Exhibit 10.13
AGREEMENT
This AGREEMENT is made as of the date of the last signature affixed hereto
by and among: Global Crossing Ltd. ("GCL"), GC Acquisition Limited ("New GX")
and Singapore Technologies Telemedia Pte Ltd ("ST Telemedia"), on the one hand,
and the Federal Bureau of Investigation ("FBI"), the U.S. Department of Justice
("DOJ"), the Department of Defense ("DOD"), and the Department of Homeland
Security ("DHS"), on the other (referred to individually as a "Party" and
collectively as the "Parties").
RECITALS
WHEREAS, U.S. communication systems are essential to the ability of the
U.S. government to fulfill its responsibilities to the public to preserve the
national security of the United States, to enforce the laws, and to maintain the
safety of the public;
WHEREAS, the U.S. government has an obligation to the public to ensure that
U.S. communications and related information are secure in order to protect the
privacy of U.S. persons and to enforce the laws of the United States;
WHEREAS, it is critical to the well being of the nation and its citizens to
maintain the viability, integrity, and security of the communications systems of
the United States (see, e.g., Executive Order 13231, Critical Infrastructure
Protection in the Information Age and Presidential Decision Directive 63,
Critical Infrastructure Protection);
WHEREAS, protection of Classified, Controlled Unclassified, and Sensitive
Information is also critical to U.S. national security;
WHEREAS, GCL and New GX have an obligation to protect from unauthorized
disclosure the contents of wire and electronic communications;
WHEREAS, New GX, through one or more of its subsidiaries, provides or will
provide the following services: (1) local, long distance and international voice
services including IP-based voice services, calling card and toll free voice
service, and international toll free service; (2) private data and virtual
private networking services, including global ATM service, and frame relay
service; (3) broadband fiber-optic capacity on a leased and IRU basis, including
private line service and wavelength service; (4) Internet access services
including IP peering and transit service, dedicated Internet access service and
internet dial-up service; (5) audio and video conferencing services; (6)
maintenance and installation services in connection with the above, including
colocation service, remote access service and managed services; and (7) any
other telecommunications service that New GX may offer in the future;
WHEREAS, New GX has or will have direct physical or electronic access to
certain customer facilities, including servers, storage media, network
connections, bandwidth transport, and firewalls, and thereby has access to a
variety of customer and end-user information that is subject to U.S. privacy and
electronic surveillance laws;
Page 2
WHEREAS, GCL has entered into a Purchase Agreement dated August 9, 2002 and
amended December 20, 2002 and May 13, 2003 (the "Purchase Agreement"), whereby
GCL and its wholly- owned Bermuda subsidiary, Global Crossing Holdings, Ltd.,
will transfer all of their assets and operations, including ownership of their
U.S. subsidiaries, to New GX, and ST Telemedia will acquire, directly or through
a subsidiary, a 61.5 percent equity and voting interest in New GX in exchange
for, inter alia, an investment of $250 million in New GX which Purchase
Agreement has been approved by the United States Bankruptcy Court for the
Southern District of New York; and GCL, New GX and ST Telemedia have represented
that the proposed transaction does not involve, directly or indirectly,
investment in GCL, its subsidiaries, assets and operations by any foreign
company other than ST Telemedia;
WHEREAS, GCL and New GX have filed with the Federal Communications
Commission ("FCC") applications (in FCC IB Docket No. 02-286) under Sections 214
and 310(d) of the Communications Act of 1934, as amended (the "1996 Act"), 47
U.S.C. Sections 214 and 310(d), and the Act Relating to the Landing and
Operation of Submarine Cables in the United States, as amended (the "Cable
Landing License Act"), 47 U.S.C. Sections 34-39, seeking FCC approval of the
transfer of control to New GX of GCL's subsidiaries that hold FCC authorizations
and licenses, and in connection therewith have also filed with the FCC a
petition pursuant to Section 310(b)(4) of the 1996 Act for a declaratory ruling
that the proposed indirect foreign ownership interest of ST Telemedia in the
FCC-licensed subsidiaries is in the public interest;
WHEREAS, ST Telemedia is a company organized and existing under the laws of
Singapore that is a wholly-owned subsidiary of Singapore Technologies Pte Ltd,
that in turn ultimately is wholly-owned by the government of the Republic of
Singapore;
WHEREAS, the FCC's grant of the applications in FCC IB Docket No. 02-286
may be made subject to conditions relating to national security, law
enforcement, and public safety, and whereas GCL, New GX and ST Telemedia have
agreed to enter into this Agreement with the FBI, the DOJ, the DOD and the DHS
to address issues raised by those departments and agencies and to request that
the FCC condition the transfer of control approved by the FCC on their
compliance with this Agreement;
WHEREAS, by Executive Order 12661, the President, pursuant to Section 721
of the Defense Production Act, as amended, authorized the Committee on Foreign
Investment in the United States ("CFIUS") to review, for national security
purposes, foreign acquisitions of U.S. companies;
WHEREAS, GCL, New GX and ST Telemedia have submitted a voluntary notice to
CFIUS regarding ST Telemedia's proposed investment in New GX, and GCL, New GX
and ST Telemedia have entered into this Agreement to resolve any national
security issues that the DOJ, the FBI, the DOD and the DHS might raise,
including in the CFIUS review process; and
WHEREAS, representatives of GCL, New GX and ST Telemedia have met with
representatives of the FBI, the DOJ, the DOD and the DHS to discuss issues
raised by those departments and agencies. In these meetings, GCL, New GX, and ST
Telemedia represented that: (a) they have no present plans, and are not aware of
present plans of any other entity, that
Page 3
would result in a Domestic Communications Company providing Domestic
Communications through facilities located outside the United States, except as
otherwise provided in section 2.1 of this Agreement, (b) ST Telemedia is an
entity whose commercial operations are wholly separate from the government of
the Republic of Singapore and whose activities are overseen by independent
regulatory authorities in Singapore, (c) no government has or will have, as a
direct or indirect shareholder of New GX, special voting or veto rights
concerning the actions of New GX, and GCL and New GX are aware of no plans the
result of which would confer special voting or veto rights to any government,
and (d) except as otherwise provided in Section 3.22, there are no present
plans, and GCL and New GX are aware of no present plans of any other entity, as
a result of which GCL or New GX will provide, direct, control, supervise or
manage Domestic Communications through facilities located outside the United
States.
NOW THEREFORE, the Parties are entering into this Agreement to address
national security, law enforcement and public safety issues.
ARTICLE 1: DEFINITION OF TERMS
As used in this Agreement:
1.1. "Call Associated Data" means any information related to a Domestic
Communication or related to the sender or recipient of that Domestic
Communication and, to the extent maintained by a Domestic Communications
Company in the normal course of business, includes without limitation
subscriber identification, called party number, calling party number, start
time, end time, call duration, feature invocation and deactivation, feature
interaction, registration information, user location, diverted to number,
conference party numbers, post cut-through dial digit extraction, in-band
and out-of-band signaling, and party add, drop and hold.
1.2. "Classified Information" means any information that has been
determined pursuant to Executive Order 12958, or any predecessor or
successor order, or the Atomic Energy Act of 1954, or any statute that
succeeds or amends the Atomic Energy Act, to require protection against
unauthorized disclosure.
1.3. "Control" and "Controls" means the power, direct or indirect,
whether or not exercised, and whether or not exercised or exercisable
through the ownership of a majority or a dominant minority of the total
outstanding voting securities of an entity, or by proxy voting, contractual
arrangements, or other means, to determine, direct, or decide matters
affecting an entity; in particular, but without limitation, to determine,
direct, take, reach, or cause decisions regarding:
(i) the sale, lease, mortgage, pledge, or other transfer of any or
all of the principal assets of the entity, whether or not in
the ordinary course of business;
(ii) the dissolution of the entity;
(iii) the closing and/or relocation of the production or research and
development facilities of the entity;
Page 4
(iv) the termination or nonfulfillment of contacts of the entity;
(v) the amendment of the articles of incorporation or constituent
agreement of the entity with respect to the matters described
in subsections (i) through (IV) above; or
(vi) New GX's and GCL's obligations under this Agreement.
1.4. "Controlled Unclassified Information" means unclassified
information, the export of which is controlled by the International Traffic
in Arms Regulations (ITAR), 22 C.F.R. Chapter I, Subchapter M, or the
Export Administration Regulations (EAR), 15 C.F.R., Chapter VII, Subchapter
C.
1.5. "De facto" and "de jure" control have the meanings provided in 47
C.F.R. Section 1.2110
1.6. "DHS" means the U.S. Department of Homeland Security.
1.7. "DOD" means the U.S. Department of Defense.
1.8. "DOJ" means the U.S. Department of Justice.
1.9. "Domestic Communications" means (i) Wire Communications or
Electronic Communications (whether stored or not) from one U.S. location to
another U.S. location and (ii) the U.S. portion of a Wire Communication or
Electronic Communication (whether stored or not) that originates or
terminates in the United States.
1.10. "Domestic Communications Company" means all those subsidiaries,
divisions, departments, branches, other components of New GX and any other
entity over which New GX has de facto or de jure control that provide
Domestic Communications. If any subsidiary, division, department, branch,
other component of New GX or any other entity over which New GX has de
facto or de jure control provides Domestic Communications after the date
that all the Parties execute this Agreement, then such entity shall be
deemed to be a Domestic Communications Company. If any Domestic
Communications Company enters into joint venture or another entity may
provide Domestic Communications, and if a Domestic Communications Company
has the power or authority to exercise de facto or de jure control over
such entity, then New GX will ensure that entity shall fully comply with
the terms of this Agreement. The term "Domestic Communications Company"
shall not include acquisitions by New GX in the U.S. after the date this
Agreement is executed by all parties only if the DOJ, FBI, DOD and DHS find
that the terms of this Agreement are inadequate to address national
security, law enforcement or public safety concerns presented by that
acquisition and the necessary modifications to this Agreement cannot be
reached pursuant to Section 8.10 below. Nothing in this definition shall
exempt any Domestic Communications Company from its obligations under
Section 5.3.
1.11. "Domestic Communications Infrastructure" means (a)transmission,
switching, bridging and routing equipment (including software and upgrades)
subject to control by a
Page 5
Domestic Communications Company and in use to provide, process, direct,
control, supervise or manage Domestic Communications, and (b) facilities
and equipment in use by or on behalf of a Domestic Communications Company
that are physically located in the United States; or (c) facilities in use
by or on behalf of a Domestic Communications Company to control the
equipment described in (a) and (b) above. Domestic Communications
Infrastructure does not include equipment or facilities used by service
providers that are not Domestic Communications Companies and that are:
(i) interconnecting communications providers; or
(ii) providers of services or content that are
(A) accessible using the communications services of Domestic
Communications Companies, and
(B) available in substantially similar form and on
commercially reasonable terms through communications
services of companies other than Domestic Communications
Companies.
Domestic Communications Infrastructure does not include equipment dedicated to
the termination of international undersea cables, provided that such equipment
is utilized solely to effectuate the operation of undersea transport network(s)
outside of the United States and in no manner controls land-based transport
network(s) or their associated systems in the United States.
1.12. "Effective Date" means the date on which the transactions
contemplated by the Purchase Agreement are consummated.
1.13. "Electronic Communication" has the meaning given it in 18 U.S.C.
Section 2510(12).
1.14. "Electronic Surveillance" means: (a) the interception of wire, oral,
or electronic communications as defined in 18 U.S.C. Sections 2510(4), (1),
(2), and (12), respectively, and electronic surveillance as defined in 50
U.S.C. Section 1801(f); (b) access to stored wire or electronic
communication, as referred to in 18 U.S.C. Section 2701 et seq.; (c)
acquisition of dialing, routing, addressing or signaling information
through pen register or trap and trace devices or other devices or features
capable of acquiring such information pursuant to law as defined in 18
U.S.C. Section 3121 et seq. and 50 U.S.C. Section 1841 et seq.; (d)
acquisition of location related information concerning a service subscriber
or facility; (e) preservation of any of the above information pursuant to
18 U.S.C Section 2703(f); and (f) access to, or acquisition or interception
of, or preservation of communication or information as described in (a)
through (e) above and comparable State laws.
1.15. "FBI" means the Federal Bureau of Investigation.
1.16. "Foreign" where used in this Agreement, whether capitalized or lower
case, means non-U.S.
1.17. "GCL" means Global Crossing Ltd., a Bermuda corporation.
Page 6
1.18. "Governmental Authority" or "Governmental Authorities" means any
government, or any governmental, administrative, or regulatory entity,
authority, commission, board, agency, instrumentality, bureau, or political
subdivision, and any court, tribunal, judicial, or arbitral body.
1.19. "Intercept" or "Intercepted" has the meaning defined in 18 U.S.C.
Section 2510(4).
1.20. "Lawful U.S. Process" means lawful U.S. Federal, state, or local
Electronic Surveillance or other court orders, processes, or authorizations
issued under U.S. Federal, state, or local law for physical search or
seizure, production of tangible things, or access to or disclosure of
Domestic Communications or Call Associated Data, including Transactional
Data or Subscriber Information.
1.21. "Network Management Information" means network management operations
plans, processes and procedures; the placement of Network Operating
Center(s) and linkages (for services off load or administrative activities)
to other domestic and international carriers, ISPs and other critical
infrastructures; descriptions of IP networks and operations processes and
procedures for management control and relation to the backbone
infrastructure(s) including other services providers; description of any
unique/proprietary control mechanisms as well as operating and
administrative software; and network performance information.
1.22. "New GX" means GC Acquisition Limited, a Bermuda corporation, and
its subsidiaries and affiliates.
1.23. "New GX Board" means the board of directors of New GX.
1.24. "OPM" means the Office of Personnel Management of the U.S.
Government.
1.25. "Party" and "Parties" have the meanings given them in the Preamble.
1.26. "Pro forma assignments" or "pro forma transfers of control" are
transfers that do not involve a substantial change in ownership or control
as provided by the FCC's Rules.
1.27. "Purchase Agreement" has the meaning give in the Recitals.
1.28. "Security Committee" means a committee of the New GX Board the
mandate of which is to oversee security matters and implementation of this
Agreement within New GX.
1.29. "Security Director" has the meaning given in Section 3.15.
1.30. "Security Officer" has the meaning given in Section 3.10 and 3.13.
1.31. "Sensitive Information" means information that is not Classified
Information regarding (a) the persons or facilities that are the subjects
of Lawful U.S. Process, (b) the identity of the government agency or
agencies serving such Lawful U.S. Process, (c) the location or identity of
the line, circuit, transmission path, or other facilities or equipment
Page 7
used to conduct Electronic Surveillance pursuant to Lawful U.S. Process, (d) the
means of carrying out Electronic Surveillance pursuant to Lawful U.S. Process,
(e) the type(s) of service, telephone number(s), records, communications, or
facilities subjected to Lawful U.S. Process, (f) information deemed to be
Sensitive Information pursuant to Executive Order, decision or guidelines, and
(g) other information that is not Classified Information designated in writing
by an authorized official of a Federal, state or local law enforcement agency or
a U.S. intelligence agency as "Sensitive Information." Domestic Communications
Companies may dispute pursuant to Article 4 whether information is Sensitive
Information under this subparagraph. Such information shall be treated as
Sensitive Information unless and until the dispute is resolved in the Domestic
Communications Companies' favor.
1.32. "ST Telemedia" has the meaning given in the Preamble.
1.33. "Subscriber Information" means information relating to subscribers
or customers of Domestic Communications Companies of the type referred to
and accessible subject to procedures specified in 18 U.S.C. Section 2703(c)
or (d) or 18 U.S.C. Section 2709. Such information shall also be considered
Subscriber Information when it is sought pursuant to the provisions of
other Lawful U.S. Process.
1.34. "Transactional Data" means:
(i) "call identifying information," as defined in 47 U.S.C. Section
1001(2), including without limitation the telephone number or
similar identifying designator associated with a Domestic
Communication;
(ii) any information possessed by a Domestic Communications Company
relating specifically to the identity and physical address of a
customer or subscriber, or account payer, or the end-user of
such customer or subscriber, or account payer, or associated
with such person relating to all telephone numbers, domain
names, IP addresses, Uniform Resource Locators ("URLs"), other
identifying designators, types of services, length of service,
fees, usage including billing records and connection logs, and
the physical location of equipment, if known and if different
from the location information provided under (iv) below;
(iii) the time, date, size or volume of data transfers, duration,
domain names, MAC or IP addresses (including source and
destination), URLs, port numbers, packet sizes, protocols or
services, special purpose flags, or other header information or
identifying designators or characteristics associated with any
Domestic Communication; and
(iv) as to any mode of transmission (including mobile transmissions),
and to the extent permitted by U.S. laws, any information
indicating as closely as possible the physical location to or
from which a Domestic Communication is transmitted.
Page 8
The term includes all records or other information of the type referred to
and accessible subject to procedures specified in 18 U.S.C. Section
2703(c)(1) and (d), but does not include the content of any communication.
1.35. "United States," "US," or "U.S." means the United States of America
including all of its States, districts, territories, possessions,
commonwealths, and the special maritime and territorial jurisdiction of the
United States.
1.36. "Wire Communication" has the meaning given it in 18 U.S.C. Section
2510(1).
1.37. Other Definitional Provisions. Other capitalized terms used in this
Agreement and not defined in this Article shall have the meanings assigned
them elsewhere in this Agreement. The definitions in this Agreement are
applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such term.
Whenever the words "include," "includes," or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
ARTICLE 2: FACILITIES, INFORMATION STORAGE AND ACCESS
2.1. Domestic Communications Infrastructure. Except to the extent and
under conditions concurred in by the FBI, DOJ, DOD, and DHS in writing:
(i) all Domestic Communications Infrastructure that is owned,
operated or controlled by a Domestic Communications Company
shall at all times be located in the United States and will be
directed, controlled, supervised and managed by a Domestic
Communications Company; and
(ii) all Domestic Communications that are carried by or through, in
whole or in part, the Domestic Communications Infrastructure
shall pass through a facility under the control of a Domestic
Communications Company and physically located in the United
States, from which Electronic Surveillance can be conducted
pursuant to Lawful U.S. Process. The Domestic Communications
Company will provide technical or other assistance to facilitate
such Electronic Surveillance.
(iii) foreign connections to the domestic Global Crossing network
shall be on a gateway basis using industry best practices (i.e.,
both signaling and traffic shall be monitored for unauthorized
access, network intrusions and other malicious activity). Such
practices will be jointly determined by New GX and the FBI, DOJ,
DOD and DHS.
2.2. Compliance with Lawful U.S. Process. Domestic Communications
Companies shall take all practicable steps to configure their Domestic
Communications Infrastructure to be capable of complying, and Domestic
Communications Company employees in the United States will have
unconstrained authority to comply, in an effective, efficient, and
unimpeded fashion, with:
(i) Lawful U.S. Process;
Page 9
(ii) the orders of the President in the exercise of his/her authority
under Section 706 of the Communications Act of 1934, as amended,
47 U.S.C. Section 606, and under Section 302(e) of the Aviation
Act of 1958, 49 U.S.C. Section 40107(b) and Executive Order
11161 (as amended by Executive Order 11382); and
(iii) National Security and Emergency Preparedness rules, regulations
and orders issued pursuant to the Communications Act of 1934, as
amended, 47 U.S.C. Section 151 et seq.
2.3. Information Storage and Access. Domestic Communications Companies
shall store exclusively in the United States the following:
(i) stored Domestic Communications, if such communications are
stored by or on behalf of a Domestic Communications Company for
any reason;
(ii) any Wire Communications or Electronic Communications (including
any other type of wire, voice or electronic communication not
covered by the definitions of Wire Communication or Electronic
Communication) received by, intended to be received by, or
stored in the account of a customer or subscriber of a Domestic
Communications Company, if such communications are stored by or
on behalf of a Domestic Communications Company for any reason;
(iii) Transactional Data and Call Associated Data relating to Domestic
Communications, if such data are stored by or on behalf of a
Domestic Communications Company for any reason;
(iv) Subscriber Information, if such information is stored by or on
behalf of a Domestic Communications Company for any reason,
concerning customers who are U.S.-domiciled, customers who hold
themselves out as being U.S.-domiciled, and customers who make a
Domestic Communication;
(v) billing records of customers who are U.S.-domiciled, customers
who hold themselves out as being U.S.-domiciled, and customers
who make a Domestic Communication, for so long as such records
are kept and at a minimum for as long as such records are
required to be kept pursuant to applicable U.S. law or this
Agreement; and
(vi) Network Management Information.
2.4. Billing Records. Domestic Communications Companies shall store for
at least 18 months all billing records described in Section 2.3(v) above.
Nothing in this paragraph shall require a Domestic Communications Company
to store such records for longer than 18 months.
2.5. Storage Pursuant to 18 U.S.C. Section 2703(f). Upon a request made
pursuant to 18 U.S.C. Section 2703(f) by a Governmental Authority in the
United States to preserve any information in the possession, custody, or
control of Domestic Communications Companies
Page 10
that is enumerated in Section 2.3 above, Domestic Communications Companies
shall store such information in the United States.
2.6. Compliance with U.S. Law. Nothing in this Agreement shall excuse a
Domestic Communications Company from any obligation it may have to comply
with U.S. legal requirements for the retention, preservation, or production
of such information or data. Similarly, in any action to enforce Lawful
U.S. Process, Domestic Communication Companies have not waived any legal
right they might have to resist such process.
2.7. Routing of Domestic Communications. Except for routing of traffic
(i) to U.S. states, territories and possessions outside the Continental
United States, (ii) to avoid network disruptions, (iii) consistent with
least-cost routing practices that are implemented pursuant to policies
reviewed and approved by the third-party auditor selected pursuant to
Section 5.8 of this Agreement, and (iv) as otherwise may be agreed by the
DOJ, the FBI, DOD and the DHS, Domestic Communications Companies shall not
route Domestic Communications outside the United States.
2.8. Interconnection Arrangements with ST Telemedia and Subsidiaries.
Interconnection arrangements between Domestic Communications Companies, on
the one hand, and ST Telemedia and its subsidiaries, on the other hand,
shall be on an arms' length basis.
2.9. CPNI. Domestic Communications Companies shall comply, with respect
to Domestic Communications, with all applicable FCC rules and regulations
governing access to and storage of Customer Proprietary Network Information
("CPNI"), as defined in 47 U.S.C. Section 222(h)(1).
2.10. Storage of Protected Information. The storage of Classified,
Controlled Unclassified, and Sensitive Information by a Domestic
Communications Company or its contractors at any location outside of the
United States is prohibited, unless the storage is at a U.S. military
facility, a U.S. Embassy or Consulate or other location occupied by a U.S.
government organization.
2.11. Network Topography. No later that 30 days after the Effective Date
of this Agreement, New GX will provide to the FBI, DOJ, DHS and DOD a
comprehensive description of the New GX domestic telecommunications network
to include location of servers, routers, switches, operational systems
software, and network security appliances and software.
ARTICLE 3: SECURITY
3.1 Measures to Prevent Improper Use or Access. Domestic Communications
Companies shall take all reasonable measures to prevent the use of or
access to the Domestic Communications Infrastructure to conduct Electronic
Surveillance, or to obtain or disclose Domestic Communications, Classified
Information, Sensitive Information, or Controlled Unclassified Information,
in violation of any U.S. Federal, state, or local laws or the terms of this
Agreement. These measures shall include creating and complying with
Page 11
detailed technical, organizational, operational, and personnel controls,
policies and written procedures, necessary implementation plans, and
physical security measures.
3.2. Visitation Policy. No later than ninety (90) days after the
Effective Date, New GX shall adopt and implement a visitation policy for
Domestic Communications Companies, for all visits to Domestic
Communications Infrastructure. New GX will consult with DOJ, DHS and DOD on
the design and implementation of its visitation policy. The visitation
policy shall differentiate between categories of visits based on the
sensitivity of the information, equipment and personnel to which the
visitors will have access The visitation policy shall require that:
(i) the Security Officer shall review and approve or disapprove
requests for visits to Domestic Communications Infrastructure
(provided that, with respect to carrier hotels and other shared
facilities, this policy will apply solely to the portion of the
facility controlled by New GX) by all non-U.S. persons,
organizations and entities. The Security Officer shall approve
or deny visit requests on the basis of their compliance with the
visitation policy; the Security Officer may specifically deny
any visit request on security or related grounds, which grounds
will be described more fully in the visitation policy.
(ii) a written request for approval of a visit must be submitted to
the Security Officer no less than seven (7) days prior to the
date of the proposed visit. If a written request cannot be
provided within seven (7) days of the proposed visit because of
an unforeseen exigency, the request may be communicated via
telephone to the Security Officer and immediately confirmed in
writing; however, the Security Officer may refuse to accept any
request submitted less than seven (7) days prior to the date of
such proposed visit if the Security Officer determines that
there is insufficient time to consider the request.
(iii) the exact purpose and justification for the visit must be set
forth in detail sufficient to enable the Security Officer to
make an informed decision concerning the appropriateness of the
proposed visit, and the Security Officer may refuse to accept
any request that he or she believes lacks sufficient
information. Each proposed visit and each individual visitor
must be justified and a separate approval request must be
submitted for each visit.
(iv) the Security Officer evaluate the request as soon as practicable
after receiving it. The Security Officer may approve or
disapprove the request pending submittal of additional
information by the requester. When practicable, the Security
Officer's decision shall be communicated to the requester by any
means at least one (1) day prior to the date of the proposed
visit, and, in all cases, the decision shall be confirmed in
writing as promptly as possible.
(v) a record of all such visit requests, including the decision to
approve or disapprove, and information regarding consummated
visits, such as date and place, as well as the names, business
affiliation and dates of birth of the visitors, and New GX
personnel involved, be maintained by the Security Officer. In
Page 12
addition, a chronological file of all documentation associated
with such visits, together with records of approvals and
disapprovals, shall be maintained for two (2) years by the
Security Officer for provision at the request of the third party
auditor identified pursuant to Section 5.8 below, or of the DOJ,
FBI, DOD or DHS.
(vi) visitors be escorted at all times by an employee, and within
conditions, including appropriate restrictions on access, set
forth by the Security Officer that are commensurate with the
place and purpose of the visit.
The parties may agree in the visitation policy that certain visits of
a routine and nonsensitive nature are exempt from one or more of the
requirements above.
3.3. Records of Communications with Non U.S. Citizens and Non U.S.
Entities. New GX shall maintain a full and complete record of every
electronic or written communication by the New GX directors, officers,
employees and agents, with ST Telemedia directors, officers, employees and
agents (including the names, business affiliations, and substance of the
communications) that are related to interconnection agreements, Security
Procedures and Policy, as well as major equipment purchases outlined in
section 3.18, and Joint Venture provisions outlined in section 5.3,
relating to Domestic Communications Companies. These records shall be
maintained for a period of five (5) years by the Security Officer for
provision at the request of the third party auditor identified pursuant to
Section 5.8 below, or of the DOD, DOJ, FBI or DHS.
3.4. Access by Foreign Government Authority. Domestic Communications
Companies shall not, directly or indirectly, disclose or permit disclosure
of, or provide access to Domestic Communications, Call Associated Data,
Transactional Data, or Subscriber Information stored by Domestic
Communications Companies to any person if the purpose of such access is to
respond to the legal process or the request of or on behalf of a foreign
government, identified representative, component or subdivision there of
without the express written consent of the DOJ or the authorization of a
court of competent jurisdiction in the United States. Any such requests or
submission of legal process described in this Section 3.4 of this Agreement
shall be reported to the DOJ as soon as possible and in no event later than
five (5) business days after such request or legal process is received by
and known to the Security Officer. Domestic Communications Companies shall
take reasonable measures to ensure that the Security Officer will promptly
learn of all such requests or submission of legal process described in this
Section 3.4 of this Agreement.
3.5. Disclosure to Foreign Government Authorities. Domestic
Communications Companies shall not, directly or indirectly, disclose or
permit disclosure of, or provide access to:
(i) Classified, Sensitive, or Controlled Unclassified Information;
or
Page 13
(ii) Subscriber Information, Transactional Data or Call Associated
Data, including a copy of any Wire Communications or Electronic
Communication, intercepted or acquired pursuant to Lawful U.S.
Process
to any foreign government, identified representative, component or
subdivision thereof without satisfying all applicable U.S. Federal, state
and local legal requirements pertinent thereto, and obtaining the express
written consent of the DOJ or the authorization of a court of competent
jurisdiction in the United States. Any requests or any legal process
submitted by a foreign government, an identified representative, a
component or subdivision thereof to Domestic Communications Companies for
the communications, data or information identified in this Section 3.5 of
this Agreement that is maintained by Domestic Communications Companies
shall be referred to the DOJ as soon as possible and in no event later than
five (5) business days after such request or legal process is received by
and known to the Security Officer unless the disclosure of the request or
legal process would be in violation of an order of a court of competent
jurisdiction within the United States. Domestic Communications Companies
shall take reasonable measures to ensure that the Security Officer will
promptly learn of all such requests or submission of legal process
described in this Section 3.5.
3.6. Notification of Access or Disclosure Requests from Foreign Non-
Governmental Entities. Within ninety (90) days of receipt, Domestic
Communications Companies shall notify DOJ in writing of legal process or
requests by foreign nongovernmental entities to Domestic Communications
Companies for access to or disclosure of Domestic Communications unless the
disclosure of the legal process or request would be in violation of an
order of a court of competent jurisdiction within the United States.
3.7. Security of Lawful U.S. Process. Domestic Communications Companies
shall protect the confidentiality and security of all Lawful U.S. Process
served upon them and the confidentiality and security of Classified,
Sensitive, and Controlled Unclassified Information in accordance with U.S.
Federal and state law or regulation and this Agreement. Information
concerning Lawful U.S. Process, Classified Information, Sensitive
Information, or Controlled Unclassified Information shall be under the
custody and control of the Security Officer.
3.8. Points of Contact. Within fourteen (14) days after the Effective
Date, Domestic Communications Companies shall designate in writing to the
FBI, DOJ, DOD and DHS at least three nominees already holding U.S. Security
clearances, or who are eligible to receive such clearances and whose
applications for such clearances have been submitted to DOD, to serve as a
primary and two secondary points of contact within the United States with
the authority and responsibility for accepting and overseeing the carrying
out of Lawful U.S. Process. The points of contact shall be assigned to
Domestic Communications Companies' office(s) in the United States, shall be
available twenty-four (24) hours per day, seven (7) days per week and shall
be responsible for accepting service and maintaining the security of
Classified, Sensitive, and Controlled Unclassified Information and any
Lawful U.S. Process in accordance with the requirements of U.S. Law and
this Agreement. Promptly after designating such points of contact, Domestic
Communications Companies shall notify the FBI, DOJ, DOD and DHS in writing
of the points of contact, and thereafter shall promptly
Page 14
notify the FBI, DOJ, DOD and DHS of any change in such designation. The
points of contact shall be resident U.S. citizens who hold U.S. security
clearances (which may include interim security clearances), as outlined in
Executive Order 12968, and shall serve as points of contact for new
Domestic Communications Companies unless and until the FBI, DOJ, DOD and
DHS are notified of any change in designation. Domestic Communications
Companies shall cooperate with any request by a Government Authority within
the United States that a background check and/or security clearance process
be completed for a designated point of contact.
3.9. Information Security Plan. Domestic Communications Companies shall
develop, document, implement, and maintain an information security plan to:
(i) maintain appropriately secure facilities (e.g., offices) within
the United States for the handling and storage of any
Classified, Sensitive or Controlled Unclassified Information;
(ii) take appropriate measures to prevent unauthorized access to
data or facilities that might contain Classified, Sensitive, or
Controlled Unclassified Information;
(iii) assign U.S. citizens to positions for which screening is
contemplated pursuant to Section 3.12;
(iv) Upon request from the DOJ, FBI, DOD or DHS, provide the name,
social security number and date of birth of each person who
regularly handles or deals with Sensitive Information;
(v) require that personnel handling Classified Information shall
have been granted appropriate security clearances pursuant to
Executive Order 12968;
(vi) provide that the points of contact described in Section 3.8 of
this Agreement shall have sufficient authority over any of
Domestic Communications Companies' employees who may handle
Classified, Sensitive, or Controlled Unclassified Information
to maintain the confidentiality and security of such
information in accordance with applicable U.S. legal authority
and the terms of this Agreement;
(vii) ensure that the disclosure of or access to Classified,
Sensitive, or Controlled Unclassified Information is limited to
those who have the appropriate security clearances and
authority;
(viii) establish a formal incident response capability with reference
to OMB Circular A-130 and NIST Special Publications 800-3,
800-18 and 800-47; and
(ix) identify the types of positions that require screening pursuant
to Section 3.12, the required rigor of such screening by type
of position, and the criteria by which Domestic Communications
Companies will accept or reject screened persons ("Screened
Personnel").
Page 15
3.10. Security Officer Responsibilities and Duties. The Head of Global
Security of New GX, or a designee in a direct reporting relationship with
the Head of Global Security, shall serve as the Security Officer with the
primary responsibility for ensuring compliance with the Domestic
Communications Companies' obligations under Article 3 and Sections 5.2,
5.5, 5.6, 5.7, 5.11, and 5.12 of this Agreement, and shall have the
qualifications set forth in Section 3.13. Within thirty (30) days after the
Effective Date, New GX shall notify the DOJ, FBI, DOD and DHS of the
identity of the Security Officer.
3.11. Disclosure of Protected Data. In carrying out the responsibilities
set forth in Section 3.10, the Security Officer shall not directly or
indirectly disclose information concerning Lawful U.S. Process, Classified
Information, Sensitive Information, or Controlled Unclassified Information
to any third party or to any officer, director, shareholder, employee,
agent, or contractor of New GX or any Domestic Communications Company,
including those who serve in a supervisory, managerial or officer role with
respect to the Security Officer, except to a Security Director (i)
consistent with the Security Officer's or the Security Committee's duties
or (ii) to the extent required to comply with this Agreement, unless
disclosure has been approved by prior written consent obtained from the
FBI, DOJ, DOD or DHS or there is an official need for disclosure of the
information in order to fulfill an obligation consistent with the purpose
for which the information is collected or maintained.
3.12. Screening of Personnel. Each Domestic Communications Company shall
implement a thorough screening process through a reputable third-party to
ensure that all personnel whose position involves access to the Domestic
Communications Infrastructure that enables those persons to monitor the
content of Wire or Electronic Communications (including in electronic
storage) or to have access to Transactional Data, Call Associated Data or
Subscriber Information, persons who have access to Sensitive Information,
and security personnel meet personnel screening requirements agreed to by
New GX, DOJ, the FBI, DOD and DHS. The screening process undertaken
pursuant to this Section shall follow the guidance to U.S. government
agencies for screening civilian Federal employees in Executive Order 10450,
and shall specifically include a background and financial investigation, an
additional criminal record check, and a review of at least three
references. Newly hired personnel will also be required to sign a
non-disclosure agreement approved in advance by DOJ, FBI, DOD and DHS.
(i) New GX shall consult with DOJ, the FBI, DOD and DHS on the
screening procedures utilized by the reputable third party and
shall provide to DOJ, FBI, DOD and DHS a list of the positions
subject to screening. New GX shall utilize the criteria
identified pursuant to Section 3.9 (ix) to screen personnel,
shall report the results of such screening on a regular basis
to the Security Committee, and shall, upon request, provide to
the investigations services of the DOJ, the FBI, DOD and DHS
or, in the alternative, to the investigations service of OPM,
all the information it collects in its screening process of
each candidate. Candidates for these positions shall be
informed that the information collected during the screening
process may be provided to the U.S. government, and the
candidates shall consent to the sharing of this information
with the U.S. government.
Page 16
(ii) If the DOJ, the FBI, DOD or DHS so desires, it may on its own,
or through OPM's investigations service, conduct further
background checks for Screened Personnel. New GX will cooperate
with any U.S. government agency undertaking any such further
background checks.
(iii) Individuals who are rejected by the DOJ, the FBI, DOD or DHS
for the screening requirements agreed to pursuant to this
Section 3.12 of this Agreement will not be hired or, if they
have begun their employment, will be immediately removed from
their positions or otherwise have their duties immediately
modified so that they are no longer performing a function that
would require screening under this Section. New GX will notify
the DOJ, the FBI, DOD and DHS of the transfer, departure, or
job modification of any individual rejected as a result of the
screening conducted pursuant to this Section 3.12 of this
Agreement within seven (7) days of such transfer or departure,
and shall provide the DOJ, the FBI, DOD and DHS with the name,
date of birth and social security number of such individual.
(iv) New GX shall provide training programs to instruct Screened
Personnel as to their obligations under the Agreement and the
maintenance of their trustworthiness determination or
requirements otherwise agreed. New GX shall monitor on a
regular basis the status of Screened Personnel, and shall
remove personnel who no longer meet the Screened Personnel
requirements.
(v) New GX shall maintain records relating to the status of
Screened Personnel, and shall provide these records, upon
request, to the DOJ, FBI, DOD, DHS or any third party auditor
appointed under the terms of Section 5.8 below.
3.13. Qualification of Principal Network and Security Officers. New GX
shall employ a Head of Network Operations and a Head of Global Security for
Domestic Communications Companies. Within thirty (30) days after the
Effective Date, New GX shall notify the DOJ, FBI, DOD and DHS of the
identities of the Head of Network Operations and the Head of Global
Security. The Head of Network Operations and the Head of Global Security,
and any designee of the Head of Global Security who serves as the Security
Officer under Section 3.10, shall be resident citizens of the United States
who, if not already in possession of U.S. security clearances, shall apply
for U.S. security clearances pursuant to Executive Order 12968 immediately
upon their appointment; who are subject to the screening requirements of
Section 3.12 of this Agreement; and whose appointment to the position is
not objected to by the DOJ, the FBI, DOD and DHS within ten (10) days of
receiving notice thereof. If the Head of Network Operations, the Head of
Global Security, or any designee of the Head of Global Security who serves
as the Security Officer under Section 3.10, does not already possess a U.S.
security clearance, he or she may nevertheless serve in that position,
subject to DOJ, FBI, DOD and DHS approval, pursuant to an interim security
clearance. New GX shall have the right to remove the Head of Network
Operations or the Head of Global Security at any time and to appoint a
replacement, subject to the terms of this Section. New GX shall promptly
appoint a person who meets the qualifications of this Section to fill any
such vacancy, and shall promptly notify the DOJ, FBI, DOD, and DHS in
writing of such appointment. In no event shall a vacancy for the position
of Head of
Page 17
Network Operations or Head of Global Security exist for a period of more
than ninety (90) days before New GX appoints a qualified candidate to fill
such vacancy.
3.14. Qualification of General Counsel and Head of Human Resources. Within
thirty (30) days after the Effective Date, New GX shall notify DOJ, FBI,
DHS and DOD of the identities of the Human Resources executive responsible
for hiring and screening and the General Counsel. The Human Resources
executive responsible for hiring and screening and the General Counsel
shall be resident citizens of the United States who, if not already in
possession of U.S. security clearances, shall apply for U.S. security
clearances pursuant to Executive Order 12968 immediately upon their
appointment; who are subject to the screening requirements of Section 3.12
of this Agreement; and whose appointment to the position is not objected to
by the DOJ, the FBI, DOD or DHS within ten (10) days of receiving notice
thereof. If the Human Resources executive responsible for hiring and
screening or the General Counsel does not already possess a U.S. security
clearance, he or she may nevertheless serve in that position, subject to
DOJ, FBI, DOD and DHS approval, pursuant to an interim security clearance.
New GX shall have the right to remove the Human Resources executive
responsible for hiring and screening and the General Counsel at any time
and to appoint a replacement, subject to the terms of this Section. New GX
shall promptly appoint a person who meets the qualifications of this
Section to fill any such vacancy, and shall promptly notify the DOJ, FBI,
DOD, and DHS in writing of such appointment. In no event shall a vacancy
for the position of Human Resources executive responsible for hiring and
screening or General Counsel exist for a period of more than ninety (90)
days before New GX appoints a qualified candidate to fill such vacancy.
3.15. Establishment of Security Committee of New GX Board. The New GX
Board shall establish a Security Committee to oversee security matters
within Domestic Communications Companies. The Security Committee shall be
comprised solely of directors ("Security Directors") who are U.S. citizens;
who, if not already in possession of U.S. security clearances, shall apply
for U.S. security clearances pursuant to Executive Order 12968 immediately
upon their appointment to the Security Committee; and who satisfy the
independent director requirements of the New York Stock Exchange. If a
Security Director does not already possess a U.S. security clearance, he or
she may nevertheless serve as Security Director, subject to DOJ, FBI, DOD
and DHS approval, pursuant to an interim security clearance. The Security
Committee shall supervise and report to the full New GX Board on all
matters related to security, including implementation of this Agreement,
consistent with their obligation to keep such information confidential. To
perform its function, the Security Committee shall, among other things,
receive reports from the Head of Global Security on New GX's compliance
with this Agreement, and also shall receive a summary of any report issued
pursuant to this Agreement, including reports made in connection with
audits conducted pursuant to Section 5.8 of this Agreement and the annual
report on compliance issued pursuant to Section 5.11 of this Agreement. The
Security Committee shall, in turn, provide general reporting to the full
New GX Board on New GX's compliance with this Agreement.
3.16. Number and Notice of Appointment of Security Directors. Subject to
Section 3.20 below, fifty (50) percent of the members of the New GX Board
nominated by ST Telemedia and elected to the New GX Board shall be Security
Directors. Notice of the
Page 18
proposed appointment of a Security Director shall be provided in writing to
the DOJ, FBI, DOD and DHS by New GX. The DOJ, FBI, DOD and DHS shall have
the opportunity to review and disapprove the appointment of a Security
Director within thirty (30) days of receiving notice of the proposed
appointment. If the DOJ, FBI, DOD or DHS objects to the appointment of an
individual as Security Director within the 30-day timeframe, the
appointment of that individual shall be rescinded and a different candidate
shall be appointed.
3.17. Approval of Acquisition. Acquiring or upgrading network hardware
(e.g., routers, switches, servers and network transmission capability) and
network operating systems software requires prior approval of a Security
Director, unless subject to other procedures pursuant to a policy to be
negotiated with DHS. That policy may provide for simplified procedures for
non-sensitive acquisitions and upgrades (e.g., vetting by the Head of
Network Operations).
3.18. Participation of Security Directors in Committees of the Board of
New GX. A quorum for a meeting of the New GX Board or any committee of the
New GX Board shall require at least one Security Director, unless the
issues addressed at such meeting in no respect address or affect the
obligations of New GX under this Agreement. In the event that the New GX
Board or any committee of the New GX Board must address at a meeting, for
reasons of exigent circumstances, an issue related to or affecting the
obligations of New GX under this Agreement, and all Security Director
positions are vacant at the time of such a meeting, the absence of the
Security Director will not prevent the formation of a quorum provided that
the Security Officer of New GX attends the meeting.
3.19. Attendance of Security Directors at Board Meetings of Domestic
Communications Companies. A meeting of the board of a Domestic
Communications Company or of a board committee of a Domestic Communications
Company shall not occur without a Security Director in attendance, whether
as a member or as an observer, unless the issues addressed at such meeting
in no respect address or affect the obligations of the Domestic
Communications Company under this Agreement. In the event that the board of
a Domestic Communications Company or a board committee of a Domestic
Communications Company must address at a meeting, for reasons of exigent
circumstances, an issue related to or affecting the obligations of the
Domestic Communications Company under this Agreement, and all Security
Director positions are vacant at the time of such a meeting, the absence of
the Security Director will not prevent the meeting provided that the
Security Officer of New GX attends the meeting.
3.20. Removal of Security Directors. Any Security Director may be removed
for any reason permitted by the provisions of applicable law or under the
charter of New GX, provided that:
(i) the removal of a Security Director shall not become effective
until that Security Director, DOJ, the FBI, DOD and DHS have
received written notification, a successor who is qualified to
become a Security Director within the terms of this Agreement
is selected, DOJ, the FBI, DOD and DHS receive written notice
of such selection under the terms of this Agreement, and DOJ,
the FBI, DOD or
Page 19
DHS do not object to the proposed Security Director within
thirty (30) days of such notice; and
(ii) notification to DOJ, the FBI, DOD and DHS of the removal of a
Security Director shall be the responsibility of the General
Counsel of New GX.
Notwithstanding the foregoing, however, if immediate removal of any
Security Director is deemed necessary to prevent actual or possible
violation of any statute or regulation or actual or possible damage to New
GX, the Security Director may be temporarily suspended, pending written
notification to the FBI, DOJ, DOD and DHS, and removed upon the approval of
the removal by the FBI, DOJ, DOD and DHS. The written notification to DOJ,
FBI, DOD and DHS shall set forth the reasons for the removal if such
reasons are related to the performance of this Agreement In the event of
any vacancy in the position of Security Director, however occurring, New GX
will give prompt written notice of such vacancy to DOJ, the FBI, DOD and
DHS through the General Counsel of New GX, or if that position is vacant,
through the Chief Operating Officer of New GX. New GX shall promptly
nominate a person who meets the qualifications in Section 3.15 to fill such
vacancy, and shall promptly notify DOJ, the FBI, DOD and DHS in writing of
such nomination. In no event shall a vacancy for the position of Security
Director exist for a period of more than ninety (90) days before New GX
nominates a qualified candidate to fill such vacancy.
3.21. Indemnification of Security Directors. New GX shall indemnify and
hold harmless each Security Director from any and all claims arising from,
or in any way connected to, his or her performance as a Security Director
under the Agreement except for his or her own individual gross negligence
or willful misconduct. New GX shall advance fees and costs incurred in
connection with the defense of such claim. New GX may purchase insurance to
cover this indemnification.
3.22. Operational Control of New GX Network. Except to the extent and
under conditions concurred in by the FBI, DOJ, DOD and DHS in writing,
operational control of the Domestic Communications Infrastructure will be
restricted to the New GX Network Operating Centers located in the United
States.
3.23. Security Standards and Practices, and Consultations with U.S.
Government. Domestic Communications Companies will maintain or exceed
security standards and practices utilized within the U.S.
telecommunications industry and will consult with the DOJ and other
appropriate U.S. government agencies on steps to maintain or exceed such
standards and practices.
3.24. Notice of Obligations. Domestic Communications Companies shall
instruct appropriate officials, employees, contractors, and agents as to
the security restrictions and safeguards imposed by this Agreement,
including the reporting requirements in Sections 5.5, 5.6, and 5.7 of this
Agreement, and shall issue periodic reminders to them of such obligations.
3.25. Access to Classified, Controlled Unclassified, or Sensitive
Information. Nothing contained in this Agreement shall limit or affect the
authority of a U.S. government agency
Page 20
to deny, limit or revoke Domestic Communications Companies' access to
Classified, Controlled Unclassified, and Sensitive Information under that
agency's jurisdiction.
ARTICLE 4: DISPUTES
4.1. Informal Resolution. The Parties shall use their best efforts to
resolve any disagreements that may arise under this Agreement.
Disagreements shall be addressed, in the first instance, at the staff level
by the Parties' designated representatives. Any disagreement that has not
been resolved at that level shall be submitted promptly to the General
Counsel of New GX, the General Counsel of the FBI, and the Deputy Attorney
General, Criminal Division, DOJ, the General Counsel of DOD, and the
General Counsel of DHS or their designees, unless the FBI, DOJ, DOD or DHS
believes that important national interests can be protected, or a Domestic
Communications Company believes that its paramount commercial interests can
be resolved, only by resorting to the measures set forth in Section 4.2 of
this Agreement. If, after meeting with higher authorized officials, any of
the Parties determines that further negotiation would be fruitless, then
that Party may resort to the remedies set forth in Section 4.2 of this
Agreement. If resolution of a disagreement requires access to Classified
Information, the Parties shall designate a person or persons possessing the
appropriate security clearances for the purpose of resolving that
disagreement.
4.2. Enforcement of Agreement. Subject to Section 4.1 of this Agreement,
if any of the Parties believes that any other of the Parties has breached
or is about to breach this Agreement, that Party may bring an action
against the other Party for appropriate judicial relief. Nothing in this
Agreement shall limit or affect the right of a U.S. government agency to:
(i) require that the Party or Parties believed to have breached, or
about to breach, this Agreement cure such breach within thirty
(30) days upon receiving written notice of such breach;
(ii) request that the FCC modify, condition, revoke, cancel or
render null and void any license, permit, or other
authorization granted or given by the FCC to Domestic
Communications Companies, or request that the FCC impose any
other appropriate sanction, including but not limited to a
forfeiture or other monetary penalty, against Domestic
Communications Companies;
(iii) seek civil sanctions for any violation by New GX or Domestic
Communications Companies of any U.S. law or regulation or term
of this Agreement;
(iv) pursue criminal sanctions against New GX or Domestic
Communications Companies, or any director, officer, employee,
representative, or agent of Domestic Communications Companies,
or against any other person or entity, for violations of the
criminal laws of the United States; or
(v) seek suspension or debarment of New GX or Domestic
Communications Companies from eligibility for contracting with
the U.S. government.
Page 21
4.3. Irreparable Injury. New GX agrees that the United States would
suffer irreparable injury if for any reason a Domestic Communications
Company failed to perform any of its material obligations under this
Agreement, and that monetary relief would not be an adequate remedy.
Accordingly, New GX agrees that, in seeking to enforce this Agreement
against Domestic Communications Companies, the FBI, DOJ, DOD and DHS shall
be entitled, in addition to any other remedy available at law or equity, to
specific performance and immediate injunctive or other equitable relief.
The obligations in Section 5.5 or 5.6 are material for the purpose of this
Section. (Listing these sections does not imply that obligations in other
sections are not material).
4.4. Waiver. The availability of any civil remedy under this Agreement
shall not prejudice the exercise of any other civil remedy under this
Agreement or under any provision of law, nor shall any action taken by a
Party in the exercise of any remedy be considered a waiver by that Party of
any other rights or remedies. The failure of any Party to insist on strict
performance of any of the provisions of this Agreement, or to exercise any
right they grant, shall not be construed as a relinquishment or future
waiver; rather, the provision or right shall continue in full force. No
waiver by any Party of any provision or right shall be valid unless it is
in writing and signed by the Party.
4.5. Forum Selection. It is agreed by and among the Parties that a civil
action among the Parties for judicial relief with respect to any dispute or
matter whatsoever arising under, in connection with, or incident to, this
Agreement shall be brought, if at all, in the United States District Court
for the District of Columbia.
4.6. Effectiveness of Article 4. This Article 4, and the obligations
imposed and rights conferred herein, shall be effective upon the execution
of this Agreement by all the Parties.
ARTICLE 5: AUDITING, REPORTING, NOTICE AND LIMITS
5.1. Filings re de jure or de facto control of a Domestic Communications
Company. If any Domestic Communications Company makes any filing with the
FCC or any other Governmental Authority relating to the de facto or de jure
control of a Domestic Communications Company except for filings with the
FCC for assignments or transfers of control to any Domestic Communications
Company that are pro forma, New GX shall promptly provide to the FBI, DOJ,
DOD and DHS written notice and copies of such filing. This Section 5.1 is
effective upon execution of this Agreement by all the Parties.
5.2. Control of New GX. If any member of the Security Committee or of the
senior management of New GX or a Domestic Communications Company (including
the Chief Executive Officer, President, General Counsel, Chief Technical
Officer, Chief Financial Officer, Head of Network Operations, Head of
Global Security, Security Officer, or other senior officer) acquires any
information that reasonably indicates that any single foreign entity or
individual, other than ST Telemedia has obtained or will likely obtain an
ownership interest (direct or indirect) in New GX or a Domestic
Communications Company above ten (10) percent, as determined in accordance
with 47 C.F.R. Section 63.09, or if any single foreign entity or individual
has gained or will likely otherwise gain either (1) Control or (2) de facto
or de jure control of New GX or a Domestic Communications Company, then
Page 22
such member shall promptly cause to be notified the Security Officer or a
Security Director, who in turn, shall promptly notify the DOJ, FBI, DOD an
d DHS in writing. Notice under this section shall, at a minimum:
(i) Identify the entity or individual(s) (specifying the name,
addresses and telephone numbers of the entity);
(ii) Identify the beneficial owners of the increased or prospective
increased interest in New GX or a Domestic Communications
Company by the entity or individual(s) (specifying the name,
addresses and telephone numbers of each beneficial owner); and
(iii) Quantify the amount of ownership interest in New GX or a
Domestic Communications Company that has resulted in or will
likely result in the entity or individual(s) increasing the
ownership interest in or control of New GX or a Domestic
Communications Company.
5.3. Joint Ventures. A Domestic Communications Company may have entered
into or may enter into joint ventures under which the joint venture or
entity may provide Domestic Communications.
(i) To the extent that such Domestic Communications Company does
not have de facto or de jure control over a joint venture or
entity, such Domestic Communications Company shall in good
faith (a) notify such entity of this Agreement and its
purposes, (b) endeavor to have such entity comply with this
Agreement as if it were a Domestic Communications Company, and
(c) consult with the DOJ, FBI, DOD or DHS about the activities
of such entity. Nothing in this Section 5.3 shall be construed
to relieve Domestic Communications Companies of obligations
under Article 2 of this Agreement.
(ii) If a Domestic Communications Company enters into joint venture
under which the joint venture or entity may provide Domestic
Communications or transmission, switching, bridging, routing
equipment (including software and upgrades), facilities used to
provide, process, direct, control, supervise or manage Domestic
Communications, the Domestic Communications Company must
provide DHS with notice no later than 30 days before the joint
venture offers Domestic Communications service. DHS will have
30 days from receipt of the notice to review and provide the
Domestic Communications Company with any objection to the joint
venture. Any objection shall be based on national security, law
enforcement or public safety grounds. If the DHS objects, the
joint venture shall not offer Domestic Communications service.
5.4. Outsourcing. A Domestic Communications Company shall not outsource
functions covered by this Agreement to an entity that is not a Domestic
Communications Company except pursuant to an outsourcing policy to be
negotiated with DHS. Such policy shall include prior notice of the proposed
outsourcing and the right of DHS to object within thirty (30) days to the
proposed outsourcing; the parties may agree in the outsourcing policy
Page 23
to exclude classes of outsourcing contracts of a routine and nonsensitive
nature from this notice and approval requirement. Further:
(i) the Domestic Communications Company shall ensure that the
entity complies with the applicable terms of this Agreement.
(ii) the Domestic Communications Company shall include in its
contracts with any such entities written provisions requiring
that such entities comply with all applicable terms of this
Agreement (and otherwise ensure that such entities are aware
of, agree to, and are bound to comply with the applicable
obligations of this Agreement);
(iii) the Domestic Communications Company shall notify the DOJ, FBI,
DOD and DHS within thirty (30) days of contracting out
operation of the Domestic Communications Infrastructure to an
entity that is not a Domestic Communications Company, which
notice shall identify the name of the entity and the nature of
the contract;
(iv) if the Domestic Communications Company learns that the entity
or the entity's employee has violated an applicable provision
of this Agreement, the Domestic Communications Company will
notify the DOJ, FBI, DOD and DHS promptly; and
(v) with consultation and, as appropriate, cooperation with DOJ,
FBI, DOD and DHS, the Domestic Communications Company will take
reasonable steps necessary to rectify promptly the situation,
which steps may (among others) include terminating the
arrangement with the entity, including after notice and
opportunity for cure, and/or initiating and pursuing litigation
or other remedies at law and equity.
Peering, interconnection and purchase of local access service shall not
constitute outsourced functions for purposes of this Agreement.
5.5. Notice of Foreign Influence. If any member of the Security Committee
or of the senior management of New GX or a Domestic Communications Company
(including the Chief Executive Officer, President, General Counsel, Chief
Technical Officer, Chief Financial Officer, Head of Network Operations,
Head of Global Security, Security Officer, or other senior officer)
acquires any information that reasonably indicates that any foreign
government, any foreign government-controlled entity, or any foreign
entity:
(i) plans to participate or has participated in any aspect of the
day-to- day management of New GX or a Domestic Communications
Company in such a way that interferes with or impedes the
performance by New GX or a Domestic Communications Company of
its duties and obligations under the terms of this Agreement,
or interferes with or impedes the exercise by New GX or a
Domestic Communications Company of its rights under this
Agreement, or
Page 24
(ii) plans to exercise or has exercised, as a direct or indirect
shareholder of New GX or a Domestic Communications Company or
their subsidiaries, any Control of New GX or a Domestic
Communications Company in such a way that interferes with or
impedes the performance by New GX or a Domestic Communications
Company of its duties and obligations under the terms of this
Agreement, or interferes with or impedes the exercise by New GX
or a Domestic Communications Company of its rights under the
terms of this Agreement, or in such a way that foreseeably
concerns New GX's or a Domestic Communications Company's
obligations under this Agreement,
then such member shall promptly cause to be notified the Security Officer
or a Security Director, who in turn, shall promptly notify the FBI, DOJ,
DOD and DHS in writing of the timing and the nature of the foreign
government's or entity's plans and/or actions.
5.6. Reporting of Incidents. New GX and Domestic Communications Companies
shall take practicable steps to ensure that, if any New GX or Domestic
Communications Company officer, director, employee, contractor or agent
acquires any information that reasonably indicates: (a) a breach of this
Agreement; (b)access to or disclosure of Domestic Communications, or the
conduct of Electronic Surveillance, in violation of Federal, state or local
law or regulation; (c) access to or disclosure of CPNI or Subscriber
Information in violation of Federal, state or local law or regulation
(except for violations of FCC regulations relating to improper commercial
use of CPNI); or (d) improper access to or disclosure of Classified,
Sensitive, or Controlled Unclassified Information, then the individual will
notify the Security Officer or a Security Director, who will in turn notify
the FBI, DOJ, DOD and DHS in the same manner as specified in Section 5.5.
This report shall be made promptly and in any event no later than ten (10)
c alendar days after New GX or the Domestic Communications Company acquires
information indicating a matter described in this Section 5.6(a)-(d) of
this Agreement. New GX and the Domestic Communications Companies shall
lawfully cooperate in investigating the matters described in this section
of this Agreement. New GX or the Domestic Communications Company need not
report information where disclosure of such information would be in
violation of an order of a court of competent jurisdiction in the United
States.
5.7. Non-Retaliation. New GX and each Domestic Communications Company
shall, by duly authorized action of its respective Board of Directors,
adopt and distribute an official corporate policy that strictly prohibits
New GX or a Domestic Communications Company from discriminating or taking
any adverse action against any officer, director, employee, contractor or
agent because he or she has in good faith initiated or attempted to
initiate a notice or report under Sections 5.2, 5.5 or 5.6 of this
Agreement, or has notified or attempted to notify directly the Security
Officer or a Security Director named in the policy to convey information
that he or she believes in good faith would be required to be reported to
the FBI, DOJ, DOD and DHS by the Security Officer or a Security Director
under Sections 5.2, 5.5 or 5.6 of this Agreement. Such corporate policy
shall set forth in a clear and prominent manner the contact information for
the Security Officer or one or more Security Directors to whom such
contacts may be m ade directly by any officer, director, employee,
contractor or agent for the purpose of such report or notification. Any
violation
Page 25
by New GX or a Domestic Communications Company of any material term of such
corporate policy shall constitute a breach of this Agreement.
5.8. Third Party Audits. New GX shall retain and pay for a neutral third
party to audit objectively on an annual basis its compliance with agreed
elements of this Agreement. New GX shall provide notice of its selected
auditor to the DOJ, FBI, DOD and DHS, and the DOJ, FBI, DOD and DHS shall
be able to review and approve or disapprove the selected auditor and terms
of reference for that auditor within thirty (30) days of receiving notice.
In addition, New GX shall provide to the DOJ, FBI, DOD and DHS a copy of
its contract with the third party auditor, which shall include terms
defining the scope and purpose of the audits. The DOJ, FBI, DOD and DHS
shall have the right to review and approve the terms defining the scope and
purpose of the audits. Through its contract with the third party auditor,
New GX shall ensure that all reports generated by the auditor are provided
promptly to the DOJ, FBI, DOD and DHS. Domestic Communications Companies
also will provide the DOJ, FBI, DOD and DHS with access to facilities ,
information, and personnel consistent with Sections 5.9 and 5.10 below in
the event that the DOJ, FBI, DOD or DHS wishes to conduct its own audit of
a Domestic Communication Company. The terms defining the scope and purpose
of the audits shall include, at a minimum, the following:
(i) Development of an initial vulnerability and risk assessment
based on this Agreement, and a detailed audit work plan based
on such assessment, which work plan will be subject to review
and approval by the DOJ, the FBI, DOD and the DHS;
(ii) Authority for the auditor to review and analyze of New GX
policies and procedures designed to implement this Agreement;
(iii) Authority for the auditor to review and analyze relevant
information related to the configuration of the New GX network;
(iv) The Head of Network Operations will report periodically on
technical advancements that enhance compliance with this
Agreement;
(v) Authority for the auditor to review and analyze minutes of New
GX Board and other Board Committee meetings held in accordance
with the terms of this Agreement;
(vi) Authority for the auditor to review and analyze Security
Director and Security Officer logs and records including, but
not limited to, records relating to facility visits, employee
screening data and any reports submitted in accordance with
Section 5.6 of this Agreement;
(vii) Authority for the auditor to conduct a reasonable number of
unannounced inspections of New GX Network Operating Centers and
other key facilities each year.
Page 26
(viii) Authority for the auditor to conduct a reasonable volume of
random testing of network firewalls, access points and other
systems for potential vulnerabilities; and
(ix) Authority for the auditor to conduct a reasonable number of
confidential interviews of New GX employees concerning
compliance with this Agreement.
5.9. Access to Information and Facilities. FBI, DOJ, DOD and DHS may
visit with thirty (30) minutes notice, any part of Domestic Communications
Companies' Domestic Communications Infrastructure and security offices to
conduct on-site reviews concerning the implementation of the terms of this
Agreement and may at any time require unimpeded access to information
concerning technical, physical, management, or other security measures
needed by the FBI, DOJ, DOD or DHS to verify compliance with the then-
effective terms of this Agreement. Within sixty (60) days of the Effective
Date, the parties will develop procedures for implementation of this
Section 5.9.
5.10. Access to Personnel. Upon reasonable notice from the FBI, DOJ, DHS
or DOD Domestic Communications Companies will make available for interview
officers or employees of Domestic Communications Companies, and will
require contractors to make available appropriate personnel located in the
United States who are in a position to provide information to verify
compliance with the then-effective terms of this Agreement.
5.11. Annual Report. On or before the last day of January of each year,
the Head of Global Security shall submit to the FBI, DOJ, DOD and DHS a
report assessing Domestic Communications Companies' compliance with the
terms of this Agreement for the preceding calendar year. The report shall
include:
(i) a copy of all audit reports compiled by the third party auditor
conducted pursuant to Section 5.8 of this Agreement;
(ii) a copy of the policies and procedures adopted to comply with
this Agreement;
(iii) a summary of the changes, if any, to the policies or
procedures, and the reasons for those changes;
(iv) a summary of any known acts of material noncompliance with the
terms of this Agreement, whether inadvertent or intentional,
with a discussion of what steps have been or will be taken to
prevent such acts from occurring in the future; and
(v) identification of any other issues that, to Domestic
Communications Companies' knowledge, will or reasonably could
affect the effectiveness of or compliance with this Agreement.
New GX and all Domestic Communications Companies shall make available to
the Security Officer, in a timely fashion, all information necessary to
complete the report required by this Section.
Page 27
5.12. Notice of Establishment of Additional Network Operating Centers. In
the event New GX establishes a new Network Operating Center, New GX shall
provide prior written notice of such establishment to the DOJ, FBI, DOD and
DHS at least ninety (90) days prior to the commencement of operations of
such Network Operating Center.
5.13. Information and Reports Concerning Network Architecture. New GX
shall provide to the DOJ, FBI, DHS and DOD, on a quarterly basis, the
following information regarding the interconnections and control of the
Domestic Communications Infrastructure: (i) A description of the plans,
processes and/or procedures, relating to network management operations,
that prevent the Domestic Communications Infrastructure from being accessed
or controlled from outside the United States.
(ii) A description of the placement of Network Operations Centers
and interconnection (for service offload or administrative
activities) to other domestic and international carriers, ISPs
and critical U.S. financial, energy, and transportation
infrastructures.
(iii) A description of New GX's IP networks and operations processes,
procedures for management control and relation to the backbone
infrastructures of other service providers.
(iv) A description of any unique or proprietary control mechanisms
of New GX as well as of New GX's operating and administrative
software.
(v) A report of Network Management Information that includes an
assurance that network performance satisfies FCC rules and
reporting requirements.
New GX shall promptly report any material changes, upgrades and/or
modifications to the items described in (i) - (v) above, including the
installation of critical equipment and software. For the purposes of this
section, critical equipment and software shall include: routers, switches,
gateways, network security appliances, network management/test equipment,
operating systems and network and security software (including new
versions, patches, upgrades, and replacement software), and other hardware,
software, or systems performing similar functions. Monitors, desktop
computers, desktop computer applications, disk drives power supplies,
printers, racks and the like are not "critical equipment or software"
unless they perform functions similar to those of the items described in
(i) - (v) above. Similarly, "material" shall refer to those changes,
modifications and upgrades that alter network operating characteristics or
architecture--it does not apply to spare parts replacement, the one-for-one
swapping of identical equipment or the related re-loading of system
software or backups; provided, however, that network security configuration
and capabilities remain unchanged.
5.14. Notices. Effective upon execution of this Agreement by all the
Parties, all notices and other communications given or made relating to
this Agreement, such as a proposed modification, shall be in writing and
shall be deemed to have been duly given or made as of the date of receipt
and shall be (a) delivered personally, or (b) sent by facsimile, or (except
as noted below) (c) sent by documented overnight courier service, or (d)
sent by registered
Page 28
or certified mail, postage prepaid, addressed to the Parties' designated
representatives at the addresses shown below, or to such other
representatives at such others addresses as the Parties may designate in
accordance with this Section:
Department of Justice
Assistant Attorney General
Criminal Division
Xxxx Xxxxxxx
000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Federal Bureau of Investigation
General Counsel
000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Department of Defense
Office of General Counsel
Attn: Deputy General Counsel
for Acquisition and Logistics
The Pentagon, Room 3D973
0000 Xxxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000-0000
Department of Homeland Security
Washington, D.C. 20528
Attn: General Counsel, Office of the General Counsel
Telephone: 000-000-0000
Fax: 000-000-0000
(By Personal Delivery or E-mail Only)
Global Crossing Ltd.
000 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
Telephone: (000)000-0000
Fax: (000)000-0000
GC Acquisition Limited
000 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
Telephone: (000)000-0000
Fax: (000)000-0000
Page 29
Singapore Technologies Telemedia Pte Ltd
00 Xxxxxxx Xxxx
#00-00/00, XxxxXxx Xxxxxx
Xxxxxxxxx 000000
Attn: General Counsel
Telephone: (00)0000-0000
Fax: (00)0000-0000]
With a copy to:
GC Acquisition Limited
Xxxxxx Xxxxx, 0xx Xxxxx
00 Xxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxx Bureau of Investigation
The Assistant Director
National Security Division
000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
ARTICLE 6: FREEDOM OF INFORMATION ACT
6.1. Protection from Disclosure. The DOJ, FBI, DOD and DHS shall take all
reasonable measures to protect from public disclosure all information
submitted by a Domestic Communications Company or other entities in
accordance with the terms of this Agreement to the DOJ, FBI, DOD or DHS in
connection with this Agreement and clearly marked with the legend "Business
Confidential; subject to protection under 5 U.S.C. Section 552(b); not to
be released without notice to the filing party" or similar-designation.
Such markings shall signify that it is the company's position that the
information so marked constitutes "trade secrets" and/or "commercial or
financial information obtained from a person and privileged or
confidential," or otherwise warrants protection within the meaning of 5
U.S.C. Section 552(b)(4). For the purposes of 5 U.S.C. Section 552(b)(4),
the Parties agree the information so marked is voluntarily submitted. If a
request is made under 5 U.S.C. Section 552(a)(3) for information so marked,
and disclosure of any information (including disclosure in redacted form)
is contemplated, the DOJ, FBI, DOD or DHS, as appropriate, shall notify the
company of the intended disclosure as provided by executive Order 12600, 52
Fed. Reg. 23781 (June 23, 1987). If the Domestic Communications Company
objects to the intended disclosure and its objections are not sustained,
the DOJ, FBI, DOD or DHS, as appropriate, shall notify the company of its
intention to release (as provided by Section 5 of Executive Order 12600)
not later than five business days prior to disclosure of the challenged
information. The Parties note that information submitted by Domestic
Communications Company or other entities in accordance with the terms of
this Agreement may be protected from disclosure under the Critical
Information Infrastructure Act of 2002.
6.2. Use of Information for U.S. Government Purposes. Nothing in this
Agreement shall prevent the FBI, DOJ, or DHS from lawfully disseminating
information as
Page 30
appropriate to seek enforcement of this Agreement, or from lawfully sharing
information as appropriate with other Federal, state, or local government
agencies to protect public safety, law enforcement, or national security
interests, provided that the FBI, DOJ, DOD or DHS, take all reasonable
measures to protect from public disclosure the information marked as
described in Section 6.1.
6.3. Unlawful Disclosure of Information. The DOJ, FBI, DOD or DHS,
acknowledge that officers and employees of the United States and of any
department or agency thereof are subject to liability under 18 U.S.C.
Section 1905 for unlawful disclosure of information provided to them by
other Parties to this Agreement.
ARTICLE 7: FCC CONDITION AND CFIUS
7.1. FCC Approval. Upon the execution of this Agreement by all the
Parties. the DOJ, FBI, DOD or DHS shall promptly notify the FCC that,
provided the FCC adopts a condition substantially the same as set forth in
Exhibit A attached hereto (the "Condition to FCC Authorization"), the DOJ,
FBI, DOD and DHS have no objection to the FCC's grant of the applications
filed with the FCC in FCC IB Docket No. 02-286. This Section 7.1 is
effective upon execution of this Agreement by all the Parties.
7.2. Future Applications. New GX agrees that, in any application or
petition by any Domestic Communications Company to the FCC for licensing or
other authority filed with or granted by the FCC after the Effective Date,
except with respect to pro forma assignments or pro forma transfers of
control, the Domestic Communications Company Shall request that the FCC
condition the grant of such licensing or other authority on compliance with
the terms of this Agreement. Notwithstanding Section 8.10, the FBI, the
DOJ, DOD and DHS reserve the right to object, formally or informally, to
the grant of any other FCC application or petition of a Domestic
Communications Company for a license or other authorization under Titles II
or III of the Communications Act of 1934, as amended, and to seek
additional or different terms that would, consistent with the public
interest, address any threat to their ability to enforce the laws, preserve
the national security, and protect the public safety raised by the
transactions underlying such applications or petitions.
7.3. CFIUS. Provided that the FCC adopts the Condition to FCC
Authorization, the Attorney General, the Secretary of Defense and the
Secretary of Homeland Security shall not make any objection to the CFIUS or
the President concerning ST Telemedia's investment in New GX or grant of
the applications filed with the FCC in FCC IB Docket No. 02-286. This
commitment, however, does not extend to any objection the Attorney General,
the Secretary of Defense or the Secretary of Homeland Security may wish to
raise with the CFIUS or the President in the event that(a) New GX fails to
comply with the terms of this Agreement, (b) the Attorney General, the
Secretary of Defense or the Secretary of Homeland Security learns that the
representations of New GX made to the DOJ, the FBI, the DOD, the DHS or the
FCC above are materially untrue or incomplete, (c) there is a material
increase in the authority of a foreign entity to exercise Control of New GX
or a Domestic Communications Company, or (d) there is any other material
change in the circumstances associated with the transactions at issue.
Page 31
ARTICLE 8: OTHER
8.1. Role of GCL. GCL is a Party on account of its central role in both
the negotiation of this Agreement and the establishment of New GX.
Notwithstanding the foregoing, New GX and GCL stipulate that, upon the
Effective Date, GCL will not Control New GX or any of the Domestic
Communications Companies, and consequently will have no ability or
obligation to ensure compliance by New GX or the Domestic Communications
Companies after the Effective Date.
8.2. Obligations of New GX. New GX shall cause Domestic Communications
Companies to comply with this Agreement and, where appropriate, shall act
through its subsidiaries to discharge its obligations under this Agreement.
8.3. Right to Make and Perform Agreement. GCL, New GX and ST Telemedia
each represent that they have and shall continue to have throughout the
term of this Agreement the full right to enter into this Agreement and
perform its obligations hereunder and that this Agreement is a legal,
valid, and binding obligation of GCL, New GX and ST Telemedia enforceable
in accordance with its terms.
8.4. Headings. The Article headings and numbering in this Agreement are
inserted for convenience only and shall not affect the meaning or
interpretation of the terms of this Agreement.
8.5. Other Laws. Nothing in this Agreement is intended to limit or
constitute a waiver of (a) any obligation imposed by any U.S. Federal,
state or local laws on GCL, New GX or any Domestic Communications Company,
(b) any enforcement authority available under any U.S. or state laws, (c)
the sovereign immunity of the United States, or (d) any authority the U.S.
government may possess (including without limitation authority pursuant to
International Emergency Economic Powers Act) over the activities of GCL,
New GX or any Domestic Communications Company located within or outside the
United States. Nothing in this Agreement is intended to or is to be
interpreted to require the Parties to violate any applicable U.S. law.
8.6. Statutory References. All references in this Agreement to statutory
provisions shall include any future amendments to such statutory
provisions.
8.7. Non-Parties. Nothing in this Agreement is intended to confer or does
confer any rights on any person other than the Parties and any Governmental
Authorities entitled to effect Electronic Surveillance pursuant to Lawful
U.S. Process.
8.8. Modifications. This Agreement may only be modified by written
agreement signed by all of the Parties. The DOJ, FBI, DOD and DHS agree to
consider in good faith and promptly possible modifications to this
Agreement if GCL or the New GX believes that the obligations imposed on
GCL, New GX or the Domestic Communications Companies under this Agreement
are substantially more restrictive than those imposed on other U.S. and
foreign licensed service providers in like circumstances in order to
protect U.S. national security, law enforcement, and public safety
concerns. Any substantial modifications to this
Page 32
Agreement shall be reported to the FCC within thirty (30) days after
approval in writing by the Parties.
8.9. Changes in Circumstances for New GX or Domestic Communications
Companies. The DOD, FBI, DOD and DHS agree to negotiate in good faith and
promptly with respect to any request by New GX or a Domestic Communications
Company for relief from application of specific provisions of this
Agreement: (a)if a Domestic Communications Company provides Domestic
Communications solely through the resale of transmission or switching
facilities owned by third parties, or (b)as regards future Domestic
Communications Company activities or services, if those provisions become
unduly burdensome or adversely affect New GX's or a Domestic Communications
Company's competitive position.
8.10. Changes in Circumstances for the DOJ, FBI, DHS or the DOD. If after
the date that all the Parties have executed this Agreement the DOJ, FBI,
DOD or DHS finds that the terms of this Agreement are inadequate to address
national security, law enforcement, or public safety concerns presented,
then the other Parties will negotiate in good faith to modify this
Agreement to address those concerns. In the event that improvements in
technology may enhance the efficacy of this agreement to protect the
national security, enforce the laws or protect the safety of the public,
the parties will work promptly to amend the Agreement to implement such
advances.
8.11. Periodic Review. To ensure that this Agreement and the policies
implemented in furtherance of this Agreement continue to adequtely
preserve the national security, law enforcement and public safety
objectives, the terms of this Agreement and those policies shall be
reviewed by the parties at least every 18 months from the Execution Date.
8.12. Sovereign Immunity. ST Telemedia stipulates that it operates as a
commercial entity and its commercial operations are wholly separate from
the government of the Republic of Singapore. Nevertheless, to resolve any
ambiguity regarding its status as a commercial entity operating wholly
separate from any governmental entity, ST Telemedia agrees that, to the
extent that it or any of its property is or becomes entitled at any time to
any immunity on the ground of sovereignty or otherwise base upon a status
as an agency or instrumentality of government from any legal action, suit
or proceeding or from setoff or counterclaim arising from compliance with
this Agreement from the jurisdiction of any competent court from service of
process, from attachment prior to judgment, from attachment in and of
execution of a judgment from execution pursuant to a judgment or arbitral
award, or from any other legal process in any jurisdiction, to the extent
allowable by law, it, for itself and its property expressly, irrevocably
and unconditionally waives, and agrees not to plead or claim, any immunity
with respect to matters arising with respect to compliance with this
Agreement or the obligations herein (including any obligation for the
payment of money) in any proceeding brought by a Party. ST Telemedia agrees
that the waiver in this provision is irrevocable and is not subject to
withdrawal in any jurisdiction or under any statute, including the Foreign
Sovereign Immunities Act, 28 U.S.C. section 1602 et seq. The foregoing
waiver shall constitute a present waiver of immunity at any time any action
is initiated by a Party with respect to or relating to this Agreement.
Page 33
8.13. Severability. The provisions of this Agreement shall be severable
and if any provision thereof or the application of such provision under any
circumstances is held invalid by a court of competent jurisdiction, it
shall not affect any other provision of this Agreement or the application
of any provision thereof.
8.14. Counterparts. This Agreement may be executed in one or more
counterparts, including by facsimile, each of which shall together
constitute one and the same instrument.
8.15. Successors and Assigns. This Agreement shall inure to the benefit
of, and shall be binding upon, the Parties and their respective successors
and assigns.
8.16. Effectiveness of Agreement. Except as otherwise specifically
provided in the provisions of this Agreement, the obligations imposed and
rights conferred by this Agreement shall take effect upon the Effective
Date.
8.17. Termination of Agreement. If the Purchase Agreement is terminated
prior to the Effective Date, GCL shall promptly provide written
notification of such termination to the FBI, DOJ, DHS and DOD, and upon
receipt of such written notice, this Agreement shall automatically
terminate. After the Effective Date, this Agreement shall terminate upon
thirty (30) days prior written notice from New GX to the FBI, DOJ, DHS and
DOD, provided that at such time there is no Domestic Communications
Company.
8.18. Suspension of Agreement With Respect to a Domestic Communications
Company. This Agreement shall be suspended upon thirty (30) days notice to
the DOJ, FBI, DOD and DHS with respect to any covered New GX entity if said
entity is no longer a Domestic Communications Company.
8.19. Suspension of Agreement If No Significant Foreign Ownership. This
Agreement shall be suspended in its entirety with respect to New GX and all
Domestic Communications Companies thirty (30) days after receipt from New
GX of notice and documentation reasonably satisfactory to the DOJ, FBI,
DOD, and DHS that neither ST Telemedia nor any other foreign entity either
Controls New GX or a Domestic Communications Company or holds, directly or
indirectly, a ten (10) percent or greater interest in New GX or a Domestic
Communications Company, unless the DOJ, FBI, DOD and DHS notify New GX
within said thirty (30) day period that this Agreement shall not be
suspended in order to protect U.S. national security, law enforcement, and
public safety concerns. If this Agreement is not suspended pursuant to this
provision, the DOJ, FBI, DOD and DHS agree to consider promptly and in good
faith possible modifications to this Agreement. Notwithstanding anything to
the contrary in this Section 8.19, this Agreement shall remain in effect
with respect to New GX and the Domestic Communications Companies for so
long as (and the obligations of New GX and the Domestic Communications
Companies shall not be suspended and any suspension of the obligations of
New GX and the Domestic Communications Companies shall terminate if) ST
Telemedia or any other foreign entity shall either Control or hold, at any
time does hold, or is a party to an agreement to hold, directly or
indirectly, a ten (10) percent or greater ownership interest in New GX or
any
Page 34
Domestic Communications Company or any transferee or assignee of the FCC
licenses or authorizations held by New GX or a Domestic Communications
Company.
8.20. Pledging of Stock or Assets of Domestic Communications Companies.
Nothing in this Agreement shall be intepreted to prevent New GX from
pledging the stock or assets of any Domestic Communications Company in
connection with the borrowing of funds and similar financial activities by
New GX, nor shall such pledging of stock or assets excuse performance of
the obligations in this Agreement by New GX or any Domestic Communications
Company.
8.21. Effectiveness of Article 8. This Article 8, and the obligations
imposed and rights conferred herein, shall be effective upon the execution
of this Agreement by all the Parties.
This Agreement is executed on behalf of the Parties:
Global Crossing Ltd.
Date:_________________ By:_____________________________________
Printed Name:
Title:
GC Acquisition Limited
Date:_________________ By:_____________________________________
Printed Name:
Title:
Singapore Technologies Telemedia Pte Ltd
Date:_________________ By:_____________________________________
Printed Name:
Title:
United States Department of Justice
Date:_________________ By:_____________________________________
Printed Name:
Title:
Federal Bureau of Investigation
Date:_________________ By:_____________________________________
Printed Name:
Title:
Page 35
United States Department of Defense
Date:_________________ By:_____________________________________
Printed Name:
Title:
United States Department of Homeland
Security
Date:_________________ By:_____________________________________
Printed Name:
Title:
This Agreement is executed on behalf of the Parties:
Global Crossing Ltd.
Date: Sept. 8, 2003 By: /s/ Xxxx X. Xxxxxx
----------------- -------------------------------------
Printed Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
GC Acquisition Limited
Date: Sept. 8, 2003 By: /s/ Xxxx X. Xxxxxx
----------------- -------------------------------------
Printed Name: Xxxx X. Xxxxxx
Title: Attorney-in-Fact
Singapore Technologies Telemedia Pte Ltd
Date: 8 September 2003 By: /s/ Xxx Xxxxx Kiat
----------------- -------------------------------------
Printed Name: Xxx Xxxxx Kiat
Title: President and Chief Executive
Officer
United States Department of Justice
Date: Sept. 23, 2003 By: /s/ Xxxx X. Xxxxxxx
----------------- -------------------------------------
Printed Name: Xxxx X. Xxxxxxx
Title: Deputy Assistant Attorney General
Federal Bureau of Investigation
Date: Sept. 23, 2003 By: /s/ Xxxxxxx X. Xxxxxx
----------------- -------------------------------------
Printed Name: Xxxxxxx X. Xxxxxx
Title: Deputy General Counsel
United States Department of Defense
Date:_________________ By:_____________________________________
Printed Name:
Title:
United States Department of Homeland
Security
Date:_________________ By:_____________________________________
Printed Name:
Title:
Page 35
United States Department of Defense
Date: By: /s/
----------------- -----------------------------------
Printed Name:
Title:
United States Department of Homeland
Security
Date: 22 Sept. 2003 By: /s/ Xxxxxx X. Liscovski
----------------- -----------------------------------
Printed Name: Xxxxxx X. Liscovski
Title: Assistant Secretary for
(Illegible)
Page 35
United States Department of Defense
Date: 9/24/03 By: /s/ Xxxxxx Xxxxx XX
----------------- -------------------------------------
Printed Name: Xxxxxx Xxxxx XX
Title: Principal Deputy Asst. Secretary
United States Department of Homeland
Security
Date:_________________ By:_____________________________________
Printed Name:
Title:
Page 36
EXHIBIT A
CONDITION TO FCC AUTHORIZATION
IT IS FURTHER ORDERED, that consent to the transfer of control of New GX
and grant of a declaratory ruling pursuant to 47 U.S.C. Section 310(b)(4) are
subject to compliance with the provisions of the Agreement attached hereto among
GCL, New GX and ST Telemedia, on the one hand, and the United States Department
of Justice (the "DOJ"), the Federal Bureau of Investigation (the "FBI"), the
United States Department of Defense ("DOD") and the United States Department of
Homeland Security ("DHS"), on the other, dated _______, which Agreement is
designed to address national security, law enforcement, and public safety issues
of the DOJ, the FBI, the DOD and the DHS regarding the authority granted herein.
Nothing in this Agreement is intended to limit any obligation imposed by Federal
law or regulation including, but not limited to, 47 U.S.C. Section 222(a) and
(c)(1) and the FCC's implementing regulations.
