RESTATED AND AMENDED TRAFFIC AGREEMENT
THIS AGREEMENT dated as of the 21st day of June, 1994,
restated and amended as of November 1, 1995, between PACWEST NETWORK, INC.
("Licensee") and GST TELECOM INC. ("GST").
W I T N E S S E T H
WHEREAS, concurrently herewith Licensee and GST Pacwest Telcom
Hawaii, Incorporated ("GPTH""), a subsidiary of GST, are executing and
delivering that certain Restated and Amended Usage Agreement (the "Usage
Agreement"), pursuant to which Licensee is authorizing GPTH to utilize licenses
(the "Licenses") issued by the Federal Communications Commission (the "FCC") to
Licensee in the operation of GPTH's microwave transmission facilities (the
"Facilities"); and
WHEREAS, the Usage Agreement limits such authorization to 90%
of the total transmission capacity available through the Licenses and reserves
to Licensee such transmission capacity not transferred to GPTH (the "Reserved
Capacity") for transfer by Licensee to other customers of Licensee in Licensee's
sole discretion; and
WHEREAS, the parties hereto which to provide for transmission
over the Facilities utilizing the Reserved Capacity;
NOW THEREFORE, in consideration of the foregoing premises, the
mutual promises and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. RESERVED CAPACITY. GST shall make available the Facilities
to Licensee for microwave transmission traffic utilizing the Reserved Capacity.
Such traffic shall be for Licensee or for Licensee's customers as determined by
Licensee in its sole discretion. Licensee shall deliver its own traffic, and
shall require its customers to deliver their traffic, in a digital DS-1 format
or other format mutually determined by Licensee and GST at such points of
presence as are mutually determined by Licensee and GST.
2. GST COMPENSATION. In consideration of the actions to be
taken by GST in operating and maintaining the Facilities and in making them
available for traffic utilizing the Reserved Capacity, Licensee shall pay to GST
the sum of $3,000 per month.
3. CONTROL OF LICENSEE.
Notwithstanding the provisions of the Usage Agreement or of
this Agreement to the contrary without the prior written approval of the
Licensee, GST shall not be authorized to do any of the following on behalf of
the Licensee:
(a) Grant a security interest in any of the property of the
Licensee, including the Licenses;
(b) Sell, lease, trade, exchange or otherwise dispose of
any property of the Licensee, including the Licenses;
(c) Sell, trade, modify or surrender any governmental
authorizations necessary to the operation of the Facilities;
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(d) Make any filings regarding the Facilities or the
Licenses with the FCC.
4. OPERATION OF FACILITIES AND COMPLIANCE WITH LAW.
Subject to the control of Licensee:
(a) GST shall operate and maintain the Facilities,
providing at its own cost and expense, all managerial, administrative and
technical expertise required in such operations. GST shall hire and supervise at
its own cost and expense all employees and independent contractors necessary for
the fulfillment of its responsibilities hereunder.
(b) GST shall maintain the Facilities consistent with
common carrier industry standards, government regulations and sound business
practices.
(c) GST shall at all times operate the Facilities in
compliance with the Communications Act of 1934, as amended, (the "Communications
Act") and any other federal, state or local rules, regulations and policies of
other governmental agencies with authority over the Licensee and/or the
Facilities, as such laws, rules, regulations and policies are in effect from
time to time.
5. MODIFICATION OF FACILITIES. GST may initiate
modification to the Facilities from time to time, at GST's cost and expense. If
prior FCC approval of such modifications is required, GST shall request that
Licensee seek and obtain such approval. In such event, GST shall consult with
Licensee and at GST's expense, shall prepare an appropriate application for
Licensee to approve, sign and file with the FCC, and no such change shall be
implemented
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prior to the grant of FCC consent. Any application for a license to cover any
construction permit shall similarly be prepared by GST for approval and filing
by Licensee.
6. FCC FILINGS. GST shall cooperate with Licensee in
furnishing any information that may be requested by the FCC in connection with
the operation of the Facilities, including, but not limited to, any technical
and/or engineering information. GST shall consult with Licensee and shall
prepare for Licensee's approval and filing with the FCC, appropriate license
renewal applications and such other reports, documents, and filings as may be
necessary from time to time to keep the Licenses in full force and effect for
operation of the Facilities. Licensee shall cooperate with GST in signing and
filing such applications and other reports, documents and filings as Manager
shall from time to time prepare and submit to Licensee.
7. NOTICES. All notices and other communication hereunder
shall be given in writing and shall be deemed to have been duly given if
delivered personally, if transmitted by telecopier to the number(s) designated
below or if mailed by first class United States mail, postage prepaid, to the
address(es) designed below, or to such other address as either party may specify
from time to time. All notices and other communications hereunder shall be
deemed to have been given the date of receipt.
If to Licensee:
Pacwest Network, Inc.
0000 Xxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
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Attn: Chief Executive Officer
Telecopier: (000) 000-0000
If to GST:
GST Telecom Inc.
0000 X.X. Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
Telecopier: (000) 000-0000
8. TERM. The term of this Agreement commenced as of June 21,
1994 and shall terminate upon the occurrence of any of the following events
(unless earlier terminated pursuant to the provisions of Paragraph 9 hereof):
(a) revocation or expiration without renewal of all of the
Licenses; or
(b) mutual agreement of the parties to terminate this
Agreement.
9. TERMINATION FOR CAUSE. Licensee shall have the right to
terminate this Agreement upon notice to GST at any time during the term hereof
upon the occurrence of any of the following events:
(a) any material failure by GST to perform any of its
obligations under this Agreement;
(b) the insolvency of GST, appointment of a receiver of the
property of GST, or any assignment for the benefit of creditors of GST;
(c) the filing of a voluntary or involuntary petition by or
against GST under the Bankruptcy laws of the United States;
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(d) the refusal by the FCC, any other state, federal, or
local regulatory agency having jurisdiction over the consummation of
transactions contemplated hereby to permit the consummation of transactions
contemplated hereby to grant any consent or approval necessary to permit the
parties to consummate such transactions and such refusal is no longer subject to
administrative or judicial reconsideration or review;
(e) Licensee's good faith determination that the acts of
GST or the terms of this Agreement have been or are likely to be determined to
be inconsistent with the rules and policies of the FCC or any other government
agency having jurisdiction over the Licenses as such rules and policies apply to
the Licenses.
10. INDEMNIFICATION.
(a) GST shall indemnify and hold Licensee harmless against
any and all damages, claims, actions or suits by third parties arising out of or
in connection with GST's performance of its obligations hereunder.
(b) In no event will either party hereto be liable to the
other party for any indirect, special, incidental or consequential losses or
damages, including, without limitation, loss of revenue, loss of customers or
clients, loss of goodwill or loss of profits arising in any manner from this
Agreement and the performance or nonperformance of obligations hereunder.
11. NO WAIVER. No term or provision of this Agreement shall
be deemed waived and no breach or default shall be deemed excused unless such
waiver or consent shall be in writing and
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signed by the party claimed to have waived or consented. No consent by any party
to, or waiver of, a breach or default by the other, whether express or implied,
shall constitute a consent to, waiver of, or excuse for any different or
subsequent breach or default.
12. ASSIGNMENT. Neither party shall assign this Agreement or
any of its rights or obligations under this Agreement without the prior written
consent of the other party, and any attempted assignment or transfer by either
party not in compliance with this provision shall be null and void AD INITIO.
This Agreement shall bind and inure to the benefit of any permitted successors
and assigns of the parties.
13. APPLICABLE LAW. This Agreement shall be construed in
accordance with the laws of the State of Delaware, not including the conflicts
of laws principles of that State.
14. CONSTRUCTION. It is the intent of the parties that
operation of the Facilities under this Agreement comply with the Communications
Act, and all provisions of this Agreement shall be so construed.
15. SEVERABILITY. If any provision of this Agreement shall be
declared illegal, invalid or unenforceable by any governmental authority with
jurisdiction over GST, Licensee, and/or the Facilities, then the remainder of
this Agreement shall remain in full force and effect without the offending
provision, provided that such remainder substantially reflects the original
agreement of the parties.
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16. AMENDMENTS. This Agreement represents the entire
understanding of the parties hereto with respect to the subject matter hereof,
supersedes any and all prior negotiations, understands and agreements with
respect thereto, and may be amended only by a writing signed by both parties.
17. NO JOINT VENTURE. Nothing in this Agreement shall be
construed to make Licensee and GST joint venturers or to impose upon either of
them any liability as such.
18. LIMITATIONS ON LIABILITY. Neither GST nor Licensee shall
have any liability for failure to comply with this Agreement if such failure
results from the occurrence of any contingency beyond the reasonable control of
such party.
19. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be considered an original and all of which
taken together shall constitute one Agreement binding on both of the parties
hereto, notwithstanding that both parties shall not have signed the same
counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
PACWEST NETWORK, INC.
("Licensee")
By:/s/ Xxxx Xxxxx
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Xxxx Xxxxx, President
GST TELECOM INC.
("GST")
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx,
Vice President
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