In this task, you're given a passage that represents a legal contract or clause between multiple parties. Your job is to write questions that ask the basic details corresponding to the legal contracts or clauses. Avoid questions that can be answered correctly without actually understanding the paragraph, and which might have multiple answers. The answer to each question should be unambiguous.

[EX Q]: Exhibit 10.10   ASIA PACIFIC CABLE NETWORK 2     CONSTRUCTION AND MAINTENANCE   AGREEMENT     Singapore   April 18th, 2000





  TABLE OF CONTENTS   PARAGRAPH

    1 Definitions and Interpretations

      2 APCN 2 Configuration

      3 Establishment of the APCN 2 Management Committee

      4 Provision, Construction and Ownership of Segments

      5 Definition of APCN 2 Capital Costs

      6 Definition of Operation and Maintenance Costs

      7 Allocation and Billing of APCN 2 Costs

      8 Currency of Payment

      9 Keeping and Inspection of Books for Segment S and T

      10 Duties and Rights as to Operation and Maintenance of Segments

      11 Use of Segment T

      12 Acquisition and Use of Capacity

      13 Expansion of Equipped Capacity

      14 Increase or Decrease of Design Capacity

      15 Obligation to Provide Transiting Facilities to Extend APCN2 Capacity

      16 Obligation to Connect the APCN 2 with Inland Systems

      17 Direct Access to Network Interface and Equal Access to Terminal Station

      18 Duration of Agreement and Realization of Assets

      19 Obtaining of Approvals

      20 Privileges for Documents or Communications

      21 Relationship of Parties

      22 Assignment of Rights and Obligations

      23 Default

  1







  24 Waiver

      25 Compliance with Law

      26 Ratification of Decisions and Actions

      27 Resolution of Disputes

      28 Supplements and Amendments to this Agreement

      29 Execution of Agreement

      30 Successors Bound

      31 Confidentiality

      32 Settlement of Claims by Parties

      33 Force Majeure

      34 Severability

      35 Entire Agreement



Testamonium

  2





  SCHEDULES   Schedule A Parties to the Agreement     Schedule B Investment Shares, Ownership Interest, Voting Interests, and Allocation of Capital Cost and O&M Costs     Schedule C Capacity Allocation and Interest in Unallocated Capacity     Schedule D Sales of IRU Capacity         ANNEXES

    Annex 1 Terms of Reference for the Procurement Group     Annex 2 Terms of Reference for the AR&RSC, O&MSC, F&ASC and I&ASC     Annex 3 Terms of Reference for the Network Administrator     Annex 4 Terms of Reference for the Central Billing Party     Annex 5 Configuration of APCN 2     Annex 6 Billing Currency and Source of Rate for Financial Charges     Annex 7 Rules on Use of Capacity     Annex 8 Segment T Facilities and Functions   3





  ASIA PACIFIC CABLE NETWORK 2 CONSTRUCTION & MAINTENANCE AGREEMENT   THIS AGREEMENT, made and entered into this 18th day of April 2000, between and among the Parties signatory hereto (hereinafter collectively called Parties and individually called Party), which Parties are identified in Schedule A,   WITNESSETH:   WHEREAS, digital telecommunications services are being provided in the Asia Pacific Region by means of fiber optic submarine cable and satellite facilities; and   WHEREAS, other digital light-wave submarine cable systems, presently in service in the Asia Pacific Region, have facilitated a rapid growth of new telecommunications requirements designed to take advantage of reliable, secure and economically priced services based on state of the art and available digital technology; and   WHEREAS, it is now apparent that this rapid growth in traffic demand will lead to a greater demand for facilities in the Asia Pacific Region necessitating the construction of additional Asia Pacific fiber optic submarine cable facilities (hereinafter referred to as the Asia Pacific Cable Network 2 or APCN 2); and   WHEREAS, the reliability of telecommunications services and its usefulness to customers requires the availability of the appropriate facilities and technology, including the APCN 2 for diverse routing and instantaneous restoration of services; and   WHEREAS, China Telecom, CWHKTI, Chunghwa Telecom, Korea Telecom, Japan Telecom, NTT Com, KDD Corp., Telekom Malaysia, SingTel, and Telstra, (the MOU Parties) signed a Memorandum of Understanding to plan the APCN 2 effective from 16th June 1999 (hereinafter referred to as the MOU) to permit activities, as defined in the MOU; and   WHEREAS, the First Supplemental MOU, the Second Supplemental MOU, the Third Supplemental MOU and the Fourth Supplemental MOU were effective from October 5, 1999, October 6, 1999, February 29, 2000 and April 4, 2000 respectively; and   WHEREAS, the MOU and the Supplemental MOUs are hereinafter collectively called the MOU; and   WHEREAS, the MOU states that it shall continue in force until the signing, by the Parties, of the APCN 2 Construction and Maintenance Agreement; and   WHEREAS, the Parties now desire to construct the APCN 2 as a fully integrated Asia Pacific network comprised of 4 fully restorable fiber optic pairs; and   WHEREAS, the Parties now desire to define the terms and conditions upon which the APCN 2 will be provided, constructed, operated and maintained.   4





  NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants herein expressed, covenant and agree with each other as follows:   1. DEFINITIONS AND INTERPRETATIONS   1.1 The following definitions and interpretations shall apply to certain terms used in this Agreement:   (a) Affiliate: A company is the Affiliate of another if either company owns directly or indirectly less than 50% but no less than 10% of its equity.   (b) Branching Unit (BU): Equipment that permits interconnection between 3 cable Segments and provides the optical fiber and power conductor between 3 cable Segments.   (c) Cable Landing Point: Cable Landing Point shall be the beach joint or the mean low watermark of ordinary spring tides if there is no beach joint.   (d) Capacity Types shall be categorized as follows:   Allocated Capacity - capacity allocated in the APCN 2 to a Party in return for its financial investment.       Design Capacity - the maximum capacity that the APCN 2 is designed to provide which shall be no less than 2.5 Tbit/s.

      Equipped Capacity - the amount of capacity physically provided in the APCN 2 at any one time.       Initial Equipped Capacity - Initial Equipped Capacity of the APCN 2 shall be at least 80Gbit/s.       IRU Capacity - capacity acquired after execution of this Agreement on an IRU basis from the Unallocated Capacity.

      Unallocated Capacity - the difference in capacity between the Equipped Capacity and the Allocated Capacity.

  (e) Carrier: Any entity authorized or permitted under the laws of its respective Country, or another Country in which it operates, to acquire and use international transmission facilities for the provision of international telecommunications services and which is in possession of any necessary operating license to enable it to do so.   (f) Country: The word Country as used in this Agreement shall mean a country, territory or place, as appropriate.   5





  (g) Direct Access: The direct connection to the Network Interface of Segment S without going through any other party's equipment.   (h) Initial Parties: The Initial Parties are Advantel, C&W, China Telecom, China Unicom, Concert Ltd, Chunghwa Telecom, CWHKTI, Global One, JT, KDD, KPN, KT, Layer 2, MCIITI, MFN, NCIC, NTT Com, Onelink, PLDT, SingTel, StarHub, Teleglobe, Telstra, TFN, TM and Williams.   (i) IRU: Indefeasible Right of Use which does not convey ownership and voting rights in the management of the APCN 2.   (j) Minimum Investment Unit: A unit designated as the minimum unit of investment in the APCN 2, which is equivalent to one whole STM- 1 ring, allowing the use of two (2) half STM-1 ring circuits on any Path within the APCN 2. The Minimum Investment Unit is hereinafter termed as a MIU.   (k) Network Interface: The nominal STM-l digital/optical input/output ports, and/or STM-4, STM-16 and STM-64 on the digital/optical distribution frame (including the digital/optical distribution frame itself).   (l) Parent Company: A company that owns directly or indirectly no less than 50% of equity of a company.   (m) Path: The connectivity in the APCN 2 between any two Network Interfaces which is independent of the actual physical links used to connect these Network Interfaces.   (n) Provisional Acceptance: The issuance of a certificate of Provisional Acceptance shall be that of Segment S pursuant to the terms and conditions set forth in the Supply Contract.   (o) Ready For Provisional Acceptance Date: The date on which the entire Wet Segment of the APCN 2 is provisionally accepted by the Procurement Group on behalf of the Parties. The Ready for Provisional Acceptance Date (hereinafter referred to as the RFPA Date) shall be 31st August 2001, or such other date as may be agreed by the Management Committee.   (p) Ready for Service Date: The date on which commercial service can be placed on the entire APCN 2. For the purposes of this Agreement, the Ready For Service Date (hereinafter referred to as the RFS Date) shall be 30th September 2001, or such other date as may be agreed by the Management Committee.   (q) Subsidiary: A company that is directly or indirectly owned by a Parent Company holding no less than 50% of its equity.   6





  (r) Supply Contract: The contracts placed by the Procurement Group on behalf of the Parties for the supply of the Wet Segment of the APCN 2.   (s) Terminal Parties: The Terminal Parties are China Telecom, CWHKTI, Chunghwa Telecom, KDD, Korea Telecom, NTT Com, PLDT, SingTel, and Telekom Malaysia.   (t) Wet Segment: For the purposes of this Agreement, Segments S1, S2, S3, S4, S5, S6, S7, and S8 as defined below are collectively called the Wet Segment.   1.2 Schedules and Annexes   The Schedules and Annexes to this Agreement, and any written amendments thereto or any Schedules or Annexes substituted therefore, shall form part of this Agreement, and any Paragraph which contains a reference to a Schedule or Annex shall be read as if the Schedule or Annex was set out at length in the body of the Paragraph itself. In the event that there is any conflict between the terms and conditions of this Agreement and the Schedules and Annexes to this Agreement, the terms and conditions of this Agreement shall prevail.   1.3 Paragraph headings   The headings of the paragraphs are inserted for convenience and do not form part of this Agreement and shall not have any effect on the interpretation thereof.   1.4 Interpretation   Where the sense requires, words denoting the singular only shall also include the plural and vice versa. References to persons shall include firms and companies and vice versa. Reference to the male shall include the female.   2. APCN 2 CONFIGURATION   2.1 The configuration of APCN 2 shall be as shown in Annex 5, which shall be regarded as consisting of a terrestrial section (hereinafter called Segment T) and a submarine section (herein called Segment S or the Wet Segment).   2.2 Segment T shall be regarded as comprising of the following Segments:   Segment T1: A Terminal Station at Katong   Segment T2: A Terminal Station at Kuantan   Segment T3: A Terminal Station at Lantau   Segment T4: A Terminal Station at Chongming   7





  Segment T5: A Terminal Station at Pusan   Segment T6: A Terminal Station at Kitaibaraki   Segment T7: A Terminal Station at Chikura   Segment T8: A Terminal Station at Tanshui   Segment T9: A Terminal Station at Shantou   Segment T10: A Terminal Station at Batangas   2.3 Segments T1, T2, T3, T4, T5, T6, T7, T8, T9 and T10 shall each consist of:   (i) an appropriate share of land and buildings at the specified locations for the cable landing, Terminal Station and for the cable route including cable rights-of-way and ducts or conduits between the Terminal Station and its respective Cable Landing Point, and an appropriate share of common services and equipment at each of those locations together with equipment in each of those Terminal Stations and at a remote location as necessary which is solely associated with the APCN 2, but not part of the Wet Segment; and   (ii) An appropriate share of the test equipment.   2.4 Segment S shall be regarded as comprising of the following Segments:   Segment S1: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Katong; and the Network Interface at the Terminal Station at Kuantan.   Segment S2: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Kuantan; and the Network Interface at the Terminal Station at Lantau.   Segment S3: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Lantau; and the Network Interface at the Terminal Station at Chongming.   Segment S4: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Chongming; and the Network Interface at the Terminal Station at Pusan; and the Network Interface at the Terminal Station at Kitaibaraki.   8





  Segment S4A:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Chongming and BU1.       Segment S4B:

The whole of the submarine cable containing two (2) optical fiber pairs provided between BU1 and BU2.       Segment S4C:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Kitaibaraki and BU2.       Segment S4W:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Pusan and BU1.       Segment S4E:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Pusan and BU2.   Segment S5: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Kitaibaraki; and the Network Interface at the Terminal Station at Chikura.   Segment S6: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Chikura; and the Network Interface at the Terminal Station at Tanshui.   Segment S7: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Tanshui; and the Network Interface at the Terminal Station at Shantou.   Segment S8: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Shantou; and the Network Interface at the Terminal Station at Batangas; and the Network Interface at the Terminal Station at Katong.   9





  Segment S8A:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Shantou and BU3.       Segment S8B:

The whole of the submarine cable containing two (2) optical fiber pairs provided between BU3 and BU4.       Segment S8C:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Katong and BU4.       Segment S8N:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Batangas and BU3.       Segment S8S:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Batangas and BU4.   2.5 Segment S shall include:   (i) all transmission, power feeding, system management, Network Protection Equipment and test equipment directly associated with, and required to operate and maintain the submersible plant including, where applicable, a remote control and supervisory equipment;   (ii) the power equipment provided wholly for use with the equipment listed in (i) above;   (iii) the transmission cable equipped with appropriate optical amplifiers, BUs, and joint housings between the applicable Terminal Stations:   (iv) the sea earth cable and electrode system and/or the land earth system, or an appropriate share thereof, associated with the terminal power feeding equipment in the respective Terminal Stations; and   (v) terminal equipment, including Network Interface for STM-1, STM-4, STM-16 and STM-64 levels, in each of the Terminal Stations.   2.6 In this Agreement, references to any Segment, however expressed, shall be deemed to include, unless the context otherwise requires, additional property incorporated therein by agreement of the Management Committee. Each Segment shall be regarded as including   10





  its related spare and standby units and components, including, but not limited to, optical amplifiers, BUs, cable lengths, and terminal equipment.   11





  3. ESTABLISHMENT OF THE APCN 2 MANAGEMENT COMMITTEE   3.1 The Parties shall form an APCN 2 Management Committee (hereinafter referred to as the Management Committee), for the purpose of directing the progress of engineering, provision, installation, bringing into service and continued operation of the APCN 2, consisting of one representative of each of the Parties to this Agreement. The Management Committee shall make all major decisions necessary to effectuate the purposes of this Agreement.   3.2 Two or more Parties may designate the same Party to serve as their representative at specific meetings of the Management Committee and/or its Subcommittees established pursuant to Subparagraph 3.7 of this Agreement.   3.3 Each of the Initial Parties shall, on a rotational basis, provide the Chairman of the Management Committee which will meet on the call of a Chairman or whenever requested by one or more Parties together representing at least five per cent (5%) of the total voting interests specified in Schedule B. The Chairman shall give at least thirty (30) days' advance notice of each meeting, together with a copy of the draft agenda. In cases of emergency, such notice period may be reduced where at least seventy-five (75) percent of the total voting interests are in agreement. Documents for the meeting should be made available to members at least fourteen (14) days before the meeting, but the Management Committee may agree to discuss papers distributed on less than fourteen (14) days' notice.   3.4 The Management Committee shall make every reasonable effort to reach agreement with respect to matters to be decided. Unless otherwise provided for in this Agreement, in the event an agreement cannot be reached, the decision will be carried on the basis of simple majority of the total voting interests specified in Schedule B, which must include a simple majority of the voting interests of the Terminal Parties and a simple majority of the voting interests of the non-Terminal Parties. A member of the Management Committee representing more than one Party shall separately cast the votes to which each Party he represents is entitled.   3.5 Any Party not represented at a Management Committee meeting, but entitled to vote, may vote on any matter on the agenda of such a meeting by either appointing a proxy in writing or giving notice of such vote to the Chairman prior to the submission of such matters for vote at such meetings.   3.6 No decisions of the Management Committee, its Subcommittees or any other groups established by the Management Committee shall override any provisions of this Agreement or in any way diminish the rights or prejudice the interests granted to any Party under this Agreement.   3.7 To aid the Management Committee in the performance of its duties, the following Subcommittees shall be formed, and said Subcommittees, under the direction of the   12





  Management Committee, shall be responsible for their respective areas of interest listed in Annex 2 and any other areas of interest designated by the Management Committee:   (i) Investment and Agreement Subcommittee (hereinafter referred to as I&ASC)   (ii) Financial and Administrative Subcommittee (hereinafter referred to as F&ASC)   (iii) Operations and Maintenance Subcommittee (hereinafter referred to as O&MSC)   (iv) Assignments, Routing, and Restoration Subcommittee (hereinafter referred to as AR&RSC)   3.8 The Management Committee shall form a Procurement Group (hereinafter referred to as PG), consisting of representatives from each of the Initial Parties. This group shall act on behalf of the Parties to this Agreement for the purpose of arranging for the construction, implementation, and installation of the Wet Segment of APCN 2 and be solely responsible for all actions as may be required to contract with the Suppliers to provide the Wet Segment of the APCN 2. The Terms of Reference of the PG are contained in Annex 1.   3.9 The Management Committee may establish such other subcommittees or working groups as it shall determine within its discretion to provide assistance in the performance of its responsibilities. The PG and the Subcommittees shall meet at least once annually after the execution date of this Agreement and more frequently if necessary, until two years following the RFS Date and thereafter as may be appropriate. Meetings of the PG and a Subcommittee may be called to consider specific questions at the discretion of its Co-Chairmen whenever requested by one or more Initial Parties.   3.10 The respective Co-Chairmen of each Subcommittee, or a designated representative of each Subcommittee, shall attend the Management Committee meetings and meetings of each other Subcommittee in an advisory capacity as necessary. On or about two (2) years after the RFS Date, the Management Committee shall determine whether any of its Subcommittees should remain in existence. If the Management Committee determines that one or more of its Subcommittees shall not remain in existence, the responsibilities assigned to a Subcommittee whose existence has been terminated under this Subparagraph 3.10 shall revert to the Management Committee unless otherwise provided for in this Agreement.   3.11 The Terms of Reference for the Network Administrator (hereinafter referred to as NA) are as set forth in Annex 3 of this Agreement.   3.12 The Terms of Reference for the Central Billing Party (hereinafter referred to as CBP) are as set forth in Annex 4 of this Agreement. At or after the RFS Date the CBP shall be reappointed or a new CBP appointed from the Parties by an open tendering process.   3.13 The Terms of Reference of all Subcommittees, the NA, the CBP and the PG established pursuant to this Paragraph 3 shall be amended by the Management Committee as and when as it is necessary.   13





  4. PROVISION, CONSTRUCTION AND OWNERSHIP OF SEGMENTS   4.1 The following Parties shall own, provide and agree to act as the Terminal Parties for the following Segments;   SEGMENT

TERMINAL PARTY       T1

SingTel T2

TM T3

CWHKTI T4

China Telecom T5

KT T6

NTT Com T7

KDD T8

Chunghwa Telecom T9

China Telecom T10

PLDT   4.2 The Terminal Parties shall make available to the other Parties hereto any reasonable information requested by the Parties relating to the engineering, provision, construction, or installation of Segment T in a timely manner. The various Segment T shall be provided in sufficient time to permit APCN 2 to be placed into operation by the RFS Date.   4.3 Ownership of the Wet Segment shall be as shown in Schedule B to this Agreement. The Wet Segment of APCN 2 shall be owned by the Parties in common and undivided shares.   4.4 The provision of the Wet Segment shall be through a Supply Contract to be placed by the PG with Suppliers subject to approval by the Management Committee.   4.5 Each of the Parties shall be entitled, on request and at its own expense, to receive from the PG a copy of the Supply Contract subject to the acceptance by each such Party of any reasonable conditions of confidentiality imposed by the Supply Contract. 4.6 The PG shall ensure that the Supply Contract specifies that the Wet Segment is to be provided by the RFPA Date.   4.7 The PG shall ensure that the Supply Contract shall afford them or their designated representatives reasonable rights of access to examine, test, and inspect the APCN 2 cable equipment, material, supplies and installation activities.   4.8 In the event that the Wet Segment fails to meet the specifications referred to in the Supply Contract for its provision, fails to provide the specified capacity, or is not engineered, provided, installed and ready in sufficient time to meet the RFPA Date as specified in the Supply Contract, or if the Suppliers are otherwise in material breach of the Supply Contract, the PG may, pursuant to this Paragraph 4 and in accordance with the Supply Contract, take such actions as may be necessary to exercise the rights and   14





  remedies available under the terms and conditions of the Supply Contract. Such actions by the PG shall be subject to any direction deemed necessary by the Management Committee.   4.9 The members of the PG shall not be liable to any other Party or to each other for any loss or damage sustained by reason of a Supplier's failure to perform in accordance with the terms and conditions of its Supply Contract, or as a result of APCN 2 not meeting the RFPA Date as specified in the Supply Contract, or if APCN 2 does not perform in accordance with the technical specifications and other requirements of the Supply Contract, or APCN 2 is not integrated or placed into operation. The Parties recognize and agree that the PG does not make any representations or warranties, including, but not limited to, any representation or warranty regarding:   (i) the performance of the Supply Contract by the Supplier   (ii) the performance or reliability of the Wet Segment, or   (iii) that APCN 2 shall be integrated or placed into operation and the Parties hereby agree that nothing in this Agreement shall be construed as such a warranty or guarantee.   5. DEFINITION OF APCN 2 CAPITAL COSTS   5.1 The capital costs (herein referred to as the Capital Costs) are the costs incurred in connection with the engineering, provision, construction and installation of Segment S and Segment T, or causing them to be engineered, provided, constructed and installed and shall include:   (a) appropriate costs, including appropriate financial charges, incurred under the MOU in respect of specific activities such as desk top surveys and meeting expenses that are reasonably related to the construction of the APCN 2;   (b) those costs payable to the Supplier(s) under the Supply Contract attributable to the Wet Segment;   (c) the fixed costs and the additional Capital Costs to be reimbursed to the Terminal Parties for the provision of the Terminal Stations in accordance with the costs schedule and scope of work given in Annex 8;   (d) those costs directly incurred by the Initial Parties which shall be fair and reasonable in amount and not included in the Supply Contract and which have been directly and reasonably incurred solely for the purpose of, or to be properly chargeable in respect of, such engineering, provision, construction, installation and laying of the Wet Segment, including but not limited to, the costs of engineering, design, materials, manufacturing, procurement and inspection, installation, removing (with appropriate reduction for salvage), cable ship and other ship costs, burying, fisherman's compensation including reasonable related   15





  expenses, testing associated with laying or installation, customs duties, taxes (except income tax imposed upon the net income of a Party), appropriate financial charges, supervision, billing activities, overheads and insurance of or a reasonable allowance in lieu of insurance if such Party elects to carry a risk itself, being a risk which is similar to one against which a supplier has insured or against which insurance is usual or recognized or would have been reasonable;   (e) those fees payable to the NA, up to the RFS Date, in fulfilling its responsibilities as set forth in Annex 3;   (1) those fees payable to the CBP, up to the RFS Date, in fulfilling its responsibilities as set forth in Annex 4;   (g) those costs incurred, up to the RFS Date, by the custodians of the original, amendments and supplements to this Agreement, for distributing certified photocopies of this Agreement and/or amendments or supplements to the Parties to this Agreement;   (h) those costs reasonably incurred (as approved by the Management Committee) by the Parties, up to the RFS Date, hereto in the holding of' the meetings of the PG and I&ASC;   (i) those costs reasonably incurred (as approved by the Management Committee) by the Parties, up to the RFS Date, hereto in the hosting of the meetings of the Management Committee and its Subcommittees; and   (j) the costs associated with any additional work or property incorporated into the Segment S or Segment T subsequent to the RFS Date by agreement of the Management Committee.   5.2 For purposes of this Agreement, the cost of the repair or replacement of any part of the APCN 2 in the event of damage or loss arising during construction, laying, burying installing and the bringing into operation of the APCN 2, which is attributable under the Supply Contract to the Parties, shall be regarded as part of the Capital Costs.   5.3 Any of the Parties may at its own expense insure against risks so far as its own share of such costs is concerned. Should the Parties jointly agree to insure against risks, the costs of such insurance shall form part of the Capital Costs, as approved by the Management Committee.   16





  6. DEFINITION OF OPERATION AND MAINTENANCE COSTS   The costs associated with the operation and maintenance duties (herein called the O&M Costs) are the costs reasonably incurred in the operation and maintenance of Segment S and Segment T including, but not limited to:   (a) the cost of attendance, testing, adjustments, repairs and replacements, cable ships, (including standby costs), cable depots, maintenance and repair devices that are or may hereafter become available, customs duties, taxes, (except income tax imposed on the net income of a Party) paid in respect of such facilities, billing activities, financial charges attributable to other Parties, shares of costs incurred by a Terminal Parties, supervision, overheads and costs and expenses reasonably incurred on account of claims made by or against other persons in respect of such facilities or any part thereof and damages or compensation payable by the Parties concerned on account of such claims;   (b) those costs incurred by the Terminal Parties, including additions thereto, with respect to the operation and maintenance of their respective Terminal Stations, allocable to the APCN 2. Where the use of a Terminal Station or of certain equipment situated therein, such as power supply or testing and maintenance equipment, is shared, by agreement of the Parties, by the APCN 2 and other communications systems terminating at that Terminal Station, the costs of operation and maintenance of such shared Terminal Station or equipment (not solely attributable to a particular communication system or systems) will be allocated among the systems involved in the proportions in which they use the shared equipment or facility. For such purposes, the Management Committee shall approve the method for determining the portion of a shared Terminal Station allocable to the APCN 2. Costs as used in this Paragraph 6 with reference to each of the Terminal Stations shall include costs reasonably incurred in operation and maintenance of the facilities involved, including, but not limited to, the cost of attendance, testing, adjustments, repairs and replacements, customs duties, taxes (except income tax imposed upon the net income of a Party) paid in respect of such facilities, billing activities, administrative costs, financial charges, and costs and expenses reasonably incurred on account of claims made by or against other persons in respect of such facilities or any part thereof and damages or compensation payable by the Terminal Station owner on account of such claims;   (c) those fees payable to the NA, after the RFS Date, in fulfilling its responsibilities as set forth in Annex 3;   (d) those fees payable to the CBP after the RFS Date, in fulfilling its responsibilities as set forth in Annex 4;   17





  (e) those costs reasonably incurred (as approved by the Management Committee) by the Parties, after the RFS Date, hereto in the holding of the meetings of the PG and the I&ASC; and   (f) those costs reasonably incurred (as approved by the Management Committee) by the Parties, after the RFS Date, hereto in the hosting of the meetings of the Management Committee and its Subcommittees.   7. ALLOCATION AND BILLING OF APCN 2 COSTS   7.1 The APCN2 Capital Costs as defined in Paragraph 5 shall be borne by the Parties in the proportions set forth in Schedule B.   7.2 The O&M Costs as defined in Paragraph 6 shall be borne by the Parties in the proportions set forth in Schedule B.   7.3 The Terminal Parties shall each render invoices to the CBP for any O&M Costs incurred as outlined in Paragraph 6 not more frequently than quarterly and by the tenth (10th) day of the appropriate month in accordance with procedures to be established by the F&ASC and approved by the Management Committee. The Party rendering an invoice shall furnish such further details of such invoice as the other Parties may reasonably require. On the basis of such invoices, the CBP shall pay such amounts as may be owed sixty (60) days from the 10th calendar day of the month in which the invoice was rendered or on the following working day if day sixty (60) is not a working day in the CBP's Country.   7.4 The Terminal Parties shall each render invoices to the CBP for any Capital Costs incurred as outlined in Paragraph 5 (except Terminal Station cost) not more frequently than quarterly and by the tenth (10th) day of the appropriate month in accordance with procedures to be established by the F&ASC and approved by the Management Committee. The Party rendering an invoice shall furnish such further details of such invoice as the other Parties may reasonably require. On the basis of such invoices, the CBP shall pay such amounts as may be owed sixty (60) days from the 10th calendar day of the month in which the invoice was rendered or on the following working day if day sixty (60) is not a working day in the CBP's Country.   7.5 Unless the Management Committee authorizes changes to the procedure for the rendering of bills associated with the Capital Costs or O&M Costs, the CBP shall promptly render bills, in accordance with this Paragraph 7 and the billing and payment procedures established by the F&ASC and approved by the Management Committee, to each of the Parties for such Parties' pro rata shares of these costs. Such bills shall be rendered by the CBP not more frequently than quarterly and shall contain a reasonable amount of detail to substantiate them. On the basis of such bills, each Party shall pay the CBP, such amounts as may be owed by the end of the calendar month following the calendar month in which the bill was rendered, on the date specified by the CBP.   18





  7.6 In the case of bills containing costs billed on a preliminary billing basis, appropriate adjustments will be made in subsequent bills promptly after the actual costs involved are determined. As soon as practicable the CBP shall make such adjustments and render such bills or arrange for such credits as appropriate due to changes in the cost actually incurred.   7.7 As soon as practicable after the RFS Date, the amount of each Party's share of the Capital Costs shall be computed by the CBP who shall make appropriate adjustments and render any necessary bills or arrange for any necessary refunds by way of final settlement in order that each Party may bear its proper share of the costs as provided in this Paragraph 7.   7.8 For purposes of this Agreement, financial charges shall be computed as applicable on a daily basis from the date payment is incurred until the date payment is due, at a rate equal to the lowest publicly announced prime rate or minimum commercial lending rate, however described, for 90 day loans in the currencies of the Initial Parties or the currency of billing, as applicable, charged by established commercial banks in the countries concerned on the fifteenth day of the month in which the costs were incurred by the invoicing Parties. If such a day is not a business day, the rate prevailing on the next business day shall be used. The source of the rate of such financial charges shall be as shown at Annex 6. The application of financial charges relating to costs incurred for the APCN 2 Capital Costs and O&M Costs shall be limited to a maximum of 120 days, unless otherwise approved by the Management Committee.   7.9 Amounts billed and not paid when due shall accrue extended payment charges from the day following the date on which payment was due until paid. If the due date is not a business day, the due date shall be postponed to the next business day. For the purpose of this Agreement, extended payment charges shall be computed at three hundred percent (300%) of the rate described in Subparagraph 7.8 on the day following the date payment on the bill was due. In the event that applicable law does not allow the imposition of extended payment charges at the rate established in accordance with this Subparagraph 7.9, extended payment charges shall be at the highest rate permitted by applicable law, which in no event shall be higher than the rate computed in accordance with this Subparagraph 7.9. For purposes of this Agreement, paid shall mean that the funds are immediately available for use by the recipient.   7.10 Credits for refunds of financial charges and bills for extended payment charges shall not be rendered if the amount of charges involved is less than the equivalent of one hundred ($100) US dollars or its equivalent in the billing currency.   7.11 A bill shall be deemed to have been accepted by the Party to whom it is rendered if that Party does not present a written objection on or before the date when payment is due. If such objection is made, the Parties concerned shall make every reasonable effort to settle promptly the dispute concerning the bill in question. If the objection is sustained and the billed Party has paid the disputed bill, the agreed upon overpayment shall be promptly refunded to the objecting Party by the invoicing Party together with any financial charges   19





  calculated thereon at a rate determined in accordance with Subparagraph 7.8 of this Agreement from the date of payment of the bill to the date on which the refund is transmitted to the objecting Party. If the objection is not sustained and the billed Party has not paid the disputed bill, said Party will pay such bill promptly together with any extended payment charges calculated thereon at a rate determined in accordance with Subparagraph 7.9 of this Agreement from the day following the day on which payment was due until paid. Nothing in this Subparagraph 7.11 shall relieve a Party from paying those parts of a bill that are not in dispute.   7.12 Upon the signing of this Agreement, the CBP shall render bills to the Parties for approximately five percent (5%) of their financial commitment in APCN2 as determined by Schedule B. The exact amount of the bills and the billing procedure shall be determined by the Management Committee. The funds received by the CBP from these bills shall be kept in an interest bearing account for the benefit of the Parties to be maintained by the CBP and the used solely and in their entirety to pay the first invoices received by the CBP.   8. CURRENCY OF PAYMENT   All invoices rendered to the CBP shall be in the currency of the United States, or in the currency of the invoicing Party which is specified in Annex 6 or the currency in which the cost was incurred in the case of O&M Costs. Such invoices shall be paid in the currency in which the invoices are rendered. The CBP shall render bills to the Parties in the currency of the United States and be paid in the same currency. In conjunction with the CBP, the F&ASC shall develop procedures to deal with the differences between the exchange rates in the circumstances when the currency of invoices rendered to the CBP is not the currency of the United States.   9. KEEPING AND INSPECTION OF BOOKS FOR SEGMENT S AND T   9.1 For those portions of the Wet Segment, if any, specified in the Supply Contract as cost incurred items, the PG shall ensure that the Supply Contract requires the Supplier to keep and maintain such books, records, vouchers and accounts of all such costs with respect to the engineering, provision and installation of those items for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract.   9.2 For those portions of the Wet Segment specified in the Supply Contract as fixed cost items, the PG shall ensure that the Supply Contract requires the Supplier to keep and maintain records with respect to their respective billing of those items for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract.   9.3 The PG shall ensure that the Supply Contract requires the Supplier to obtain from their contractors and subcontractors such supporting records, for other than the cost of fixed cost items, as may be reasonably required by Subparagraph 9.1 and to keep and maintain such records for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract.   20





  9.4 The PG shall ensure that the Supply Contract shall afford the Parties to this Agreement the right to review the books, records, vouchers, and accounts required to be kept, maintained, and obtained pursuant to Subparagraphs 9.1, 9.2 and 9.3.   9.5 With respect to costs incurred for the provision of the Wet Segment by a Party, comparable records to those specified in Subparagraphs 9.l, 9.2 and 9.3 as appropriate, shall be maintained by the Party for a period of five (5) years from the date that such costs were incurred.   9.6 The PG and the Terminal Parties shall each keep and maintain such books, records, vouchers, and accounts of all costs that are incurred in the engineering, provision and installation of the Wet Segment and Segment T and not included in the Supply Contract, which they incur directly, for a period of five (5) years from the RFS Date or the date the work is completed, whichever is later. The CBP shall keep and maintain such books, records, vouchers and accounts with respect to its billing of costs incurred by the Terminal Parties and any other Party having incurred costs for implementation of APCN 2 as authorized by the Management Committee, and costs billable under the Supply Contract for a period of five (5) years from the System RFS Date or the date on which the work is completed, whichever is later.   9.7 With respect to the operation and maintenance costs of Segments T and the Wet Segment, such books, records, vouchers, and accounts of costs, as are relevant, shall be kept and maintained by the Terminal Parties for a period of five (5) years from the date on which the corresponding bills are rendered to the Parties. If a Terminal Party does not retain these records beyond this period, a summary of important items should be retained for the life of APCN 2.   9.8 Any Party shall have the right to review or audit the relevant books, records, vouchers, and accounts of costs pursuant to this Paragraph 9. In affording the right to review or audit, any such Party whose records are being reviewed or audited shall be permitted to recover, from the Party or Parties requesting the review or audit, the entire costs reasonably incurred in complying with the review or audit. In the case of an audit initiated by the Management Committee and exercised by the F&ASC, the audited Party or Parties shall be permitted to recover the entire costs of the review or audit from the Parties in the proportions specified in Schedule B.   9.9 Any rights of review and audit pursuant to this Paragraph 9 shall only be exercisable through the F&ASC in accordance with the F&ASC's audit procedures.   10. DUTIES AND RIGHTS AS TO OPERATION AND MAINTENANCE OF SEGMENTS   10.1 Each Terminal Party shall be solely responsible for the operation and maintenance of their respective Segment T as identified in Paragraph 4 and that portion of Segment S between the Network Interface at the Terminal Station and their respective Cable   21





  Landing Point. Such Terminal Party shall use all reasonable efforts to maintain or cause to be maintained economically their respective Segment T and such portion of Segment S, in efficient working order.   10.2 The Terminal Parties (for the purposes of this Paragraph 10, collectively called the Maintenance Authorities and each individual called a Maintenance Authority or MA), shall be jointly responsible for the operation and maintenance of the Wet Segment and shall use all reasonable efforts to maintain economically the Wet Segment in efficient working order and with an objective of achieving effective and timely repairs when necessary.   10.3 Prior to the RFS Date the MAs shall submit for review by the O&MSC and approval by the Management Committee appropriate practices and procedures for the continued operation and maintenance of the Wet Segment. The MAs shall each provide information to the O&MSC regarding the practices and procedures for the continued operation and maintenance of their respective Segments. The MAs shall also furnish such budgetary estimates of the cost of such operation and maintenance of the APCN 2 as the Management Committee may reasonably request. Following the RFS Date, the MAs shall provide the O&MSC and the Management Committee with such reports as it may reasonably require on the operation of the APCN 2 including any proposals for planned repair or improvement work, together with appropriately revised budgetary estimates relating to the operation and maintenance of the APCN 2. The O&MSC may review and amend the practices and procedures for the operation and maintenance of the Wet Segment, subject to the approval of the Management Committee. To facilitate in the maintenance of the APCN 2, the MAs may revise the allocation of responsibilities amongst themselves for the Wet Segment between the Cable Landing Points and any such decision shall be subject to the approval of the Management Committee.   10.4 The MAs shall have the right to deactivate the Wet Segment or any part thereof, in order to perform their duties. Prior to such deactivation, reasonable notice shall be given to, and coordination shall be made with, the other Parties hereto. To the extent possible, sixty (60) days prior to initiating action, the MA involved shall advise the other Parties hereto in writing of the timing, scope, and costs of significant planned maintenance operations, of significant changes to existing operations and maintenance methods and of contractual arrangements for cable ships that will have a significant impact on operation or maintenance costs. Should one or more Parties representing at least two- thirds (66.67%) of the total voting interests in accordance with Schedule B, wish to review such an operation or change prior to its occurrence, such Party or Parties shall notify the appropriate Maintenance Authority and a O&MSC Co-Chairman in writing within thirty (30) days of such advice. Upon such notification, the O&MSC shall initiate action to convene an ad hoc meeting for such review.   10.5 Notwithstanding Paragraph 32, each MA shall be authorized to pursue claims in its own name, on behalf of the Parties, in the event of any damage or loss to the APCN 2 and may file appropriate lawsuits or other proceedings on behalf of the Parties. The MA shall immediately inform the Management Committee and comply with any direction   22





  therefrom. Subject to obtaining the prior concurrence of the Management Committee, a MA may settle or compromise any such claims and execute releases and settlement agreements on behalf of the Parties as necessary to effect a settlement or compromise.   10.6 Each Party that has designed or procured equipment used in the APCN 2 shall give necessary information relating to the operation and maintenance of such equipment to the MA responsible for operating and maintaining such equipment, as reflected in this Paragraph 10. Each Maintenance Authority shall have prompt access necessary for the performance of its   10.7 [Missing]   interruption. if the MA responsible, as specified in this Paragraph 10, fails to restore those facilities to efficient working order and operation within a reasonable time after having been called upon to do so by any other Party to whom capacity is assigned by this Agreement, the Management Committee may, to the extent that it is practical to do so, place, or cause to be placed, such facilities in efficient working order and operation and charge the Parties their proportionate shares of the costs reasonably incurred in doing so.   10.8 Each Party to this Agreement, at its own expense, shall have the right to inspect from time to time the operation and maintenance of any portion of the APCN 2 and to obtain copies of the maintenance records. For this purpose, the Maintenance Authority shall retain significant records, for a period of not less than five (5) years from the date of the record. If these records are destroyed at the end of this period, a summary of important items should be retained for the life of the APCN 2.   10.9 The MAs shall be entitled to establish the necessary agreements in respect of the crossings by the Wet Segment of other undersea plant, including but not limited to pipelines, and may sign these agreements on behalf of the Parties after approval by the Management Committee and shall provide the Parties with appropriate copies of these agreements on request.   11. USE OF SEGMENT T   11.1 The Terminal Parties hereby grant to the Parties accessing APCN 2 at their respective terminal station, the right of use in the relevant Segment T (hereinafter referred to as Terminal Station Right of Use) on the terms and conditions stated in this Paragraph 11, to the extent required for the use of its Allocated Capacity, for the purpose of using APCN 2 and carrying on the related activities at that location in accordance with this Agreement. This Terminal Station Right of Use shall commence on the RFS Date and shall continue for the duration of this Agreement.   11.2 In the event that an agreement for another cable system utilizing any Terminal Station of the APCN 2 is terminated prior to the termination of this Agreement, the owner of the respective Segment T, with the agreement of the Parties hereto, shall take all necessary   23





  measures to ensure that the Terminal Station in question will be available for the APCN 2 for the duration of this Agreement on fair and equitable terms. If the Terminal Station in question is not available for the landing and terminating of the APCN 2 for any reason, the owner of the Terminal Station shall provide reasonable advance notice to all Parties and such owner, in agreement with the Parties hereto, shall take all necessary measures to ensure that another appropriate Terminal Station will be available for the APCN 2 for the duration of this Agreement on terms and conditions similar to those contained in this Agreement. Applicable costs to the Parties will be determined by the Management Committee.   11.3 For each Terminal Station Right of Use, the Parties hereto shall not be required to pay any additional charges over and above the Capital Costs and O&M costs.   11.4 Notwithstanding Subparagraph 11.1 of this Agreement, a Party thereby granted a Terminal Station Right of Use interest in Segment T may, prior to the commencement of that Terminal Station Right of Use interest, elect to renounce its Terminal Station Right of Use entitlement and to instead have use of any Segment T for the duration of this Agreement on such terms and conditions as are agreed between that Party and the relevant Terminal Party, and in such event the provisions of Subparagraphs 11.1 of this Agreement shall apply in relation to such use except insofar as they may be modified by such agreements. This Subparagraph 11.4 shall not operate to confer on a Party any financial or other benefit of substance to which that Party would not otherwise be entitled under this Agreement.   11.5 The Terminal Parties agree to grant a Terminal Station Right of Use to APCN 2 IRU purchasers.   11.6 In the event of a sale or other disposition of Segment T1, T2,T3, T4, T5, T6, T7, T8, T9 and T10, or part thereof prior to the termination of this Agreement, the owner shall share with the other Parties hereto any net proceeds, or costs, of such sale or disposition received, or expended, by the owner, to the extent allocable to the Capital Costs, in the proportions set forth in Schedule B.   12. ACQUISITION AND USE OF CAPACITY   12.1 Capacity of APCN 2 can only be used by a carrier.   12.2 Parties shall obtain Allocated Capacity in the form of MIU on an ownership basis as shown in Schedule C, in return for their financial investment as identified in Schedule B.   12.3 Procedures for Parties activation of their Allocated Capacity will be developed by the AR&RSC and the NA for Management Committee approval.   24





  ASSIGNMENT OF CAPACITY   12.4 For each MIU of its Allocated Capacity, a Party is allowed to assign two (2) half STM-l circuits on any Path within the APCN 2. All such circuits are ring-protected. Additional ring-protected half STM-1 circuits may be granted proportionately to a Party's Allocated Capacity as shown in Schedule C at the discretion of the Management Committee according to the recommendation of the AR&RSC and the NA.   12.5 The Parties may designate a portion of their Allocated Capacity in specific Paths of the APCN 2 as:   (i) Jointly Assigned Circuit (hereinafter referred to as JAC) which shall be considered as consisting of two half STM-I circuits, with one half STM-1 circuit assigned to a Party, which together with the corresponding half STM-1 circuit, shall be used for the provision of international telecommunications services between such a Party and another Carrier that has received the right of use pursuant to this Paragraph 12 or an APCN 2 IRU purchaser. Any alteration to the JAC is subject to bilateral agreement between both Carriers.   (ii) Wholly Assigned Circuit (hereinafter referred to as WAC) which shall be considered as consisting of two half STM-1 circuits assigned to one Party.   USE OF WHOLLY ASSIGNED CIRCUIT   12.6 A Party is allowed to use its WAC for the provision of international telecommunications services with itself, its Subsidiary, its Parent Company and/or the Subsidiary of the Party's Parent Company provided that the correspondent parties are also Carriers.   12.7 A Party is also allowed to use its WAC to interconnect with other communication systems for the provision of international telecommunications services terminating outside the APCN 2 landing Countries. If such WAC is originated from any APCN 2 landing Country, such Party must be a Carrier of that Country.   12.8 A Party is also allowed to use its WAC for the provision of international telecommunications services with its Affiliate and/or the Affiliate of the Party's Parent Company provided that this Affiliate is a Carrier and a cash contribution is made by the Party to a special fund dedicated solely to fund future upgrades to increase the Equipped Capacity. The amount of the contribution is described in Annex 7.   PORTABILITY OF CAPACITY   12.9 A Party is allowed to de-assign its JAC and/or WAC to its Allocated Capacity provided that bilateral agreement is given by the concerned Camera and according to the guidelines to be developed by the AR&RSC and the NA.   12.10 Re-assignment of Allocated Capacity which resulted from the de-assignment of the JAC and/or WAC shall give priority to the assignment of Allocated Capacity which has not   25





  been de-assigned before, in the event that there is any conflicting requirement for use of capacity on the APCN 2.   12.11 Under no circumstances shall a Party's JAC and/or WAC be de-activated due to the assignment of other Parties' Allocated Capacity.   TRANSFER OF CAPACITY   12.12 For the purpose of this Agreement, Transfer of capacity (hereinafter called Transfer) is the making available of all the right of use of the capacity being made available that is accorded to a Party by this Agreement to a third party without transferring the Party's other obligations and rights including the right of Transfer.   12.13 Transfer of a Party's Allocated Capacity to its Subsidiary or its Parent Company or the Subsidiary of the Party's Parent Company is allowed provided that the capacity transferred is in multiples of the MIU and that the recipient of the transferred capacity is a Carrier.   12.14 Transfer of a Party's Allocated Capacity to its Affiliate and/or the Affiliate of the Party's Parent Company is also allowed provided that the capacity transferred is in multiples of the MIU and that the recipient of the transferred capacity is a Carrier. For the Transfer to an Affiliate, the transferring party shall make a cash contribution to a special fund dedicated solely to fund future upgrades to increase the Equipped Capacity. The amount of the contribution is described in Annex 7.   12.15 The conditions applicable to the use and Transfer of capacity as specified in Annex 7 shall be relaxed after the Equipped Capacity is expanded to four (4) times of Initial Equipped Capacity or two (2) years after the RFS date whichever comes first unless an earlier date is approved by the Management Committee. Any relaxations on these conditions shall be approved by a vote of the members of the Management Committee representing at least seventy-five percent (75%) of the total voting interests as specified in Schedule B.   12.16 The Unallocated Capacity in the APCN 2 shall be owned by the Parties in common and undivided shares in accordance with the percentages in Schedule C.   12.17 IRU Capacity will be sold at the MJU level. Such IRU Capacity will be sold from the Unallocated Capacity. Proceeds from the sale of such IRU Capacity shall be used to fund the Expansion of the APCN 2 Equipped Capacity.   12.18 A Party or IRU purchaser may use its MIU with itself, another Party, or IRU purchaser to form matched circuits.   12.19 The distribution of capacity from the initial Unallocated Capacity shall be made no later than three (3) years from the RFS date on a pro rata basis, in MIUs, in accordance with the percentages in Schedule C. The exact time to implement such distribution of capacity   26





  shall be decided by a vote of members of the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B.   12.20 Once the Equipped Capacity is expanded to six (6) times of Initial Equipped Capacity or three (3) years after the RFS date whichever comes first unless an earlier date is approved by the Management Committee, any Party is entitled to sell IRU to other Carriers from its Allocated Capacity on a private basis without any restrictions except that the IRU shall be for the life of APCN 2. The terms and conditions including pricing of such private IRU sales are bilateral matters between granting Party and purchaser.   12.21 When Unallocated Capacity is depleted, and during the period until the availability of additional Unallocated Capacity, a Party may be allowed to sell IRU to other Carriers from its Allocated Capacity privately subject to the Management Committee's approval on a case by case basis. The terms and conditions including pricing of such private IRU sales are bilateral matters between granting Party and purchaser.   12.22 Notwithstanding any other provisions in this Paragraph 12, when the Equipped Capacity is expanded to six (6) times of Initial Equipped Capacity or three (3) years after the RFS date whichever comes first, any Party is entitled to make available any of its Allocated Capacity for use by other Carriers on any commercial basis without any restrictions.   12.23 Guidelines for use of the IRU Capacity and Terms and Conditions of the IRU agreement shall be developed by the I&ASC and approved by a vote of members of the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B. The NA shall be authorized to execute IRU agreements for one or more whole MIUs with APCN 2 IRU Capacity purchasers on behalf of the Parties to this Agreement. No provisions of the IRU agreement shall override the provisions of this Agreement.   12.24 Schedules B, C, and D shall be modified by the NA, as appropriate, to reflect any revised ownership of capacity or sales of IRU Capacity pursuant to this Paragraph 12.   12.25 The Management Committee may authorize use of the Unallocated Capacity for restoration of telecommunications services and other purposes. The terms and conditions of such use shall be determined by the Management Committee based, in part, on terms to be agreed to by the relevant Terminal Parties of the APCN 2, in recognition of the technical and operational impact on the Terminal Station operations. Parties will receive revenues in accordance with Schedule C.   12.26 The communications capability of any capacity may be optimized by the Parties to whom such capacity is allocated by the use of equipment which will more efficiently use such capacity provided that the use of such equipment does not cause an interruption of, or interference, impairment, or degradation to, the use of any other capacity in the APCN 2 or prevent the use of similar equipment by other Parties. A Party to whom capacity is allocated shall permit the use of such equipment by a Carrier to which such Party has   27





  made available the use of any such capacity, provided that such Carrier agrees that its use of the equipment will satisfy the conditions set forth in this Subparagraph 12.26.   12.27 A Party may sell capacity in fascicles smaller than a STM-1 in the APCN 2 at any time on any basis other than by transfer of ownership. The APCN 2 shall not be responsible for aggregating such capacity to the STM-1 level.   13. EXPANSION OF EQUIPPED CAPACITY   13.1 Any upgrade of Equipped Capacity of APCN 2, including any costs, financial adjustments and allocation of capacity associated with such upgrade, shall be approved by vote of members of the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B.   13.2 All Parties shall have the might to a pro-rata share of the upgrade capacity in accordance with Schedule C. However, no Party shall be forced to participate in such an upgrade. Parties not   14. INCREASE OR DECREASE OF DESIGN CAPACITY   14.1 In the event that the Initial Parties consider that it is beneficial to increase the Design Capacity of APCN 2, a Design Capacity expansion, including any costs, financial adjustments and allocation of capacity associated with such upgrade, shall be decided by the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B. However, no Party shall be forced to participate in such an upgrade, in the event that incremental funding is required to execute such an upgrade. Schedules B and C shall be appropriately modified to reflect the revisions associated with such increase of Design Capacity.   14.2 In the event that the capacity which APCN 2 or any Segment thereof is capable of providing is reduced below the capacity required to support the Allocated Capacity on its existing or planned routings as a result of physical deterioration, or for other reasons beyond the control of the Parties, the Management Committee shall initiate a review of the capacity routings, in order to support the rerouting of such Allocated Capacity.   14.3 In the event that the capacity which APCN 2 or any Segment thereof is capable of providing is lower than the capacity needed to support the routing of circuits assigned in APCN 2, the Allocated Capacity of the Parties may be reduced or changed as necessary and agreed by the Parties affected, and financial adjustments shall be made among the Parties, as necessary, on the terms and conditions to be agreed by the Management Committee. The Schedules shall be modified, as appropriate, to reflect the revised Allocated Capacity associated with such decrease of the Design Capacity.   28





  15. OBLIGATION TO PROVIDE TRANSITING FACILITIES TO EXTEND APCN2 CAPACITY TO EXTEND APCN 2 CAPACITY   15.1 The Terminal Parties shall use all reasonable efforts to provide and maintain or cause to be provided and maintained in working order for the duration of this Agreement, the necessary transit facilities within their respective Countries as may be reasonably required for extending capacity in the APCN 2 so as to provide connections to the other international cables' transmission facilities.   15.2 The facilities provided pursuant to Subparagraph 15.1 shall be suitable for extending capacity in the APCN 2 of all payload types as defined in Subparagraph 15.3 and shall be furnished and maintained on terms and conditions which shall be no less favorable than those granted to another Carrier for transmission facilities of similar type and quantity transiting the location involved. Such terms and conditions shall not be inconsistent with applicable governmental regulations in the Countries in which the facilities are located.   15.3 As required the Terminal Parties shall support payloads of STM-l, STM-4, STM-l6 and STM-64.   16. OBLIGATION TO CONNECT THE APCN 2 WITH INLAND SYSTEMS   16.1 The Parties shall, at their own expense, on or before the RFS Date, do or cause to be done, all such acts and things as may be necessary within its operating Country to provide and maintain throughout the period of this Agreement suitable connection of capacity from APCN 2 with appropriate inland communications facilities in its operating Country.   16.2 The Terminal Parties will provide connection to APCN 2 to other Carriers within their Countries on terms and conditions negotiated and agreed by the parties concerned.   17. DIRECT ACCESS TO NETWORK INTERFACE AND EQUAL ACCESS TO TERMINAL STATION   17.1 The Terminal Parties agree to confer the right of Direct Access at the Network Interface to each Party and all other Carriers that have received the Right of Use pursuant to Paragraph 12. The connection to the Network Interface at specific Terminal Stations shall be provided at a reasonable cost in accordance with the physical, engineering and any locally applicable arrangements between the Carriers accessing the Network Interface and the respective Terminal Parties at the Terminal Station.   17.2 Upon request by the Parties or the other Carriers, the Terminal Party shall enter into negotiation in good faith with these parties to agree the above arrangements in a timely manner. Any arrangements agreed upon shall be reasonable and non-discriminatory.   29





  17.3 The physical and engineering arrangements to be negotiated shall include all reasonable arrangements such as mid-span interconnection, equipment co-location (whether physical or virtual), or the sharing of Direct Access facilities by one or more Carriers in accordance with applicable commercial arrangements to be negotiated between the Terminal Party and the Carriers concerned.   17.4 The Terminal Parties shall not and hereby pledge not to impede or cause to impede any qualified Carriers in exercising their right of Direct Access hereby conferred, including but not limited to the negotiation between the non-Terminal Parties and Carriers for their own facilities to access their Allocated Capacity including for purpose of providing backhaul and transiting facilities.   18. DURATION OF AGREEMENT AND REALIZATION OF ASSETS   18.1 This Agreement shall become effective on the date and year first above written and shall continue in operation for at least an initial period of twenty-five (25) years following the RFS Date (hereinafter referred to as initial Period) and shall be terminable thereafter by agreement of the Parties. However, any Party may terminate its participation in this Agreement at the end of the Initial Period or any time thereafter by giving not less than one (1) year's prior notice thereof, in writing, to the other Parties.   18.2 This Agreement may be terminated at any time during the Initial Period by agreement in writing of all the Parties. If unanimous agreement cannot be reached between all the Parties for the retirement of APCN 2 during its specified useful life, this subject matter shall be referred to the Management Committee for resolution in accordance with paragraph 3 but in this case a ninety percent (90%) majority of the total voting interests as specified in Schedule B is required.   18.3 After the Initial Period of twenty-five (25) years, decommissioning can be implemented by agreement of a number of Parties representing at least two-thirds (66.67%) of the voting interests specified in Schedule B.   18.4 If a Terminal Party terminates its participation in this Agreement pursuant to Subparagraph 18.1 of this Agreement after the Initial Period of twenty-five (25) years, the remaining Parties and the said Terminal Party will negotiate a reasonable agreement in order to ensure the continuous operation of the said Terminal Party's Terminal Station after the Initial Period.   18.5 Upon the effective date of termination of participation of a Party, Schedules of this Agreement shall be appropriately modified. The remaining Parties to this Agreement shall assume the obligations, capital, operation, and maintenance interests of the Party terminating its participation in proportion to their interests assigned immediately preceding such effective date of termination, except for the continuing rights and obligations of the terminating Party as specified in Subparagraph 18.7 of this Agreement.   30





  No credit for capital costs will be made to a Party that terminates its participation in accordance with Subparagraph 18.1.   18.6 Upon decommissioning of the APCN 2, the Parties shall use all reasonable efforts to liquidate Segment S1, S2, S3, S4, S5, S6, S7, and S8 of the APCN 2, within one (1) year, by sale or other disposition between the Parties or any of them or by sale to other entities or persons; but no sale or disposition shall be effected except by agreement between or among the Parties to this Agreement at the time of decommissioning. In the event agreement cannot be reached, the decision will be carried on the basis of a simple majority vote of the total voting interests as specified in Schedule B. The net proceeds, or costs of decommissioning, removal, every sale or other disposition shall be divided between or among the Parties to this Agreement who have or were deemed to have interests in the subject thereof, in the proportions in which such Parties, interests are specified in Schedule B immediately preceding the time any Party terminates its participation in this Agreement. The Parties shall execute such documents and take such action as may be necessary to effectuate any sale or other disposition made pursuant to this Paragraph 18.   18.7 Unless the Management Committee shall otherwise determine, a Party's termination of its participation in this Agreement or the termination of this Agreement, pursuant to Subparagraph 18.1, shall not relieve that Party or the Parties hereto from any liabilities arising from events occurring before a Party's termination on account of claims made by third parties in respect of such facilities or any part thereof and damages or compensation payable on account of such claims, or obligations which may arise in relation to the APCN 2 due to any law, order or regulation made by any government or supranational legal authority pursuant to any international convention, treaty or agreement. Any such liabilities or costs incurred or benefits accruing in satisfying such obligations shall be divided among the Parties hereto in the proportions in which such Parties, interests are specified in Schedule B immediately preceding the time a Party terminates its participation in this Agreement or this Agreement is terminated pursuant to Subparagraph 18.1, whichever occurs first.   19. OBTAINING OF APPROVALS   19.1 The performance of this Agreement by the Terminal Parties is contingent upon the obtaining and continuance of such governmental approvals, consents, authorizations, licenses, and permits as may be required or be deemed necessary by the Terminal Parties and as may be satisfactory to them, and the Terminal Parties shall use all reasonable efforts to obtain and to have continued in effect such approvals, consents, authorizations, licenses, and permits.   19.2 The Terminal Parties shall make all reasonable efforts to handle matters relating to the obtaining and continuance of such governmental approvals, consents, authorizations, licenses, and permits for the Landing, construction and operation of APCN 2 in their respective Countries.   31





  19.3 In the event that any Terminal Party fails, or is likely to fail, to obtain such approvals, consents, authorizations, licenses or permits, that Terminal Party shall give immediate notice to the Management Committee for it to take appropriate action pursuant to this Agreement.   20. PRIVILEGES FOR DOCUMENTS OR COMMUNICATIONS   In the event that the Management Committee decides to go to arbitration in accordance with Paragraph 27, each Party specifically reserves, and is granted by each of the other Parties, in any action, arbitration or other proceeding between or among the Parties or any of them in a country other than that Party's own country, the right of privileges, in accordance with the laws of the country in which the arbitration or litigation takes place with respect to any documents or communications which are material and pertinent to the subject matter of the action, arbitration or proceeding in which privilege could be claimed or asserted by that Party in accordance with those laws.   21. RELATIONSHIP OF PARTIES   21.1 The relationship among the Parties shall not be that of partners, and nothing herein contained shall be deemed to constitute a partnership among them. The common enterprise between and among the Parties shall be limited to the express provisions of this Agreement. The liability of the Parties shall be several and not joint or collective.   21.2 Each Patty agrees to indemnify each of the other Parties in respect of all costs, expenses, damages and demands, arising out of or in connection with any claim against, or liability of, the latter as an owner of APCN 2 where such claim is made by, or the liability is to, any third party not being a Party hereto and arises out of or in connection with APCN 2 provided that no indemnifying Party shall be obligated to contribute more than its share of liability as per Schedule B. Subject to there being no conflict of interest, each Party so indemnifying shall have the right, at its sole cost and expense, to observe but not directly participate in any discussions, meetings or conferences held prior to or during any settlement or legal proceedings resulting from any such claim or liability.   21.3 Under no circumstances shall any Party be liable to any other Party in contract, tort, (including negligence or breach of statutory duty) or otherwise for loss (whether direct or indirect) of profits, property, traffic, business or anticipated savings, or for any indirect or consequential loss or damage in connection with the operation of this Agreement howsoever caused. Such causes shall include (but not be limited to):   (i) any delay in the provision of the APCN 2; (ii) any damage to, breakdown in or failure of the APCN 2; and (iii) any interruption of service,   32





  whatever may be the reason or duration for such loss, damage or delay and for however long it shall continue.   22. ASSIGNMENT OF RIGHTS AND OBLIGATIONS   22.1 Except as otherwise provided in Paragraph 12 and Subparagraphs 22.2, 22.3, 22.4 and 22.5, during the term of this Agreement, no Party may assign, sell, transfer or dispose of the whole or any parts of its rights or obligations under this Agreement   22.2 A Party may at any time, with the prior written consent of the Management Committee, assign, sell or transfer the whole of its rights and obligations under this Agreement. The Management Committee must not unreasonably withhold or delay its approval.   22.3 A Party may at any time assign, sell or transfer the whole of' its rights and obligations under this Agreement to:   (a) a successor of that Party; (b) a Parent Company of that Party; (e) a Subsidiary or Affiliate of that Party; and (d) another Subsidiary or Affiliate of that Party's Parent Company.   22.4 A Party (hereafter Assignor) may assign, sell or transfer a portion of its rights under this Agreement to a Parent Company, its Subsidiary, and/or the Subsidiary of the Party's Parent Company (hereafter Assignee). Such partial assignment shall be allowed only once to any such Assignee, and shall not negate any of the obligations of the Assignor. If the Assignor is an Initial Party, then the Initial Party status of the Assignor shall be maintained and the Assignor's voting rights shall be shared with such Assignee. The relevant Schedules to this Agreement shall be revised to reflect each such partial assignment permitted hereunder, showing the Assignee as a Party. No subsequent assignment shall be effected by the Assignee except as provided in Subparagraph 22.3(a).   22.5 Without limiting the applicability of Subparagraph 22.4, a Party may assign its rights, title and interests in any portion of APCN 2 within the territorial limits of any Country (both under the current and any future configuration) to a Subsidiary, Parent Company or a Subsidiary of a Parent Company of that Party only if:   a) the Assignee shall own and be responsible for the capital, operations and maintenance costs listed against the Party for that portion of APCN 2 within the territorial limits of any Country (both under the current and future configuration); the Party shall own and be responsible for the capital, operating and maintenance costs listed against the Party for the remainder of APCN 2; and   b) the Assignee will have no tights and obligations independent from the rights and obligations of the Party in respect of the assigned portion of the APCN 2   33





  The aforementioned provision shall not be used to circumvent the provisions under Paragraph 12.   22.6 A Party exercising its rights under Subparagraphs 22.2, 22.3, 22.4 or 22.5 must give notice in writing to all other Parties in a timely manner.   23. DEFAULT   23.1 If any Party fails to make any payment required by this Agreement on the date when it is due and such default continues for a period of at least one (1) month after the payment due date, the CBP shall notify the billed Party and also the Management Committee in writing of the status of the matter and will request the reclamation of capacity, as provided for in this Paragraph 23, if full payment is not received within two (2) months of such notification. If full payment is not received within such specified period, the Management Committee may reclaim the Capacity in the APCN 2 allocated to the billed Party.   23.2 The Management Committee shall consider any extenuating circumstances not within the specific control of the billed Party in determining whether or not to reclaim the capacity assigned to such billed Party. If the Management Committee nevertheless reclaims any capacity in the APCN 2 assigned to such defaulting Party, the defaulting Party shall not be entitled to any payment or credit for the reclaimed capacity. The Management Committee shall determine arrangements for disposition of any reclaimed capacity. All rights of a defaulting Party under this Agreement shall terminate as of the time all its capacity in the APCN 2 is reclaimed by the Management Committee; and concurrent with such reclamation of capacity, the defaulting Party will no longer be deemed to be a Party to this Agreement. Such reclamation shall not relieve the defaulting Party from its obligations under this Agreement, including but not limited to the payment of its unpaid accounts, which have been incurred prior to the actual reclamation. The defaulting Party is not entitled to any reimbursement of any amounts it had paid under this Agreement. In such circumstances, the Schedules shall be revised to reflect the default of a Party and the reallocation of interests pursuant to the arrangements determined by the Management Committee.   23.3 Notwithstanding Subparagraph 23.2, reclamation of a Terminal Party's capacity will not release the Terminal Party from providing, operating and maintaining its respective Terminal Station until a reasonable agreement is negotiated in order to ensure the continuous operation of the said Terminal Party's Terminal Station after reclamation of its capacity.   24. WAIVER   The failure of any Party, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall not thereafter be   34





  construed as a waiver of any breach or default, or as a waiver of any such provision, right, or privilege hereunder.   25. COMPLIANCE WITH LAW   In the performance of their obligations hereunder, the Parties agree to comply with all applicable laws of all Countries having jurisdiction over the activities performed under or stipulated by this Agreement.   26. RATIFICATION OF DECISIONS AND ACTIONS   Each Party to this Agreement does hereby unconditionally ratify and accept as binding on it, its successors, permitted assigns or trustees all decisions and actions theretofore taken directly or indirectly by any other Party or Parties or any committee or Subcommittee or group pursuant to and in accordance with this Agreement.   27. RESOLUTION OF DISPUTES   27.1 If a dispute should arise under this Agreement between or among the Parties they shall make every reasonable effort to resolve such dispute. However, in the event that they are unable to resolve such dispute, the matter shall be referred to the Management Committee which shall either resolve the matter or determine the method, such as arbitration, by which the matter should be resolved. This procedure shall be the sole and exclusive remedy for any dispute which may arise under this Agreement between or among the Parties. The performance of this Agreement by the Parties shall continue during the resolution of any dispute.   27.2 If any difference shall arise between or among the Parties or any of them in respect of the interpretation or effect of this Agreement or any part or provision thereof or their rights and obligations thereunder, and by reasons thereof there shall arise the need to decide the question by what municipal or national law this Agreement or any part or provision thereof is governed, the following facts shall be excluded from consideration, namely that this Agreement was made in a particular country and that it may appear by reason of its form, style, language or otherwise to have been drawn preponderantly with reference to a particular system of municipal or national law; the intention of the Parties being that such facts shall be regarded by the Parties and in all courts and tribunals wherever situated as irrelevant to the question aforesaid and to the decision thereof.   28. SUPPLEMENTS AND AMENDMENTS TO THIS AGREEMENT   28.1 This Agreement shall not be amended, supplemented, or modified unless the Parties representing at least ninety percent (90%) of the voting interests specified in Schedule B   35





  have indicated their approval in writing. The Chairman of the Management Committee must provide advance written notice, of at least thirty (30) days, to all Parties of the proposed amendment, supplement or modification and shall notify all Parties in writing once the required level of approval has been obtained and at least ten (10) days prior to execution of the amendatory or supplementary agreement   28.2 Each Party except SingTel and PLDT authorizes the Chairman of the Management Committee to execute on its behalf any amendatory or supplementary agreement implementing an amendment, supplement or modification approved under Subparagraph 28.1. SingTel and PLDT shall provide the Power of Attorney to the Chairman of the Management Committee to execute on its behalf any amendatory or supplementary agreement implementing an amendment, supplement or modification approved under Subparagraph 28.1 in a timely manner.   28.3 Subparagraphs 28.1 and 28.2 shall not apply to any Schedule or Annex modified in accordance with other provisions of this Agreement, and any Schedule or Annex so modified shall be deemed to be part of this Agreement in substitution for the immediately preceding version of that Schedule or Annex.   29. EXECUTION OF AGREEMENT   29.1 This Agreement and any Supplements and Amendments hereto shall be executed in one (1) original in the English language. Identical counterparts may be executed and when so executed shall be considered as an original. Such counterparts shall together, as well as separately constitute one and the same instrument.   29.2 The NA shall be the custodian of the original and will provide certified copies to Parties to this Agreement.   30. SUCCESSORS BOUND   This Agreement shall be binding on the Parties, their successors, and permitted assigns.   31. CONFIDENTIALITY   31.1 All data and information that is acquired or received by any Party in connection with the APCN 2 in anticipation of or under this Agreement shall be held confidential and shall not be divulged in any way to any third party, without the prior approval of the Management Committee.   31.2 Notwithstanding Subparagraph 31.1, any Party may, without such approval, disclose such data and information to:   36





  (i) the extent required by any applicable laws, or the requirements of any recognized stock exchange in compliance with its rules and regulations or in the case of a Party wholly owned by a sovereign government, by the rules of governance of the Party; or   (ii) any government agency lawfully requesting such information; or   (iii) any Court of competent jurisdiction acting in pursuance of its powers.   31.3 Any Party may disclose such data and information to such persons as may be necessary in connection with the conduct of the operations of the APCN 2 upon obtaining a similar undertaking of confidentiality from such persons to whom such information may be disclosed.   31.4 Each Party shall remain bound by the provisions of this Paragraph 31 during the period of this Agreement and for the period of five (5) years following termination of this Agreement.   32. SETTLEMENT OF CLAIMS BY PARTIES   32.1 If any Party is obliged by a final judgment of a competent tribunal or under a settlement approved by the Management Committee, to discharge any claim by a third party, including all costs and expenses associated therewith, resulting from the implementation of this Agreement, the Party which has discharged the claim shall be entitled to receive from the other Parties reimbursement in the proportions as set out in Schedule B.   32.2 If any claim is brought against a Party in connection with the APCN 2, the Party shall, as a condition of reimbursement under Subparagraph 32.1, give written notice thereof to the Management Committee as soon as practicable and shall not admit liability nor settle, adjust or compromise the claim without the approval of the Management Committee.   32.3 Before any Party brings a claim against any third party in respect of loss or damage to any part of the APCN 2, it shall first consult with the Management Committee and shall not settle, adjust, or compromise such a claim without the approval of the Management Committee.   32.4 Notwithstanding Subparagraphs 32.2 and 32.3, if the Management Committee issues any directions to a Party relating to the conduct of any such claim, then that Party must comply with those directions.   32.5 Costs, expenses, damages, or compensation payable to the Parties on account of claims made against third parties shall be shared by the Parties in the proportions as set out in Schedule B.   37





  32.6 Upon termination of this Agreement pursuant to Paragraph l8, the Parties shall not be relieved from any liabilities, costs, damages or obligations which may arise in connection with claims made by third parties with respect to the APCN 2, or any part thereof, or which may arise in relation to the APCN 2 due to any law, order or regulation made by any government or international convention, treaty or agreement. Any such liabilities, costs, damages or obligations shall be divided among the Parties in the proportions as set out in Schedule B.   33. FORCE MAJEURE   If any Party cannot fulfill its obligations in this Agreement due to an event beyond its reasonable control, including, but not limited to lighting, flood, exceptionally severe weather, fire or explosion, civil disorder, war or military operations, national or local emergency,   35.2  This Agreement supersedes the MOU. Any liabilities which any Party has incurred arising out of or by virtue of the MOU shall be dealt with in accordance with the provisions of this Agreement.   38





  TESTIMONIUM   IN WITNESS WHEREOF, the Parties hereto have severally subscribed these presents or caused them to be subscribed in their names and on their behalf by their respective officers thereunto duly authorized.     For and on behalf of Advantage Telecommunications Ltd.         By:

        For and on behalf of Cable & Wireless Global Network Limited         By:

        For and on behalf of Cable & Wireless HKT international Limited         By:

        For and on behalf of China Telecom         By:

  39





  For and on behalf of China United Telecommunications Corporation         By:

        For and on behalf of Chunghwa Telecom Co., Ltd.,         By:

        For and on behalf of Concert Global Network Services, Ltd.         By:

        For and on behalf of Global One Communications Network, Inc.



        By:

        For and on behalf of Japan Telecom Co., Ltd.



        By:

  40





  For and on behalf of KDD Corporation



        By:

        For and on behalf of Korea Telecom



        By:

        For and on behalf of KPN Telecom B.V.



        By:

        For and on behalf of Layer 2 Communications Group Ltd.



        By:

        For and on behalf of MCI International Telecommunications. Inc.



        By:

  41





  For and on behalf of Metromedia Fiber Network Services, Inc.



        By:

        For and on behalf of New Century InfoComm Ltd., Preparatory Office         By:

        For and on behalf of NTT Communications Corporation



        By:

        For and on behalf of Onelink Cable Network Limited



        By:

        By:

        For and .on behalf of Philippine Long Distance Telephone Company         By:

  42





  For and on behalf of Singapore Telecommunications Limited



        By:

        For and on behalf of StarHub Pte Ltd



        By:

        For and on behalf of Taiwan Fixed Network Co., Ltd. Preparatory Office



        By:

        For and on behalf of Teleglobe USA Inc.



        By:

        For and on behalf of Telekom Malaysia Berhad (128740-P)



        By:

  43





  For and on behalf of Telstra Global Networks Limited         By:

        For and on behalf of Williams Communications, Inc.,         By:

        For and on behalf of APT Satellite Telecommunications Limited         By:

        For and on behalf of Bayan Telecommunications, Inc.



        By:

  44





  For and on behalf of China Netcom Corporation Ltd.



        By:

        For and on behalf of The Communications Authority of Thailand



        By:

        For and on behalf of CTI International Limited



        By:

        For and on behalf of Dacom Corporation



        By:

        For and on behalf of edge2net Inc.



        By:

  45





  For and on behalf of Eastern Telecommunications Philippines, Incorporated         By:

        For and on behalf of Global Access Ltd.



        By:

        For and on behalf of Globe Telecom, Inc.



        By:

        For and on behalf of GNG Networks. Inc.



        By:

        For and on behalf of GTE Intelligent Network Service Incorporated         By:

  46





  For and on behalf of PT Indosat (Persero) Tbk



        By:

        For and on behalf of Maxis International Sdn. Bhd



        By:

        For and on behalf of New World Telephone Limited



        By:

        For and on behalf of NTT Com Asia Ltd.



        By:

        For and on behalf of Onse Telecom Corporation



        By:

  47





  For and on behalf of Telia AB (publ)



        By:

        For and on behalf of TT dotCom Sdn Bhd



        By:

  48
[EX A]: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

[EX Q]: Exhibit 10.1

TRANSPORTATION SERVICES AGREEMENT

THIS TRANSPORTATION SERVICES AGREEMENT (this Agreement) is dated as of June 11, 2015, by and between Marathon Petroleum Company LP (Shipper) and Marathon Pipe Line LLC, a Delaware limited liability company (MPL), both referred to jointly as the Parties and each individually as a Party.

WITNESSETH

WHEREAS, MPL owns and operates a common carrier pipeline system originating in Ohio, as further depicted on Exhibit A, that will provide both interstate and intrastate common carrier transportation services; and

WHEREAS, MPL also operates the assets of Ohio River Pipe Line LLC, a Delaware limited liability company (ORPL) and an affiliate of MPL. ORPL is the owner of a common carrier pipeline system originating in Ohio, as further depicted on Exhibit A, that provides common carrier transportation services; and

WHEREAS, MPL and ORPL desire to combine their systems (together referred to as the Pipeline) under a Joint Agreement (as defined below) in order to undertake certain improvements to provide expanded capacity on portions of the Pipeline and install additional infrastructure to other portions of the Pipeline pursuant to a multi-phase capital project (the Project); and

WHEREAS, MPL and ORPL conducted a joint binding open season with the understanding that MPL will file a joint tariff, commencing approximately 30 days prior to the in-service date of the Project, seeking binding commitments on the Pipeline; and

WHEREAS, Shipper responded to the binding open season and desires to commit to transport a specified volume of Product (as defined below) on the Pipeline over a multi-year period to destinations as provided in Exhibit C, subject to and upon the terms and conditions of this Agreement; and

WHEREAS, in exchange for the commitment by Shipper to transport a specific volume of Product on the Pipeline over a multi-year period, MPL will charge the rates as provided for in Exhibit B; and

NOW THEREFORE, in consideration of the premises and mutual covenants set forth hereinafter, MPL and Shipper agree as follows:

1. Definitions

Affiliate means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries' controls, is controlled by or is under common control with, the Person in question.

Applicable Law means any applicable statute, law, regulation, ordinance, rule, determination, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, requirement, or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued by any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect. Barrel means forty-two (42) U.S. gallons measured at sixty (60) degrees Fahrenheit.

1





Change in Law means the adoption, implementation or amendment of any Applicable Law by any Governmental Authority after the Effective Date that causes MPL to incur additional expenses in order to operate the Pipeline in compliance with such Applicable Law.

Change in Law Event means the occurrence of a Change in Law that necessitates the expenditure of Compliance Costs.

Compliance Costs means the expenses in excess of $1,000,000 for a Change in Law Event, related specifically to the Department of Transportation, Pipeline and Hazardous Materials Safety Administration or Homeland Security, incurred by MPL to comply with a Change of Law, irrespective of whether such expenses are to be incurred as a onetime expenditure or periodically for an extended period. The definition for Compliance Costs shall in no way revise or modify the definitions of Change in Law or Change in Law Event.

Contract Year means the period beginning on the project in-service date in conjunction with the FERC tariff filing, and ending 365 days later (366 days later for any such period that includes a February 29.)

Confidential Information means any proprietary or confidential information that is competitively sensitive material or otherwise of value to a Party or its Affiliates and not generally known to the public, including trade secrets, scientific or technical information, design, invention, process, procedure, formula, improvements, product planning information, marketing strategies, financial information, information regarding operations, consumer and/or customer relationships, consumer and/or customer identities and profiles, sales estimates, business plans, and internal performance results relating to the past, present or future business activities of a Party or its Affiliates and the consumers, customers, clients and suppliers of any of the foregoing. Confidential Information includes such information as may be contained in or embodied by documents, substances, engineering and laboratory notebooks, reports, data, specifications, computer source code and object code, flow charts, databases, drawings, pilot plants or demonstration or operating facilities, diagrams, specifications, bills of material, equipment, prototypes and models, and any other tangible manifestation (including data in computer or other digital format) of the foregoing; provided, however, that Confidential Information does not include information that a receiving Party can show (a) has been published or has otherwise become available to the general public as part of the public domain without breach of this Agreement, (b) has been furnished or made known to the receiving Party without any obligation to keep it confidential by a third party under circumstances which are not known to the receiving Party to involve a breach of the third party's obligations to a Party or (c) was developed independently of information furnished or made available to the receiving Party as contemplated under this Agreement.

Construction Costs means all costs and expenses incurred by MPL in connection with the Project, including, without limitation, those costs relating to design, asset modification or enhancement and developmental costs, whether internal or external. Such costs include all expenditures that have been committed to by MPL via purchase order, contract or otherwise, even if MPL has not remitted funds for the goods or services that are the subjects thereof.

Construction Cost Reimbursement has the meaning set forth in Section 10.5.

Day means a period of twenty-four (24) consecutive hours commencing 12:00 a.m. Central Standard Time, or such other period upon which the Parties may agree.

2





Deficiency Volume has the meaning set forth in Section 3.5.

Deliveries means the volume of Product delivered through the Pipeline.

Effective Date has the meaning set forth in Section 2.1.

Election Deadline has the meaning set forth in Section 6.6.

Expansion Notice has the meaning set forth in Section 6.6.

Expansion Volume Commitment has the meaning set forth in Section 6.6.

Extension Period has the meaning set forth in Section 2.2.

FERC means the Federal Energy Regulatory Commission.

Force Majeure means acts of God, fires, floods, storms; compliance with orders of courts or Governmental Authorities; explosions, wars, terrorist acts, riots, strikes, lockouts or other industrial disturbances; accidental disruption of service; breakdown of machinery, storage tanks or pipelines and inability to obtain or unavoidable delays in obtaining material or equipment; and similar events or circumstances, so long as such events or circumstances are beyond the affected Party's reasonable control and could not have been prevented by the affected Party's due diligence; provided, however, that a Party's failure to pay any amounts due hereunder shall not constitute an event of Force Majeure.

Force Majeure Notice has the meaning set forth in Section 5.1.

Force Majeure Period has the meaning set forth in Section 5.1.

Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.

Initial Term has the meaning set forth in Section 2.2.

Joint Agreement means the agreement between ORPL and MPL to undertake certain improvements to provide expanded capacity on portions of the ORPL systems and install additional infrastructure to portions of the MPL systems pursuant to a multi-phase capital project. This agreement will also establish a joint tariff between ORPL and MPL, which derives both entities local movements and rates. MPL will ultimately file the joint tariff.

Monthly Commitment has the meaning set forth in Section 3.6.

Person means any individual, partnership, limited partnership, joint venture, corporation, limited liability company, limited liability partnership, trust, unincorporated organization or Governmental Authority or any department or agency thereof.

Pre-Service Increase Request has the meaning set forth in Section 3.9.

Prepaid Transportation Credits has the meaning set forth in Section 3.6.

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Product means the commodities commonly associated as specialty petroleum products, specifically condensate, natural gasoline, and diluent. Product may also include liquefied petroleum gas commodities such as butane. Product, as designed in this Agreement, does not refer to finished gasoline and diesel products.

Project Capacity means the aggregate of each system's total capacity that is made available for Product movements by means of the Project, by either expanding existing pipelines or building new pipelines.

Proportionate Share means, at any given time, the percentage equal to Shipper's volume commitment divided by the total volume commitments at such time.

Quarter means the three (3) calendar month periods, or portion thereof, commencing January 1, April 1, July 1 and October 1 of each year during Term hereof.

Quarterly Volume Commitment means Shipper's commitment to ship, or otherwise pay for, each Contract Year of the fifteen (15) year term of this Agreement, at posted Pipeline Tariff Rates as set forth in Exhibit B, which equals a total annual Product volume as determined from Exhibit C. With respect to the required quarterly volume, the volume of Product is equal to: (a) volume per day multiplied by; (b) the number of Days in such Quarter. The Quarterly Volume Commitment will be reduced proportionately for any partial Quarter during the Term.

Representatives has the meaning set forth in Section 7.1.

Requested Expansion Volume Commitment has the meaning set forth in Section 6.6.

Shipper Deliveries means the volume of Product that Shipper as the shipper of record delivered through the Pipeline.

Termination Notice has the meaning set forth in 5.1.

Tariff means the intrastate and/or interstate tariffs that set forth the rules, regulations and rates for services on the Pipeline, including supplements thereto and reissues thereof, under which Product is transported through the Pipeline.

Tariff Rates means the rates set forth in the Tariffs for transportation of Product on the Pipeline.

Term has the meaning set forth in Section 2.2.

Unsubscribed Capacity has the meaning set forth in Section 3.9.

1.1 The following Exhibits are attached to and incorporated into this Agreement: Exhibit A - Common Carrier Pipeline, including Origins and Destinations Exhibit B - Rate and Volume Commitment Table Exhibit C - Shipper's Submitted Capacity Request Form

2. Effective Date and Term

2.1 This Agreement is effective June 11, 2015 (the Effective Date). The Agreement shall continue through the project's in-service date and for a period of fifteen (15) years after the project's in-service date (Initial Term). MPL shall provide written notice to Shipper

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confirming the project's in-service date. Shipper acknowledges that the overall Project will be completed in several phases. New infrastructure will be completed first, with additional build-out projects and expansions completed in succession. MPL will provide a thirty (30) day notice to Shipper, notifying it of the actual in-service date for the included projects.

2.2 This Agreement shall be binding upon the Parties under the same conditions and provisions for a time period commencing on the Effective Date and shall continue through the Initial Term. This Agreement will automatically renew for up to two (2) renewal terms of five (5) years each (each, an Extension Period) unless either Party provides the other Party with written notice of its intent to terminate this Agreement at least six (6) months prior to the end of the Initial Term or the then current Extension Period. The Initial Term and Extension Period, if any, shall be referred to in this Agreement as the Term.

2.3 In the event Shipper does not wish to renew after the Initial Term or Extension Period or chooses to terminate the Agreement by written notice pursuant to Section 2.2, MPL reserves the option and right to hold a subsequent open season in which interested shippers can have opportunity to contract for resulting available volume, rate, and terms.

3. Volume Commitment and Quarterly Deficiency Charges

3.1 Shipper guarantees that during each Contract Year, Shipper will meet its Quarterly Volume Commitment or, in the event it fails to do so, shall remit to MPL the Quarterly Deficiency Payment pursuant to Section 3.5. All volumes moved by Shipper on the Pipeline will be subject to the applicable Tariff Rates and proration policies, as may be amended from time to time in accordance with FERC methodologies and as provided herein.

3.2 Shipper will have the opportunity to fulfill its Quarterly Volume Commitment on a calendar quarter basis for condensate, natural gasoline, and diluent service. These three Products are interchangeable from a volume commitment standpoint and shipping a total volume of any one or combination of these Products will be applied towards the Quarterly Volume Commitment. Should MPL proceed with butane service, Shipper will also have the opportunity to fulfill its Quarterly Volume Commitment on a calendar quarter basis for butane service, separate from condensate, natural gasoline, and diluent service.

3.3 Shipper shall be deemed to have shipped its Quarterly Volume Commitment on the Pipeline if the quantity of Product that Shipper ships on the Pipeline in any Quarter equals at least the Quarterly Volume Commitment for such Quarter.

3.4 Shipper agrees to pay MPL monthly: (a) the Tariff Rates in effect for all Shipper Deliveries transported by MPL on the Pipeline during such month; and (b) any loading, handling, transfer and other charges incurred with respect to such Shipper Deliveries for such month in accordance with the provisions as set forth in the Tariffs (or any other tariffs that may be applicable to such Shipper Deliveries). If the amount owed by Shipper is the subject of a good faith dispute, Shipper shall be obligated to pay only the undisputed portion of such amount pending the resolution of such dispute in accordance with this Agreement. Late payments of undisputed amounts shall accrue interest at a rate equal to two percent (2%) per annum, until paid. Such payments will be paid by Shipper to MPL within fifteen (15) Days of the invoice date or resolution of any dispute, if applicable.

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3.5 Subject to the provisions of Section 5 of this Agreement, if the volume of each Product shipped by Shipper on the Pipeline during the Quarter is less than the applicable Quarterly Volume Commitment for that Product then, in addition to paying any amounts incurred by Shipper pursuant to Section 3.4 with respect to Shipper Deliveries for such Quarter, Shipper shall also pay MPL a deficiency payment (the Quarterly Deficiency Payment); equal to the product of:

(a) the difference between the applicable Quarterly Volume Commitment for that Product for such Quarter and the volume of Shipper Deliveries of that Product on the Pipeline for such Quarter (the Deficiency Volume); and

(b) the applicable Tariff Rate for that Product for such Quarter.

Each Product to which the Shipper is obligated to move as part of its committed volumes will be added together for one total Quarterly Deficiency Payment.

Shipper's transportation of commodities outside this Agreement's definition of Product will not satisfy the obligation to move committed Product volume. All Product barrels moved by Shipper in excess of its Quarterly Volume Commitment will be attributed to Shipper's movements on the Pipeline as a Regular Shipper, subject to the applicable Rules & Regulations of the Tariff.

3.6 The dollar amount of any Quarterly Deficiency Payment paid by Shipper shall constitute prepayment for transportation of Product by Shipper on the Pipeline and will posted as a credit (Prepaid Transportation Credits) to Shipper's account for that type of Product. If, during any Quarter of the Contract Year, Shipper deliveries on the Pipeline exceed the applicable Quarterly Volume Commitment requirements, Shipper shall be permitted to apply Prepaid Transportation Credits against any amount due from Shipper and payable to MPL with respect to the transportation of volumes on the Pipeline for such Quarter. Any Prepaid Transportation Credits that are not used by Shipper during the four (4) Quarters immediately following the Quarter for which said Prepaid Transportation Credits were posted to Shipper's account (the Credit Period) will expire. Those Prepaid Transportation Credits that are in payment dispute in accordance with Section 3.4, shall be posted as a credit on the date the payment dispute is resolved. If during any such four (4) Quarter period the nominated volume on the Pipeline for any month equals or exceeds the applicable portion in the Quarterly Volume Commitment for the Pipeline for such month (the Monthly Commitment), but Shipper is prevented from shipping volumes in excess of the Monthly Commitment because of lack of available capacity, either because (a) the Pipeline is in allocation and Shipper is specifically subject to allocation per Exhibit C, (b) the Pipeline is undergoing testing, maintenance or repair, or (c) a Force Majeure has occurred that prevents MPL from transporting Shipper volumes on the Pipeline in excess of the Monthly Commitment, then the Credit Period shall be extended by an equivalent time period for which Shipper has been prevented from shipping volumes in excess of the Monthly Commitment. For the purposes of this Section 3.6, during the Term, if the Pipeline is in allocation for any portion of the month, the Pipeline will be considered to be in allocation for the entirety of such month.

3.7 Notwithstanding anything in Section 3.5 to the contrary, upon the expiration or termination of this Agreement for any reason to the extent that Shipper, at the time of such expiration or termination, holds any unused Prepaid Transportation Credits, Shipper shall be permitted to apply such Prepaid Transportation Credits against any amounts incurred by Shipper and

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payable to MPL with respect to any Shipper deliveries on the Pipeline until the expiration of the applicable Credit Period with respect to such Prepaid Transportation Credits. This Section 3.7 shall survive the expiration or termination of this Agreement.

3.8 Shipper may not apply Prepaid Transportation Credits on differing types of Products; i.e, a Shipper may not use Prepaid Transportation Credits received for butane service on condensate, natural gasoline, or diluent service, or vice versa. Condensate, natural gasoline, and diluent are interchangeable from a volume commitment standpoint and shipping a total volume of any one or combination of these Products will be applied towards the Quarterly Volume Commitment. Should MPL proceed with butane service, Shipper will also have the opportunity to fulfill its Quarterly Volume Commitment on a calendar quarter basis for butane service, separate from condensate, natural gasoline, and diluent service.

3.9 If, following the binding open season and prior to the in-service date of the Tariff, MPL determines that it has available capacity not subscribed to during the binding open season, not to exceed 90% of Project Capacity (Unsubscribed Capacity), to the extent permitted by Governmental Authority; MPL will provide Shipper the right to increase its Quarterly Volume Commitment as submitted on its Capacity Request Form on Exhibit C. MPL will provide at least sixty (60) days' advance written notice, simultaneously, to all shippers (including Shipper) who have executed a transportation service agreement during the binding open season of the availability and volume of Unsubscribed Capacity for additional volume commitments (the Additional Volume Commitments). No later than thirty (30) days following the date of MPL's written notice, Shipper must provide MPL with a written binding commitment identifying the additional volumes to be added to its Quarterly Volume Commitment (Pre-Service Increase Request). In the event MPL receives Pre-Service Increase Requests that are, in aggregate, less than or equal to the Unsubscribed Capacity, each shipper's volume commitment shall be increased by the volume of its Pre-Service Increase Request. In the event MPL receives Pre-Service Increase Requests that would, in aggregate, exceed the Unsubscribed Capacity, all Shippers will be allocated their Pre-Service Increases pro rata based on their then- current volume commitments. If Shipper makes a Pre-Service Increase Request, MPL shall notify Shipper of its new Quarterly Volume Commitment within thirty (30) days following receipt of Shipper's Pre-Service Increase Request, and Exhibit C shall be deemed revised to reflect Shipper's new volume commitment, which shall equal the sum of its original Capacity Request Form volume commitment and its Pre-Service Increase Request or its allocated portion thereof pursuant to this Section 3.9. If there is still Unsubscribed Capacity after shippers (including Shipper) exercise Additional Volume Commitments as set forth above, MPL may conduct a second open season to obtain additional volume commitments for any remaining Unsubscribed Capacity.

4. Transportation Charges

4.1 Shipper shall pay MPL a transportation charge for each Barrel of Product shipped under the terms of this Agreement and Exhibit C, at the rates provided for in Exhibit B, which shall be the Tariff Rates for the volume commitment on the Day of delivery of Product.

4.2 The rates in Exhibit B will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology in effect at the time of the escalation. There shall be no downward adjustment of the Rates in the event the annual FERC oil pipeline index rate is negative. Rates will typically be indexed during July of each year and would be first indexed in July of the year following project completion.

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4.3 If during the term of this Agreement, MPL becomes obligated as a result of a Change in Law Event to bear Compliance Costs, MPL shall have the right to increase the Tariff Rates on the Pipeline, including Shipper's committed rate as originally executed on Exhibit B in this Agreement or to impose a surcharge on its shippers (including Shipper) to recover such Compliance Costs. If MPL determines to recover any Compliance Costs from its shippers, it will do so in a manner that is reasonable and equitable to all shippers on the Pipeline.

4.4 A Committed Priority Shipper will receive transportation service exempt from prorationing provisions under normal operating conditions for its contractually committed volumes, in exchange for a commitment to transport (or pay for) those volumes, pursuant to the terms of this Agreement executed during the open season process. The rates vary depending upon project options, but in all instances will be $0.01 per barrel above the rates for uncommitted service for the same origin and destination points. A Committed Priority Shipper will have the same rates as the Committed Non-Priority Shipper (as defined below), unless the system in under prorationing. When under prorationing, the Committed Priority Shipper's rate will be charged the premium rate of $0.01 above the posted uncommitted rate. Shipper shall not be a Committed Priority Shipper solely through this Agreement. Shipper must submit a Capacity Request Form during MPL's binding open season (Exhibit C) which confirms the Shipper has elected Committed Priority Shipper Status.

4.5 A Committed Non-Priority Shipper will receive transportation service subject to prorationing provisions for its contractually committed volumes, in exchange for a commitment to transport (or pay for) those volumes, pursuant to the terms of this Agreement executed during the open season process. Those who elect to become a Committed Non-Priority Shipper will receive the benefit of discounted rates that will not be available to the Committed Priority Shippers or the uncommitted shippers. The rates will vary depending upon project options and commitment duration. MPL will not presume Shipper to be a Committed Non-Priority Shipper solely through this Agreement, unless the Capacity Request Form submitted by Shipper during MPL's binding open season (Exhibit C) shows the Shipper has elected Committed Non-Priority Shipper Status.

5. Force Majeure

5.1 As soon as possible upon the occurrence of a Force Majeure event, the affected Party shall provide the other Party written notice of the occurrence of such Force Majeure event (a Force Majeure Notice). A Party shall identify the full particulars and the approximate length of time that the Party reasonably believes in good faith such Force Majeure event shall continue (the Force Majeure Period). If a Party advises in any Force Majeure Notice that it reasonably believes in good faith that the Force Majeure Period shall continue for more than twelve (12) consecutive months, then, subject to Section 10 below, at any time after a Party delivers such Force Majeure Notice, either Party may terminate this Agreement, but only upon delivery to the other Party of a notice (a Termination Notice) at least twelve (12) months prior to the expiration of the Force Majeure Period; provided, however, that such Termination Notice shall be deemed canceled and of no effect if the Force Majeure Period ends prior to the expiration of such twelve (12) months period. For the avoidance of doubt, neither Party may exercise its right under this Section 5.1 to terminate this Agreement as a result of a Force Majeure event with respect to any machinery, storage, tanks, lines of pipe or other equipment that has been unaffected by, or has been restored to working order since, the applicable Force Majeure event.

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5.2 Notwithstanding the foregoing, if Shipper delivers a Termination Notice to MPL and, within thirty (30) days after receiving such notice, MPL notifies Shipper that MPL reasonably believes in good faith that it shall be capable of fully performing under its obligations under this Agreement within a reasonable period of time, then the Shipper Termination Notice shall be deemed revoked and the applicable portion of this Agreement shall continue in full force and effect as if such Shipper Termination Notice had never been given.

5.3 Subject to Section 6 of this Agreement, MPL's obligation to transport on the Pipeline may be temporarily suspended during occurrences of, and for the entire duration of, a Force Majeure event that prevents MPL from transporting on the Pipeline. If MPL is unable to transport due to a Force Majeure event or otherwise, then Shipper's obligation to ship the applicable Quarterly Volume Commitment and pay the applicable Quarterly Deficiency Payment shall be reduced to the extent that MPL is prevented from shipping the full applicable Quarterly Volume Commitment. At such time as MPL is capable of transporting volumes equal to the full applicable Quarterly Volume Commitment on the Pipeline, Shipper's obligation to ship the full Quarterly Volume Commitment shall be restored.

6. Capabilities of the Pipeline System

6.1 MPL shall use reasonable commercial efforts to minimize the disruption of service on the Pipeline and any portion thereof. MPL shall promptly inform Shipper of any anticipated partial or complete disruption of service on the Pipeline, including relevant information about the nature, extent, cause and expected duration of the disruption and the actions MPL is taking to resume full operations, provided that MPL shall not have any liability for any failure to notify, or delay in notifying, Shipper of any such matters except to the extent Shipper has been materially prejudiced or damaged by such failure or delay.

6.2 Subject to Force Majeure, disruptions for routine repair and maintenance consistent with pipeline industry standards and any requirements of Applicable Law, MPL shall accept for shipment on the Pipeline in accordance with pipeline industry standard Product. Further, MPL shall maintain and repair all portions of the Pipeline in accordance with pipeline industry standards and in a manner which allows the Pipeline to be capable, subject to Force Majeure or temporary shutdown for pipeline testing and maintenance, of shipping, storing and delivering volumes of Product.

6.3 If the Shipper has agreed to pay, pursuant to Exhibit B and Exhibit C, a premium rate for transportation of Product on the Pipeline, the Shipper Deliveries shall not be reduced under normal operating conditions if the capacity for Product shipments is otherwise subject to prorationing in accordance with the prorationing provisions in MPL's Rules and Regulations Tariff.

6.4 If, for any reason, including without limitation a Force Majeure event, the capacity of the Pipeline is reduced, then (a) during such period of reduced capacity, Shipper's obligation shall be reduced as described above in this Section 6; and (b) within a reasonable period of time after commencement of such reduction, MPL shall make repairs to and/or replace the affected portion of the Pipeline to restore capacity. MPL shall use commercially reasonable efforts to continue to provide transportation of Product tendered by Shipper under the Tariffs while restoration is being completed. Any work performed by MPL pursuant to this Section 6.4

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shall be performed and completed in a good and workmanlike manner consistent with applicable pipeline industry standards and in accordance with all applicable laws.

6.5 Expansion of Pipeline. MPL reserves the right, at its sole discretion, to expand the capacity of the Pipeline at any time or from time to time.

6.6 Right of Shipper to Secure Expansion Capacity. In the event that MPL decides in its sole discretion to expand the capacity of the Pipeline, then:

(a) MPL will provide each Shipper with notice of such proposed expansion not less than one hundred and eighty (180) days prior to the expected in-service date of such proposed expansion (Expansion Notice) and such Expansion Notice shall include:

(i) the amount of the proposed expansion capacity;

(ii) the expected rates and rules and regulations that will apply to such expansion capacity;

(iii) the expected in-service date of such expansion/extension.

The costs of any expansion shall not be rolled into the rates associated with any Pipeline capacity existing prior to such expansion.

(b) To the extent permitted by Governmental Authorities, MPL will provide to each Shipper a first right, on terms and conditions specified by MPL that is consistent with this first right, to submit a binding nomination to ship, or otherwise pay for, a committed volume of Product on the expansion capacity (Requested Expansion Volume Commitment). The amount of expansion capacity available for volume commitments pursuant to this Section 6.6 shall not exceed ninety percent (90%) of the total expansion capacity. No later than sixty (60) days following the date of MPL's Expansion Notice, Shipper must commit to, in a form acceptable to MPL in MPL's sole discretion, its Requested Expansion Volume Commitment (Election Deadline). In the event that, pursuant to this first right, MPL receives binding commitments for volumes that exceed the expansion capacity available for committed volumes, each Shipper that submitted a binding commitment pursuant to this first right procedure shall be allocated the lesser of: (i) its Requested Expansion Volume Commitment, or (ii) the Shipper's pro-rata share of the expansion capacity available for committed volumes, which shall be calculated by multiplying (1) the Shipper's Proportionate Share, times (2) the expansion capacity available for committed volumes (Expansion Volume Commitment). MPL shall notify Shipper of its Expansion Volume Commitment within thirty (30) days following the Election Deadline, and the Parties shall promptly execute a new and separate transportation service agreement reflecting Shipper's Expansion Volume Commitment. Any calculation of an Expansion Volume Commitment shall be without regard to and shall not affect any Volume Commitment on pre-existing capacity.

(c) In the event that any expansion capacity available for committed volumes remains after the procedure set forth in Section 6.6 is completed, MPL has the right, in its sole discretion, to offer such committed capacity pursuant to an open season in which all interested shippers will be given an opportunity to commit to transport a specified volume of Product on such remaining expansion capacity, subject to the terms and conditions specified by MPL pursuant to or in connection with such open season.

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7 Confidentiality

7.1 From and after the Effective Date, each Party shall hold, and shall cause its Affiliates and its and their respective directors, managers, officers, employees, agents, consultants, advisors, contractors, and other representatives (collectively, Representatives) to hold all Confidential Information of the other Party in strict confidence, with at least the same degree of care that applies to such Party's confidential and proprietary information and shall not use such Confidential Information except in connection with its performance or acceptance of services hereunder and shall not release or disclose such Confidential Information to any other Person, except its Representatives. Each Party shall be responsible for any breach of this Section 7 by any of its Representatives.

7.2 If a Party receives a subpoena or other demand for disclosure of Confidential Information received from any other Party or must disclose to a Governmental Authority any Confidential Information received from such other Party in order to obtain or maintain any required governmental approval, the receiving Party shall, to the extent legally permissible, provide notice to the providing Party before disclosing such Confidential Information. Upon receipt of such notice, the providing Party shall promptly either seek an appropriate protective order, waive the receiving Party's confidentiality obligations hereunder to the extent necessary to permit the receiving Party to respond to the demand, or otherwise fully satisfy the subpoena or demand or the requirements of the applicable Governmental Authority. If the receiving Party is legally compelled to disclose such Confidential Information or if the providing Party does not promptly respond as contemplated by this Section 7, the receiving Party may disclose that portion of Confidential Information covered by the notice or demand.

7.3 Each Party acknowledges that the disclosing Party would not have an adequate remedy at law for the breach by the receiving Party of any one or more of the covenants contained in this Section 7 and agrees that, in the event of such breach, the disclosing Party may, in addition to the other remedies that may be available to it, apply to a court for an injunction to prevent breaches of this Section 7 and to enforce specifically the terms and provisions of this Section 7. Notwithstanding any other section hereof, the provisions of this Section 7 shall survive the termination of this Agreement.

8. Assignment

8.1 Neither Party may assign its rights under this Agreement without prior written consent from the other Party, which consent shall not be unreasonably withheld; provided, however, that either Party may assign its rights under this Agreement to a successor in interest resulting from any merger, reorganization, consolidation or as part of a sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the successors and assigns of the Parties hereto.

9. Representations and Warranties

9.1 Each Party to this Agreement represents and warrants to the other that it is an entity duly organized, validly existing and in good standing under the laws of the state of its organization and has all requisite corporate power and corporate authority to enter into this Agreement and to carry out the terms and provisions hereof.

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9.2 MPL shall take reasonable steps to obtain all necessary approvals, and authorizations of all Governmental Authorities to modify and operate the Pipeline, including approval by FERC of the rate structure and any premium service, and all other approvals and authorizations necessary, in MPL's sole opinion, desirable in connection with the provision of Product transportation, in each case, in form and substance acceptable to MPL in its sole discretion.

9.3 Shipper hereby agrees (a) to take all such actions and do all such things as MPL reasonably requests in connections with its application for, and the processing of necessary approvals and authorizations of the FERC and other governmental authorities, (b) at all times to support the rate and (c) to not, directly or indirectly, take any action that is designed to or may delay review or approval of the applications to FERC or any other Governmental Authority or indicate a lack of support for the modifications of the Pipeline or the rate.

10. Termination and Amendment

10.1 This Agreement may not be terminated, except as expressly provided herein, nor may any of its provisions be amended or waived without prior written consent of both Parties hereto.

10.2 Neither failure nor delay by MPL or Shipper to exercise any right or remedy provided herein shall operate as a waiver with respect to a future exercise thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.

10.3 Except as otherwise provided in Section 10.5, in the event of any breach of a term or condition of this Agreement by either Party, the other Party's remedy shall be limited to the direct damages caused thereby and in no event shall a Party be liable to the other Party for any consequential, indirect, pecuniary, punitive, or economic damages, howsoever caused.

10.4 Upon termination of this Agreement for reasons other than a default by Shipper, pursuant to any provisions of this Agreement or any other termination of this Agreement initiated by Shipper pursuant to Section 5, Shipper shall have the right to require MPL to enter into a new transportation service agreement with Shipper that (a) is consistent with the terms and objectives set forth in this Agreement and (b) has commercial terms that are, in the aggregate, equal to or more favorable to Shipper than fair market value terms as would be agreed by similarly-situated parties negotiating at arm's length provided.

10.5 Shipper acknowledges that MPL will incur certain building, expansion and improvement costs associated with its performance under this Agreement prior to the commencement of transportation service on the Pipeline. Shipper also acknowledges that MPL relied on the volume commitments received from Shipper on its Capacity Request Form in Exhibit C as part of an aggregate volume commitment received from all committed shippers during the binding open season to finalize the Project's ultimate scope, including but not limited to, pipe size, routing and destinations. If MPL is in compliance with the terms and conditions of this Agreement, and Shipper decides to terminate this Agreement after the Effective Date but prior to the commencement of transportation service on the Pipeline, Shipper shall notify MPL of its decision to terminate within one hundred and eighty (180) days of the Project's in-service date to allow MPL the opportunity to provide Shipper's unwanted capacity to other interested shippers as Unsubscribed Capacity as set forth in Section 3.8. If Shipper fails to notify MPL within one hundred and eighty (180) days of the Project's in-service date or if MPL is unsuccessful in obtaining additional volume commitments as provided for in Section 3.8 to

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fully replace Shipper's original volume commitment as submitted in its Capacity Request Form in Exhibit C, Shipper will reimburse MPL for Shipper's pro rata portion of actual and committed Construction Costs, plus, an administrative fee of ten (10) percent of said costs (such reimbursement is hereinafter referred to as the Construction Cost Reimbursement). The Parties agree that the Construction Cost Reimbursement shall be deemed liquidated damages and that such amount shall not be deemed a penalty, but rather represents a reasonable amount of liquidated damages in light of the anticipated or actual harm caused by Shipper's termination of this Agreement as stated, the difficulties of proof of loss, and the inconvenience or non- feasibility of otherwise obtaining an adequate remedy, and that the payment of such amount shall be MPL's sole and exclusive remedy for such termination by Shipper.

10.6 The Parties acknowledge and agree that this Agreement may be contingent on the Shipper executing a reasonably acceptable commodity supply agreement. Shipper must notify MPL if it is unable to execute a reasonably acceptable commodity supply agreement within one hundred and eighty (180) days of the Project in-service date. Furthermore, Shipper must make commercially reasonable efforts to enter into a commodity supply agreement within the one hundred and eighty (180) days. Provided, however, that Shipper acknowledges and agrees that Shipper remains responsible for the Construction Cost Reimbursement provided for in Section 10.5 of this Agreement if it is unable to reach and execute a commodity supply agreement within the required timeframe. 11. Conditions Precedent

Notwithstanding anything in this Agreement to the contrary, this Agreement is subject to the receipt by MPL of:

11.1 All certificates, approvals and authorizations of any Governmental Authority deemed necessary or desirable by MPL in connection with this Agreement and, in each case, in form and substance acceptable to MPL in its sole discretion.

11.2 Executed Transportation Service Agreements, in form and substance acceptable to MPL in its sole discretion, as MPL shall deem sufficient in its sole discretion to support the economic viability of the costs associated with the Project.

11.3 Executed Transportation Service Agreements, in form and substance acceptable to both MPL and Shipper.

If any terms of this Agreement are required to be modified in accordance with a decision, approval or authorization from FERC or any other governmental authority, the Parties agree to reasonably cooperate with one another in amending this Agreement to align with those decisions, approvals and authorizations from FERC or any other governmental agencies. If these conditions precedent are not satisfied for MPL after exercising commercially reasonable efforts to meet such condition precedent, MPL shall have the right to terminate this Agreement by written notice to Shipper. If this Agreement is terminated pursuant to this Section 11, MPL and Shipper shall be released from any and all obligations under this Agreement.

12. Offer

12.1 The submission of an unexecuted copy of this Agreement by MPL to Shipper shall not constitute an offer.

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12.2 Shipper acknowledges that, upon closing of the open season described in the notice of open season, MPL will undertake significant alterations and improvements and will incur significant expense in connection with the Project. In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Shipper, Shipper agrees that the submission of an executed Agreement to MPL shall constitute an offer by Shipper. Shipper further agrees that its offer shall remain irrevocable; provided, however, that if Shipper has not received an executed copy of this Agreement from MPL within sixty (60) days after the close of the Binding Open Season, Shipper may revoke its offer thereafter by written notice to MPL, and upon such revocation, this Agreement will become null and void.

13. Notices

13.1 Any notice, statement, or invoice provided for in this Agreement shall be in writing and shall be considered as having been given if hand carried, facsimiled, emailed, or if mailed by United States mail, postage prepaid, to the following address, respectively:

Shipper : Name: Marathon Petroleum Company LP Address: 539 South Main Street Findlay, OH 45840 Attention: Optimization LP Manager Fax: (419) 421-4232

MPL : Name: Craig O. Pierson Address: 539 South Main Street Findlay, OH 45840 Attention: President Fax: (419) 421-3125

or to such other address as such Party may indicate by a notice delivered in accordance with this Section 13.

14. Governing Law

This Agreement shall be construed and interpreted in accordance with the laws of the State of Ohio, without recourse to any principles of law governing conflicts of law, which might otherwise be applicable.

15. Severability

In the event any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, or by an empowered government agency, such findings shall not affect the remaining provisions of this Agreement, which are not found to be invalid, illegal or unenforceable, unless such construction would be unreasonable.

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16. Default

16.1 Either Party hereunder shall be in default if such Party: (a) materially breaches any provision of this Agreement and such breach is not cured within fifteen (15) Days after notice thereof (which notice shall describe such breach in reasonable detail) is received by such Party; (b) becomes insolvent, enters voluntary or involuntary bankruptcy or makes an assignment for the benefit of creditors; (c) fails to pay any undisputed sums due hereunder; or (d) fails to provide satisfactory financial assurance as provided for in Section 17.

16.2 If either Party is in default as described above, then the non-defaulting Party may: (a) terminate this Agreement upon notice to the defaulting Party; (b) withhold any payments due to the defaulting Party under this Agreement; and/or (c) pursue any other remedy at law or in equity if such breach is not remedied as provided for in Section 14.1.

17. Credit Requirements and Financial Assurances

17.1 Financial Information. Shipper shall provide to MPL, at any time: (i) upon MPL's request, information (Financial Information) that will allow MPL to assess (or reassess) and establish creditworthiness and Shipper's capacity to perform any financial obligations that could arise from the transportation of Shipper's Crude Petroleum on the Pipeline; and (ii) upon MPL's good faith determination (which shall be no less than industry standards) of non-creditworthiness, MPL may request, financial assurance in respect of transportation or other services (Financial Assurances). Financial Assurances shall be limited to a guarantee from the parent company of Shipper in a form and substance acceptable to MPL and sufficient in amount to cover 6-months of Shipper's obligations to MPL so long as the guarantor has sufficient creditworthiness as set forth in this Section; and if not, MPL may then request an irrevocable standby letter of credit in a form and from an issuer acceptable to MPL, and in an amount no greater than 6-months of tolls based on the Quarterly Volume Commitment, plus all applicable taxes.

17.2 As of the Project's in-service date, Shipper shall comply with the credit requirements and provide the financial assurances required in the Tariff so long as the Tariff is consistent with the terms of this Agreement. 17.3 Any failure of Shipper to comply with the provisions of this Section 17 will constitute an Event of Default under Section 16 of this Agreement.

18. Miscellaneous

18.1 Wherever possible, each provision hereof shall be interpreted in such a manner as to be effective and valid under Applicable Law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision or provisions shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof, unless such a construction would be unreasonable.

18.2 This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns; provided, however, that the rights and obligations of any Party under this Agreement shall not be assignable by such Party without the prior written consent of the

15





other Party pursuant to Section 8.1. A Party's successors and permitted assigns shall include any permitted assignee as well as the successors in interest to such permitted assignee whether by merger, liquidation (including successive mergers or liquidations) or otherwise.

18.3 No provision of this Agreement is intended to confer upon any third party any remedy, claim, liability, reimbursement or other right in excess of those existing without reference to this Agreement.

18.4 Neither Party shall, without the approval of the other Party, make any press release or other public announcement concerning the transactions contemplated by this Agreement, except as and to the extent that either Party shall be so obligated by Applicable Law or the rules of any regulatory body, stock exchange or quotation system.

18.5 EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDINGS RELATING TO THIS AGREEMENT OR ANY PERFORMANCE OR FAILURE TO PERFORM OF ANY OBLIGATION HEREUNDER.

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IN WITNESS WHEREOF, MPL and Shipper have caused this Agreement to be duly executed, all as of the date set forth above.

MARATHON PIPE LINE LLC By: /s/ Craig Pierson 6/11/15 Name: Craig Pierson Title: President

MARATHON PETROLEUM COMPANY LP By: MPC Investment LLC, its General Partner By: /s/ C. M. Palmer 4/13/15 Name: C. Michael Palmer Title: Sr. Vice President, Supply Distribution & Planning

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EXHIBIT A Common Carrier Pipeline, including Origins and Destinations

Pipeline System New/Existing Pipeline Pipeline Owner Cornerstone Pipeline New MPL East Sparta to Lima Pipeline New MPL East Sparta to Heath Existing (Expansion) ORPL Heath to Findlay Existing (Expansion) ORPL RIO Existing (Reversal & Expansion) MPC Two Rivers Existing MPL Wabash Existing MPL

The MPC RIO system is an existing private pipeline owned by Marathon Petroleum Company, LP (MPC). MPL may purchase the RIO system, with the intent to reverse and repurpose the system from common carrier movements.

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EXHIBIT B

Tariff Rates

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EXHIBIT C

Include copy of Shipper's submitted Capacity Request Form (CFR) indicating desired routes and destinations.

Capacity Request Forms follow this page

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Appendix 5 - Capacity Request Form (CRF) - Ratable Volume(1) Please complete one form for each product type per delivery location

Name of Shipper: Marathon Petroleum Company LP

Term/Service [Priority, (5,10, 15 Year) Non-Priority] Priority 15 Year

Product Type [Condensate, Natural Gasoline, Diluent or Butane]: Condensate

Year Desired Volume Origination Location Delivery Location Rate 1 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 2 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 3 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 4 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 5 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 6 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 7 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 8 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 9 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 10 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 11 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 12 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 13 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 14 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 15 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 (1) - Assumes shipper transports the same volume on a per day basis each month of the year Notes: Deliveries to Canton will begin in late 2016 and deliveries to other locations will begin in mid-2017 The tariff rate for the first year of movements can be found in Appendix 4 The tariff rate will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology

Marathon Pipe Line LLC & Ohio River Pipe Line LLC CONFIDENTIAL AND PROPRIETARY





Appendix 5 - Capacity Request Form (CRF) - Ratable Volume(1) Please complete one form for each product type per delivery location

Name of Shipper: Marathon Petroleum Company LP

Term/Service [Priority, (5,10, 15 Year) Non-Priority] Priority 5 Year

Product Type [Condensate, Natural Gasoline, Diluent or Butane]: Natural Gasoline

Year Desired Volume Origination Location Delivery Location Rate 1 10 MBPD Cadiz/Scio Hammond $ 6.96 2 10 MBPD Cadiz/Scio Hammond $ 6.96 3 10 MBPD Cadiz/Scio Hammond $ 6.96 4 10 MBPD Cadiz/Scio Hammond $ 6.96 5 10 MBPD Cadiz/Scio Hammond $ 6.96 6 0 MBPD Cadiz/Scio Hammond $ 6.96 7 0 MBPD Cadiz/Scio Hammond $ 6.96 8 0 MBPD Cadiz/Scio Hammond $ 6.96 9 0 MBPD Cadiz/Scio Hammond $ 6.96 10 0 MBPD Cadiz/Scio Hammond $ 6.96 11 0 MBPD Cadiz/Scio Hammond $ 6.96 12 0 MBPD Cadiz/Scio Hammond $ 6.96 13 0 MBPD Cadiz/Scio Hammond $ 6.96 14 0 MBPD Cadiz/Scio Hammond $ 6.96 15 0 MBPD Cadiz/Scio Hammond $ 6.96 (1) - Assumes shipper transports the same volume on a per day basis each month of the year Notes: Deliveries to Canton will begin in late 2016 and deliveries to other locations will begin in mid-2017 The tariff rate for the first year of movements can be found in Appendix 4 The tariff rate will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology

Marathon Pipe Line LLC & Ohio River Pipe Line LLC CONFIDENTIAL AND PROPRIETARY





Appendix 5 - Capacity Request Form (CRF) - Non-Ratable Volume(2) Please complete one form for each product type per delivery location

Name of Shipper: Marathon Petroleum Company LP

Term/Service [Priority, (5,10, 15 Year) Non-Priority] Priority 5 Year

Product Type [Condensate, Natural Gasoline, Diluent or Butane]: Normal Butane

(2) - Assumes shipper transports a different volume on a per day basis each month of the year Notes: Deliveries to Canton will begin in late 2016 and deliveries to other locations will begin in mid-2017 The tariff rate for the first year of movements can be found in Appendix 4 The tariff rate will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology

Marathon Pipe Line LLC & Ohio River Pipe Line LLC CONFIDENTIAL AND PROPRIETARY





Appendix 5 - Capacity Request Form (CRF) - Non-Ratable Volume(2) Please complete one form for each product type per delivery location

Name of Shipper: Marathon Petroleum Company LP

Term/Service [Priority, (5,10, 15 Year) Non-Priority] Priority 5 Year

Product Type [Condensate, Natural Gasoline, Diluent or Butane]: Normal Butane

(2) - Assumes shipper transports a different volume on a per day basis each month of the year

Notes: Deliveries to Canton will begin in late 2016 and deliveries to other locations will begin in mid-2017 The tariff rate for the first year of movements can be found in Appendix 4 The tariff rate will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology

Marathon Pipe Line LLC & Ohio River Pipe Line LLC CONFIDENTIAL AND PROPRIETARY





Appendix 5 - Capacity Request Form (CRF) - Non-Ratable Volume(2) Please complete one form for each product type per delivery location

Name of Shipper: Marathon Petroleum Company LP

Term/Service [Priority, (5,10, 15 Year) Non-Priority] Priority 5 Year

Product Type [Condensate, Natural Gasoline, Diluent or Butane]: Normal Butane

(2) - Assumes shipper transports a different volume on a per day basis each month of the year Notes: Deliveries to Canton will begin in late 2016 and deliveries to other locations will begin in mid-2017 The tariff rate for the first year of movements can be found in Appendix 4 The tariff rate will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology

Marathon Pipe Line LLC & Ohio River Pipe Line LLC CONFIDENTIAL AND PROPRIETARY
[EX A]: Highlight the parts (if any) of this contract related to Liquidated Damages that should be reviewed by a lawyer. Details: Does the contract contain a clause that would award either party liquidated damages for breach or a fee upon the termination of a contract (termination fee)?

[EX Q]: Exhibit 10.09

***** CONFIDENTIAL TREATMENT REQUESTED

Agreement Number 12965

WIRELESS CONTENT LICENSE AGREEMENT

This License Agreement (this Agreement) is entered into effective as of December 16, 2004, (the Effective Date) by and between TWENTIETH CENTURY FOX LICENSING & MERCHANDISING, a division of Fox Entertainment Group, Inc. (Fox), as Administrator for Twentieth Century Fox Film Corporation (Trademark Licensor), and Sorrent, Inc. (Licensee). Fox and Licensee are collectively referred to as the parties and each individually as a party.

RECITALS:

WHEREAS, Trademark Licensor owns the rights to develop, manufacture, publish, and distribute entertainment applications based on the story, plot, theme, distinctive creative elements and name/logo (collectively, the PSM) appearing in the theatrical motion pictures set forth on Exhibit A attached hereto (individually, the Property and collectively, the Properties, and further designated as Major Release(s) and Targeted Release(s)); and

WHEREAS, Fox is the administrator of such rights for Trademark Licensor; and

WHEREAS, Licensee is engaged in the business of, among other things, developing and producing interactive entertainment applications for wireless communication devices, such as mobile telephones; and

WHEREAS, Licensee desires to obtain a license from Fox to develop a variety of wireless products utilizing elements of the PSM and to be operated on mobile/cellular telephones; and further to publish, license, promote, distribute and sell such wireless products to end users through communications service provider(s) and portals providing wireless products (CSP(s)) on the terms and conditions set forth herein; and

WHEREAS, Fox and Vodafone Group Services Limited (VGSL) have entered into a wireless content distribution agreement (VGSL Agreement) whereby Fox is to be the content provider for VGSL wireless products relating to various Properties, and Fox desires a license to distribute Wireless Products to VGSL pursuant to the VGSL Agreement.

AGREEMENT

NOW, THEREFORE, the parties do hereby agree as follows:

1. GRANT OF RIGHTS:

(a) Wireless Products and Wireless Platform: Fox grants to Licensee a limited, exclusive (except as otherwise may be provided in this Agreement), non-transferable (except as permitted in Paragraph 17(d)) right and license to use, make, have made (as set forth in Paragraph 1(a)(i) below), reproduce, modify, and create derivative works of

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ



*****  The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933.

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







the PSM in each Property, solely for the purpose of developing the wireless applications specifically set forth for each of the Properties on Exhibits B through M attached hereto (Wireless Products), some of which Wireless Products are defined in the Glossary attached hereto as Exhibit N. To the extent not specified in this Agreement the parties will agree upon the specific Wireless Products to be developed for each Property in accordance with the procedure set forth in Paragraph 2. Notwithstanding the foregoing, Licensee acknowledges that it shall be obligated to develop all Wireless Products set forth on Exhibits B, C, D, and G, and any other Wireless Products for other Properties that the parties mutually agree in writing will be added to the VGSL Agreement for distribution by VGSL (the VGSL Products). The Wireless Products shall utilize elements of the PSM and shall be operated on mobile or cellular telephones. Furthermore, Fox grants to Licensee a limited, exclusive (except as may otherwise be provided in this Agreement), non-transferable (except as permitted in Paragraph 17(d)) right and license to make, have made, reproduce, modify, create derivative works of, advertise, promote, distribute, sell and license the Wireless Products, including any PSM included therein, solely (i) for use on mobile or cellular telephones (the Wireless Platform); (ii) in the Territory (as defined in Paragraph 3), (iii) during the Term (as defined in Paragraph 4), (iv) for distribution by Licensee through the Distribution Channels (as defined in Paragraph 2(c)) granted herein; and (v) by means of periodic subscription fee, a per-download basis, or through a retail purchase. Nothing contained herein shall be construed as granting Licensee the right to develop and/or distribute video clips and/or trailers for the Properties, except where Fox expressly agrees to development and/or distribution of such video clips and/or trailers.

(i) Sublicense: Licensee shall be permitted to sublicense the rights and licenses granted herein to third party contractors of Licensee, solely for purposes of development and distribution of the Wireless Products on behalf of Licensee in accordance with this Agreement; provided that such third party contractors have entered into binding written agreements with Licensee that are no less protective of Fox's intellectual property rights than are the terms and conditions of this Agreement, and provided further that Licensee will not subcontract development of any video games hereunder without Fox's prior written approval of the third party game development contractor. Notwithstanding the foregoing, Licensee shall remain the primary contact under this Agreement and shall remain liable for all obligations performed by a sublicensee.

(ii) Substitution of Properties and Addition of Properties: Fox reserves the right to remove any Property listed on Exhibit A in the event that Fox determines not to theatrically release such Property or is found to be legally prohibited from engaging in the development and sale of Wireless Products in connection with such Property, and shall replace the removed Property with a like Property, which designation shall be subject to the mutual agreement of Fox and Licensee. Any further additions to Exhibit A shall also be subject to the mutual agreement of Fox and Licensee, provided however Fox shall reasonably determine if the Property constitutes a Major Release or a Targeted Release consistent with its past practices. In no event will the number of Major Releases and Targeted Releases included as Properties licensed to Licensee under this Agreement be less than four (4) and eight (8) respectively.

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







(iii) Addition of Wireless Products: The parties may amend this Agreement to include additional Wireless Products for the Properties set forth on Exhibit A, subject to their mutual agreement in writing, provided that if they are unable to agree upon such additions within five (5) business days of a request from Fox, Fox will have the right to develop or have developed the requested Wireless Products for the relevant Property notwithstanding the exclusivity granted to Licensee in this Agreement.

(b) Bundling: Neither party will solicit or enter into any agreement with any third party regarding the bundling of the Wireless Products with any other property (including a Fox property) or with any other products and services including preloading, OEM and soft bundling, except as mutually agreed between the parties. The parties will mutually agree upon the terms of each bundling transaction, the nature of the bundle, the timing, and any new or different royalties for such bundling on a case-by-case basis.

(c) Third-Party Promotions: Neither party may solicit or enter into any agreement with any third party regarding third-party promotional opportunities with respect to the Wireless Products without the other party's prior written consent; provided that the foregoing will not limit Licensee's rights to market and promote the Wireless Products directly and through (i) CSPs, subject to any Fox approval rights set forth elsewhere in this Agreement, or (ii) Fox's right to engage in third party promotions for the Properties involving wireless content otherwise sourced or created.

(d) Excluded Products: For the avoidance of any doubt, the rights granted in Paragraph 1(a) and (b) shall be specifically limited to the Wireless Products for the Wireless Platform and shall not extend to any other device, platform, operating system or distribution method, whether wired or wireless, pursuant to which interactive entertainment software may be delivered to or accessed by end-users, including, but not limited to, the following: (i) traditional entertainment software console platforms, such as Sony PlayStation and PlayStation 2, Microsoft Xbox, and Nintendo GameCube and successor platforms; (ii) desktop or laptop computer systems, such as PC Windows, Macintosh, (iii) hand-held electronic dedicated gaming devices (e.g., Nintendo's GameBoy Color and GameBoy Advance handheld devices, Sony's PSX handheld device, and Tiger Electronic hand- held devices); (iv) pay-per-play arcade systems and other forms of location-based entertainment; (v) interactive toys; (vi) television, whether via cable, satellite, set-top boxes or other on-demand service; (vii) massively multiplayer games; (viii) internet gaming and (ix) any other technology now known or hereafter devised. Except as otherwise specifically stated herein with respect to the Wireless Products, Licensee shall have no right to develop, manufacture, reproduce, distribute, sell or exploit any other products based on the PSM or the Property.

(e) Fox's Reservation of Rights: Fox expressly reserves and retains any and all rights that are expressly excluded from or not specifically granted to Licensee pursuant to this Agreement, including but not limited to the following:

(i) Development/Exploitation/Distribution: the right to develop, publish, and/or distribute (or grant a third party the right to develop, publish, and/or distribute) other wireless products or wireless content of any nature which may be derived from the Properties (and further, to exploit same) which are similar or in direct

Wireless Content License Agreement Multiple Properties /Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







competition with the Wireless Products at any time in Japan including during the Term and within Japan, provided that Fox will not grant to any other party any such rights to develop, publish, and/or distribute Wireless Products for the Wireless Platform to end users outside of Japan (with the exception of those distribution rights for Wireless Products granted to VGSL under the VGSL Agreement in accordance with Paragraph 1(f) of this Agreement), or provide to any Licensee Competitor (as defined in Exhibit Q) any Licensee Materials or otherwise grant any rights to any Licensee Competitor to develop, publish, and/or distribute Wireless Products, or other wireless products or content based on the Properties. Fox has not granted and will not grant any exclusive distribution rights with respect to the Wireless Products to VGSL or any other party; and

(ii) Use of Fox's Logo or Other Intellectual Property Rights: the right to use the Fox logo or trademark, or any other trademark(s), logo(s) or copyrights owned by Fox other than those specifically set forth herein in the manner set forth; and

(iii) Video Clips and Trailers: except as may otherwise be provided in this Agreement, the right to develop and/or distribute (or grant a third party the right to develop and distribute) video clips and/or trailers for the Properties. At any time during the Term, Fox may distribute directly (or grant a third party the right to distribute) video clips and/or trailers to CSPs in connection with the Properties; and

(iv) SMS/Text Messaging: the right to develop, market and distribute (or grant a third party the right to develop, market and distribute) SMS or text messaging in connection with the Properties; and

(v) Promotional Content: the right to develop and/or distribute (or grant a third party the right to develop and/or distribute) free promotional and/or give-away content in connection with the Properties, provided that Fox will use all reasonable efforts to make mention of the Wireless Products developed by Licensee, or cause the third party to do the same, in the context of the promotion and/or give-away.

(f) Licensee's Grant of Rights. Subject to Fox's compliance with the terms and conditions of this Agreement, including its payment obligations in accordance with Section 7, Licensee hereby grants to Fox a limited, non-exclusive, non-transferable (except as permitted in Section 17(d)), right to distribute Licensee Materials (as defined in Paragraph 11 (c)) to VGSL and T-Mobile, solely as incorporated into Wireless Products, and to authorize VGSL and T-Mobile to distribute such Wireless Products to end users outside of the United States. Fox's rights in the Licensee Materials will be limited to those expressly granted in this Paragraph 1(f). Licensee reserves all rights and licenses in and to the Licensee Materials not expressly granted to Fox in this Section 1(f). Any other marketing, distribution, or sale of the Wireless Products and/or Licensee Materials by Fox will be subject to Licensee's prior written consent, in Licensee's reasonable discretion.

2. DEVELOPMENT AND DISTRIBUTION OF THE WIRELESS PRODUCTS:

(a) Development: Subject to Fox's delivery of the PSM Materials (as defined in Paragraph 2(a)(i) below), Licensee shall be obligated to create, develop, and publish the Wireless Products, pursuant to the terms and conditions of this Agreement. Subject to

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







Fox's approval rights, Licensee shall assume full responsibility for the creation, development and production of the Wireless Products, which shall include, without limitation, (A) designing the creative and technical specifications for the Wireless Products, (B) creating all computer code for the Wireless Products, (C) creating all visual assets for the Wireless Products, (D) acquiring and/or licensing any and all other technology, software and hardware needed for purposes of creating and distributing the Wireless Products, (E) ensuring compatibility of technology with the CSPs to which Licensee grants distribution rights, which shall include without limitation VGSL and T-Mobile, (the Licensed CSPs), and (F) conducting quality assurance testing of the Wireless Products. For the avoidance of doubt, Licensee acknowledges and agrees that Fox will have no development obligations whatsoever with respect to the Wireless Products, and further that Fox's sole role with respect to such development will be limited to delivering the PSM Materials, supervising Licensee's obligations with respect to same, granting or denying approvals as set forth hereunder, providing photos, style guides and other materials to Licensee where necessary, and collaborating with Licensee on the creative direction with respect to the Wireless Products.

(i) Delivery of PSM Materials. For each of the Properties identified in or added by mutual agreement to Exhibit A, Fox will provide to Licensee no later than ***** prior to the release of any games to be developed in connection with each Property and no later than ***** prior to the release of any other wireless applications to be developed in connection with each Property, some or all of the following items, to the extent available, on a Property-by-Property basis and only in electronic format where available: style guides, one-sheets (art used for movie poster), digital images, audio clips, storyboards, video tapes of trailers as they are produced, hard-copy scripts, publicity photos, and non-trailer video which shall only be available for viewing on the Fox lot premises (collectively, the PSM Materials). For the avoidance of doubt, Licensee will not be provided electronic copies of any scripts. Fox will update the PSM Materials provided to Licensee as new or different materials become available.

(ii) VGSL Development: Licensee expressly acknowledges and agrees that Fox has entered into the VGSL Agreement with VGSL for the development of certain Wireless Products set forth on Exhibits B, C, D and G, in connection with the following Properties: Robots; Untitled Ridley Scott Film; Ice Age 2; and Mr & Mrs. Smith. Licensee shall be obligated to develop such Wireless Products, and distribute them as set forth in Paragraph 2(c)(ii) below, on behalf of Fox.

(iii) Development for Japan: Upon Fox's notice to Licensee, Licensee shall immediately cease all development, publication and distribution of the Wireless Products in Japan.

(iv) Music and Sound Effects: If Licensee seeks to use music or sound effects from any of the Properties in connection with the development of the Wireless Products, such use shall be subject to the advance written approval of Fox, and, if applicable, Fox Music, Inc., c/o the Vice President, General Manager, Fox Music Publishing (Fox Music). Subject to Fox and Fox Music's approval, Licensee shall be solely responsible for any and all third party payments that may arise out of the

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ



*****  The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933.

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







approved use of the music from the Property in connection with the Wireless Products, including without limitation any royalties, mechanical fees, residuals, publishing fees, license fees, reuse fees or other guild-related payments. In such event, Licensee shall pay directly to Fox Music a separate Royalty, at a rate subject to good faith negotiation between Licensee and Fox Music, on sales of the Wireless Products incorporating such music. Further, Licensee shall obtain the prior written approval of Fox Music concerning the final music arrangement to be so utilized and provide Fox Music with two samples of the final, approved Wireless Products prior to the sale or distribution thereof.

(A) No License for Music Realtones or Trutones: For the avoidance of doubt, nothing herein shall be construed as granting Licensee the right to develop and/or distribute any Wireless Products containing music Realtones or Trutones (each as defined in Exhibit N).

(b) Release:

(i) The Wireless Products: Subject to the timely delivery of the PSM Materials to Licensee by Fox, Licensee shall deliver the Wireless Products to VGSL a minimum of ***** before the initial theatrical release of each Property in each of the VGSL Territories as defined in Paragraph 2(c)(ii) (A) below, and to the other Licensed CSPs within such time frames mandated by such Licensed CSPs so as to enable the release of the Wireless Products ***** prior to the initial theatrical release of each Property in each of the Territories as defined in Paragraph 3 below (the Wireless Products Latest Commencement Date). If Licensee fails to make the Wireless Products commercially available to the CSPs by the Wireless Products Latest Commencement Date, and such failure is not due solely to any delay by Fox in delivery of the PSM Materials, Fox shall have the right to terminate this Agreement immediately upon notice to Licensee and all rights to utilize the PSM shall automatically revert to Fox; provided that, subject to Paragraph 9(b)(ii) below, Fox will not exercise the right to terminate with respect to any delayed delivery of Wireless Products for films that have their initial theatrical release prior to June 30, 2005; and provided further that nothing in this Paragraph 2(b)(i) will limit Fox's indemnification under Paragraph 14 or any other rights and remedies Fox may have under this Agreement. Licensee shall use all commercially reasonable efforts to cause the Licensed CSPs to make available to end users the Wireless Products for each of the Major Releases and Targeted Releases no later than ***** prior to the initial theatrical release of each of the Major Releases and Targeted Releases.

(c) Distribution:

(i) CSP Distribution: Licensee shall distribute the Wireless Products to end users through the Licensed CSPs and each Licensed CSP's respective Internet portals and distribution systems (Distribution Channel).

(A) Minimum Subscriber Market Penetration: Licensee shall use all commercially reasonable efforts to secure distribution of the Wireless Products through CSPs and to ensure that the Wireless Products are

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ



*****  The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933.

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







available on substantially all medium and high volume handsets of all Licensed CSPs, which for the purposes of this obligation shall include VGSL.

(1) Major Releases: Licensee furthermore shall use all commercially reasonable efforts to achieve the following market penetration targets in Europe for the Major Releases (Market Penetration Targets): (1) distribution of the Wireless Products for the Major Releases through CSP's that hold at least ***** (*****%) of the subscribers in Western Europe during the ***** of this Agreement; and (2) distribution of the Wireless Products for the Major Releases through CSP's that hold at least ***** percent (*****%) of the subscribers in Western Europe during the ***** of this Agreement. If Licensee fails to reach the Market Penetration Targets Fox shall in its sole discretion have the right to terminate Licensee's exclusivity under this Agreement. In the event of termination of Licensee's exclusivity for Licensee's failure to achieve the Market Penetration Targets, Fox shall not distribute the Wireless Products which have been developed by Licensee prior to such termination, without first obtaining a license from Licensee on terms to be mutually agreed in each party's reasonable discretion, for the exploitation of the Licensee Materials.

(2) Targeted Releases: Fox acknowledges that Licensee may not be able to secure placement of all Targeted Releases at the levels set forth for the Market Penetration Targets defined in the previous sub-Paragraph. Notwithstanding the foregoing, Licensee shall use all commercially reasonable efforts to secure the widest possible distribution of the Wireless Products derived from the Targeted Releases in Europe.

(ii) VGSL and T-Mobile Distribution: For the Territories (as defined in Paragraph 3 below) set forth in Paragraph 2(c)(ii)(A) below, Licensee expressly acknowledges and agrees that Fox has entered into the VGSL Agreement with VGSL for the development of certain Wireless Products as set forth in Paragraph 2(a)(ii) above, and for the distribution of such Wireless Products. Fox has also entered into a separate agreement with T-Mobile to permit T-Mobile to distribute certain Wireless Products to end users outside of the United States the T-Mobile Agreement). Licensee hereby grants all licenses to Fox to enable Fox to provide Wireless Products to VGSL and T-Mobile for distribution to VGSL and T-Mobile subscribers outside of the United States in accordance with the terms of this Agreement, and shall further deliver such Wireless Products to VGSL and T-Mobile on behalf of Fox. Licensee further acknowledges and agrees that pursuant to the VGSL Agreement and the T-Mobile Agreement, VGSL and T-Mobile will remit directly to Fox all receipts generated from sales of the Wireless Products to VGSL and T-Mobile subscribers. Fox will pass through all such receipts received from VGSL and T-Mobile to Licensee and such receipts shall be treated as Gross Receipts, as defined in Paragraph 7(a)(ii) below, for the purpose of this Agreement. Licensee shall not enter into an exclusive distribution agreement with

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ



*****  The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933.

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a CSP in any of the VGSL Territories listed in Paragraph 2(c)(ii)(A) below, and Fox has not granted and will not grant any exclusive distribution rights to VGSL or T-Mobile. Fox and Licensee will cooperate together in good faith, on a schedule to be mutually agreed, to jointly manage the VGSL and T-Mobile relationships with respect to the Wireless Products, subject to willingness on the parts of VGSL and T-Mobile to so cooperate. Notwithstanding the foregoing, any conversations undertaken between Fox and VGSL and/or T-Mobile without Licensee's participation shall not be a breach of this provision.

(A) Non-Exclusive CSP Distribution in VGSL Territories: Under no circumstances shall Licensee enter into an exclusive distribution agreement with a CSP other than VGSL in the following territories (VGSL Territories) covered under the VGSL Agreement: (1) United Kingdom; (2) Ireland; (3) Germany; (4) Spain; (5) France; (6) Sweden; (7) Switzerland; (8) Portugal; (9) Netherlands; (10) Greece; (11) Italy; (12) Australia; (13) New Zealand; (14) Egypt; (15) Slovenia; (16) Belgium; (17) Austria; (18) Hungary; (19) Malta; (20) Croatia; (21) South Africa; and (22) Japan.

(iii) Japan Distribution: Upon Fox's notice to Licensee, Licensee shall cease immediately some or all distribution of the Wireless Products in Japan. In the event Fox provides such termination notice to Licensee, Licensee hereby grants Fox a license to the Licensee Materials in order for Fox to distribute the Wireless Products that Licensee has developed for distribution in Japan prior to such termination, either directly or through a third-party. In consideration of such license, Fox shall pay Licensee a royalty as set forth in Paragraph 7(b)(i) below.

(iv) Unless otherwise mutually agreed between Fox and Licensee, Licensee will require each Licensed CSP to distribute Wireless Products to end users only for the payment of a fee; provided that Licensee may permit limited distribution (i.e. one Wireless Product per Property in each category of Wireless Products and including only one game level for each game) of Wireless Products without a fee for promotional or marketing purposes. The fees will typically appear on the end user's Wireless Platform bill and be remitted by the end user to the CSP pursuant to an agreement between the end user and the CSP. The CSP will in turn remit fees to Licensee (less any Deductions as that term is defined in Paragraph 7(a)(ii) below) pursuant to an agreement between Licensee and the CSP. Licensee will then remit royalties to Fox in accordance with Paragraph 7, below.

3. TERRITORY: Licensee shall use commercially reasonable efforts to exploit the rights granted hereunder throughout the world (the Territory), including without limitation all of the following VGSL Territories set forth in Paragraph 2(c)(i)(B) above: (1) United Kingdom; (2) Ireland; (3) Germany; (4) Spain; (5) France; (6) Sweden; (7) Switzerland; (8) Portugal; (9) Netherlands; (10) Greece; (11) Italy; (12) Australia; (13) New Zealand; (14) Egypt; (15) Slovenia; (16) Belgium; (17) Austria; (18) Hungary; (19) Malta; (20) Croatia; (21) South Africa; and (22) Japan. Licensee shall localize the Wireless Products into the following languages: English, French, German, Italian, Spanish, and Japanese. In addition to the previously stated languages, to the extent practicable Licensee also shall localize the Wireless Products to be delivered to VGSL into Portuguese, Greek, Dutch and Swedish, to the extent that the Properties

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are dubbed into such languages, Fox holds foreign rights to the dubbed tracks, and such dubbed tracks are timely available.

4. TERM: The rights granted hereunder shall be effective as of the Effective Date and shall expire on December 31, 2006 (the Term); provided, however, that with respect to each Property, all rights and licenses granted herein will continue in full force and effect for a period of eighteen (18) months after the initial theatrical release of that Property.

(a) Licensee's Right of First Negotiation on New Properties: For the Term of this Agreement, Fox hereby grants to Licensee a right of first negotiation with respect to those theatrical motion pictures released during the Term of this Agreement (in addition to the Properties identified in Exhibit A) in which (i) Fox owns or controls licensing and merchandising rights, for which Fox determines in its sole discretion to grant to any third party any licensing rights for the development and distribution of wireless products, and (ii) which theatrical motion pictures Fox reasonably deems to be a Major Release consistent with its past practices. The Right of First Negotiation shall be exercised as follows. Whenever Fox desires to grant to any third party any licensing rights for a Major Release (each such instance, an Opportunity), Fox shall request that Licensee submit a bid regarding the Opportunity. If Licensee intends to exercise its Right of First Negotiation, it must submit a bid in response to Fox's request within 10 business days. If Licensee does submit a bid, both parties shall negotiate in good faith over the bid for a reasonable period of time, not to exceed 10 additional business days. If the parties have not reached agreement in writing regarding the terms and conditions for the exploitation of the Opportunity within said time period, or if Licensee fails to submit a bid in a timely manner, Fox shall be free to accept any bid from any other party with respect to the Opportunity, or Fox shall be free not to exploit the Opportunity at all. Should Licensee choose to exercise its Right of First Negotiation, its floor bid shall be at least US$***** for each Major Release (as defined in Exhibit N).

5. ADVANCE: Licensee shall pay Fox a non-refundable recoupable advance in the amount of US$***** upon Licensee's signature of this Agreement (the Advance). The Advance shall be treated as the first installment of the Guarantee described in Section 6(a), and will be recoupable against royalties as part of the Guarantee.

6. GUARANTEE:

(a) Amount: Licensee shall pay to Fox a non-refundable guarantee in the amount of US$***** (Guarantee), inclusive of the Advance. The Guarantee shall be recoupable against royalty payments and payable as follows: (a) US$***** inclusive of the Advance above; (b) US$***** on or before *****; (c) US$***** on or before *****; (d) US$***** on or before *****; (e) US$***** on or before *****; (f) US$***** on or before *****; and (g) US$***** on or before *****. There shall be no cross-collateralization among the Royalties earned, as defined in Paragraph 7 below, for the purposes of recouping the Guarantee for any of the Major Releases or Targeted Releases.

(b) Individual Property Guarantees: Notwithstanding the payment schedule set forth in Paragraph 6(a) above, a minimum recoupable guarantee (each Individual Property

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Guarantee) shall be apportioned from the Guarantee set forth in Paragraph 6(a) above to each of the individual Major Releases and Targeted Releases set forth on Exhibit A as follows for the purposes of determining recoupment of Guarantees and Royalty payments attributable to each of the Major Releases and Targeted Releases as set forth in Paragraph 7 below:

(i) Major Releases: The Individual Property Guarantee for each of the Major Releases set forth on Exhibit A shall be US$*****.

(ii) Targeted Releases: The Individual Property Guarantee for each of the Targeted Releases set forth on Exhibit A shall be US$*****.

(c) Overages: At such time that Fox has earned in Royalties, as defined in Paragraph 7 below, the amount of an Individual Property Guarantee attributable to a specific Property, Licensee shall then remit to Fox on a quarterly basis in accordance with Paragraph 7(c) all Royalties due and payable in excess of such Individual Property Guarantee. Notwithstanding the foregoing, all Guarantee installments shall remain due and payable in accordance with the schedule of payments set forth in Paragraph 6(a) above and may not be allocated or apportioned to Royalty overages due.

7. ROYALTIES:

(a) Payments from Licensee to Fox: In consideration of the rights granted to Licensee pursuant to this Agreement, Licensee shall pay to Fox, or such other party as Fox may designate in writing, a royalty in the following amounts:

(i) Major Releases:

(A) Until such time as ***** percent (*****%) of an Individual Property Guarantee for a Major Release is recouped by Licensee, Fox shall earn, and credit against the Individual Property Guarantees, Royalties at the rate of ***** percent (*****%) of Licensee's Gross Receipts from Licensee's sale, license, distribution or other exploitation of the Wireless Products derived from the respective Major Release; and

(B) Thereafter and until such time as ***** percent (*****%) of an Individual Property Guarantee for a Major Release is recouped by Licensee, Fox shall earn and Licensee shall pay to Fox Royalties at the rate of ***** percent (*****%) of Licensee's Gross Receipts from Licensee's sale, license, distribution or other exploitation of the Wireless Products derived from the respective Major Release; and

(C) Thereafter (and for the remainder of the Term), Fox shall earn and Licensee shall pay to Fox Royalties at the rate of ***** percent (*****%) of Licensee's Gross Receipts from Licensee's sale, license, distribution or other exploitation of the Wireless Products derived from the respective Major Release.

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(ii) Targeted Releases:

(A) Until such time as ***** percent (*****%) of an Individual Property Guarantee for a Targeted Release is recouped by Licensee, Fox shall earn, and credit against the Individual Property Guarantees, Royalties at the rate of ***** percent (*****%) of Licensee's Gross Receipts from Licensee's sale, license, distribution or other exploitation of the Wireless Products derived from the respective Targeted Release; and

(B) Thereafter (and for the remainder of the Term), Fox shall earn and Licensee shall pay to Fox Royalties at the rate of ***** percent (*****%) of Licensee's gross receipts from Licensee's sale, license, distribution or other exploitation of the Wireless Products derived from the respective Targeted Release.

Royalties shall accrue when the Wireless Products are sold, downloaded or otherwise distributed to the end user, whichever first occurs, and shall become payable upon receipt by Licensee. Gross Receipts shall mean all monies received by or credited to Licensee for download of the Wireless Products by end users less only monies actually retained by the CSPs (the Deductions).

(b) Payments from Fox to Licensee: In consideration of the rights granted by Licensee to Fox and VGSL pursuant to this Agreement, Fox shall pay to Licensee, or such other party as Licensee may designate in writing, a royalty in the following amounts:

(i) Distribution in Japan. In the event that Fox distributes, licenses, or otherwise exploits the Wireless Products in Japan pursuant to Paragraph 2(c)(iii), or grants to any third party any rights to distribute the Wireless Products for the Wireless Platform to end users within Japan, or otherwise uses in Japan any elements of the Fox Intellectual Property (as defined in Paragraph 11(a) that are solely attributable to Licensee's development efforts pursuant to this Agreement, Fox agrees to pay Licensee a royalty in the amount of ***** percent (*****%) of Fox's gross receipts for any such activity, which shall be defined as all monies actually received by Fox for the Wireless Products or other such elements of the PSM, less any Deductions.

(ii) VGSL Payments: As set forth in Paragraph 2(c)(ii) above, pursuant to the VGSL Agreement, VGSL will remit directly to Fox Fox's contractual share (pursuant to the VGSL Agreement) of all revenue from sales of the Wireless Products by VGSL in the VGSL Territories (VGSL Revenue). Fox will remit all VGSL Revenue to Licensee and such VGSL Revenue shall be treated as Gross Receipts for the purpose of this Agreement. The VGSL Revenue shall be treated in accordance with Paragraph 7(a) in calculating Royalties due to Fox from Licensee.

(iii) Other Payments: To the extent that Fox enters into an agreement with a CSP other than VGSL with Licensee's consent in accordance with Paragraph 1(f),

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whereby Fox's contractual share of revenue from the sale of the Wireless Products to the CSP's subscribers is remitted directly to Fox from the CSP, Fox will pass through all such revenue from the CSP to Licensee and such revenue shall be treated as Gross Receipts for the purpose of this Agreement. Payments of all royalties from the sale of Wireless Products through any such arrangements shall be made by Licensee to Fox in accordance with Paragraph 7(b) above. Except as otherwise provided under this Agreement, Fox hereby agrees not to enter into any future agreements with a CSP for the distribution of the Wireless Products without the involvement and prior written agreement of Licensee.

(iv) For the avoidance of doubt, Fox will have no right or license to develop, publish, and or distribute any Wireless Products for the Wireless Platform, or to permit any third party to do so, or to otherwise use or exploit any Licensee Materials, except in accordance with Paragraphs 1(b) (with respect to bundling), 2(c)(iii) (with respect to Japan), and 2(c)(ii) (with respect to VGSL and T-Mobile).

(c) Payment Terms. Payment of all royalties and other payments by either party to the other shall be made in United States Dollars by check or wire transfer to a bank account to be designated by the receiving party. Payment of all royalties shall be made without deduction, reduction or set-off of any kind, provided that the paying party shall be permitted to deduct withholding taxes as permitted by applicable law. Each party agrees that it shall not be entitled to withhold any portion of the royalties as a reserve. Each party agrees to provide the other with all necessary withholding tax forms.

(d) Accounting Statement: Royalty statements (which statements shall be on the form attached hereto as Exhibit O and incorporated herein by this reference or such other form as the receiving party may designate in its discretion) shall be due and payments made within thirty (30) days after the close of each calendar quarter in which the paying party received any applicable revenue. Each party shall keep a record of all sales and shall submit, together with the royalty statements, a quarterly summary report of such sales. Notwithstanding the foregoing, pursuant to Paragraphs 7(b) (2) and 7(b)(3), Fox shall make all payments of revenue remitted directly by VGSL or any other CSP with whom the parties prospectively agree Fox will receive revenue directly, within thirty (30) days of receipt of such revenue.

(e) Books and Records: Each party shall keep accurate and complete books and records as they relate hereto for the greater of three years from the Effective Date or two years from the termination or expiration of the Term. On reasonable notice, each party shall have the right to examine said books and records; provided that such examination will be made no more than twice in any given twelve month period, and shall be made during normal business hours. If any audit discloses that a party owes royalties in excess of 5% of royalties paid during any accounting period, the audited party shall pay the audit costs together with shortfall and interest at rates as specified in Paragraph 7(e) below.

(f) Late Payments: If a party does not receive the applicable royalty payment as specified on or before the thirtieth day after the close of any calendar quarter, the party owing such royalty shall pay interest with respect to any royalties owed from day to day until the date of payment at a rate of 5% above U.S. Prime Rate on an annual basis. Interest on royalties owed calculated in accordance with this Paragraph shall accrue after

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as well as before any judgment. Neither the acceptance of any payment or royalty statement nor the deposit of any check shall preclude a party from questioning the correctness of any such payment or royalty statement at any time.

8. DUTIES OF LICENSEE:

(a) Marketing and Promotion: Licensee shall be responsible for all marketing, advertising and promotional efforts with respect to the Wireless Products throughout the Territory during the Term. Licensee shall (A) participate in face to face meetings and conference calls regarding marketing from time to time, the frequency, location and subject matter of which shall be mutually agreed; (B) submit a separate marketing plan for the Wireless Products for each Property for which Fox has approved a Treatment (as defined in Paragraph 9(a)(ii)) within thirty (30) days of Fox's approval of such Treatment, subject to Fox's providing sufficient information regarding its release plans for the applicable Property (each, a Marketing Plan); (C) commit funds to the marketing of the Wireless Products as is commensurate with Licensee's marketing efforts of other similar wireless products that Licensee publishes; (D) perform business to business and trade marketing efforts (e.g., to the CSPs) commensurate with industry standards; and (E) appoint a marketing point of contact which shall be responsible for coordinating communications and facilitating relationships between Fox and Licensee and for overseeing the performance of Licensee's obligations hereunder.

All marketing materials for the Wireless Products that incorporate and/or make reference to any part of the PSM or the Properties (collectively, the Licensee Marketing Materials) shall be subject to Fox's approval as follows:

(i) Licensee Marketing Materials: Licensee shall be responsible for producing the Licensee Marketing Materials, all of which shall be subject to Fox's prior written approval, at Licensee's sole cost and expense. Licensee will submit samples of all Licensee Marketing Materials to Fox for review and approval prior to Licensee's use of the Licensee Marketing Materials. Fox shall endeavor to review the Licensee Marketing Materials within two (2) weeks of receipt thereof, provided however, a delayed Fox response shall not constitute a deemed approval under any circumstances. Only after Fox has approved the Licensee Marketing Materials may Licensee proceed with production thereof. Once approval has been granted by Fox, Licensee will not make alterations, modifications or revisions to the Licensee Marketing Materials without the prior written consent of Fox.

(ii) CSP Marketing Materials: If any Licensed CSP seeks to incorporate any element of the PSM in its advertising, marketing, packaging (if any), consumer and trade publicity and promotional materials as well as any collateral materials related thereto (CSP Marketing Materials), Licensee shall ensure that such Licensed CSP obtains Fox's approval in accordance with Paragraph 8(a)(i). Licensee shall submit any such proposed CSP Marketing Materials on the CSP's behalf. Once Fox has approved any such CSP Marketing Materials and notified Licensee, Licensee shall notify the CSP and Licensee and the CSP may proceed with production thereof, provided there are no alterations from the approved packaging.

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(b) Product Support: Licensee shall provide all customer product support, including technical support, for the Wireless Products in the same manner as it provides such support for any other product that it distributes and/or publishes, and in any case in accordance with wireless industry standards. Licensee will display (and ensure that the CSP displays) a toll free telephone number (or an email address, in Licensee's discretion, on a country by country basis) on its website so that customers may contact Licensee and/or the CSP regarding the Wireless Products (Customer Request). Licensee and/or the CSP will use all commercially reasonable efforts to respond to each such Customer Request within 24 hours after receipt of such request. Licensee shall exercise commercially reasonable efforts to resolve each such Customer Request. Licensee also shall respond to all inquiries from VGSL relating to the Wireless Products delivered to VGSL.

(c) Solicitation of Sales: So long as the Agreement has not been terminated or otherwise expired, Licensee shall use all commercially reasonable efforts to promote sales of the Wireless Products during the Term of this Agreement.

(d) No Preferential Treatment: Licensee agrees that it will use substantially similar efforts to advertise, promote, manufacture, sell and distribute the Wireless Products as it devotes to its other licensed products.

(e) Compliance with all Laws: Licensee shall comply with all laws, rules, treaties, and regulations governing the distribution of the Wireless Products throughout the Territory.

(f) Internet Data: Licensee shall comply with COPPA regulations as well as with Fox's Internet Privacy Policy with respect to the collection of any consumer information via the Internet. The policy is attached hereto as Exhibit P and incorporated herein by this reference.

(g) Localization: Licensee shall localize the Wireless Products into the following languages: English, French, German, Italian, Spanish, and Japanese, with Portuguese, Greek, Dutch and Swedish to be made available where practicable to the extent that the Properties are dubbed into such languages, Fox holds foreign rights to the dubbed tracks, and such dubbed tracks are timely available.

(h) Optimization: Licensee shall be required to optimize the Wireless Products for all Territories and Licensed CSPs.

(i) Compatibility Testing: Licensee shall be responsible for any compatibility testing of the Wireless Products required by CSPs, and further shall be responsible for the following: (i) quality assurance of the Wireless Products which is consistent with industry standards; and (ii) adequate operation and functionality of the Wireless Products on the Wireless Platform in connection with each Licensed CSP's networks. To the extent that a material bug or defect is discovered in the Wireless Products which impacts in any manner the functionality of the Wireless Products, Licensee will promptly investigate and correct such bugs or defects, whether discovered by Licensee, Fox, the Wireless Platform manufacturer(s) or the CSP(s). As between Fox and Licensee, all costs of performing the foregoing obligations shall be borne by Licensee.

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9. FOX APPROVALS:

(a) Wireless Products Approval: Fox shall have the right to approve the Wireless Products in accordance with the procedure set forth below. Licensee acknowledges that Fox's approval shall include the approval of any third party who has approval rights over any of the Properties, as applicable.

(i) Creative Meetings: Licensee shall participate in face to face creative meetings with Fox on a monthly basis to determine which Wireless Products shall be developed for upcoming Major Releases and Targeted Releases. The parties will mutually agree upon the list of Wireless Products for each Property, and will amend the applicable Exhibit for that property upon reaching such agreement. Notwithstanding the foregoing, Licensee shall develop the Wireless Products set forth in Exhibits B through M for each Property.

(ii) Concept / Treatment: For each of the Major Releases and Targeted Releases, within ***** after receipt from Fox of the applicable PSM Materials, Licensee will deliver to Fox a concept / treatment for the applicable Wireless Products, which will outline the technical and creative aspects of the Wireless Products (each, a Treatment). Each Treatment shall be subject to Fox's approval, which approval is within Fox's discretion. Once a Treatment is approved by Fox and to the extent the approved Treatment requires compatibility input from a Licensed CSP, it shall be Licensee's sole responsibility to secure concept approval from such Licensed CSP. If the Licensed CSP requires changes, modifications or alterations to a Treatment, or to any element of the Wireless Products, Licensee shall seek Fox's written approval of any such change, which approval may be withheld in Fox's sole discretion.

(iii) Design Document: Once a given Treatment is approved by Fox, Licensee shall then submit to Fox a game design document (Design Document) which will lay out the creative and technical aspects for the Wireless Product, including how Licensee intends to use the Property and the PSM in the Wireless Product. The Design Document shall be subject to Fox's written approval, which approval is within Fox's sole discretion.

(iv) Alpha Testing: Upon approval of the Design Document by Fox, Licensee shall submit a prototype of the applicable Wireless Product, which demonstrates all of the features and functions set forth in the Design Document, although colors, graphics and related elements need not be in their final form (each, an Alpha Prototype). Each Alpha Prototype will be subject to Fox's written approval, which approval will be in Fox's sole discretion.

(v) Beta Testing: Upon approval of the Alpha Prototype, Licensee shall submit a post-Alpha prototype of the Wireless Product meeting all Alpha requirements and in substantial conformance with the Design Document, with all features and functions implemented and in which all interface, memory allocation and code size issues are effectively addressed (each, a Beta Prototype). Each Beta Prototype will have passed Licensee's established testing procedures and have no known Bugs. Each Beta Prototype shall be subject to Fox's written approval, which

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approval will be in Fox's sole discretion. After Fox has approved a Beta Prototype, Licensee shall be free to release the Beta Prototype as a final commercial product.

(A) Modifications: After approval of a Beta Prototype, Licensee shall not modify the Wireless Products without the prior written approval of Fox. For purposes of this paragraph, porting, enhancements, optimization (which alters the content displayed in any material manner) and localization shall be deemed a modification requiring Fox's prior written approval. Notwithstanding the foregoing, Porting that does not require substantive changes to a Wireless Product will not be deemed a modification requiring Fox's prior approval.

(b) Approval Process:

(i) Evaluation: Fox shall approve or reject in writing all Treatments, Design Documents, Alpha Prototypes, and Beta Prototypes submitted to it for its approval (each individually a Deliverable). Fox's approval or rejection of all Deliverables shall be rendered in good faith.

(ii) Rejection: If Fox rejects any Deliverable, Fox shall provide to Licensee, in writing, the reasons for its rejection of that Deliverable. Licensee shall then use commercially reasonable efforts to make the changes to that Deliverable and resubmit the Deliverable to Fox for Fox's reconsideration. If Fox rejects a given Alpha Prototype more than twice based on a reason previously notified to Licensee by Fox, then Fox may terminate this Agreement in whole or with respect to the affected Property and Wireless Products and shall reserve all remedies available under this Agreement. Notwithstanding the foregoing, Fox will not terminate this Agreement for rejection of any Deliverables related to Properties that have their initial theatrical release prior to June 30, 2005, provided such Deliverables are accepted and delivered not later than ***** after the U.S. theatrical releases for each of the following Properties: Robots; Mr. & Mrs. Smith; and Untitled Ridley Scott Film.

(iii) Collaborative Process: The parties intend that development of the Wireless Products will be a collaborative effort between Fox and Licensee, such that Fox shall have a reasonable opportunity to provide input into the primary aspects of each Wireless Product through the review and approval procedure described above, including, but not limited to, the look and feel of the Wireless Products, art direction, as well as the use of the Property (and all elements therefrom) in the Wireless Products and in the advertising, promotion and marketing thereof in accordance with this Agreement. Licensee understands and agrees that approval of any two-dimensional artwork does not constitute approval of the implementation of the artwork in the Wireless Products.

(iv) Timing: Fox shall endeavor to approve or reject in writing all Deliverables and all materials submitted to it for its approval within two (2) weeks of Fox's receipt thereof. If Fox does not approve or reject in writing a Deliverable within two (2) weeks of its receipt and causes a significant delay in the development of the

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Wireless Products, then Fox and Licensee shall mutually and in good faith discuss and agree to any adjustments in the Wireless Products Latest Commencement Date which are necessary due to such delay. Fox shall not terminate this Agreement for Licensee's delay in delivery of the Wireless Products, where such delay is solely caused by Fox's failure to deliver the PSM Materials in a timely manner in accordance with Paragraph 2(a)(i). Fox reserves the right to terminate this Agreement in accordance with paragraph 2(b)(i) where Licensee's delay in delivery of the Wireless Products is the result of Fox's disapproval of the Deliverables.

10. PRICING: As between Fox and Licensee, Licensee will be responsible for determining the prices and/or fees at which the Wireless Products will be offered for sale to the general public but will do so in accordance with Licensee's agreements with the CSPs. Licensee acknowledges that VGSL will be responsible for making pricing decisions for the Wireless Products distributed through VGSL, provided that Fox will not agree to any reduction in the share of revenue it receives from VGSL, other than the ***** percent (*****%) reduction in Fox's revenue share for late delivery provided for in the current version of the VGSL Agreement.

11. INTELLECTUAL PROPERTY RIGHTS:

(a) Intellectual Property Rights Defined: For purposes of this Agreement, the term Intellectual Property Rights means know-how, inventions, patents, patent rights, and registrations and applications, renewals, continuations and extensions thereof, works of authorship and art, copyrightable materials and copyrights (including, but not limited to, titles, computer code, designs, themes, objects, characters, character names, stories, dialog, catch phrases, concepts, artwork, animation, sounds, musical compositions, graphics and visual elements, audio-visual effects and methods of operation, and any related documentation), copyright registrations and applications, renewals and extensions thereof, mask works, industrial rights, trademarks, service marks, trade names, logos, trademark registrations and applications, renewals and extensions thereof, trade secrets, rights in trade dress and packaging, publicity, personality and privacy rights, rights of attribution, paternity, integrity and other similarly afforded moral rights, and all other forms of intellectual property and proprietary rights recognized by the U.S. laws, and other applicable foreign and international laws, treaties and conventions.

(b) Fox Intellectual Property: Fox shall own all Intellectual Property Rights in and to any derivative works made from the Properties, whether or not used in the Wireless Products, including without limitation design documents, graphics, animation, music, packaging, advertising, promotional and other artwork used in connection with the development and distribution of the Wireless Products but at all times excluding the Licensee Materials as defined in Paragraph 11(c) below (collectively, the Fox Intellectual Property). The Fox Intellectual Property includes all rights in and to the entire look and feel of the Wireless Products, all visual displays, scripts, dialogue, literary treatments, concepts, characters, backgrounds, environments, and other elements visible to the Wireless Products' users; all sounds, sound effects, soundtracks and other elements audible to the user. Licensee acknowledges and agrees Fox shall be the exclusive owner of these rights as a work made for hire. Licensee acknowledges that Licensee's use of any Property shall not confer or imply a grant of rights, title or interest in the Property or good will associated therewith, except as specifically provided herein.

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Fox's Intellectual Property Rights shall be indefeasible and irrevocable and shall not be subject to reversion under any circumstance, including cancellation, termination, expiration, or breach of this Agreement. Licensee further agrees to execute one or more copyright assignments at Fox's request, or any other subsequent document as further evidence of this assignment, and to cooperate with Fox in perfecting the assignment of any rights to the Fox Intellectual Property, and hereby appoints Fox as its attorney-in-fact to execute any documents required in connection with such assignment. All materials created hereunder shall be prepared by an employee-for-hire of Licensee under Licensee's sole supervision, responsibility and monetary obligation, or, if third parties who are not employees of Licensee, including without limitation all software developers developing the Wireless Products contribute to the creation of any Fox Intellectual Property, Licensee shall obtain from such third parties a full written assignment of rights so that all right, title and interest in the Fox Intellectual Property shall vest in Fox.

(c) Licensee Materials: Licensee owns and shall retain all right, title, and interest in and to (i) all software source code, tools, and technical documentation used by or for Licensee to create the Wireless Products, including without limitation any and all software code included in the Wireless Products, (ii) all aspects and elements of the Wireless Products other than the Fox Intellectual Property therein, including without limitation any and all gaming engines, game concepts, rules, scripts, and other Intellectual Property Rights therein; and (iii) any and all Intellectual Property Rights in any of the foregoing (the Licensee Materials).

(d) Moral Rights: Licensee hereby does expressly assign to Fox any and all rights of paternity or integrity, rights to claim authorship, to object to any distortion, mutilation or other modification of, or other derogatory actions in relation to the PSM, the Fox Intellectual Property, and any of Fox's Intellectual Property Rights in and to the PSM and or the Fox Intellectual Property and any derivative works thereof, whether or not such would be prejudicial to Fox's honor or reputation, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty (Moral Rights), regardless of whether such right is denominated or generally referred to as a moral right. Licensee hereby does irrevocably transfer and assign to Fox any and all Moral Rights that Licensee may have in Fox's Intellectual Property Rights in and to the PSM and the Fox Intellectual Property and any derivative works thereof and shall cause Licensee's employees and contractors, including Licensee's developers of the Wireless Products, to do likewise. Licensee hereby does forever waive and agree never to assert any and all Moral Rights it may have in Fox's Intellectual Property Rights in and to the PSM and the Fox Intellectual Property and any derivative works thereof and shall cause its employees and contractors (including the developers) to do likewise.

(e) Licensee Cooperation: Licensee shall not by any act or omission to act impair or prejudice the Intellectual Property Rights of Fox in the PSM, the Fox Intellectual Property or the Properties, or violate any moral rights or deal with the PSM, the Fox Intellectual Property or Properties so that any third party might obtain any lien or other right of whatever nature incompatible with the Intellectual Property Rights of Fox. Licensee agrees to notify Fox of any known or suspected infringement of Fox's Intellectual Property Rights in the PSM and the Property that comes to Licensee's attention and to assist Fox, at Fox's expense, in taking such action as Fox, in its sole discretion, deems necessary or appropriate to prevent or remedy such infringing activities. Licensee shall

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also promptly notify Fox in writing of any legal proceeding instituted, or written claim or demand asserted, by any third party against Licensee with respect to the infringement of any Intellectual Property Rights that is alleged to result from the use of the PSM or the Properties in connection with the Wireless Products in accordance with this Agreement.

(f) First Sale Doctrine Not Applicable: The PSM is licensed, not sold, by Fox to Licensee, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the PSM, including but not limited to any use of a purchase order by Licensee in connection with the transactions contemplated hereunder. Furthermore, notwithstanding use of the terms sale and sell throughout this Agreement, any distribution or delivery of the Wireless Products by Licensee to any sublicensee (including, without limitation, CSPs and end-users) will be by license and not by sale (and Licensee shall post notice of that fact in sufficient size, location and manner on Licensee's website on the page from which the general public can subscribe to the Wireless Products). Accordingly, Licensee acknowledges that the First Sale Doctrine (as embodied in 17 U.S.C., Paragraph 109 of the United States Copyright Act of 1976, as amended, or the equivalent law or statute in the Territory) does not apply to Licensee's acquisition of rights in and to the PSM and the Property hereunder or to any sublicensee's acquisition of rights in and to the Wireless Products under any agreement between Licensee and a sublicensee.

12. TRADEMARKS AND COPYRIGHTS; FOX'S TITLE AND GOODWILL:

(a) Intellectual Property Notices: Licensee agrees to place on Licensee's website and in the Wireless Products, and on the packaging and related documentation, if any, and Marketing Materials for the Wireless Products, all trademarks, copyright notices, logos and other legal or proprietary designations of Fox in the form and manner reasonably directed by Fox, including, without limitation, a notice indicating that the Wireless Products are produced by Licensee under license from Fox. All copyrights, trademarks and service marks relating to the Properties, PSM Materials, and Fox Intellectual Property, are, will be and shall remain the sole property of Fox and any rights therein granted to Licensee shall terminate immediately upon termination of this Agreement. All goodwill and reputation attaching to such copyrights, trademarks and service marks shall vest in Fox. Licensee shall create, execute and deliver to Fox all documents and instruments reasonably required by Fox for the protection of or otherwise in connection with the copyrights, trademarks and service marks of Fox. Licensee shall not have the right to use Fox's trademarks or trade names except in connection with the promotion and distribution of the Wireless Products in the Territory in accordance with the terms of this Agreement. Notwithstanding the foregoing, Licensee may include a notice for the Licensee Materials, where appropriate.

(b) Goodwill: Licensee acknowledges that Fox is the owner of all right, title and interest in and to the PSM and the Properties, and further acknowledges the great value of the goodwill associated with the PSM and the Properties and that the PSM and the Properties have acquired secondary meaning in the mind of the public and that the trademarks and copyrights included in the PSM and the Properties, and the registrations thereof, are valid and subsisting, and further agrees that it shall not during the Term of this Agreement or at any time thereafter dispute or contest directly or indirectly, or do or cause to be done any act which in any way contests, impairs or tends to impair Fox's

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exclusive rights and title to the PSM and the Properties, or the validity thereof or the validity of this Agreement, and shall not assist others in so doing.

(c) Cooperation: Licensee shall not in any manner represent that it has any ownership in the PSM or the Properties, or in any trademarks or copyrights included in the PSM or the Properties (or registrations thereof), but may, only during the Term, and only if Licensee has complied with any and all applicable laws and registration requirements within the Territory for so doing, represent that it is a licensee or official licensee hereunder. Licensee shall not register or attempt to register any copyright or trademark in the Properties, in its own name or that of any third party, nor shall it assist any third party in doing so.

13. REPRESENTATIONS AND WARRANTIES:

(a) By Licensee: Licensee represents and warrants to Fox that:

(i) Governmental Authority: Licensee has full power and authority to enter into and perform this Agreement without approval from any governmental entity or third party, and that such ability is not limited or restricted by any agreements or understanding between Licensee and any other person or company;

(ii) Corporate Authority: The execution, delivery and performance by Licensee of this Agreement have been duly authorized by any and all necessary corporate action by Licensee, and this Agreement constitutes the legal, valid and binding obligation of Licensee enforceable in accordance with its terms;

(iii) Expertise: Licensee possesses the expertise and know-how and experience to develop the Wireless Products and is otherwise fully capable of performing its obligations under this Agreement;

(iv) Infringement: The Licensee Materials and any other computer code, technology, information, art or other materials created, developed or used by Licensee pursuant to this Agreement will not infringe upon or misappropriate the Intellectual Property Rights or any other legal rights of any third party, and should any aspect of the Licensee Materials, or such other computer code, technology, information, art or materials created, developed or used by Licensee pursuant to this Agreement, become, or, in Fox's opinion, be likely to become, the object of any infringement or misappropriation claim or suit, Licensee will procure, at Licensee's expense, the right to use such Licensee Materials, computer code, technology, information, art or other materials in all respects, or will replace or modify the affected material to make it non- infringing; and

(v) Licensee Conduct: Licensee will (A) conduct its business in a manner that reflects favorably at all times on the Property, the Wireless Products and the good name, goodwill and reputation of Fox, (B) avoid deceptive, misleading or unethical practices, that are or might be detrimental to Fox, the Property, the Wireless Products or the public, (C) avoid making disparaging, false or misleading statements or representations with regard to Fox, the Property or the Wireless Products, (D) not employ or cooperate in the employment of any deceptive or

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      misleading advertising material with regard to Fox, the Property or the Wireless Products, (E) make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of the Wireless Products that are inconsistent with the warranties and disclaimers included in or with the Wireless Products, (F) not sell the Wireless Products to any party who it knows, or reasonably should know, will infringe Fox's Intellectual Property Rights in the Wireless Products, and (G) comply with all applicable international, national, regional, and local laws in performing its duties hereunder and in any of its dealings with respect to the Wireless Products.

  (b)   By Fox: Fox represents and warrants to Licensee that:

      (i) Authority: Fox has full power and authority to enter into and perform this Agreement, and that such ability is not limited or restricted by any agreements or understanding between Fox and any other person or company. The execution, delivery and performance by Fox of this Agreement have been duly authorized by any and all necessary corporate action by Fox, and this Agreement constitutes the legal, valid and binding obligation of Fox enforceable in accordance with its terms.

      (ii) No Representations/Warranties Regarding Revenue: Notwithstanding the representations and warranties made by Fox in this Paragraph 13(b), Fox makes no representations or warranties whatsoever regarding the amount of revenue that may be generated by sales of the Wireless Products.

14.  INDEMNIFICATION:

    (a) By Licensee: Licensee agrees to indemnify, defend and hold harmless Fox, Trademark Licensor and their respective successors, assigns, parents, subsidiaries, affiliates and co-venturers, and their respective directors, officers, employees and agents from and against all third party claims, damages, losses, liabilities, suits and expenses (including reasonable attorneys' fees), arising out of or in connection with any allegations that (i) the Licensee Materials or the manufacture, packaging, distribution, promotion, sale, or exploitation thereof (except with respect to those matters against which Fox has agreed to indemnify Licensee hereunder) infringes or misappropriates the Intellectual Property Rights of any third party or (ii) any breach of warranty, representation or covenant contained in this Agreement; provided that Fox (a) promptly notifies Licensee in writing of the claim; (b) grants Licensee sole control of the defense, subject to Fox's approval of counsel (to avoid conflicts of interest) and the terms of any settlement that affect Fox; and (c) provides Licensee, at Licensee's expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. If Licensee fails to undertake such defense, Licensee shall reimburse Fox for reasonable attorneys' fees incurred by Fox in its defense of such claim or suit. Furthermore, Licensee agrees to indemnify, defend and hold harmless Fox, Trademark Licensor and their respective successors, assigns, parents, subsidiaries, affiliates and co-venturers and all other parties associated with the Property, and their respective directors, officers, employees and agents from and against claims made by VGSL against Fox regarding failure to deliver and distribute the VGSL Products (as defined in Paragraph 1(a)) in a timely manner as set forth in Paragraphs 2(a)(ii), 2(b)(i) and 2(c)(ii), third-party Intellectual Property claims relating to the Licensee Materials, and all related damages, losses,

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    liabilities, suits and expenses (including reasonable attorneys' fees). Fox's failure to provide notice in accordance with this Paragraph shall not relieve Licensee of its obligations to indemnify, defend and hold Fox harmless from any such claims, unless and except to the extent that Licensee is prejudiced by any such failure.

    (b) By Fox: Fox agrees to indemnify, defend and hold harmless Licensee, its successors, assigns, parents, subsidiaries, affiliates and co-venturers, and their respective directors, officers, employees and agents from and against all third party claims, damages, losses, liabilities, suits and expenses (including reasonable attorneys' fees), arising out of or in connection with any allegations that the PSM, PSM Materials, or Properties infringe or misappropriate any Intellectual Property Rights of any third party; provided that Licensee (a) promptly notifies Fox in writing of the claim; (b) grants Fox sole control of the defense and settlement of the claim; and (c) provides Fox, at Fox's expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. If Fox fails to undertake such defense, Fox shall reimburse Licensee for reasonable attorneys' fees incurred by Licensee in its defense of such claim or suit.

    (c) Injunctions. If either party's use or exploitation of any materials provided and licensed hereunder is, or in the licensor's opinion is likely to be, enjoined due to the type of claim specified in Paragraphs 13(a) or (b), above, the licensor may, at its sole option and expense: (a) procure for the licensee the right to continue using such rights under the terms of this Agreement; (b) replace or modify any materials provided so that they are non-infringing; or (c) if options (a) and (b) above cannot be accomplished despite the licensor's reasonable efforts, then the licensor may terminate the licensee's rights and the licensor's obligations hereunder with respect to such materials, in which event the licensor will refund to the licensee any amounts paid by the licensee with respect to such materials. For the avoidance of doubt, Licensee is the licensor of the Licensee Materials, pursuant to Paragraph 1(e), for the purpose of this Paragraph.

    (d) Sole Remedy. THE PROVISIONS OF THIS PARAGRAPH 14 SET FORTH EACH PARTY'S SOLE AND EXCLUSIVE OBLIGATIONS AND REMEDIES WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND UNLESS OTHERWISE STIPULATED BY JUDICIAL ORDER.

15.  TERMINATION:

    (a) Termination Rights;

      (i) Bankruptcy: If Licensee's liabilities exceed its assets, or if Licensee becomes unable to pay its debts as they become due, or files or has filed against Licensee a petition in bankruptcy, reorganization or for the adoption of an arrangement under any present or future bankruptcy, reorganization or similar law (which petition if filed against Licensee shall not be dismissed within 30 days from the filing date), or if Licensee makes an assignment for the benefit of its creditors or is adjudicated a bankrupt, or if a receiver or trustee of all or substantially all of Licensee's property is appointed, or if Licensee discontinues its business, this Agreement shall automatically terminate forthwith without notice to Licensee.

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      (ii) Transfer or Change of Control: If a substantial portion of the assets or controlling stock in Licensee's business is sold or transferred, or if there is a substantial change in Licensee's management, or if Licensee's property is expropriated, confiscated or nationalized by any government or if any government assumes de facto control of Licensee's business, in whole or in part, Fox may terminate this Agreement upon 30 days' notice to Licensee.

      (iii) Unauthorized Uses: If Licensee transfers, sells or distributes to any unauthorized third party any artwork, voice clips, or other Fox proprietary materials related to the Property including but not limited to Marketing Materials, then Fox may terminate this Agreement forthwith on written notice without any cure period.

      (iv) Failure to Exploit: If Licensee fails to exploit the PSM as set forth in Paragraph 2(a) and 2(b), or fails to release the Wireless Products in accordance with the dates set forth in Paragraph 2(b), then Fox may terminate this Agreement forthwith on written notice without any cure period subject to the terms and conditions set forth in Paragraph 2(a) and 2(b), respectively.

      (v) Failure to Obtain Approvals: If Licensee releases a Wireless Product without first obtaining Fox's approval as specifically set forth in this Agreement in Paragraph 9, then Fox may terminate this Agreement forthwith on written notice without any cure period.

      (vi) Other Defaults: Excepting only those Licensee defaults in this Paragraph 15 which permit Fox to terminate immediately without any cure period for Licensee, if either party fails to perform any of its material obligations hereunder, the other party may terminate this Agreement upon 30 days' notice, unless the breaching party cures any such breach within said 30 days and gives notice to the other party thereof within that period. Notwithstanding the foregoing, in the event that either party (A) fails to pay Royalties or other amounts when due, or (B) fails to make Royalty or other accountings in accordance with the terms of this Agreement, then the breaching party shall be subject to a one-time cure period of fifteen (15) days for such breach. If a party fails to cure the breach within such fifteen (15)-day period or another breach of either (A) or (B) above occurs following an initial cure within the fifteen (15)-day period, then the other party shall have the right in its sole discretion to terminate this Agreement forthwith on written notice without any cure period.

      (vii) Other Agreements: Should any event of default by Licensee cause Fox to terminate this Agreement, Fox, in its sole discretion, may terminate, without any cure period, any other agreements concurrently existing between Fox and Licensee upon written notice specifying the agreements to be terminated. For the avoidance of doubt, this remedy shall only apply to any agreements concurrently existing between the specific parties to this Agreement and shall not apply to agreements between Licensee and Fox Sports.

    (b) Effect of Termination/Expiration: In the event of termination of this Agreement, Licensee shall: (i) immediately stop in all respects the sale and distribution of the Wireless Products and provide Fox with a complete inventory report and accounting with

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    payment of all Royalties, and (ii) at Fox's election shall either (A) deliver to Fox all materials related to the Wireless Products or (B) give Fox satisfactory evidence of their destruction. Licensee agrees that its failure to stop in all respects the sale and/or distribution of the Wireless Products upon termination or expiration of the Agreement will result in immediate irreparable damage to Fox for which there is no adequate remedy at law, and in the event of such failure by Licensee, Fox shall be entitled to injunctive relief. Fox's exercise of any of the foregoing remedies shall not operate as a waiver of any other rights or remedies which Fox may have. Fox shall not distribute the Wireless Products after the termination or expiration of this Agreement without obtaining from Licensee a separate license to the Licensee Materials.

(i) Sell-Off Period: Notwithstanding Paragraph 15(b), in the event of termination of this Agreement, Licensee shall have a period of ***** from the date of such termination (unless such termination occurs less than ***** prior to the expiration of this Agreement in which case the time period shall be shortened accordingly so as not to exceed the date of expiration) in which to sell-off existing inventory of Wireless Products already in the Distribution Channels (Sell Off Period). Licensee agrees that no additional Wireless Products may be developed or distributed during the Sell Off Period and Licensee agrees to require that any Licensed CSP to comply with this provision. Upon the expiration of the Sell Off Period, Licensee agrees to destroy all such remaining inventory and confirm same in writing to Fox (and require that any Licensed CSP do the same). Any revenues, credits or other consideration received by Licensee for the Wireless Products during the Sell Off Period will be subject to Licensee's obligation to pay Fox Royalties pursuant to Paragraph 7 above.

(ii) Fox's Development of Wireless Products: In the event of termination or expiration of this Agreement or Licensee's loss of exclusive rights under this Agreement, Fox shall be free to create and exploit, or have a third party create or exploit, wireless products which may be similar to those developed and distributed by Licensee pursuant to this Agreement for the Properties.

    (c) Guarantee Forfeiture: In the event of termination of this Agreement and without limitation of Fox's rights and remedies all of which are expressly reserved, the following payment penalties shall apply: (i) if termination occurs in the first year of the Term, Licensee shall forfeit any Guarantee paid, and shall immediately pay any remaining Guarantee, up to the amount of ***** dollars (US$*****), and any Guarantee payments made in excess of ***** dollars ($*****) shall be refunded by Fox to Licensee; and (ii) if termination occurs in the second year of the Term, Licensee shall forfeit any Guarantee paid, and shall immediately pay any remaining portion of the Guarantee then unpaid, up to the amount of ***** dollars (US$*****). Any forfeited Guarantees will apply as a set off against any additional damages claimed by Fox.

16.  CONFIDENTIAL INFORMATION AND PRESS:

    (a) Confidential: Each party agrees to use reasonable efforts, and at least the same care that it uses to protect its own confidential information of like importance, to prevent unauthorized dissemination and disclosure of the other party's confidential information

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*****  The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933.

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    during and for a period of three (3) years after the Term. These obligations will be subject to the following terms and conditions:

    (b) Confidential Information Defined: Confidential information includes, but is not limited to, the following: (i) the design, technology and know- how related to the Wireless Products, the PSM and the Property; (ii) the computer object and source code of the Wireless Products, the PSM and the Property; (iii) non-public information concerning either party's financing, financial status, research and development, proposed new products, marketing plans and pricing, unless and until publicly announced; and (iv) any information designated by either party as confidential or proprietary in writing:

(i) Certain Information Not Deemed Confidential: The foregoing obligations will not apply to any information that: (A) becomes known to the general public without fault or breach on the part of the receiving party; (B) the receiving party receives from a third party without breach of a nondisclosure obligation and without restriction on disclosure; (C) was in the possession of the receiving party prior to disclosure by the other; or (D) is independently developed by the receiving party's personnel having no access to similar confidential information obtained from the other.

(ii) Confidential Information of Another: Nothing in this Agreement will affect any obligation of either party to maintain the confidentiality of a third party's confidential information.

    (c) Press Releases: Licensee may not issue a press release or otherwise disclose to or discuss with the press the existence or terms of this Agreement without the prior written consent of Fox (it being understood that Fox's legal counsel shall have final approval over the timing and/or content of any press release or other public disclosure by Licensee regarding this Agreement). Notwithstanding the foregoing, the parties (and their respective parent companies) shall be free to disclose Confidential information to the extent required by any law or regulation to any relevant stock exchange. The parties will liaise and endeavor to agree to the wording of any such disclosure in advance.

17.  MISCELLANEOUS:

    (a) Notices: All notices and statements shall be in writing and shall together with any payments be personally delivered or sent postage prepaid to the intended party at the address set forth below (unless notification of a change of address is given in writing). The date of mailing of a notice or statement shall be deemed the date the notice is given or statement rendered.

    To Fox:

Mail:  Twentieth Century Fox Licensing & Merchandising P.O. Box 900 Beverly Hills, California 90213 USA Attention: Vice President, Wireless Development

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            Messenger:   2121 Avenue of the Stars, 4th Floor       Los Angeles, California 90067 USA       Attention: Vice President, Wireless Development             Facsimile:   (310) 369-1465           With copies to:                 Mail:   Twentieth Century Fox Licensing & Merchandising       P.O. Box 900       Beverly Hills, California 90213 USA       Attention: Legal Department             Messenger:   2121 Avenue of the Stars, Suite 1334       Los Angeles, California 90067 USA       Attention: Legal Department             Facsimile:   (310) 369-4241           and:                     Mail:   Twentieth Century Fox Licensing & Merchandising       P.O. Box 900       Beverly Hills, California 90213 USA       Attention: Finance Department             Messenger:   2121 Avenue of the Stars, 4th Floor       Los Angeles, California 90067 USA       Attention: Finance Department             Facsimile:   (310) 369-8531           To Licensee:                 Mail &   Sorrent Inc.

  Messenger:   1800 Gateway Drive, Suite 200  San Mateo, CA 94404       Attention: Paul Zuzelo             E-mail:   pzuzelo@sorrent.com     Facsimile:   (650) 571-5698

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          With copies to:                 Mail &   Sorrent Inc.   Messenger:   1800 Gateway Drive, Suite 200       San Mateo, CA 94404       Attention: Greg Suarez             E-mail:   greg.suarez@sorrent.com             Facsimile:   (650) 571-5698

(b) Waiver, Modification: The terms of this Agreement may not be waived or modified except by an agreement in writing executed by the parties hereto. The waiver by either party of any breach of this Agreement by the other party must be in writing and shall not be deemed to be a waiver of any prior or succeeding breach.

(c) Relationship of the Parties: Nothing herein contained shall be construed to place the parties in the relationship of principal and agent, partners or joint venturers and neither party shall have the power to obligate or bind the other party in any manner whatsoever.

(d) No Assignment: Licensee may not assign any of its rights and obligations under this Agreement without the prior written consent of Fox; provided that Licensee may assign all of its rights and obligations hereunder to its successor in the event of a sale of all or substantially all of its assets or voting securities, or of the business unit associated with this Agreement. Subject to the foregoing, this Agreement will inure to the benefit of each parties successors and assigns. Any purported assignment or transfer except in accordance with the above shall be void and of no effect.

(e) Governing Law; Jurisdiction; Service of Process: This Agreement shall be construed in accordance with the laws of the State of California applicable to agreements executed and to be wholly performed therein. The parties hereto agree that any suit, action or proceeding arising out of or relating to this Agreement shall be instituted and prosecuted in the United States District Court for the Central District of California or in any court of competent jurisdiction of the State of California. The parties hereto irrevocably submit to the jurisdiction of said courts and waive any rights to object to or challenge the appropriateness of said forums. Service of process shall be in accordance with the laws of the State of California.

(f) Appointment/Change of Agent: Upon notice to Licensee, Fox may appoint an agent or designate a substitute agent from time to time to act on Fox's behalf to collect from Licensee and remit to Fox all Royalty payments due to Fox under this Agreement. The termination or substitution of an agent by Fox shall not affect the rights, duties, privileges or obligations of Fox or of Licensee hereunder. No agent so appointed is authorized to make any representation or warranty with respect to the ownership or title of the Property and or to approve the manufacture, sale or distribution of the Wireless Products.

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***** The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933.

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(g) Binding Agreement: Licensee shall have no rights hereunder and neither Fox nor Trademark Licensor shall be bound hereby unless and until this Agreement has been accepted in writing by Fox. If Fox does not accept this Agreement, the parties shall be released from all liability and this document shall be of no force and effect.

(h) Limitation of Actions: No legal action shall be brought by Licensee under this Agreement unless commenced within 12 months from the date the cause of action arose.

(i) Severability: Should any paragraph, clause or provision of this Agreement be found invalid or unenforceable by any court having jurisdiction over this Agreement, the subject matter hereof, or the parties hereto, such decision shall affect only the paragraph, clause or provision so construed or interpreted and all remaining paragraphs, clauses or provisions shall remain valid and enforceable.

(j) Entire Agreement: There are no representations, warranties or covenants other than those set forth in this Agreement which sets forth the entire understanding among the parties hereto.

(k) Headings: The headings of the Paragraphs of this Agreement are for convenience only and shall not be of any effect in construing the meanings of the Paragraphs.

(l) Survival: The following Paragraphs shall survive the expiration or termination of this Agreement: 5; 6; 7; 11; 13(a)(iv); 14, and 16.

(m) Drafting: Because the parties hereto have participated in drafting and negotiating this Agreement, there shall be no presumption against any party on the ground that such party was responsible for preparing this Agreement or any part of it.

(n) Force Majeure: Neither party shall be liable for any delay or failure in performing any of its obligations hereunder when any such delay or failure is occasioned by causes or contingencies beyond its control, including but not limited to force majeure, fires, floods, war, strikes and governmental regulations, provided the party delaying or failing to perform shall promptly after its inception give written notice of such cause or contingency to the other party and provided further that the party giving such notice shall make all reasonable efforts to remove such disability as soon as possible. Notwithstanding the foregoing, in the event the events constituting force majeure cause a delay in performance of thirty consecutive days or more, either party may terminate this Agreement immediately upon written notice to the other party.

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By signing in the spaces provided below, the parties hereto have agreed to all of the terms and conditions of this Agreement.                   SORRENT, INC.       TWENTIETH CENTURY FOX LICENSING & MERCHANDISING, a division of Fox Entertainment Group, Inc.     (Licensee)                     (Fox)                   By   /s/ Paul Zuzelo       By   /s/ Jamie Samson

  Name Paul Zuzelo           Jamie Samson               Its Senior Vice President                     Its CAO & Exec. V.P.                               Date  December 17, 2004       Date  12/17/04

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EXHIBIT A

Properties

Major Releases:

Robots

Untitled Ridley Scott Film

Ice Age 2

Eragon

  •   The inclusion of Eragon shall be contingent upon Fox's acquisition of the rights to the Property and its ability to grant licensing and merchandising rights thereto. For the avoidance of doubt, there shall be no grant of rights to the Property from Fox to Licensee without Fox's prior written notice advising of Fox's acquisition of the rights to the Property and related licensing and merchandising rights. This Exhibit A and Exhibit E will be amended at such time that Fox can grant such rights.

Targeted Releases:

Untitled Mike Judge Film

Mr. & Mrs. Smith

Lady Luck

  •   The inclusion of Lady Luck shall be contingent upon Fox's acquisition of the rights to the Property and its ability to grant licensing and merchandising rights thereto. For the avoidance of doubt, there shall be no grant of rights to the Property from Fox to Licensee without Fox's prior written notice advising of Fox's acquisition of the rights to the Property and related licensing and merchandising rights. This Exhibit A and Exhibit H will be amended at such time that Fox can grant such rights.

TBD

TBD

TBD

TBD

TBD

The Properties set forth on this Exhibit A may be removed and substituted, or additional Properties may be included, in accordance with Paragraph 1(a) (i).

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EXHIBIT B

Robots Wireless Products

A minimum of:

12-D Java Game in connection with the initial theatrical release

1 3-D Java Game in connection with the DVD release

5 Java Applications ('Screensavers') (2 3-D Screensavers and 3 2-D Screensavers) in connection with the initial theatrical release

5 MMS

10 Wallpapers

5 Voicetones

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT C

Untitled Ridley Scott Film Wireless Products

A minimum of:

1 2-D Java Game, which shall include mutually agreed upon 3-D elements

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT D

Ice Age 2 Wireless Products

A minimum of:

1 Java Game (2-D or 3-D to be mutually agreed)

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT E

Eragon Wireless Products

A minimum of:

1 Java Game (2-D or 3-D to be mutually agreed)

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT F

Untitled Mike Judge Film Wireless Products

A minimum of:

1 Java Game (2-D or 3-D to be mutually agreed provided that if the parties are unable to reach an agreement, Licensee's decision will prevail)

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT G

Mr. & Mrs. Smith Wireless Products

A minimum of:

1 Java Game (2-D or 3-D to be mutually agreed provided that if the parties are unable to reach an agreement, Licensee's decision will prevail)

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones, if talent agreements so allow

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT H

Lady Luck Wireless Products

A minimum of:

1 Java Game (2-D or 3-D to be mutually agreed provided that if the parties are unable to reach an agreement, Licensee's decision will prevail)

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones, if talent agreements so allow

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT I

TBD Wireless Products

A minimum of:

1 Java Game (2-D or 3-D to be mutually agreed provided that if the parties are unable to reach an agreement, Licensee's decision will prevail)

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones, if talent agreements so allow

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT J

TBD Wireless Products

A minimum of:

1 Java Game (2-D or 3-D to be mutually agreed provided that if the parties are unable to reach an agreement, Licensee's decision will prevail)

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones, if talent agreements so allow

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT K

TBD Wireless Products

A minimum of:

1 Java Game (2-D or 3-D to be mutually agreed provided that if the parties are unable to reach an agreement, Licensee's decision will prevail)

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones, if talent agreements so allow

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT L

TBD Wireless Products

A minimum of:

1 Java Game (2-D or 3-D to be mutually agreed provided that if the parties are unable to reach an agreement, Licensee's decision will prevail)

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones, if talent agreements so allow

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT M

TBD Wireless Products

Up to:

1 Java Game (2-D or 3-D to be mutually agreed provided that if the parties are unable to reach an agreement, Licensee's decision will prevail)

1 Java Application ('Screensaver') where feasible

5 MMS

10 Wallpapers

5 Voicetones, if talent agreements so allow

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT N

Glossary

MMS stands for Multimedia Messaging Service — a store and forward messaging service that allows mobile subscribers to exchange multimedia messages with other mobile subscribers. MMS supports the transmission of additional media types: text, picture, audio, video and combinations of them.

Realtone or Trutone (also referred to as Master Tone) shall mean a digital, audio file containing an excerpt of a master recording of a musical composition, no more than 45 seconds in length, formatted for playback by a wireless device when such wireless device receives an incoming call.

Screensaver shall mean a Java application that replaces the image on a screen when the screen is not in use.

Wallpaper on a mobile phone shall mean the background pattern or picture against which mobile phone screen menus, icons, and other elements are displayed and moved around. A wallpaper image can be in a JPEG or a GIF file format. Each model/make of the mobile phone provides several pre- installed wallpaper images for the user to choose from. A user can also choose to download and install third-party wallpapers and use one of these instead.

Voicetone shall mean the audio speech sound heard by a caller, such as lines from a movie or spoken lyrics of a song.

Ringtone shall mean a digital, audio file containing a portion of a musical composition, no more than 45 seconds in length, formatted for playback by a wireless device when such wireless device receives an incoming call. For the avoidance of doubt, a Ring Tone may be either monophonic or polyphonic.

[Remaining definitions are TBD]

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT O Royalty Statement



TWENTIETH CENTURY FOX LICENSING & MERCHANDISING LICENSING STATEMENT OF ROYALTIES PAYABLE                                                                                       Licensee                               Contract Number:

Property                               Report Period Start Date:

Territory                               Report Period End Date:

    Wallpaper  Screensaver  MMS   Game   Ringer   Wallpaper  Screensaver  MMS   Game   Ringer Name/Likeness  No Music  No Music   No Music  No Music  No Music  Music   Music   Music   Music   Music None

1

2

3

4

5

6

7                                         Mail to:       Twentieth Century Fox Licensing & Merchandising   Total Net Sales

        P.O. Box 900           Royalty Rates

        Beverly Hills, CA 90213-0900           Royalty Earned

        Attn: Jimyong Kim           Less: Advance Balance

Street address:       2121 Avenue of the Stars, Room 4014           Royalty Payment Enclosed

        Los Angeles, CA 90067         -or-New Advance Balance

                                          This report is based on our books and records and is, to the best of my knowledge, true, correct             and complete for the period stated and complies with all contractual requirements         Minimum Guarantee Amount

NAME                       TITLE       Payment Required to Meet                                 Guarantee due on:

SIGNATURE                       DATE

NOTE: This report is required to be filed whether or not there were any sales for the period. For most licenses, the report is due no later than 30 days following every calendar quarter the agreement is active.

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT P

News America Incorporated Statement of Privacy Principles

PREAMBLE

News America Incorporated (News America) is the principal U.S. subsidiary of The News Corporation Limited, one of the world's largest media companies. The businesses of News America and its subsidiary, Fox Entertainment Group, Inc., include: the production and distribution of motion pictures, television programming and related consumer products (Twentieth Century Fox); television and cable broadcasting (the Fox Network, Fox owned television stations, Fox Sports Net, Fox Sports World, Fox Sports World Espaňol, Speedvision, Fox News Channel, FX and Fox Movie Channel); the publication of newspapers, books, magazines and promotional free-standing inserts (The New York Post, HarperCollins Publishers, The Weekly Standard and News America Marketing); sports franchises (the Los Angeles Dodgers); and marketing services (SmartSource/iGroup). In this Statement of Privacy Principles these businesses are collectively called the News America Group. At the News America Group we strive to enhance our relationship with consumers. Collecting personal information about consumers is vital to this effort. This Statement of Privacy Principles describes the policies and procedures of the News America Group's U.S.-based businesses for the collection, use, and dissemination of personally identifiable information about U.S. consumers in both the online and offline world. The Principles are based on the concepts of consumer notice and choice.* The News America Group is actively involved in the ongoing privacy debate and is continually monitoring privacy developments. Accordingly, from time to time we may modify these Privacy Principles to reflect changes in the law, self-regulatory initiatives and technology.

COLLECTION

The News America Group obtains personally identifiable information only if we believe the information is relevant to our relationship with a consumer or to assist us in creating a relationship with a consumer. We obtain personally identifiable information about consumers directly from consumers whenever possible, primarily in the course of providing them with products, information and services. When the News America Group obtains personally identifiable information from third-party sources, we use only reputable sources. In those instances where our information collection activities involve children, the News America Group provides special privacy protections.

NOTICE

When The News America Group collects personally identifiable information from consumers, we inform them about who is collecting the information, why it is being collected, how it is being collected, the types of uses we will make of the information, whether we will disclose the information to third parties and the types of third parties to whom we will disclose the information, and consumers' options regarding the use of their information.

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







CHOICE

The News America Group provides consumers with an opportunity to choose whether the business unit that collects their personally identifiable information may use it for purposes that are other than those for which the information was submitted, and whether the information may be shared with third parties.

USE OF PERSONAL INFORMATION

Inside the News America Group, we use personally identifiable information only in a manner consistent with these Privacy Principles. Personally identifiable information is available only to our employees, agents and contractors who have a business reason to have access to such information. The News America Group uses personally identifiable information to respond to our customers and to make decisions about the goods and services that the News America Group or its business partners provide or hope to provide to consumers. Subject to the exercise of consumer choice, personally identifiable information may be used for different purposes, or shared with our business partners. A News America Group business entity may disclose personally identifiable information without providing consumers with a choice in order to protect the rights of the companies within the News America Group or their respective employees, agents and contractors; to protect the safety and security of visitors to web sites operated by News America Group companies; to protect against fraud or for risk management purposes; or to comply with the law or legal process. In addition, if a News America Group entity sells all or part of one of its businesses, makes a sale or transfer of assets or is otherwise involved in a business merger or transfer, personally identifiable information may be transferred to a third party as part of that transaction.

SECURITY

The News America Group uses reasonable administrative, technical, personnel, and physical measures to safeguard personally identifiable information in its possession against loss, theft, and unauthorized use, disclosure or modification.

ACCESS, CORRECTION AND DELETION

Whenever possible, each News America Group business unit permits consumers to have a right to see the personally identifiable information that it has collected from them, to correct any information that is incorrect and to instruct the business unit to delete the information from its files.

REMEDIES

Consumers may contact a privacy officer at each News America Group business unit regarding privacy complaints and disputes.

COMPLIANCE

Each News America Group company will take appropriate measures to ensure compliance with these Privacy Principles.

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007







EXHIBIT Q

LICENSEE COMPETITORS

Jamdat Mforma Digital Bridges Digital Chocolate Game Loft Infospace

Any further additions and/or deletions shall be mutually agreed and addressed via amendment to this Agreement.

Wireless Content License Agreement Multiple Properties / Sorrent, Inc. / Final PLZ

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Source: GLU MOBILE INC, S-1/A, 3/19/2007
[EX A]:
Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?