SERVICE AGREEMENT
THIS AGREEMENT is entered into as of the 30th day of September 1997, by
and between PACWEST NETWORK, INC. ("Pacwest") and GST TELECOM HAWAII, INC.
("GSTH"). This Agreement, together with the Management Agreement dated September
30, 1997, supersedes the Restated and Amended Traffic Agreement and the Restated
and Amended Usage Agreement, each dated as of June 21, 1994 and restated and
amended as of November 1, 1995.
W I T N E S S E T H
WHEREAS, Pacwest is a common carrier authorized to operate a common
carrier microwave transmission system ("the System") located in Hawaii pursuant
to licenses (the "Licenses") issued by the Federal Communications Commission
("FCC") as set forth in Schedule A; and
WHEREAS, GSTH is a common carrier that wishes to obtain capacity on the
System in order to provide its own interstate voice and data communications
services.
NOW THEREFORE, in consideration of the foregoing premises, the mutual
promises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. CAPACITY.
(a) Pacwest hereby agrees to make available to GSTH ninety percent
(90%) of the total transmission capacity available on the System;
(b) GSTH expressly acknowledges that all transmission capacity
available over the System and not made available to GSTH under this Agreement
shall be available to Pacwest for Pacwest to make available to other customers
at Pacwest's sole discretion.
(c) The capacity available to GSTH under this Agreement will be used
by GSTH to fulfill requirements for provision of common carrier traffic
termination services to carriers and bulk capacity customers or to provide
service to GSTH's own end user customers, or both.
(d) GSTH may enter into agreements with its customers to provide
some or all of the capacity GSTH is obtaining herein on the System. Such
customer agreements must be expressly subject to the provisions of this
Agreement.
2. TECHNICAL STANDARDS AND REQUIREMENTS FOR INTERCONNECTION.
(a) INTERCONNECTION STANDARDS. GSTH shall deliver its own traffic,
and shall require each of its customers to deliver its traffic, in a digital
DS-1 format at such points of presence as mutually agreed upon by the parties.
(b) ACCESS FACILITIES AND MINIMUM LOADING. GSTH may determine, in
its discretion, minimum loading or minimum capacity requirements applicable to
its customers. GSTH also may submit, for final approval by Pacwest (which
approval will not be unreasonably withheld), the particular access arrangements
to the System to be made available to GSTH's customers as well as arrangements
for interconnection between GSTH customers' facilities and the System.
3. WARRANTY. Pacwest will use its best efforts to maintain the overall
network quality of the capacity provided over the System. The quality of the
services Pacwest provides hereunder shall be consistent with common carrier
industry standards, government regulations and sound business practices.
4. TRANSFER OF LICENSES. Pacwest Network, Inc. hereby undertakes, as
soon as practicable after receipt of FCC approval, to transfer the Licenses to a
single-purpose entity
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that (i) will enter into agreements with GSTH substantially identical to this
Agreement, the Management Agreement of even date herewith between the parties
hereto and the Purchase Agreement of even date herewith among the parties hereto
and GST Telecom Inc. and (ii) will represent, warrant and covenant to GSTH that
it has not engaged, and will not engage, in any business activities other than
activities consisting of, or associated with or incidental to, the ownership or
exploitation of the Licenses or operation of the System, which obligations shall
be enforceable by injunction. Pacwest shall file all necessary application
materials for approval by the FCC of the transfer of the Licenses described in
the preceding sentence within 10 business days of the date hereof.
5. TERM. The term of this Agreement commences as of the date hereof,
and shall terminate upon mutual agreement of the parties unless earlier
terminated under the provisions of paragraph 6.
6. TERMINATION FOR CAUSE. Either party shall have the right to
terminate this Agreement upon notice to the other party at any time during the
term hereof upon the occurrence of any of the following events:
(a) any material failure by a party to perform any of its
obligations under this Agreement in the event that such failure is not cured
within thirty (30) days after the defaulting party receives notice from the
non-defaulting party of such failure;
(b) the insolvency of, or appointment of a receiver of the property
of, the other party; or,
(c) the filing of a voluntary or involuntary petition by or against
the other party under the Bankruptcy laws of the United States.
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(d) the determination of a third party with expertise in FCC
regulations mutually selected by Pacwest and GSTH that the acts of GSTH or the
terms of this Agreement have been or are likely to be determined to be
inconsistent with the rules and policies of the FCC or any other governmental
agency having jurisdiction over Pacwest as such rules and policies apply to
Pacwest.
7. INDEMNIFICATION.
(a) Each party shall indemnify and hold the other party harmless
against any and all damages, claims, actions or suits arising out of or in
connection with such indemnifying party's provision of service or capacity to
third parties under this Agreement.
(b) In no event will either party hereto be liable to the other
party for any indirect, special, incidental or consequential losses or damages,
including, without limitation, loss of revenue, loss of customers or clients,
loss of goodwill or loss of profits arising in any manner from this Agreement or
the performance or nonperformance of obligations hereunder.
8. PAYMENT. In consideration of the ability to utilize the capacity
pursuant to this Agreement, GSTH shall pay Pacwest the sum of $3,000 per month.
9. NOTICES. All notices and other communications hereunder shall be
given in writing and shall be deemed to have been duly given if delivered
personally, if transmitted by telecopier to the number(s) designated below or if
mailed by first class United States mail, postage prepaid, to the address(es)
designated below, or to such other address as either party may specify from time
to time. All notices and other communications hereunder shall be deemed to have
been given on the date of receipt.
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If to Pacwest:
Pacwest Network, Inc.
0000 Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
Telecopier: (000) 000-0000
If to GSTH:
GST Telecom Hawaii, Inc.
0000 X.X. Xxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Attn: Chief Executive Of fleer
Telecopier: (000) 000-0000
10. NO WAIVER. No term or provision of this Agreement shall be deemed
waived and no breach or default shall be deemed excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived or
consented. No consent by any party to, or waiver of, a breach or default by the
other, whether express or implied, shall constitute a consent to, waiver of, or
excuse for any different or subsequent breach or default.
11. ASSIGNMENT. Neither party shall assign this Agreement or any of its
rights or obligations under this Agreement without the prior written consent of
the other party, and any attempted assignment or transfer by either party not in
compliance with this provision shall be null and void ad initio; provided that
GSTH shall be permitted to assign this Agreement and its rights and obligations
thereunder to any affiliate of GSTH and/or Tomen Corporation or any of its
affiliates.. This Agreement shall bind and inure to the benefit of any permitted
successors and assigns of the parties.
12. APPLICABLE LAW. This Agreement shall be construed in accordance
with the laws of the State of Delaware, not including the conflicts of laws
principles of that State.
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13. CONSTRUCTION. It is the intent of the parties that operation of the
facilities under this Agreement comply with the Communications Act of 1934, as
amended, and all provisions of this Agreement shall be so construed.
14. SEVERABILITY. If any provision of this Agreement shall be declared
illegal, invalid or unenforceable by any governmental authority with
jurisdiction over GSTH, Pacwest, and/or the facilities, then the remainder of
this Agreement shall remain in full force and effect without the offending
provision, provided that such remainder substantially reflects the original
agreement of the parties.
15. AMENDMENTS. This Agreement represents the entire understanding of
the parties hereto with respect to the subject matter hereof, supersedes any and
all prior negotiations, understandings an agreements with respect thereto, and
may be amended only by a writing signed by both parties.
16. NO JOINT VENTURE. Nothing in this Agreement shall be construed to
make Pacwest and GSTH joint venturers or to impose upon either of them any
liability as such.
17. LIMITATIONS ON LIABILITY. Neither GSTH nor Pacwest shall have any
liability for failure to comply with this Agreement if such failure results from
the occurrence of any contingency beyond the reasonable control of such party.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original and all of which
taken together shall constitute one Agreement binding on both of the parties
hereto, notwithstanding that both parties shall not have signed the same
counterpart.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PACWEST NETWORK, INC. ("Pacwest")
By: /s/ Xxxx Xxxxx
-------------------------------
Xxxx Xxxxx, President
GST TELECOM HAWAII, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxx, Vice President
The undersigned hereby agree that the foregoing agreement and the Management
Agreement of even date therewith supersede the Restated and Amended Traffic
Agreement and the Restated and Amended Usage Agreement, each dated as of June
21, 1994 and restated and amended as of November 1, 1995.
GST PACWEST TELECOM HAWAII, INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxxx X. Xxxxxx, Vice President
GST TELECOM INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxxx X. Xxxxxx, Vice President
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SCHEDULE A
SEPTEMBER 22, 1997
PACWEST MICROWAVE LICENSE CHART
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CALL SIGN SITE FCC FILE NO.
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WNTM 942 Xxxxxxxx, XX 000000
C703102
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WNTM 943 Xxxxxxxx, XX 000000
C703101
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WMJ 000 Xxxxxxxxx Xxxxxx, XX 00000-XX-X-00
94-13239
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WMJ 475 2121 Ala Wai, HI 18183-CF-P-91
94-13239
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WMJ 476 Waterfront, HI 18184-CF-P-91
94-13239
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WMJ 477 Pacific Tower, HI 18185-CF-P-91
94-13239
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WMJ 478 Xxxxxxxxxx, HI 18186-CF-P-91
94-13239
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WMJ 000 Xxxxxxx Xxxxx, XX 00000-XX-X-00
94-13239
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WHO 653 Xxxxxxxx, XX 00-00000
--------------------------------------------------------------------------------
WHO 654 Mauna Kapu, HI 1242-CF-1-87
30024-CF-R-91
94-13240
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WHO 657 Wahiawa, HI 11406-CF-L-86
30013-CF-R-91
94-13240
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WHO 658 Pearlridge, HI 11407-CF-L-86
30014-CF-R-91
94-13240
--------------------------------------------------------------------------------
WHO 659 Grosvenor, HI 00000-XX-X-00
00000-XX-X-00
94-13240
--------------------------------------------------------------------------------
WHO 660 Ala Wai, HI 11409-CF-L-86
30016-CF-R-91
94-13240
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WHO 661 Koko Head, HI 11410-CF-L-86
30017-CF-R-91
94-13240
--------------------------------------------------------------------------------
WHO 662 Kahala, HI 94-13240
--------------------------------------------------------------------------------
WHO 664 Puu Nana, HI 11417-CF-L-86
30026-CF-R-91
94-13240
--------------------------------------------------------------------------------
WHO 665 Kailua, HI 1243-CF-L-87
30019-CF-R-91
94-13240
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WHO 666 Waimanalo, HI 1244-CF-L-87
30020-CF-R-91
94-13240
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WHO 000 Xxxxxxxxxx, XX 00000-XX-X-0
30010-CF-R-91
94-13240
--------------------------------------------------------------------------------
WHO 669 Kaanapali, HI 94-13240
--------------------------------------------------------------------------------
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WHO 670 Keonehunehune, HI 00000-XX-X-00
0000-XX-X-00
00000-XX-X-00
94-13240
--------------------------------------------------------------------------------
WHO 671 Kahuludi, HI 11415-CF-L-86
30011-CF-R-91
94-13240
--------------------------------------------------------------------------------
WHO 672 Kihei, HI 11416-CF-L-86
30012-CF-R-91
94-13240
--------------------------------------------------------------------------------
WHO 673 Huehue, HI 1246-CF-L-87
30021-CF-R-91
94-13240
--------------------------------------------------------------------------------
WHO 674 Kona, HI 1247-CF-L-87
30022-CF-R-91
94-13240
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WHO 675 Sheep Station, HI 1248-CF-L-87
30023-CF-R-91
94-13240
--------------------------------------------------------------------------------
WHO 676 Hilo, HI 1249-CF-L-87
30025-CF-R-91
94-13240
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XXX 000 Xxxxxx Xxx, XX 00-00000
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WPJD 398 Xxxxx, XX 0000000
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WPJD 399 Xxxxxxxxx, XX 0000000
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