between such cable station and
the point which is one-half mile beyond the
United States territorial limit.
Segment T-3: A cable station in St. Croix, United States
Virgin Islands, together with that portion of the
System which is located between such cable station
and the point which is one-half mile
beyond the United States Virgin Islands
territorial limit.
Inland Capacity: All capacity provided by Global Crossing,
including third party capacity, as backhaul
services to connect (i) the cable station in
Brookhaven, New York, United States with locations
in New York, New York, including but not limited
to, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, and
(ii) the cable station in Hollywood, Florida,
United States and Miami, Florida.
Pan American Crossing shall be regarded as consisting of the following Segments:
Segment S-1: A submarine cable linking Segments T-1 and T-2.
Segment S-2: A submarine cable linking Segments T-2 and T-3.
Segment S-3: A submarine cable linking Segments T-3 and T-4.
Segment S-4: A submarine cable linking Segments T-4 and T-5.
Segment T-1: A cable station in St. Croix, United States Virgin
Islands, together with that portion of the System
which is located between such cable station and
the point which is one-half mile beyond the United
States territorial limit.
Segment T-2: A cable station in Panama City, Panama, together
with that portion of the System which is located
between such cable station and the point which is
one-half mile beyond Panama territorial limit.
Segment T-3: A cable station in Mazatlan, Mexico, together with
that portion of the System which is located
between such cable station and the point which is
one-half mile beyond the Mexico territorial limit.
Segment T-4: A cable station in Tijuana, Mexico, together with
that portion of the System which is located
between such cable station and the point which is
one-half mile beyond the Mexico territorial limit.
Segment T-5: A cable station in Grover Beach, California,
United States together with that portion of the
System which is located between such cable station
and the point which is one-half mile beyond the
United States territorial limit.
Inland Capacity: All capacity provided by Global Crossing,
including third party capacity, as backhaul
services to connect (i) the cable station in
Panama City, Panama with locations in _________
(ii) the cable station in Mazatlan, Mexico with
locations in Mexico, including but not limited to
________, (iii) the cable station in Tijuana,
Mexico with locations in Mexico, including but not
limited to ______, (iv) the cable station in
Grover Beach, California, United States with
locations in California, including but not limited
to San ▇▇▇▇ Obispo.
Pacific Crossing - 1 shall be regarded as consisting of the following Segments:
Segment S-1: A submarine cable linking Segments T-1 and T-2.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
Segment S-2: A submarine cable linking Segments T-3 and T-4.
Segment S-3: A submarine cable linking Segments T-1 and T-3.
Segment S-4: A submarine cable linking Segments T-2 and T-3.
Segment T-1: A cable station in ▇▇▇▇▇ Beach, Washington, United
States, together with that portion of the System
which is located between such cable station and
the point which is one-half mile beyond the United
States territorial limit.
Segment T-2: A cable station in Ajiguara, Japan, together with
that portion of the System which is located
between such cable station and the point which is
one-half mile beyond the Japan territorial limit.
Segment T-3: A cable station in Shima, Japan, together with
that portion of the System which is located
between such cable station and the point which is
one-half mile beyond the Japan territorial limit.
Segment T-4: A cable station in Grover Beach, California,
United States, together with that portion of the
System which is located between such cable station
and the point which is one-half mile beyond the
United States territorial limit.
Inland Capacity: All capacity provided by Global Crossing,
including third party capacity, as backhaul
services to connect (i) the cable station in
Grover Beach, California, United States with
locations in California, including but not limited
to San ▇▇▇▇ Obispo, (ii) the cable station in
▇▇▇▇▇ Beach, Washington, United States with
Seattle, Washington (iii) the cable station in
Ajiguara, Japan with locations in Japan, including
but not limited to Tokyo, Osaka, and Nagoya, (iv)
the cable station in Shima, Japan with locations
in Japan, including but not limited to Tokyo,
Osaka and Nagoya.
South America Crossing shall be regarded as consisting of the following
Segments:
Segment A: A submarine cable linking
Segments T-1 and T-2
Segment B: A submarine cable linking
Segments T- 2 and T-3
Segment C: A submarine cable linking
Segments T- 3 and T- 4
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
Segment D: A submarine cable linking
Segments T- 4 and T-5
Segment E: A terrestrial cable linking
Segments T-5 and T- 6
Segment F: A submarine cable linking
Segments T- 6 and T -7
Segment G: A submarine cable linking
Segments T-7 and B-1
Segment H: A portion of the system linking T - 8 and B-1
Segment I: A portion of the system linking T-9
Segments B-1
Segment J: A submarine cable linking
Segments T-9 and T-1
Segment T-1: A cable station in St. Croix, United States VI,
together with that portion of the System which is
located between such cable station and the point
which is one-half mile beyond the St. Croix USVI
territorial limit.
Segment T-2: A cable station in Fortaleza, Brazil, together
with that portion of the System which is located
between such cable station and the point which is
one-half mile beyond the Brazil territorial limit.
Segment T-3: A cable station in Rio de Janeiro, Brazil,
together with that portion of the System which is
located between such cable station and the point
which is one-half mile beyond the Brazil
territorial limit.
Segment T-4: A cable station in ▇▇▇▇▇▇, Brazil, together with
that portion of the System which is located
between such cable station and the point which is
one-half mile beyond the Brazil territorial limit.
Segment T-5: A cable station in Las Toninas, Argentina,
together with that portion of the System which is
located between such cable station and the point
which is one-half mile beyond the Argentina
territorial limit
Segment T-6: A cable station in Valparaiso, Chile, together
with that portion of the System which is located
between such cable station and the point which is
one-half mile beyond the Chile territorial limit
Segment T-7: A cable station in Lurin, Peru, together with that
portion of the System which is located between
such cable station and the point which is one-half
mile beyond the Peru territorial limit
Segment T-8: A cable station in Buenaventura, Colombia,
together with that portion of the System which is
located between such cable station and the point
which is one-half mile beyond the Colombia
territorial limit.
Segment T-9: A cable station in Ft. ▇▇▇▇▇▇, Panama, together
with that portion of the System which is located
between such cable station and the point which is
one-half mile beyond the Panama territorial limit
Segment B-1: A Branching unit in Buenaventura, Colombia
together with that portion of the System which is
located between T-8 and the point which is one-
half mile beyond the Colombia territorial limit.
For the purposes of this Agreement, it is assumed that, under the current
law of all countries listed herein, the territorial waters of such country
extend twelve nautical miles seaward from the coast of such country. If
such assumption shall prove to be incorrect, or if a law shall change such
assumption and, in fact, the territorial waters of any such country extend
beyond twelve nautical miles, the parties hereto shall adjust the T Segment
of the applicable Terminal Party.
Pan European Crossing consists of a fiber optic network with Points of Presence
in the following European cities:
United Kingdom London and Whitesands
France Veules les Roses, La Defense, Paris, Calais, Roissy,
Lyon, Marseille and Strasbourg
Belgium Brussels, Kortrijk, and Antwerp
Netherlands Rotterdam and Amsterdam
Germany Hamburg, Hanover, Berlin, Leipzig, Dresden,
Nuremberg, Stuttgart, Munich, Dusseldorf, Cologne
and Frankfurt
Switzerland Zurich
Italy Turin and Milan
Denmark Copenhagen
2. Capabilities of each System
(a) With respect to AC-1, MAC , PAC and PC-1, upon completion of the
construction and final acceptance from the contractor, (i) each
Segment shall have the ability to carry commercial traffic between the
two landing points of such Segment meeting performance criteria of
ITU-T G.826, shall have line monitoring and protection switching
capability and shall provide for STM-1 interconnectivity capability to
the Segment terminal equipment according to ITU-T G.826, and (ii) each
System shall have the ability to carry commercial traffic throughout
the System meeting performance criteria of ITU-T G.826 with self
healing ring protection capability and per Segment protection
capability, shall have line monitoring and per Segment protection
switching capability and shall have network management.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
(b) With respect to SAC, upon completion of the construction and final
acceptance from the contractor, (i) each Segment shall have the
ability to carry commercial traffic between the two landing points of
such Segment meeting performance criteria of ITU-T G.826, [shall have
line monitoring and protection switching capability] and shall provide
for ▇▇-▇, ▇▇▇-▇, ▇▇▇-▇ and STM-16 interconnectivity capability to the
Segment terminal equipment according to ITU-T G.826, and (ii) the
System shall have the ability to carry commercial traffic throughout
the System meeting performance criteria of ITU-T G.826 with self
healing ring protection capability [and per Segment protection
capability, shall have line monitoring and per Segment protection
switching capability] and shall have network management.
(c) [INFORMATION AS TO PERFORMANCE STANDARDS FOR PEC TO BE ADDED AS
NECESSARY]
(d) With respect to any Inland Capacity purchased hereunder, (i) the fiber
optic telecommunications system carrying such capacity shall have the
ability to carry commercial traffic between certain Points of Presence
meeting performance criteria of ITU-T G.826, shall have protection
switching capability and (ii) the interface to the Point of Presence
shall be STM-1 (optical interface) as specified in ITU Recommendation
G.957 and 1+1 protected or equivalent.
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
Schedule 4
TERMINATION DATES
SYSTEM TERMINATION DATE
Atlantic Crossing - 1 25 years from the date such System was put in
service
Pacific Crossing - 1 25 years from the date such System was put in
service
Pan American Crossing 25 years from the date such System was put in
service
Mid-Atlantic Crossing 25 years from the date such System was put in
service
South American Crossing 25 years from the date such System was put in
service
Pan European Crossing [15 years from the date such System was put
in service]
Global Access Ltd. 15 years from the date such System was put in
service
[TO BE UPDATED]
OPTION PRICES
SYSTEM OPTION PRICE PER MCU
Pan European Crossing $ ____________
Global Access Ltd. $ ____________
CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
Schedule 5
FORM OF ACTIVATION NOTICE
[PURCHASER]
[ACTIVATION DATE]
RE: Activation of STM-1 circuit between _______________.
Reference is made to that certain Capacity Purchase Agreement dated ______,
1999, between Global Crossing USA Inc. (the "Grantor") and ____________ (the
"Purchaser") (the "CPA"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in the CPA.
This notice is being provided to you pursuant to Paragraph G(4) of CPA.
The circuit that you have purchased was activated on [ACTIVATION DATE], and has
been assigned the following Route:
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System Segment Inland Capacity
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The Route described above is based on the configuration of the System as
provided in Schedule 3 to the CPA.
Global Crossing USA Inc.
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CONFIDENTIAL - GLOBAL CROSSING PROPRIETARY INFORMATION
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.
"ACTIVATION NOTICE" means, the notice delivered in connection with the
activation of each MCU of capacity purchased hereunder, in the form of Schedule
5 hereto.
"ACTUAL AVAILABILITY DATE" as defined in Section 6 of the General Terms.
"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.
"ANTICIPATED AVAILABILITY DATE" means, with respect to any MCU of Capacity
on a Traffic Connection to be purchased by the Purchaser hereunder, the date set
forth pursuant to Paragraph F of the Specific Terms.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day on
which commercial banks in Bermuda, New York City or the United Kingdom 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 Anticipated Availability 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 any permit or governmental authorization, (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, (viii) strike or other labor
action, (ix) freight embargo, (x) unworkable weather, (xi) trawler or anchor
damage, (xii) damage caused by other marine activity such as fishing, marine
research or marine development, (xiii) failure or shortage of power supplies or
general unavailability of any raw materials or components, (xiv) act or omission
or transporters, (xv) 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 the
respective Parties (in a case where the other party is sought to be held
liable).
"GLOBAL CROSSING NETWORK" means the fiber optic network comprised of the
Systems, the Inland Capacity 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 more fully described on Schedule 3 to the
Specific Terms of this Agreement, as such network may be expanded by the Grantor
and its affiliates (at their sole option) from time to time.
"GRANTOR'S ACCOUNT" means the bank account of the Grantor maintained with
City National Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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: City National Bank
ABA No.: 1220-16066
Reference: Global Crossing USA Inc.
Any questions regarding wire transfers to the Grantor's Account should be
directed to the attention of ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇.
"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.
"INLAND CAPACITY" means capacity on a fiber optic telecommunications system
which connects a System to an inland Point of Presence. The Inland Capacity
relating to each System is described on Schedule 3 to this Agreement.
"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:
The Bank of Bermuda Limited
▇▇▇▇▇▇▇▇, Bermuda
CHIPS UID: 005584
S.W.I.F.T. Code: BBDA BMHM
For Further Credit to:
Global Crossing Network Center Ltd.
Account Number: 1800-4749
Any questions regarding wire transfers to the Maintenance Company's Account
should be directed to the attention of Ms. ▇▇▇▇▇ ▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇.
"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.
"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. 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.
"REQUESTED ACTIVATION DATE" means, with respect to any MCU of Committed
Capacity, the date set forth pursuant to Paragraph E of the Specific Terms.
"ROUTE" means, the Traffic Connection consisting of the Segments and Inland
Capacity identified on the Activation Notice delivered with respect to each MCU
purchased hereunder.
"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.
"SYSTEMS" means the fiber optic cable systems set forth in Schedule 3 to
the Specific Terms and any other fiber optic cable system that the Grantor (at
its sole option) may designate as a "System" from time to time.
"TERMINATION DATE" as defined in Section 12(c) of this Agreement.
"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.
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,
Annual Maintenance Cost Payment and Requested Activation Date, the Purchaser may
elect to purchase Capacity pursuant to this Agreement in addition to that
provided for in Section 2(a) hereof.
(ii) The Purchaser and Grantor shall effect such election by (A) jointly
executing and delivering a written Schedule 2A 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; NOTICE OF ACTUAL AVAILABILITY DATE.
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. The Grantor will give the Purchaser at
least thirty (30) days prior written notice of each estimated Actual
Availability Date with respect to the Committed Capacity allocated to a Traffic
Connection, which notice shall be accompanied by an invoice for the amount of
Purchase Price due; PROVIDED, HOWEVER, no prior written notice is required with
respect to any applicable portion of the Committed Capacity allocated to a
Traffic Connection if the Actual Availability Date for such portion of Capacity
has already occurred or is estimated to occur within less than thirty (30) days
after the execution of this Agreement.
(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 later of
the Delayed Availability Date and the Requested Activation Date. In such event,
the Grantor shall refund 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 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. Each purchase and grant of an IRU takes place in the
United States.
(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 payment to the Grantor's Account, in immediately available
Dollars, in an amount equal to 10% of the Total Purchase Price of such Committed
Capacity (in each case, the "INITIAL PAYMENT"). Each Initial Payment shall be
non-refundable (except as provided in Section 2(d) of this Agreement) and shall
be credited, PRO RATA, toward the payment of the Purchase Price for each MCU of
Committed Capacity with respect to which it was paid.
(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 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 in connection with the purchase of any Capacity
hereunder. 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.
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.
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.
(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 rules, regulations and requirements set forth by each
entity having rights in any portion of the Global Crossing Network, 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 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 3% 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 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)
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 six percent (6%) 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 five (5) days or such other breach continues for a period of at least
thirty (30) 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 fifteen (15) days of such notification, 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 and the
right to terminate or cancel this Agreement.
(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. 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 use of the Purchased Capacity shall
comply with all applicable government codes, ordinances, laws, rules,
regulations and/or restrictions and the terms of this Agreement.
(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.
(c) (i) The IRU in any Purchased Capacity may terminate prior to the
Termination Date, with respect to any System on the Global Crossing Network, on
such date as the Grantor, the Maintenance Company and the holders of not less
than 85% of Capacity on such System (the "Supermajority"), jointly elect to
retire the system (an "Early Retirement") in accordance with the procedure set
forth in Section 11(c)(ii). Any system which is retired early in accordance with
this Section 11(c) shall hereinafter be referred to as a "Decommissioned
System."
(ii) Early Retirement shall occur, with respect to any System, only upon
the unanimous vote of each of (i) the Grantor, (ii) the Maintenance Company and
(iii) the Supermajority.
(iii) Notwithstanding the foregoing, Early Retirement shall terminate the
Parties' obligations under this Agreement only in connection with Capacity on
such Decommissioned System, and this Agreement shall continue in full force and
effect with respect to all other Capacity subject to this Agreement.
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 shall be comprised of a series
of IRUs in the various Systems and other portions of the Global Crossing Network
over which such Traffic Connection is routed, each of which IRUs shall have the
respective duration extending to the applicable "Termination Date" set forth on
Schedule 4 to the Specific Terms of this Agreement for such System or other
portion of the Global Crossing Network. With respect to any portion of a Traffic
Connection in which the term of the IRU is less than twenty-five (25) years from
the time such System or other portion of the Global Crossing Network was put in
service, the Grantor shall grant an IRU in such Capacity, at the option of the
Purchaser, for the period between the expiration of such IRU and the
twenty-fifth anniversary of the date such System or other portion of the Global
Crossing Network was put in service for a cost to the Purchaser equal to the
amount therefor set forth on Schedule 4 to the Specific Terms of this Agreement.
The Purchaser shall effect such election by (A) delivering to the Grantor a
written, irrevocable election notice stating that it wishes to extend the IRU in
those portions of the Traffic Connection and (B) paying the applicable amount
set forth in the preceding sentence to the Grantor's Account. A failure by the
Purchaser to exercise its option under this Section 12(c) shall not relieve the
Purchaser of its obligations with respect to the other portions of the affected
Traffic Connection.
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.
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, 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.
(b) Neither the Grantor nor the Maintenance Company shall be liable to the
Purchaser for any delay, loss or damage which may be suffered by the Purchaser
by reason of any circumstances beyond the reasonable control of the Grantor, the
Maintenance Company or any of their respective affiliates.
16. SETTLEMENT OF DISPUTES.
(a) The parties hereto shall endeavor to settle amicably 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.
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.
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 Delaware; (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, the
organizational documents or any order, decree or judgment of any court, tribunal
or governmental authority binding on the Grantor.
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, the organizational
documents or any order, decree or judgment of any court, tribunal or
governmental authority binding on the Maintenance Company.
The Purchaser hereby represents and warrants to the Grantor that (i) the
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization; (ii) 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 (iii) 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.
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.
The foregoing representations and warranties shall survive the execution
and delivery of this Agreement.
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.
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 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 affiliated company of the Grantor or the Maintenance Company or to an
entity controlled by, under the same control as, or controlling, 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.
(d) (i) Subject to the limitations set forth in Section 23(d)(iii), the
Purchaser may enter into one or more agreements to lease or license the right to
use any Purchased Capacity, so long as all such leases or licenses with any
particular lessee or licensee (including all affiliates thereof) involve, in the
aggregate, less than one (1) MCU of Purchased Capacity;
(ii) Subject to the limitations set forth in Section 23(d)(iii), the
Purchaser may transfer a right to use any Purchased Capacity to a Carrier Party,
so long as all such transfers to any particular transferee (including all
affiliates thereof) involve in the aggregate less than one MCU of Purchased
Capacity;
(iii) The Purchaser may not enter into any arrangements to lease, license
or transfer a right to use an aggregate (in any combination of such
arrangements) of one or more MCUs of Purchased Capacity to any particular
lessee, licensee or transferee (including all affiliates thereof).
(iv) 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 use one or more MCUs
of Capacity shall promptly contact the Customer Care Center and provide all such
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 USA Inc.
▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Attn: President
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Maintenance Company:
Global Crossing Network Center Ltd.
Attn:
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 and, together with the Schedules and the Annexes hereto, 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) in the case of the
Grantor and the Maintenance Company, to prospective lenders to the Grantor, the
Maintenance Company 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.
(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