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EXHIBIT 10.1
AMENDED AND RESTATED
FRAMEWORK AGREEMENT
between
IMPSAT CORPORATION
and
GLOBAL CROSSING DEVELOPMENT CO.
July 27, 1999
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TABLE OF CONTENTS
PAGE
----
ARTICLE 1. THE PROJECT........................................................................................... 2
1.1. Purpose................................................................................... 2
1.2. Term...................................................................................... 2
1.3. Timing of the Project.................................................................... 2
ARTICLE 2. BASIC AGREEMENTS...................................................................................... 3
2.1. Master Agreement.......................................................................... 3
2.2. Turnkey Backhaul Construction Contract.................................................... 4
2.3. Backhaul Operations, Administration, Maintenance and Provisioning
Agreement............................................................................. 5
2.4. Co-Marketing Agreement.................................................................... 5
2.5. Cable Station Lease Agreement............................................................. 5
2.6. Telehouse Lease Agreements................................................................ 5
2.7. Cable Station Operations and Maintenance Agreement........................................ 5
2.8. Global Crossing Capacity Purchase Agreement............................................... 6
2.9. Trans-Andean Crossing Agreements.......................................................... 6
ARTICLE 3. CONDITIONS TO CLOSING................................................................................. 7
3.1. Conditions to Obligations of GCD to Close................................................. 7
3.2. Conditions to Obligations of IMPSAT Corporation to Close.................................. 7
ARTICLE 4. COVENANTS............................................................................................. 7
4.1. Actions Prior to Closing.................................................................. 7
4.2. Information............................................................................... 8
4.3. Public Announcements...................................................................... 8
4.4. Confidentiality........................................................................... 8
4.5. Exclusivity............................................................................... 8
ARTICLE 5. REPRESENTATION AND WARRANTIES......................................................................... 8
5.1. Representations and Warranties of GCD..................................................... 8
5.2. Representations and Warranties of IMPSAT.................................................. 9
ARTICLE 6. TERMINATION AND EXPENSES.............................................................................. 10
6.1. Termination............................................................................... 10
6.2. Liabilities in Event of Termination....................................................... 10
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ARTICLE 7. MISCELLANEOUS......................................................................................... 11
7.1. Survival................................................................................. 11
7.2. Defined Terms............................................................................ 11
7.3. Successors and Permitted Assigns; Assignment............................................. 11
7.4. Notices.................................................................................. 11
7.5. Amendments and Waivers................................................................... 13
7.6. Governing Law; Severability.............................................................. 13
7.7. Jurisdiction............................................................................. 13
7.8. Expenses................................................................................. 13
7.9. Counterparts; Effectiveness.............................................................. 13
7.10. Headings................................................................................. 13
7.11. Entire Agreement......................................................................... 13
7.12. Interpretation........................................................................... 13
7.13. Further Assurances....................................................................... 14
7.14. No Third Party Beneficiaries............................................................. 14
EXHIBITS
1. Backhaul Construction RFS Dates and Cost Estimates
2. Telehouse Agreements
3. TAC Agreement
4. Capacity Purchase Agreement
5. June Proposal
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AMENDED AND RESTATED
FRAMEWORK AGREEMENT
THIS AMENDED AND RESTATED FRAMEWORK AGREEMENT (the
"Agreement") is made as of this 27th day of July, 1999, by and between IMPSAT
Corporation, a Delaware corporation ("IMPSAT Corporation"), and Global Crossing
Development Co., a Delaware corporation ("GCD"), and amends and restates the
Framework Agreement between GCD and IMPSAT Corporation dated as of May 28, 1999
(the "Original Agreement").
RECITALS
A. GCD and its Affiliates (collectively, "Global Crossing") are
developing an undersea and terrestrial fiber optic cable system to circle the
continent of South America ("South American Crossing" or "SAC") linking SAC to
Global Crossing's worldwide network, and are developing a system linking the
west coast of the United States of America with St. Croix ("Pan American
Crossing" or "PAC") with the goal of offering the highest quality city-to-city
capacity to telecommunications carriers and certain Internet service providers
("ISPs").
B. IMPSAT Corporation and its Affiliates (collectively, "IMPSAT")
provide telecommunications services to business customers, carriers, ISPs and
other telecommunications providers in the Americas and are developing a
terrestrial broadband fiber optic network connecting the major cities of Latin
America and building local distribution networks in the major cities of Latin
America.
C. Global Crossing and IMPSAT desire to enter into a network of related
contractual relationships (the "Project") as set forth in Article 2 of this
Agreement (such agreements, the "Basic Agreements") which are intended to
combine the strengths of IMPSAT's network and Global Crossing's network to offer
customers of Global Crossing and IMPSAT the highest quality city-to-city
capacity integrating major cities in South America with cities served by Global
Crossing's worldwide network.
D. GCD desires to establish one or more companies (the "Holding
Companies") to develop, finance, construct, install, operate, maintain, own and
sell, lease or otherwise dispose of capacity on a terrestrial fiber optic
network (the "Backhaul System") comprising the backhaul from cable landing
stations in Brazil, Colombia, Peru and Venezuela (the "Territories") to selected
points-of-presence telehouses in such countries for the purpose of conducting
international telecommunications traffic to and from such telehouses and to and
from South American Crossing in the case of Brazil, Colombia and Peru, and Pan
American Crossing in the case of Venezuela (the "Holding Company Business").
E. GCD and IMPSAT Corporation desire that IMPSAT will provide for the
construction of the Backhaul System and certain elements of the terrestrial
portion of South American Crossing on a system route connecting Las Toninas,
Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxx and Algarrobo, Chile (the
"Trans-Andean Crossing" or "TAC") and the operations and maintenance of the
Backhaul System and TAC.
F. GCD and IMPSAT Corporation desire to enter into a Master Agreement
(as defined herein) that will define a framework for the general commercial
relationship between the parties and will provide for IMPSAT's support for the
activities of GCD, its Affiliates and the Holding Companies in South America.
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G. GCD and IMPSAT Corporation desire that IMPSAT will provide capacity
to Global Crossing's customers for connectivity to other cities outside the
capital cities of South America through IMPSAT's terrestrial network.
H. GCD and IMPSAT Corporation desire to amend and restate the Original
Agreement to set forth a legally binding framework for the negotiation of the
Basic Agreements, including the material terms and conditions of the Basic
Agreements.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements hereinafter set forth, which the parties
agree is good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1.
THE PROJECT
1.1. PURPOSE. This Agreement amends, restates and supersedes in its
entirety the Original Agreement. The purpose of this Agreement is to set forth
the terms and conditions upon which Global Crossing and IMPSAT will negotiate
and enter into the Basic Agreements.
1.2. TERM. This Agreement is a binding agreement between GCD and IMPSAT
Corporation and shall be superseded at the Closing by the Basic Agreements. All
terms and conditions of this Agreement shall expire and terminate at the
Closing. This Agreement shall expire and terminate in accordance with the
provisions of Section 6.1 hereof.
1.3. TIMING OF THE PROJECT.
(a) As soon as practicable following the execution and
delivery of this Agreement by the parties,
(i) IMPSAT shall file (or cause to be filed) all
necessary applications for the IMPSAT
Authorizations, and shall diligently
prosecute such applications and use its best
efforts to obtain such IMPSAT Authorizations
as expeditiously as possible.
(ii) Global Crossing shall file (or cause to be
filed) all necessary applications for the
GCD Authorizations, and shall diligently
prosecute such applications and use its best
efforts to obtain such GCD Authorizations as
expeditiously as possible.
(b) As soon as practicable after the satisfaction of the
conditions set forth in Article 3 (the "Closing Date"), the parties shall
execute all of the Basic Agreements (the "Closing"). The parties shall use their
reasonable best efforts to finalize and enter into the Basic Agreements not
later than December 31, 1999. At the Closing,
(i) Global Crossing shall deliver, or cause to
be delivered, to all counterparties the
executed Basic Agreements.
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(ii) IMPSAT shall deliver, or cause to be
delivered, to all counterparties the
executed Basic Agreements.
ARTICLE 2.
BASIC AGREEMENTS
Global Crossing, IMPSAT and the Holding Companies, as
applicable, will enter into the Basic Agreements set forth below. The Basic
Agreements shall also contain such usual, customary or appropriate terms and
conditions as the parties may agree.
2.1. MASTER AGREEMENT. On the Closing Date, IMPSAT and Global Crossing
shall enter into a Master Agreement that will define a framework for the general
commercial relationship between the parties and will provide for IMPSAT's
support for the activities of GCD, its Affiliates and the Holding Companies in
South America (the "Master Agreement"). The Master Agreement shall include,
among others, the following understandings of the parties:
(a) Holding Company Telecommunications Licenses and
Concessions.
(i) GCD desires that the Holding Companies
obtain all telecommunications licenses and
concessions required to carry out the
Holding Company Business ("Licenses") in
each Territory ("Holding Company Licenses")
in the name of the Holding Company, and
IMPSAT is fully committed to use its
reasonable best efforts to obtain such
Licenses on behalf of the Holding Companies.
(ii) The reasonable costs, fees and expenses
incurred by IMPSAT to obtain Holding Company
Licenses will be paid to IMPSAT by the
Holding Companies.
(iii) The Holding Companies, IMPSAT and Global
Crossing will negotiate in good faith for
reasonable compensation to IMPSAT for its
role in the process of obtaining Holding
Company Licenses. Such compensation will be
paid by the Holding Companies.
(b) Failure to Obtain or Delay of Holding Company
Telecommunications Licenses and Concessions.
(i) In the event that the Holding Company
Licenses for any Holding Company are
delayed, denied, or otherwise not obtained
by the RFS dates specified in Section 2.2
below, the parties agree to reach commercial
arrangements so that Global Crossing
services can be sold and put into service in
said country. In this case, IMPSAT is fully
committed to use its reasonable best efforts
to support this objective through the use of
the telecommunications licenses and
concessions held by IMPSAT ("IMPSAT
Licenses") until such time as the Holding
Companies obtain the Holding Company
Licenses.
(ii) In the case of subsection (i) above, the
Holding Companies, IMPSAT and Global
Crossing will negotiate in good faith for
reasonable compensation to IMPSAT for the
use of the IMPSAT Licenses.
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(c) Cable Station Connections. Global Crossing's general
corporate policy is that all customers interconnect at Telehouses (or the
terminal point of the backhaul with respect to a cable system) and not at cable
stations. Global Crossing agrees that [
]
2.2. TURNKEY BACKHAUL CONSTRUCTION CONTRACT. (a) On the Closing Date,
IMPSAT and each of the Holding Companies shall enter into an agreement (the
"Turnkey Backhaul Construction Contract") whereby IMPSAT will construct or
purchase dark fiber for the Backhaul System linking the cable landing stations
in the Territories to IMPSAT Telehouses in Rio de Janeiro, Brazil, Sao Paulo,
Brazil, Lima, Peru and Caracas, Venezuela. The Turnkey Backhaul Construction
Contract will provide for the following Ready-for-Service ("RFS") dates:
CITY RFS DATE
---- --------
Caracas [ ], 2000*
Sao Paulo [ ], 2000
Xxx xx Xxxxxxx [ ], 0000
Xxxx [ ], 2001
* Construction cost estimates previously provided to GCD for Venezuela and
included in Exhibit 1 contemplate an RFS Date for Caracas of [ ], 2000,
as originally requested by GCD. These estimates may need to be revised to
analyze and determine if additional costs will be incurred because of the
earlier RFS Date set forth above.
At the request of Global Crossing, IMPSAT will analyze the feasibility and cost
of earlier RFS Dates than the RFS Dates set forth above and will inform Global
Crossing of the conclusions of such analysis as soon as they are available.
(b) For Colombia, IMPSAT will construct dark fiber from the
Buenaventura Cable Station to IMPSAT's point-of-presence in Cali, Colombia.
IMPSAT will provide [ ], for an RFS date
of [ ], 2001 to meet market requirements until dark fiber from Cali to
Bogota is built or acquired. IMPSAT commits to use its reasonable best efforts
to acquire or construct dark fiber from Cali to [ ] not later than [
] 2003, for the Colombian Holding Company.
(c) The Turnkey Backhaul Construction Contract will provide
for the construction of the Backhaul System on a cost-plus basis and such other
terms and conditions as mutually agreed between GCD and IMPSAT. IMPSAT's current
cost estimates for construction of the Backhaul System, subject to revision for
the earlier RFS Date for Caracas, are included in Exhibit 1 hereto. Global
Crossing will also consider the purchase of dark fiber as an alternative to
construction of some or all of the Backhaul System. If Global Crossing
determines that the purchase of dark fiber would be a better alternative for
completion of the Backhaul System, then the Turnkey Backhaul Construction
Contract will be modified accordingly.
(d) For Brazil and Venezuela not later than August 30, 1999
and for Colombia and Peru not later than November 30, 1999, IMPSAT will provide
to Global Crossing a proposal for converting the Turnkey Backhaul Construction
Contract to a firm, fixed-price turnkey construction contract. Global
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Crossing will have two weeks to accept or reject such proposal. If such proposal
is accepted by Global Crossing, then IMPSAT and Global Crossing shall amend and
restate the Turnkey Backhaul Construction Contract to incorporate the terms of
such proposal. If such proposal is rejected by Global Crossing, then the Turnkey
Backhaul Construction Contract shall continue to govern the construction of the
Backhaul System.
(e) IMPSAT and Global Crossing shall negotiate in good faith
regarding the acquisition by IMPSAT of dark fibers on the Backhaul System
linking IMPSAT's Telehouses with Global Crossing's SAC and PAC (in Venezuela)
Cable Stations. These fibers will not terminate in the Global Crossing cable
station,[
]. The price for such
dark fiber shall be determined on a country-by-country basis.
2.3. BACKHAUL OPERATIONS, ADMINISTRATION, MAINTENANCE AND
PROVISIONING AGREEMENT. On the Closing Date, IMPSAT and Global Crossing, on
behalf of the Holding Companies, shall enter into an Operations, Administration,
Maintenance and Provisioning Agreement for the operation and maintenance of the
Backhaul System and the management of traffic on the Backhaul System (the "OAM&P
Agreement"). The OAM&P Agreement will include such terms and conditions as
mutually agreed between Global Crossing and IMPSAT.
2.4. CO-MARKETING AGREEMENT. On the Closing Date, IMPSAT and Global
Crossing shall enter into a non-exclusive co-marketing agreement (the
"Co-Marketing Agreement") providing for the parties to cooperatively market and
sell global city-to-city telecommunication services on Global Crossing's
worldwide network and IMPSAT's Latin American network. The Co-Marketing
Agreement will include such terms and conditions as mutually agreed between
Global Crossing and IMPSAT.
2.5. CABLE STATION LEASE AGREEMENT. In the event Global Crossing
permits customers to interconnect at cable stations as provided in Section
2.1(c), Global Crossing agrees to provide an option for IMPSAT to lease space at
the Cable Stations on terms to be negotiated in good faith by the parties.
2.6. TELEHOUSE LEASE AGREEMENTS. On the Closing Date, Global
Crossing and IMPSAT shall agree to a form of telehouse lease agreement (each, a
"Telehouse Lease Agreement" and, collectively the "Telehouse Lease Agreements").
The Telehouse Lease Agreements will provide for the lease to the Holding
Companies or Global Crossing, as applicable, of space in the telehouses owned by
IMPSAT (the "Telehouses") on the terms and conditions set forth in Exhibit 2. On
the Closing Date, Global Crossing and IMPSAT shall enter into Telehouse Lease
Agreements providing for the lease to Global Crossing of space in the Telehouses
identified in Exhibit 2, effective upon the RFS Date for such Telehouses. The
parties further agree that in the event that Global Crossing deems that
additional Telehouses in South America are necessary or desirable in the future
due to evolution of market conditions, IMPSAT will be offered the opportunity to
present its proposal to Global Crossing for that need. Global Crossing agrees to
give any such proposal(s) serious consideration.
2.7. CABLE STATION OPERATIONS AND MAINTENANCE AGREEMENT. On the
Closing Date, IMPSAT and Global Crossing may enter into an Operations and
Maintenance Agreement for the operation and maintenance of the SAC cable
stations, and the PAC cable station(s) located in Venezuela (the "Cable Station
O&M Agreement"). If Global Crossing desires that IMPSAT provide a proposal for
the operation and maintenance of the SAC cable stations, IMPSAT will provide
such proposal within sixty (60) days of the day of request in writing. If the
parties do not agree to the terms of the Cable Station O&M Agreement by November
30, 1999, (i) such document shall not be deemed to be a Basic
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Agreement, and (ii) the failure of the parties to agree on terms for the Cable
Station O&M Agreement shall not be a cause for the termination of this
Agreement. The Cable Station O&M Agreement, if any, will include such terms and
conditions as mutually agreed between Global Crossing and IMPSAT. The provisions
of Section 4.5 shall not apply to this Section 2.7.
2.8. GLOBAL CROSSING CAPACITY PURCHASE AGREEMENT. On the Closing
Date, IMPSAT and Global Crossing shall enter into a capacity purchase agreement
for capacity on the Global Crossing worldwide system (the "Capacity Purchase
Agreement"). The Capacity Purchase Agreement will provide for the purchase of
capacity on the Global Crossing system on the terms and conditions set forth in
Exhibit 4. The parties agree that IMPSAT will be allowed to resell its capacity
in units of up to [ ].
2.9. TRANS-ANDEAN CROSSING AGREEMENTS. On the Closing Date, IMPSAT
and Global Crossing shall enter into one or more agreements for the construction
or purchase of duct and operations and maintenance services with respect to TAC
(the "TAC Agreements"). The TAC Agreements will provide for:
(a) the purchase by Global Crossing of one duct from IMPSAT on
a route between Buenos Aires and Xxxxxxx and the turnkey construction by IMPSAT
of duct on the routes between Las Toninas and Buenos Aires, and Xxxxxxx and
Xxxxxxxx and Xxxxxxxx and Algarrobo. The terms and conditions for some of the
above included transactions have already been agreed and are shown in Exhibit 3,
(b) rental of telehouse space from IMPSAT in Buenos Aires and
Santiago as stipulated in Section 2.6 and the option for rental of Telehouse
space in Xxxxxxx, Cordoba and Xxxxxxx at rates the parties will negotiate in
good faith, and
(c) operations and maintenance services on the terms set forth
in the IMPSAT proposal of June 9, 1999, a copy of which is attached as Exhibit 5
(the "June Proposal").
IMPSAT agrees to coordinate and work in good faith with Global Crossing and/or
any other SAC construction contractor to coordinate the construction, completion
and connection of TAC with the construction, completion and connection with SAC.
The TAC Agreements will provide for the RFS Dates specified in Exhibit 3, except
that the RFS Dates for the Xxxxxxx - Xxxxxxxx and Xxxxxxxx - Algarrobo segments
will be reviewed between the parties to confirm an RFS date of [ ], 2000.
The TAC Agreements will include such other terms and conditions as mutually
agreed between Global Crossing and IMPSAT.
(d) IMPSAT and Global Crossing shall negotiate in good faith
regarding the acquisition by IMPSAT of dark fibers on TAC between Las Toninas
and Buenos Aires and Xxxxxxx and Algarrobo linking IMPSAT's Telehouses with
Global Crossing's SAC Cable Stations. These fibers will not terminate in the
Cable Stations, [
]
(e) Global Crossing desires, and IMPSAT agrees to provide
Global Crossing with, the option of connecting Xxxxxxx, Cordoba and Xxxxxxx
directly to SAC in the future for international circuits. Although it is not
currently envisioned that Global Crossing will need to directly connect these
cities to SAC, the parties agree to allow for this option upon the request of
Global Crossing.
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ARTICLE 3.
CONDITIONS TO CLOSING
3.1. CONDITIONS TO OBLIGATIONS OF GCD TO CLOSE. The obligations of
GCD under Section 1.3(c) of this Agreement are subject to the fulfillment and
satisfaction, on or prior to the Closing Date, of each of the following
conditions, any one or more of which may only be waived in writing, in whole or
in part, by GCD:
(a) Representations, Warranties and Covenants True at the
Closing Date. (i) All representations and warranties of IMPSAT Corporation
contained in this Agreement shall be true and correct in all material respects
at and as of the Closing Date as though such representations and warranties had
been made or given on such date (except to the extent such representations and
warranties speak as of an earlier date), except (x) for changes contemplated by
this Agreement and (y) where the failure to be true and correct does not and can
not have a material adverse effect on the business, financial condition, results
of operations or prospects of IMPSAT Corporation and its Affiliates, taken as a
whole, or a material adverse effect on the Project; (ii) IMPSAT Corporation
shall have performed and complied with, in all material respects, its
obligations under this Agreement that are to be performed or complied with by it
prior to or on the Closing Date; and (iii) IMPSAT Corporation shall deliver a
certificate signed by one of its duly authorized officers certifying as to the
fulfillment of the conditions set forth in the foregoing clauses (i) and (ii).
(b) Basic Agreements. Each of IMPSAT Corporation and its
Affiliates and the Holding Companies shall have executed and delivered all of
the Basic Agreements to which each is required to be a party.
3.2. CONDITIONS TO OBLIGATIONS OF IMPSAT CORPORATION TO CLOSE. The
obligations of IMPSAT Corporation under Section 1.3(c) of this Agreement are
subject to the fulfillment and satisfaction, on or prior to the Closing Date, of
each of the following conditions, any one or more of which may only be waived in
writing, in whole or in part, by IMPSAT Corporation:
(a) Representations, Warranties and Covenants True at the
Closing Date. (i) All representations and warranties of GCD contained in this
Agreement shall be true and correct in all material respects at and as of the
Closing Date as though such representations and warranties had been made or
given on such date (except to the extent such representations and warranties
speak as of an earlier date), except (x) for changes contemplated by this
Agreement and (y) where the failure to be true and correct does not and can not
have a material adverse effect on the business, financial condition, results of
operations or prospects of GCD and its Affiliates, taken as a whole, or a
material adverse effect on the Project; (ii) GCD shall have performed and
complied with, in all material respects, its obligations under this Agreement
that are to be performed or complied with by it prior to or on the Closing Date;
and (iii) GCD shall deliver a certificate signed by one of its duly authorized
officers certifying as to the fulfillment of the conditions set forth in the
foregoing clauses (i) and (ii).
(b) Basic Agreements. Each of GCD and its Affiliates and the
Holding Companies shall have executed and delivered all of the Basic Agreements
to which each is required to be a party.
ARTICLE 4.
COVENANTS
4.1. ACTIONS PRIOR TO CLOSING. Upon the terms and subject to the
conditions of this Agreement and the other agreements, documents and instruments
pursuant to which the transactions
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contemplated hereby are to be consummated, GCD and IMPSAT Corporation will take
all other actions, and do, or cause to be done, all other things necessary,
proper or advisable to carry out its obligations under this Agreement and to
consummate and make effective the transactions contemplated hereby and by the
Basic Agreements, including, without limitation, the following:
(a) as soon as practicable following the execution of this
Agreement, to make all applications and filings and to use its best efforts to
obtain all other authorizations and consents required to be obtained by such
party or its Affiliates in connection with the consummation of the transactions
contemplated by this Agreement and by the Basic Agreements; and
(b) in the event any claim, action, suit, investigation or
other proceeding by any governmental authority or other person is commenced
which questions the validity or legality of any of the transactions contemplated
hereby or by any of the Basic Agreements or any injunction or other order is
issued in any such proceeding, to cooperate with the other party hereto
regarding the defense of such proceedings and the removal of any such impediment
to the consummation of such transactions and to use its reasonable best efforts
to have such injunction or other order dissolved.
4.2. INFORMATION. Each of the parties hereto agrees to keep the
other informed as to all material developments and communications relating to
the transactions contemplated by this Agreement.
4.3. PUBLIC ANNOUNCEMENTS. Either party may publicly announce that
it has entered into this Agreement, provided that the other party is given a
reasonable opportunity to review the form and content of the proposed
announcement.
4.4. CONFIDENTIALITY. GCD and IMPSAT Corporation agree that any
written information with respect to the Project delivered to it by the other
party that is confidential and proprietary and is marked "confidential and
proprietary" ("Confidential Information") will be kept confidential by GCD and
IMPSAT Corporation and shall not be disclosed, in whole or in part to any person
other than Affiliates, officers, directors, employees, agents consultants or
representatives of GCD, and IMPSAT Corporation (collectively "Representatives")
who need to know such Confidential Information. Each of the parties agrees to
inform each of its Representatives of the non-public nature of the Confidential
Information and to direct such persons to treat such Confidential Information in
accordance with the terms of this Section 4.4. Nothing herein shall prevent
either party from disclosing Confidential Information (a) upon the order of any
court or administrative agency, (b) upon the request or demand of, or pursuant
to any rule or regulation of any regulatory agency or authority, and (c) to its
legal counsel or independent auditors.
4.5. EXCLUSIVITY. During the term of this Agreement, neither party
shall solicit or encourage proposals from other parties or discuss arrangements
with other parties with respect to any activities covered by this Agreement or
the Basic Agreements; provided, however, that this Section 4.5 shall not apply
to Section 2.7 or Section 2.4.
ARTICLE 5.
REPRESENTATION AND WARRANTIES
5.1. REPRESENTATIONS AND WARRANTIES OF GCD. GCD represents and
warrants, as of the date hereof, and, as of the Closing Date, as follows:
(a) Organization and Standing. GCD is a corporation duly
incorporated, validly existing and in corporate good standing under the laws of
Delaware.
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(b) Authority; Enforceability. GCD has the corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. Such execution, delivery and performance have been duly authorized by
all necessary corporate action on the part of GCD. This Agreement has been duly
executed and delivered by GCD and constitutes a valid and legally binding
obligation of GCD, enforceable against GCD in accordance with its terms except
as such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization, or other laws affecting creditors' rights generally
or by the availability of equitable remedies.
(c) No Conflict. The execution, delivery and performance by
GCD of this Agreement (i) does not contravene any provision of GCD's charter or
by-laws; and (ii) does not violate or conflict with any material law, regulation
or contractual restriction to which GCD is subject.
(d) Consents and Governmental Authorizations. Except for the
GCD Authorizations, no material consent, order, approval or authorization or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
GCD of any of the Basic Agreements and the consummation of the transactions
contemplated thereby.
(e) Litigation. There is no action, suit, proceeding, or
investigation pending or, to the best knowledge of GCD, threatened, against or
affecting GCD, or its properties, assets or business, in any court or before or
by any governmental department, board, agency or instrumentality, or any
arbitrator, that materially affects or impairs GCD's or the Holding Companies'
ability to enter into this Agreement or any Basic Agreement, or to consummate
the transactions contemplated hereby or thereby.
5.2. REPRESENTATIONS AND WARRANTIES OF IMPSAT. IMPSAT Corporation
represents and warrants, as of the date hereof, and, as of the Closing Date, as
follows:
(a) Organization and Standing. IMPSAT Corporation is a
corporation duly incorporated, validly existing and in corporate good standing
under the laws of the State of Delaware.
(b) Authority; Enforceability. IMPSAT Corporation has the
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. Such execution, delivery and performance have
been duly authorized by all necessary corporate action on the part of IMPSAT
Corporation. This Agreement has been duly executed and delivered by IMPSAT
Corporation and constitute the valid and legally binding obligation of IMPSAT
Corporation, enforceable against IMPSAT Corporation in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization, or other laws affecting creditors'
rights generally or by the availability of equitable remedies.
(c) No Conflict. The execution, delivery and performance by
IMPSAT Corporation of this Agreement (i) does not contravene any provision of
IMPSAT Corporation's charter or by-laws; and (ii) does not violate or conflict
with any material law, regulation or contractual restriction to which IMPSAT
Corporation is subject.
(d) Consents and Governmental Authorizations. Except for the
IMPSAT Authorizations, no material consent, order, approval or authorization or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
IMPSAT of any of the Basic Agreements and the consummation of the transactions
contemplated thereby.
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(e) Litigation. There is no action, suit, proceeding or
investigation pending or, to the best knowledge of IMPSAT, threatened, against
or affecting IMPSAT or its properties, assets or business, in any court or
before or by any governmental department, board, agency or instrumentality, or
any arbitrator, that materially affects or impairs IMPSAT's or the Holding
Companies' ability to enter into this Agreement or any Basic Agreement, or to
consummate the transactions contemplated hereby or thereby.
ARTICLE 6.
TERMINATION AND EXPENSES
6.1. TERMINATION. Notwithstanding anything herein, this Agreement may
be terminated and the Project abandoned at any time prior to the Closing Date:
(a) by mutual consent of GCD and IMPSAT Corporation;
(b) by either GCD or IMPSAT Corporation, if either GCD or
IMPSAT Corporation receives a final non-appealable order from any regulatory
authority denying an authorization necessary in order for any party to execute
and deliver any of the Basic Agreements;
(c) by either GCD or IMPSAT Corporation, if the Closing shall
not have occurred on or before December 31, 1999, unless such failure so to
consummate shall be due to the failure of the party seeking to terminate this
Agreement to perform in all material respects each of its obligations under this
Agreement required to be performed by it on or prior to the Closing Date
pursuant to the terms hereof (unless such failure to consummate is due to the
failure to obtain required authorizations in which case such date shall be
extended for an additional three months);
(d) by GCD, if there has been a material breach of a
representation or warranty in this Agreement by IMPSAT Corporation, and IMPSAT
Corporation fails to cure such breach within 60 days after notice thereof from
GCD, or a material breach by IMPSAT Corporation of any covenant set forth in
this Agreement or a failure of any condition to which the obligations of GCD are
subject, and such breach or failure has not been waived expressly in writing;
(e) by IMPSAT Corporation, if there has been a material breach
of a representation or warranty in this Agreement by GCD and GCD fails to cure
such breach within 60 days after notice thereof from IMPSAT Corporation or a
material breach by GCD of any covenant set forth in this Agreement or a failure
of any condition to which the obligations of IMPSAT Corporation are subject, and
such breach or failure has not been waived expressly in writing.
6.2. LIABILITIES IN EVENT OF TERMINATION. In the event of the
termination and abandonment of this Agreement and the transactions contemplated
hereby, this Agreement shall become void and have no effect, and GCD, IMPSAT
Corporation and their respective directors, officers, employees and shareholders
shall have no obligation or liability to each other hereunder, except (a) for
those obligations set forth in Sections 4.3, 4.4 and 4.5, (b) for any
obligations of GCD and IMPSAT Corporation arising from the activities of the
Project prior to such termination and (c) that nothing herein shall relieve any
party from liability for any breach of this Agreement.
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ARTICLE 7.
MISCELLANEOUS
7.1. SURVIVAL. The representations and warranties and covenants of
each of the parties contained in this Agreement shall survive until the Closing.
7.2. DEFINED TERMS. As used herein, the following terms have the
following meanings:
"Affiliate" means (i) as to any Person, any other Person (other than a
Holding Company) which, directly or indirectly, is controlled by such Person,
and (ii) as to GCD, Global Crossing Ltd., a Bermuda corporation, and any other
Person (other than a Holding Company) controlled by Global Crossing Ltd. For
purposes of this definition, "control" of a Person means the power, directly or
indirectly, either to (a) vote 50% or more of the securities having ordinary
voting power for the election of directors of such Person, or (b) direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise
"GCD Authorizations" means all regulatory consents, authorizations and
approvals with respect to Global Crossing that may be necessary for Global
Crossing to enter into and perform its obligations under the Basic Agreements,
but excluding any telecommunications licenses relating to the Backhaul System in
any Territory.
"IMPSAT Authorizations" means all regulatory consents, authorizations
and approvals in each Territory with respect to IMPSAT and its Affiliates that
may be necessary for IMPSAT and its Affiliates to enter into and perform their
obligations under the Basic Agreements.
"Person" means any natural person or corporation, limited liability
company, general partnership, limited partnership, venture, trust, business
trust, estate or other entity.
7.3. SUCCESSORS AND PERMITTED ASSIGNS; ASSIGNMENT.
(a) Subject to Section 7.3(b), the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and to the extent applicable heirs,
executors, administrators and legal representatives.
(b) Neither party may assign, delegate or otherwise transfer
any of its rights or obligations under this Agreement without the prior written
consent of each of the parties hereto. Notwithstanding the foregoing and except
as set forth in Exhibit 4, a party may assign its rights and obligations under
this Agreement to an Affiliate provided that the assigning party will continue
to be responsible for its liabilities and obligations hereunder.
7.4. NOTICES. All notices, requests and other communications
hereunder shall be deemed to have been duly delivered, given or made to or upon
any party hereto if in writing and delivered by hand against receipt, or by
certified or registered mail, postage prepaid, return receipt requested, or to a
courier who guarantees next business day delivery or sent by telecopy (with
confirmation), to such party at its address set forth below or to such other
address as such party may at any time, or from time to time, direct by notice
given in accordance with this Section 7.4.
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if to GCD:
Global Crossing, Ltd.
c/o Global Crossing Development Co.
0000 Xx Xxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Global Crossing Development Co.
00 Xxxxxxxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx
and to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
if to IMPSAT:
IMPSAT Corporation
Xxxxxxx Xxxxxx 000 (0000)
Xxxxxx Xxxxx, Xxxxxxxxx
Fax: 00-00-0000-0000
Attention: Xxxxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
Xxxxx X. Xxxxx
The date of delivery of any such notice, request or other communication shall be
the earlier of (i) the date of actual receipt or (ii) three business days after
such notice, request or other communication is sent if sent by certified or
registered mail, (iii) if sent by courier who guarantees next business day
delivery the business day next following the day such notice, request or other
communication is actually delivered to the courier or (iv) the day actually
telecopied.
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7.5. AMENDMENTS AND WAIVERS. (a) Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement, or
in the case of a waiver, by the party against whom the waiver is to be
effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
7.6. GOVERNING LAW; SEVERABILITY. THIS AGREEMENT IS GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK,
EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE
OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. If any
provision of this Agreement or its application to any Person or circumstance is
held invalid or unenforceable to any extent, the remainder of this Agreement and
the application of such provision to other Persons or circumstances is not
affected and such provision shall be enforced to the greatest extent permitted
by law.
7.7. JURISDICTION. Each of the parties hereby (a) submits to the
jurisdiction of any state or federal court sitting in the State and County of
New York, Borough of Manhattan, in any action arising out of or relating to this
Agreement, and (b) agrees that it will not initiate any action arising out of or
relating to this Agreement in any court other than any state or federal court
sitting in the State and County of New York, Borough of Manhattan.
7.8. EXPENSES. All expenses incurred by any party hereto in
connection with the negotiation, preparation and consummation of this Agreement
and the transactions contemplated hereby shall be borne by such party except as
otherwise expressly provided in any provision of this Agreement.
7.9. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signature thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
7.10. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
7.11. ENTIRE AGREEMENT. This Agreement, the Exhibits attached (or to be
attached) hereto and the agreements, documents and instruments contemplated
hereby, constitute the entire agreement between the parties with respect to the
subject matter hereof, and supersede all prior agreements and understandings,
whether oral or written, between or among any of the parties hereto with respect
to the subject matter hereof. To the extent of any inconsistency between this
Agreement and the June Proposal, the terms of this Agreement shall prevail.
7.12. INTERPRETATION. In any dispute concerning the construction or
interpretation of any provision of this Agreement or any ambiguity thereof,
there shall be no presumption that the Agreement or any provision hereof be
construed against the party who drafted this Agreement.
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7.13. FURTHER ASSURANCES. In connection with this Agreement and the
transactions contemplated hereby, each party shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and such transactions.
7.14. NO THIRD PARTY BENEFICIARIES. This Agreement does not provide and
is not intended to provide any third party (including but not limited to
customers of IMPSAT or Global Crossing) with any remedy, claim, liability,
reimbursement, cause of action, or any other right.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement as of the date first set forth above.
GLOBAL CROSSING DEVELOPMENT CO.
By
------------------------------------------
Name:
Title:
IMPSAT CORPORATION
By
------------------------------------------
Name:
Title:
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EXHIBIT 1
BACKHAUL CONSTRUCTION RFS DATES AND COST ESTIMATES
CITY RFS DATE COST ESTIMATES**
---- -------- ----------------
Caracas [ ], 2000 US $[ ] million
Sao Paulo [ ], 2000 US $[ ] million
Rio de Janeiro [ ], 2000 US $[ ] million
Bogota* [ ], 2001 US $[ ] million
Lima [ ], 2001 US $[ ] million
* For Colombia, IMPSAT will construct dark fiber from the Buenaventura
Cable Station to IMPSAT's point-of-presence in Cali, Colombia. IMPSAT
will provide [
], for an RFS date of [ ] 2001 to meet market
requirements until dark fiber from Cali to Bogota is built or acquired.
IMPSAT commits to use its reasonable best efforts to acquire or
construct dark fiber from Cali [ ] not later than [ ]
2003, for the Colombian Holding Company. These cost estimates are only
for the construction of dark fiber between the Cable Station in
Buenaventura and the IMPSAT point-of-presence in Cali, Colombia.
** These preliminary cost estimates were developed for purposes of a
feasibility study and are subject to revision. The estimates for
Venezuela, Colombia and Peru were provided to GCD on January 19, 1999,
and the estimates for Brazil were provided on April 26, 1999. These
estimates include the costs for fiber optic cable installation, fiber
optic cable, transmission equipment and rights of way for the first two
years of operation. These estimates have been prepared based on the
assumptions contained in the feasibility study.
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EXHIBIT 2
TELEHOUSE AGREEMENTS
Telehouse Lease Commitment Global Crossing agrees to lease space in the
IMPSAT Telehouses identified below (the
"Telehouses") for the term of twenty five
(25) years on the terms and conditions set
forth below. The lease will cover the rent of
space with the basic services set forth below
(the "Basic Services").
Telehouses location and space Caracas, Venezuela: [ ] square meters
requirements Buenos Aires, Argentina: [ ] square meters
Sao Paulo, Brazil: [ ] square meters
Rio de Janeiro, Brazil: [ ] square meters
Santiago, Chile: [ ] square meters
Bogota, Colombia: [ ] square meters
Lima, Peru: [ ] square meters
Ready for Service Dates Caracas, Venezuela: [ ] 2000
Buenos Aires, Argentina: [ ] 2000
Sao Paulo, Brazil: [ ] 0000
Xxx xx Xxxxxxx, Xxxxxx: [ ] 2000
Santiago, Chile: [ ] 2000
Bogota, Colombia: [ ] 2000
Lima, Peru: [ ] 2000
Telehouse Annual Rental Fee Caracas, Venezuela: US$ [ ]
Buenos Aires, Argentina: US$ [ ]
Sao Paulo, Brazil: US$ [ ]
Rio de Janeiro, Brazil: US$ [ ]
Santiago, Chile: US$ [ ]
Bogota, Colombia: US$ [ ]
Lima, Peru: US$ [ ]
These prices do not include Value Added Tax.
Term 25 years from the Ready for Service Date of
each Telehouse.
Payment Schedule: Quarterly, in advance.
Payment adjustment: According to inflation rate in USA and for
increases in the actual costs of Basic
Services.
Telehouse Basic Services Telehouse Basic Services includes: Protected
and unprotected AC power supply, Protected DC
power supply, Environmental conditions
control: Temperature and humidity control,
Fire detection & suppression system,
Artificial Lighting system, Access Control,
Restrooms & Janitorial Services.
Basic services (included in the annual rental
fee):
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Electric power supply: All the electric power
supplied to the Telehouse, including that
necessary for powering the telecommunications
equipment, HVAC (within the environmental
conditions already established), fire
protection, lighting, etc. up to a limit of
200 KVA for [ ] sq.m. and 400 KVA for [ ]
sq.m. Artificial Lighting system: 500 lux.
Final lease prices will be adjusted from
above to reflect increased power requirements
from those set forth above to 300 KVA for [ ]
sq.m. and 600 KVA for [ ] sq.m.
Access Control: The surveillance service will
be limited to controlled access at the
entrance of Telehouse. It does not include a
permanent supervision of activities in the
Telehouse of any personnel that has
permission to access the Telehouse. Cleaning
and Infrastructure Maintenance Services:
General cleaning and basic maintenance of the
infrastructure of all common areas and of the
electric system. Taxes and impositions: All
property taxes and similar impositions
pertaining to the Telehouse building and/or
to the services provided by IMPSAT as part of
this agreement, at the rates applicable at
the date of signature of this agreement, are
included in the rental price, subject to
increase in the rental for increases in such
impositions.
Operating Charges In addition to the rent set forth above,
Global Crossing shall pay to IMPSAT as
additional rent (i) the amount by which all
charges for electricity, gas, water, sewer
and other utility charges of every type and
nature attributable to the Global Crossing
area in the Telehouse (such charges,
"Operating Charges") for each calendar year
falling entirely or partly within the Term
exceed the Operating Charges for the first
full calendar year of the lease (the "Base
Year"), and (ii) Global Crossing's pro rata
share of the amount by which property taxes
and other similar impositions for each
calendar year falling entirely or partly
within the Term exceed Global Crossing's pro
rata share of such impositions for the Base
Year. Global Crossing's pro rata share shall
be determined by dividing the number of
rentable square meters contained in the
Global Crossing area in the Telehouse, by the
total number of square meters contained in
the Telehouse building.
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EXHIBIT 3
TAC AGREEMENT
1. Agreements.
GCD and IMPSAT agree that the firm fixed price for the construction of
TAC as described in the June Proposal as modified by this Agreement,
including one duct between Buenos Aires and Xxxxxxx on the IMPSAT 2000
route, is US$ 64,000,000 (sixty four million United States Dollars).
This agreement includes the following understanding:
a) RFS dates are maintained as described in 2 below.
b) No fiber will be provided by IMPSAT for TAC.
c) Dedicated and exclusive manholes and handholes for the duct
between Buenos Aires and Xxxxxxxx are included.
d) System design and engineering remain as agreed between parties
and described in the June Proposal.
e) RoW costs for the first 10 years period, only, in Chile.
Subsequent RoW costs in Chile are at GCD expense.
f) The facilities and services (shelter, land, power,
surveillance, security, etc.) remain the same as in the June
Proposal.
g) IMPSAT's project management fees of US$ [
] dollars United States Dollars) are included
in the $64 million price stated above.
h) Terms and conditions included in the June Proposal except for
those modified herein remain unchanged and valid.
2. TAC RFS Dates.
CITY PAIR RFS DATE
--------- --------
Las Toninas - Buenos Aires [ ] 2000
Buenos Aires - Xxxxxxx (Dark Fiber) [ ] 2000
Xxxxxxx - Xxxxxxxx [ ] 2000
Xxxxxxxx - Algarrobo [ ] 2000
3. GCD agrees to compensate IMPSAT US$ [ ]
United States Dollars) for its increased costs resulting from the
changeout from Corning to Lucent fiber. This amount represents full and
final settlement for all costs incurred by IMPSAT arising out of such
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changeout. This compensation will be paid in dark fiber on the Xxxxxxx
- Xxxxxxxx route or in backhaul credits or in some other form agreed to
by the parties. For the dark fiber in the Xxxxxxx - Xxxxxxxx route, the
25 year IRU unit price is US$ [ ] per fiber pair per kilometer, and
annual maintenance services of $[ ] per fiber pair per route
kilometer with price reviews every two years. These prices include
facilities and services (dedicated shelter, land, power, surveillance,
security, etc.) as included in the IMPSAT proposal to GCD.
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EXHIBIT 4
CAPACITY PURCHASE AGREEMENT
Capacity Purchase Commitment: IMPSAT agrees to purchase not less than $46M
of capacity on the Global Crossing Network,
with special Anchor Tenant pricing on the
South American Crossing (SAC), Mid-Atlantic
Crossing (MAC) and Pan American Crossing
(PAC) systems. Capacity purchases can be
accomplished by buying at least [ ] STM-1s on
SAC, MAC and PAC in any combination on these
systems.
South American Crossing (SAC) Global Crossing will offer twenty five (25)
Anchor Tenant Pricing: year IRUs to IMPSAT for significant blocks of
capacity on SAC as follows:
- First [ ] STM-1s (between any 2
landing points on SAC: Las Toninas,
Argentina; Algarrobo, Chile; Lurin,
Peru; Buenaventura, Colombia; Ft.
Xxxxxx, Panama; Puerto Viejo, Venezuela;
St. Croix, USVI; Fortaleza, Brazil; Rio
de Janeiro, Brazil; and Xxxxxx, Brazil)
at $[ ] per STM-1.
- The price per STM-1 from Puerto Viejo to
St. Croix is the only exception to the
price noted above - capacity on this
route is priced at $[ ] per STM-1.
- OPTIONAL - After IMPSAT purchases [ ]
STM-1s on SAC, MAC and PAC, the second
group of [ ] STM-1s on SAC will be
priced at $[ ] per STM-1.
Mid-Atlantic Crossing (MAC) Global Crossing will offer twenty five (25)
Anchor Tenant Pricing: year IRUs to IMPSAT for significant blocks of
capacity on MAC, as follows:
- STM-1s on MAC from St. Croix to either
Hollywood, Florida or Brookhaven, NY for
$[ ] per STM-1.
- OPTIONAL - IMPSAT may elect to purchase
clear channel STM[ ]s on MAC for $[ ]
each.
Pan American Crossing (PAC) Global Crossing will offer twenty five (25)
Anchor Tenant Pricing: year IRUs to IMPSAT for significant blocks of
capacity on PAC, as follows:
- STM-1s on PAC from Panama to either
Mazatlan or Tijuana, Mexico for $[ ]
per STM-1.
- OPTIONAL - After IMPSAT purchases [ ]
STM-1s on PAC from Panama to Mexico (as
noted above), each subsequent STM-1 will
be priced at $[ ].
- STM-1s on PAC from Panama to either
Grover Beach, California, or Harbour
Pointe, Washington for $[ ] per STM-1.
- OPTIONAL - After IMPSAT purchases [ ]
STM-1s on PAC from Panama to the United
States (as noted above), each subsequent
STM-1 will be priced at $[ ].
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Backhaul Capacity: IMPSAT will purchase backhaul capacity on
demand at a [ ]% discount from our standard
rates. However, IMPSAT will not be required
to pay for backhaul capacity in Buenos Aires
and Xxxxxxxx.
D[ ] Option IMPSAT may purchase D[ ] for [ ]% of the
STM-1 prices noted above as part of the $46M
commitment. If within 12 months of activation
of any D[ ], IMPSAT elects to upgrade such
circuit to an STM-1 they will only pay the
remaining [ ]% of the STM-1 price.
Payment Tranches: [ ] percent ([ ]%) upon execution of the
definitive documentation in connection with
the capacity purchase. The remaining [
] percent ([ ]%), due in four tranches,
as follows -
1) [ ] percent ([ ]%) due prior to
activation of capacity, but in no event
later than the first anniversary of the
full system RFS date.
2) [ ] percent ([ ]%) due prior to
activation of capacity, but in no event
later than the second anniversary of the
full system RFS date.
3) [ ] percent ([ ]%) due prior to
activation of capacity, but in no event
later than the third anniversary of the
full system RFS date.
4) [ ] percent ([ ]%) due prior to
activation of capacity, but in no event
later than the fourth anniversary of the
full system RFS date.
Please note that IMPSAT may accelerate this
take down of capacity at any time, with the
payment for such capacity preceding
activation.
Financing Option:
At IMPSAT's option, IMPSAT may pay for the
activation of individual STM-1s within the 4
Payment Tranches, in the following manner:
[ ]% of the STM-1 purchase price due
immediately following customer acceptance (of
the particular circuit) with the remaining
[ ]% financed over [ ] months at an
annual interest rate of [ ]%, payable in
equal quarterly installments.
Operations, Administration & A flat rate annual OA&M fee is charged per
Maintenance (OA&M): STM-1 that has been activated. Payments are
made quarterly, in advance.
Global Crossing is in the process of
reviewing OA&M fees, but we guarantee that
the annual OA&M fee will not exceed [ ]% of
the purchase price of the activated capacity.
Reassignment/Reallocation of Global Crossing recognizes that IMPSAT will
be purchasing capacity on behalf of its
affiliated companies, as such, there are
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Capacity: no restrictions on transferring ownership
among companies in which IMPSAT maintains ten
percent (10%) or greater ownership.
Global Crossing Network Offer: In recognition of the significant investment
in capacity this "Anchor Tenant" offer
represents for IMPSAT, Global Crossing will
provide capacity, on demand, across the
entire Global Crossing Network at [ ]% of our
lowest Published Prices (i.e., a [ ]%
discount). Please note that published annual
OA&M fees shall apply to any such purchases.
Anchor Tenant Price Guarantee: IMPSAT agrees to spend not less than $46M for
capacity on the Global Crossing Network in
the manner set forth above. The purchase
price for any capacity that IMPSAT activates
pursuant to this agreement shall equal the
lower of (i) the Anchor Tenant prices set
forth above and (ii) [ ]% of Global
Crossing's then-current lowest Published
Prices for such capacity (i.e., a [ ]%
discount off of Global Crossing's Published
Prices at the time such capacity is
activated).
This price guarantee extends to backhaul as
well as SAC, MAC and PAC capacity as noted
above.
Published Prices The current lowest Published Prices are
attached to this agreement, they include:
City to City Pricing, Cable Station to Cable
Station Prices and Backhaul. Global Crossing
will furnish revised pricing information when
amendments are made.
Collocation in St. Croix Global Crossing agrees to provide collocation
space in the St. Croix cable station to
IMPSAT for bandwidth management equipment on
terms to be mutually agreed, consistent with
industry standards.
Ready for Service Dates The full system RFS date for SAC is expected
to be [ ], 2001. IMPSAT may elect
to activate capacity once it is made
commercially available by Global Crossing. At
present, we estimate that capacity will be
made available from Venezuela in [ ]
2000, and from the other Atlantic Ocean
landing sites on SAC in [ ] 2000.
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