{"id":42342,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indefeasible-right-of-use-agreement-global-crossing-holdings.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indefeasible-right-of-use-agreement-global-crossing-holdings","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/indefeasible-right-of-use-agreement-global-crossing-holdings.html","title":{"rendered":"Indefeasible Right of Use Agreement &#8211; Global Crossing Holdings Ltd. and Qwest Communications International Inc."},"content":{"rendered":"<pre>\n \n          THIS AGREEMENT (as amended, supplemented or otherwise modified from\ntime to time, this 'Agreement'), entered into as of July 18, 1999, between\n                    ---------                                             \nGLOBAL CROSSING HOLDINGS LTD., a corporation organized and existing under the\nlaws of Bermuda and having its principal office in Hamilton, Bermuda (said\ncompany, and any permitted successor or assign hereunder, the 'Grantor'), and\n                                                               -------       \nQWEST COMMUNICATIONS INTERNATIONAL INC., a corporation organized and existing\nunder the laws of  Delaware and having its principal office in Denver, Colorado\n(said company, and any permitted successor or assign hereunder, the\n'Purchaser').  The Grantor and the Purchaser are herein sometimes collectively\n ---------                                                                    \nreferred to as the 'Parties'.\n                    -------  \n\n                              W I T N E S S E T H:\n                              ------------------- \n\n          WHEREAS, Atlantic Crossing Ltd.  has constructed a fiber optic cable\nsystem connecting the United States, the United Kingdom, the Netherlands and\nGermany known as the Atlantic Crossing System or 'AC-1'; Pacific Crossing Ltd.\n                                                  ----                        \nis constructing a fiber optic cable system connecting the United States and\nJapan known as the Pacific Crossing System or 'PC-1'; Mid-Atlantic Crossing Ltd.\n                                               ----                             \nis constructing a fiber optic cable system connecting New York, Florida and St.\nCroix, known as the Mid-Atlantic Crossing System or 'MAC'; Pan American Crossing\n                                                     ---                        \nLtd. is constructing a fiber optic cable system connecting California, Mexico,\nPanama, Venezuela and St. Croix, known as the Pan American Crossing System or\n'PAC' (PAC also includes a terrestrial network which connects certain major\n----                                                                       \ncities in Mexico); GC Pan European Crossing Holdings B.V. is constructing a\nfiber optic cable network connecting various principal cities in Europe, known\nas Pan-European Crossing or 'PEC'; and South American Crossing Ltd. is\n                             ---                                      \nconstructing a submarine fiber optic cable system connecting Panama, Colombia,\nPeru, Chile, Argentina, Brazil and St. Croix, known as South American Crossing\nor 'SAC';\n    ---  \n\n          WHEREAS, Atlantic Crossing Ltd., Pacific Crossing Ltd., Mid-Atlantic\nCrossing Ltd., Pan American Crossing Ltd., GC Pan European Crossing Holdings\nB.V. and South American Crossing Ltd. are referred to herein as the 'System\n                                                                     ------\nCompanies' and AC-1, PC-1, MAC, PAC, PEC and SAC are referred to herein as the\n---------                                                                     \n'Systems';\n -------\n\n          WHEREAS, Grantor is affiliated with each of the System Companies and\ncan cause the System Companies to grant IRUs in capacity on the Systems to the\nPurchaser;\n\n          WHEREAS, additional companies controlled by the Grantor may in the\nfuture construct other systems, though there is no obligation to do so, in which\ncase such additional companies will,  if the Purchaser elects, be deemed to be\n'System Companies' under this Agreement and such additional systems will, if the\nPurchaser elects, be deemed to be 'Systems' under this Agreement; and\n\n          WHEREAS, the Purchaser desires to acquire rights with respect to\ncapacity on one or more of the Systems on an indefeasible right of use basis\n('IRU');\n\n \n          NOW, THEREFORE, the Parties, in consideration of the mutual covenants\ncontained herein, and for other good and valuable consideration, the receipt of\nwhich is hereby acknowledged, covenant and agree with each other as follows:\n\n1.   DEFINITIONS.  Unless otherwise defined herein, all terms which are commonly\n     -----------                                                                \nused in the undersea telecommunications industry shall have the meanings\ncommonly given such terms in such industry.  In addition to terms defined in the\npreamble, the recitals and in the text of this Agreement, the following terms\nshall have the following meanings:\n\n     'Dollars' or '$' means United States Dollars.\n      -------      -                              \n\n     'Final Payment Date' means the last day of the Purchase Period.\n      ------------------                                            \n\n     'Minimum Capacity Unit' or 'MCU' means, with respect to any System,  the\n      ---------------------      ---                                         \nminimum amount of capacity that is generally offered by the Grantor (or its\napplicable affiliate) on such System to purchasers; provided, however, such\n                                                    --------  -------      \nminimum capacity (for purposes of this Agreement) shall not be above the STM-1\nlevel unless agreed to by the Purchaser in writing.\n\n     'Purchase Period' means the period beginning on the date hereof and ending\n      ---------------                                                          \non the second anniversary of such date.\n\n2.   PURCHASE AGREEMENT.\n     ------------------ \n\n     (a) Purchaser hereby unconditionally and irrevocably agrees to purchase and\npay for (and\/or cause one or more of its Affiliates (as defined below) to\npurchase and pay for) MCUs on the Systems during the Purchase Period in an\naggregate amount equal to $140,000,000 (the 'Commitment').  The commitment\n                                             ----------                   \ncontained herein to purchase MCUs is in addition to, and separate from, any and\nall other commitments of the Purchaser and\/or any of its affiliates to purchase\ncapacity on the Systems.  For the avoidance of doubt, (i) a purchase of an MCU\nhereunder will not be deemed to reduce or fulfill any other contractual\ncommitment or other obligation to purchase capacity on any System and (ii) a\npurchase of an MCU by the Purchaser or any of its affiliates pursuant to any\nother contractual commitment or other obligation shall not be credited toward\nthe Commitment.  The Grantor hereby unconditionally and irrevocably agrees to\nsell or cause the System Companies to sell MCUs to the Purchaser and\/or its\nAffiliates pursuant to, and in accordance with the terms of, this Agreement.\n\n     (b) The price for MCUs on any System purchased pursuant to Section 2(a)\nhereof shall be at the lower of (i) the best 'Tier 3' published prices available\nas at the date hereof for such System and (ii) the best available 'top Tier'\npublished prices (currently 'Tier 3') for such System on the date the applicable\ncapacity purchase agreement is executed for such MCUs.\n\n     (c) Purchases of capacity on any System pursuant to this Agreement shall be\neffected by Purchaser executing, delivering and complying with a Capacity\nPurchase Agreement ('CPA') with the particular System Company or one of its\naffiliates, such CPA to contain substantially the same terms and conditions\nregarding capacity as set forth in the Capacity Purchase Agreement, dated as\n\n \nof December 29, 1998, between Atlantic Crossing Ltd. and an affiliate of the\nPurchaser and in the schedules and exhibits attached thereto.\n\n     (d) If, on the Final Payment Date, the Purchaser has paid less than the\nentire Commitment to the Grantor by purchasing MCUs under this Agreement, the\nPurchaser shall pay to the Grantor (or any of the Grantor's affiliates\ndesignated by the Grantor), in immediately available funds, on the Final Payment\nDate, the amount equal to the difference between (x) $140,000,000 and (y) the\nactual amount paid by the Purchaser for MCUs under this Agreement (such\ndifference being referred to herein as the 'Unutilized Amount').  Such payment\n                                            -----------------                 \nshall be irrevocable; provided, however, during the period from the Final\n                      --------  -------                                  \nPayment Date to and including the fourth anniversary of the date of this\nAgreement, the Purchaser may utilize all or any portion of the Unutilized Amount\nas a credit to purchase MCUs pursuant to a CPA, such CPA to contain\nsubstantially the same terms and conditions regarding capacity as set forth in\nthe Capacity Purchase Agreement, dated as of December 29, 1998, between Atlantic\nCrossing Ltd. and an affiliate of the Purchaser and in the schedules and\nexhibits attached thereto.\n\n3.   REPRESENTATIONS\n     ---------------\n\n     (a) The Grantor hereby represents and warrants to Purchaser that (i)\nGrantor is a corporation duly organized and validly existing under the laws of\nBermuda; (ii) the execution, delivery and performance of this Agreement by\nGrantor has been duly authorized by all necessary corporate action on the part\nof Grantor and this Agreement is a valid, binding and enforceable obligation of\nGrantor enforceable with its terms and (iii) the execution, delivery and\nperformance of this Agreement by Grantor does not violate, conflict with or\nconstitute a breach of, the organizational documents or any order, decree or\njudgment of any court, tribunal or governmental authority binding on Grantor.\nThe Grantor hereby further represents, warrants and covenants that it is\naffiliated with each of the System Companies and shall cause the applicable\nSystem Companies to grant  IRUs in MCUs on the Systems to the Purchaser and\/or\nits Affiliates pursuant to, and in accordance with the terms of, this Agreement.\n\n     (b) Purchaser hereby represents and warrants to Grantor that (i) Purchaser\nis a corporation duly organized and validly existing under the laws of its\njurisdiction of organization; (ii) the execution, delivery and performance of\nthis Agreement by Purchaser has been duly authorized by all necessary corporate\naction on the part of Purchaser and this Agreement is a valid, binding and\nenforceable obligation of Purchaser enforceable in accordance with its terms;\nand (iii) the execution, delivery and performance of this Agreement by Purchaser\ndoes not violate, conflict with or constitute a breach of, the organizational\ndocuments or any order, decree or judgment of any court, tribunal or\ngovernmental authority binding on Purchaser.\n\n4.   SETTLEMENT OF DISPUTES.\n     ---------------------- \n\n     (a) The Parties shall endeavor to settle amicably by mutual discussions any\ndisputes, differences, or claims whatsoever related to this Agreement.\n\n \n     (b) Failing such amicable settlement, any controversy, claim or dispute\narising under or relating to this Agreement, including the existence, validity,\ninterpretation, performance, termination or breach thereof, shall finally be\nsettled by arbitration in accordance with the International Arbitration Rules of\nthe American Arbitration Association ('AAA').  There shall be three (3)\narbitrators (the 'Arbitration Tribunal'), the first of which shall be appointed\nby the claimant in its notice of arbitration, the second of which shall be\nappointed by the respondent within thirty (30) days of the appointment of the\nfirst arbitrator and the third of which shall be jointly appointed by the party-\nappointed arbitrators within thirty (30) days thereafter.  The language of the\narbitration shall be English.  The Arbitration Tribunal shall issue a written\nopinion and will not have authority to\n\n \naward punitive damages to either party.  Each party shall bear its own expenses,\nbut the parties shall share equally the expenses of the Arbitration Tribunal and\nthe AAA.  This Agreement shall be enforceable, and any arbitration award shall\nbe final, and judgment thereon may be entered in any court of competent\njurisdiction.  The arbitration shall be held in New York, New York, USA.\n\n5.   GOVERNING LAW .\n     -------------  \n\n     THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE\nLAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.\n\n6.   NO THIRD PARTY BENEFICIARIES\n     ----------------------------\n\n     This Agreement does not provide and is not intended to provide third\nparties (including, but not limited to, customers of the Purchaser) with any\nremedy, claim, liability, reimbursement, cause of action, or any other right.\n\n7.   ASSIGNMENT.\n     ----------  \n\n     (a) This Agreement and all of the provisions hereof shall be binding upon\nand inure to the benefit of the parties hereto and their respective successors\nand permitted assigns.\n\n     (b) The Grantor shall solely be responsible for complying with all of the\nterms binding on the 'Grantor' hereunder and shall not be permitted to assign,\ntransfer or otherwise dispose of any or all of its right, title or interest\nhereunder or delegate any or all of its obligations hereunder to any person or\nentity except that the Grantor shall be permitted to assign, transfer or\n       ------                                                           \notherwise dispose of any or all of its rights hereunder and delegate any or all\nof its obligations hereunder to any present or future entity controlled by,\nunder the same control as, or controlling, the Grantor.  The Grantor shall give\nthe Purchaser notice of any such assignment, transfer or other disposition or\nany such delegation.\n\n     (c) The Purchaser shall solely be responsible for complying with all of the\nterms binding on the 'Purchaser' hereunder and shall not be permitted to assign,\ntransfer or otherwise dispose of any or all of its right, title or interest\nhereunder or delegate any or all of its obligations hereunder to any person or\nentity; provided, that Purchaser may assign the right to enter into a CPA with\n        --------                                                              \nSystem Companies to any present or future entity controlled by, under the same\ncontrol as, or controlling the Purchaser (its 'Affiliates').\n                                               ----------   \n\n     (d) Any assignment, transfer or other disposition by either Party which is\nin violation of this Section shall be void and of no force and effect.\n\n \n8.   NOTICES.\n     ------- \n\n     Each notice, demand, certification or other communication given or made\nunder this Agreement shall be in writing and shall be delivered by hand or sent\nby registered mail or by facsimile transmission to the address of the respective\nParty as shown below (or such other address as may be designated in writing to\nthe other party hereto in accordance with the terms of this Section):\n\n                  If to the Purchaser:  Qwest Communications International, Inc.\n                                        700 Qwest Tower\n                                        555 Seventeenth Street\n                                        Denver, Colorado  80202\n                                        Attn:  General Counsel\n                                        Fax No.  303-992-1044\n \n                  If to the Grantor:    Global Crossing Holdings Ltd.\n                                        Wessex House\n                                        45 Reid Street\n                                        Hamilton HM12, Bermuda\n                                        Attn:  President\n                                        Fax No.:  441-296-8606\n\n     Any change to the name, address and facsimile numbers may be made at any\ntime by giving fifteen (15) days prior written notice in accordance with this\nSection.  Any such notice, demand or other communication shall be deemed to have\nbeen received, if delivered by hand, at the time of delivery or, if posted, at\nthe expiration of seven (7) days after the envelope containing the same shall\nhave been deposited in the post maintained for such purpose, postage prepaid,\nor, if sent by facsimile, at the date of transmission if confirmed receipt is\nfollowed by postal notice.\n\n9.   SEVERABILITY.\n     ------------  \n\n     If any provision of this Agreement is found by an arbitral, judicial or\nregulatory authority having jurisdiction to be void or unenforceable, such\nprovision shall be deemed to be deleted from this Agreement and the remaining\nprovisions shall continue in full force and effect.\n\n10.  HEADINGS\n     --------\n\n     The Section headings of this Agreement are for convenience of reference\nonly and are not intended to restrict, affect or influence the interpretation or\nconstruction of provisions of such Section.\n\n \n11.  COUNTERPARTS.\n     ------------ \n\n     This Agreement may be executed in counterparts, each of which when executed\nand delivered shall be deemed an original.  Such counterparts shall together (as\nwell as separately) constitute one and the same instrument.\n\n12.  ENTIRE AGREEMENT\n     ----------------\n\n     This Agreement supersedes all prior or written understandings between the\nparties hereto and constitutes the entire agreement with respect to the subject\nmatter herein.  This Agreement shall not be modified or amended except by a\nwriting signed by authorized representatives of the parties hereto.\n\n13.  PUBLICITY AND CONFIDENTIALITY.\n     ----------------------------- \n\n     The provisions of this Agreement and any non-public information, written or\noral, with respect to this Agreement ('Confidential Information') will be kept\nconfidential and shall not be disclosed, in whole or in part, to any person\nother than affiliates, officers, directors, employees, agents or representatives\nof a party (collectively, 'Representatives') who need to know such Confidential\nInformation for the purpose of negotiating, executing and implementing this\nAgreement.  Each party agrees to inform each of its Representatives of the non-\npublic nature of the Confidential Information and to direct such persons to\ntreat such Confidential Information in accordance with the terms of this\nSection.  Nothing herein shall prevent a party from disclosing Confidential\nInformation (i) upon the order of any court or administrative agency, (ii) upon\nthe request or demand of, or pursuant to any regulation of, any regulatory\nagency or authority, (iii) to the extent reasonably required in connection with\nthe exercise of any remedy hereunder, (iv) to a party's legal counsel or\nindependent auditors, (v) to prospective lenders to the Grantor, (vi) to the\nextent necessary, to the operator, maintainor and administrator of  any System\nand\/or (vii) to any actual or proposed assignee, transferee or lessee of all or\npart of its rights hereunder provided that such actual or proposed assignee\nagrees in writing to be bound by the provisions of this Section.\n\n14.  LIMITATION OF LIABILITY.\n     ----------------------- \n\n     In no event shall the Purchaser or any Grantor be liable to the other for\nconsequential, incidental, indirect or special damages, including, but not\nlimited to, loss of revenue, loss of business opportunity, or the costs\nassociated therewith.\n\n \n     IN WITNESS WHEREOF, the Parties have executed this Agreement in the\njurisdictions set forth beneath their signatures, effective on the date first\nwritten above.\n\n\n\nGLOBAL CROSSING HOLDINGS LTD.\n\n\nBy:  ________________________________\n     Name:\n     Title:\n     Jurisdiction:\n\n\nQWEST COMMUNICATIONS INTERNATIONAL INC.\n\n\nBy:  _____________________________\n     Name:\n     Title:\n     Jurisdiction:\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7648,8630],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9613,9620],"class_list":["post-42342","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-global-crossing-ltd","corporate_contracts_companies-qwest-communications-international-inc","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42342","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42342"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42342"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42342"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42342"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}