RESTATED AND AMENDED USAGE AGREEMENT
THIS AGREEMENT dated as of the 21st day of June, 1994,
restated and amended as of November 1, 1995, by and between PACWEST NETWORK,
INC. ("Licensee") and GST PACWEST TELECOM HAWAII, INCORPORATED ("GPTH").
W I T N E S S E T H
WHEREAS, Licensee is a common carrier authorized to operate
microwave transmission facilities located in Hawaii pursuant to licenses (the
"Licenses") issued by the Federal Communications Commission ("FCC"); and
WHEREAS, GPTH is a common carrier that owns and operates
microwave transmission facilities in Hawaii (the "Facilities") and wishes to
utilize the Licenses in order to provide its own interstate voice and data
communications services.
NOW THEREFORE, in consideration of the foregoing premises, the
mutual promises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. USE OF LICENSES.
(a) Licensee hereby authorizes GPTH to utilize the Licenses
to the extent of ninety percent (90%) of the total transmission capacity
available thorough the use of the Licenses.
(b) GPTH expressly acknowledges that all transmission
capacity available under the Licenses not transferred to GPTH under this
Agreement shall be available to Licensee for Licensee to transfer to other
customers in Licensee's sole discretion.
(c) The capacity available GPTH under this Agreement may be
used by GPTH, in GPTH's sole discretion, to fulfill requirements for provision
of traffic termination services to carriers and bulk capacity customers and/or
to provide service to GPTH's own end user customers.
2. TECHNICAL STANDARDS AND REQUIREMENTS FOR INTERCONNECTION.
(a) INTERCONNECTION STANDARDS. GPTH shall deliver its own
traffic, and shall require each of its customers to deliver its traffic, in a
digital DS-1 format at such points of presence as are determined by GPTH.
(b) ACCESS FACILITIES AND MINIMUM LOADING. GPTH may
determine, in its discretion, minimum loading or minimum capacity requirements
applicable to its customers. GPTH also may determine, in its discretion, the
particular access arrangements to be made available to its customers as well as
arrangements for interconnection to customers' facilities.
3. WARRANTY. GPTH will use its best efforts to maintain the
overall network quality of the capacity provided over the Facilities. The
quality of the services GPTH provides to its own customers hereunder also shall
be consistent with common carrier industry standards, government regulations and
sound business practices.
4. TERM. The term of this Agreement commenced as of June 21,
1994 and shall terminate upon the occurrence of any of the
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following events (unless earlier terminated pursuant to the provisions of
Paragraph 5 below):
(a) Termination of the Restated and Amended Traffic
Agreement dated of even date between Licensee and GST Telecom Inc., the parent
of GPTH.
(b) Mutual agreement of the parties to terminate this
Agreement.
5. TERMINATION FOR CAUSE. Either party shall have the right to
terminate this Agreement upon notice to the other party at any time during the
term hereof upon the occurrence of any of the following events:
(a) any material failure by a party to perform any of its
obligations under this Agreement in the event that such failure is not cured
within thirty (30) days after the defaulting party receives notice from the
non-defaulting party of such failure;
(b) the insolvency of, appointment of a receiver of the
property of, or any assignment for the benefit of creditors of the other party;
(c) the filing of a voluntary or involuntary petition by or
against the other party under the Bankruptcy laws of the United States; or
(d) Licensee's good faith determination that the acts of
GPTH or the terms of this Agreement have been or are likely to be determined to
be inconsistent with the rules and policies of
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the FCC or any other government agency having jurisdiction over Licensee or the
Licenses.
6. INDEMNIFICATION.
(a) GPTH shall indemnify and hold Licensee harmless against
any and all damages, claims, actions or suits arising out of or in connection
with GPTH's provision of capacity to third parties under this Agreement.
(b) In no event will either party hereto be liable to the
other party for any indirect, special, incidental or consequential losses or
damages, including, without limitation, loss of revenue, loss of customers or
clients, loss of goodwill or loss of profits arising in any manner from this
Agreement and the performance or nonperformance of obligations hereunder.
7. PAYMENT. In consideration of the ability to utilize the
Licenses pursuant to this Agreement, GPTH shall pay Licensee the sum of $3,000
per month.
8. NOTICES. All notices and other communications hereunder
shall be given in writing and shall be deemed to have been duly given if
delivered personally, if transmitted by telecopier to the number(s) designated
below or if mailed by first class United States mail, postage prepaid, to the
address(es) designated below, or to such other address as either party may
specify from time to time. All notices and other communications hereunder shall
be deemed to have been given the date of receipt. If to Licensee:
Pacwest Network, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to GPTH:
GST Pacwest Telecom Hawaii, Incorporated
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Chief Executive Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
9. NO WAIVER. No term or provision of this Agreement shall be
deemed waived and no breach or default shall be deemed excused unless such
waiver or consent shall be in writing and signed by the party claimed to have
waived or consented. No consent by any party to, or waiver of, a breach or
default by the other, whether express or implied, shall constitute a consent to,
waiver of, or excuse for any different or subsequent breach or default.
10. 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.
11. 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.
12. CONSTRUCTION. It is the intent of the parties that
operation of the Facilities under this Agreement comply with the
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Communications Act of 1934, as amended, and all provisions of this Agreement
shall be so construed.
13. SEVERABILITY. If any provision of this Agreement shall be
declared illegal, invalid or unenforceable by any governmental authority with
jurisdiction over GPTH, 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.
14. AMENDMENTS. This Agreement represents the entire
understanding of the parties hereto with respect to the subject matter hereof,
supersedes any and all prior negotiations, understandings and agreements with
respect thereto, and may be amended only by a writing signed by both parties.
15. NO JOINT VENTURE. Nothing in this Agreement shall be
construed to make Licensee and GPTH joint venturers or to impose upon either of
them any liability as such.
16. LIMITATIONS ON LIABILITY. Neither GPTH 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.
17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be considered an original and all of which
taken together shall constitute one Agreement binding on both of the parties
hereto, notwithstanding that both parties shall not have signed the same
counterpart.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
PACWEST NETWORK, INC.
("Licensee")
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇, President
GST PACWEST TELECOM HAWAII, INCORPORATED
("GPTH")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
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