Exhibit 10.19
FIBRE, CAPACITY AND FACILITIES PURCHASE AGREEMENT
THIS AGREEMENT, dated as of the ______ day of _______________ 1999, is among
FLAG ATLANTIC LIMITED, a company organised under the laws of Bermuda and having
its principal office at The Emporium Building, 69 Front Street, 4th Floor,
Xxxxxxxx, Bermuda, FLAG ATLANTIC USA LIMITED, a company organised under the laws
of Delaware, USA and having its principal office at 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, XXX, (FLAG ATLANTIC LIMITED AND FLAG ATLANTIC USA
LIMITED being hereinafter jointly and severally referred to as "FA-1") and GTS
TRANSATLANTIC CARRIER SERVICES LIMITED ("Purchaser"), a company organised under
the laws of Bermuda and having its principal office at Xxxxxxxxx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxxxx, XX00, Xxxxxxx.
WITNESSETH:
WHEREAS, FLAG Atlantic Limited is constructing and will directly and/or
indirectly own, operate and maintain a fibre optic cable system to be known as
FLAG Atlantic-1 (the "System") consisting of a subsea element (the "Subsea
Element") and two backhaul elements (the "Backhaul Elements"), the System,
Subsea Element and Backhaul Elements being more fully described in Schedule 1;
and
WHEREAS, FLAG Atlantic USA Limited is constructing and will own all that part of
the System that is within the territory (including the territorial waters) of
the United States of America; and
WHEREAS, the System is currently scheduled to go into service in stages with the
initial stage, as more particularly described in Schedule 1 ("Initial Stage"),
currently scheduled to go into service on or about 31 March 2001 ("Scheduled
Initial RFS Date"), and the final stage, as more particularly described in
Schedule 1 ("Final Stage"), currently scheduled to go into service on or about
30 June 2001 ("Scheduled Final RFS Date"); and
WHEREAS, Purchaser desires to purchase from FA-1, and FA-1 is willing to sell to
Purchaser: (i) an indefeasible and exclusive right of use ("IRU") in the
derivable capacity from one fibre pair (the "Capacity") on each Link (as such
term is described in Schedule 1) of the Subsea Element; (ii) the exclusive right
to use one dedicated dark fibre pair (the "Dark Fibre Pair") on each Link of the
Backhaul Elements; and (iii) all such other rights as are set out in Schedule 2
(together the "Rights"); and
WHEREAS, FLAG Atlantic Limited, FLAG Atlantic USA Limited and Purchaser (the
"Parties") desire to define the terms and conditions under which the Rights will
be acquired by Purchaser.
NOW, THEREFORE, the Parties hereby agree as follows:
1. GRANT OF RIGHTS AND DELIVERY
1.1 Purchaser agrees to purchase and FA-1 agrees to grant to Purchaser, the
Rights for the sum of *** (the "Purchase Price"), payable in accordance
with the schedule set forth in clause 2.1, in each case subject to the
terms and conditions of this Agreement.
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE PORTIONS OF THIS
AGREEMENT MARKED WITH THREE ASTERISKS (***) AND THE REDACTED MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
1.2 Where provision is made in this Agreement for the provision of
operations and maintenance services ("O&M") by FA-1, O&M shall be
provided by FA-1 to Purchaser *** in accordance with Schedule 3.
1.3 Testing and Inspection
1.3.1 ***
1.3.2 ***
1.3.3 ***
1.4 *** The fibre pair so allocated is herein referred to as the "Allocated
Fibre Pair". Except as set out below, the Preliminary Bandwidth (as
such term is described in Schedule 2) will be provided and the rest of
the Capacity will be installed on the Allocated Fibre Pair. ***
***
1.5 Upon the Initial RFS Date, FA-1 will activate the Preliminary Bandwidth
of the Capacity in each of Links 2, 5, 6 in accordance with the terms
of this Agreement.
1.6 Upon the Final RFS Date, FA-1 will activate the Preliminary Bandwidth
of the Capacity in Link 9 in accordance with the terms of this
Agreement.
1.7 Subject to Purchaser complying with clause 2.1, the Rights shall pass
to and vest in Purchaser as follows:
1.7.1 in the Capacity, from the Initial RFS Date for the Initial Stage and
from the Final RFS Date for the Final Stage;
1.7.2 in the Dark Fibre Pair and in each Facility (as such term is described
in Schedule 2), from the date that the relevant Landing Station,
Terminal Point or amplifier/regenerator site is made available to FA-1
for the installation of its equipment being at least 120 days prior to
the Initial RFS Date;
1.7.3 The Rights shall subsist until the System is decommissioned in
accordance with clause 8;
1.7.4 Purchaser shall have no legal ownership or other rights in the System
itself or in the physical assets thereof, in any proceeds from the
disposition of the System or in any other capacity therein, except as
specifically provided herein.
1.8 Except as otherwise required by law or generally accepted accounting
policies, the Parties agree to file their respective income tax returns
to reflect the terms of clause 1.7 and not to take any actions
inconsistent therewith.
1.9 ***
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1.10 Notwithstanding anything in this Agreement to the contrary, following
the grant of any of the Rights relating to the Capacity or Dark Fibre
Pair, Purchaser may resell, assign, transfer or otherwise use any such
rights for any lawful purpose. Notwithstanding any resale, assignment
or transfer, Purchaser remains liable for its obligations under this
Agreement. FA-1 agrees and acknowledges that from the Initial RFS Date
it shall have no right to use the Capacity or Dark Fibre Pair forming
part of the Initial Stage during the term of this Agreement and that
from the Final RFS date it shall have no right to use the Capacity
forming part of the Final Stage during the term of this Agreement.
2. PAYMENTS
2.1 Purchaser shall pay to FA-1 the Purchase Price for the Rights as
follows (and all such payments shall be non-refundable except as
otherwise provided in clause 4.4):
2.1.1 Purchaser shall pay to FA-1 *** of the Purchase Price on receipt of a
notice from FA-1 that FA-1 Financial Closure (as defined in clause 22)
has occurred.
2.1.2 Purchaser shall pay the remaining *** of the Purchase Price in
instalments of *** of the Purchase Price, such instalments being paid
quarterly with the first payment on 31 December 1999 ***.
2.2 Purchaser shall pay to FA-1 such amounts for the operation and
maintenance of the System as are set forth in, or determined pursuant
to, Schedule 4 ("O&M Payments").
2.3 FA-1 shall render to Purchaser invoices for amounts payable pursuant to
this Agreement. Invoices for the Purchase Price shall be rendered in
accordance with clause 2.1. Invoices for O&M Payments shall be rendered
pursuant to Schedule 4. All invoices shall be due and payable within 30
days after delivery to Purchaser.
2.4 Any amount payable pursuant to this Agreement which is not paid when
due shall accrue interest at the annual rate of *** above the U.S.
Dollar LIBOR for one month as quoted in The Wall Street Journal on the
first business day of the month in which the payment is due. All such
default interest shall accrue from the day following the date payment
of the relevant amount was due until it is paid in full and shall
accrue both before and after judgement. Such interest shall be payable
on demand.
2.5 All amounts payable by Purchaser pursuant hereto shall be paid in full
in U.S. dollars by wire transfer free and clear of all bank or transfer
charges to such account(s) as FA-1 may by notice to Purchaser designate
without reduction for any deduction or withholding for or on account of
any tax, duty or other charge of whatever nature imposed by any taxing
authority. If Purchaser is required by law to make any deduction or
withholding from any payment hereunder, Purchaser shall pay such
additional amount to FA-1 so that after such deduction or withholding
the net amount received by FA-1 will be not less than the amount FA-1
would have received had such deduction or withholding not been
required. Purchaser shall make the
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required deduction or withholding, shall pay the amount so deducted or
withheld to the relevant governmental authority and shall promptly
provide FA-1 with evidence of such payment.
2.6 In the case of payments of the Purchase Price, until the Initial RFS
Date there shall be such controls over the account(s) designated by
FA-1 pursuant to clause 2.5 so as to ensure that payments of the
Purchase Price may only be used to make timely payments required to be
made by FA-1 in connection with the planning, design, construction and
project management of the System. Any interest arising from amounts
held in the account(s) shall accrue for the benefit of FA-1.
2.7 Subject to clause 2.1.2, Purchaser's obligation to make payments
hereunder shall not be subject to any rights of set-off, counterclaim,
deduction, defence or other right which Purchaser may have against FA-1
or any other party.
2.8 Should any invoice for O&M Payments or other service payments or part
thereof be under dispute as to its correctness, then default interest
shall not accrue on the amount in dispute pursuant to clause 2.4 above
provided that within 30 days of receipt of the invoice, Purchaser has
advised FA-1 by electronic mail, facsimile or like means of
communication of the amount in dispute and the nature of that dispute.
2.9 Purchaser shall pay the undisputed amount of the invoice by the payment
date. The amount in dispute shall be investigated by the Parties and
resolved in a timely manner.
2.10 Notwithstanding the foregoing, in the event that upon investigation the
amount in dispute or part thereof is found to be correct as originally
invoiced, Purchaser shall pay, in addition to the amount in dispute,
interest in accordance with clause 2.4 on all unpaid portions which are
found to have been correctly invoiced, such interest to be paid from
the date payment of the relevant amount was originally due until it is
paid in full.
2.11 Prior to FA-1 Financial Closure, Purchaser shall deliver to FA-1 such
security for payment of the Purchase Price as is set forth in Schedule
5.
3. TAXES
3.1 Save as the context requires or as otherwise stated herein all
references to payments made in this Agreement are references to such
payments exclusive of all sales and use taxes, gross turnover taxes,
value added taxes, or other similar turnover or sales based taxes,
excise taxes, duties, fees, charges, levies, surcharges to recover the
cost of universal service contributions, or similar liabilities (other
than the general income taxes of FA-1) imposed by any authority,
government or government agency in connection with or as a result of
or in respect of the supply for which the payment is or is deemed to
be consideration (collectively "taxes"). Where applicable such taxes
shall be added to the invoice and shall be paid to FA-1 at the same
time as the relevant invoice is settled in accordance with clause 2.
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3.2 In the event that value added tax in the U.K. or France is considered
to be applicable, FA-1 shall notify Purchaser to this effect prior to
the issuance of the relevant VAT invoice and both Parties shall work
together in good faith to restructure the arrangements to reduce the
impact of VAT on Purchaser, where legally possible, but such that there
is no adverse cash flow impact for FA-1. Notwithstanding these
discussions, invoices (excluding the VAT) shall be issued and be
payable in accordance with clause 2.
3.3 Purchaser shall be responsible for all rates and similar property based
taxes appropriately assessed and arising directly or indirectly from
Purchaser's interest in and exercise of the Rights.
4. DEFAULT AND TERMINATION
4.1 Except as provided in this Agreement, neither Party shall have a right
to terminate or cancel this Agreement for any reason whatsoever.
4.2 In the event that Purchaser shall have failed to pay any amount payable
by Purchaser pursuant hereto for more than *** days after its due date,
then Purchaser shall not be entitled to activate any additional
capacity within the Subsea Element pursuant to this Agreement or the
Dark Fibre Pair or to effect any upgrade pursuant to clause 7 until
Purchaser has paid in full all amounts overdue together with applicable
default interest. If such failure continues for a further *** days,
FA-1 shall be entitled to refrain from performing any services for
Purchaser required by this Agreement, deny Purchaser the right of
access to co-located spaces (except for the purpose of maintaining its
existing services to its customers), and refuse to carry out any
additional break-outs along the route of the Dark Fibre Pair until
Purchaser has paid in full all undisputed amounts overdue together with
applicable default interest.
4.3 FA-1 reserves the right to temporarily or permanently deactivate all
then activated Capacity (and refuse to activate any additional
Capacity) and/or to disconnect Purchaser's equipment from the System in
the event that Purchaser is in breach of clause 9.1 or if, in FA-1's
reasonable judgement, Purchaser's use of the System may damage or
disrupt the System. Except in case of emergency FA-1 shall notify
Purchaser in advance of its intent to deactivate Capacity and FA-1
shall not permanently deactivate the Capacity without first allowing
Purchaser a reasonable period (being not less than 90 days) within
which Purchaser may remedy the breach of clause 9.1 or amend its use of
the System so that the cause or potential cause of the damage or
disruption has been rectified and the risk removed, as the case may be.
FA-1 shall reconnect the Capacity as soon as Purchaser has established
to FA-1's satisfaction that the breach of clause 9.1 has been cured or
that the cause or potential cause of damage or disruption to be System
has been rectified and the risk removed.
4.4 If this clause becomes applicable pursuant to clause 2.1.2 or if the
Initial RFS Date has not occurred within *** months after the Scheduled
Initial RFS Date (*** months if the delay is caused by a force majeure
event) Purchaser may by written notice terminate this Agreement.
Purchaser shall have no obligation to make any further payments under
this Agreement following such termination and FA-1 shall within ***
days of such termination refund to
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Purchaser any portion of the Purchase Price already paid by Purchaser
to FA-1 which has not been used to make timely payments required to be
made by FA-1 in connection with the planning, design, construction and
project management of the System. Subject to Clauses 4.5 and 4.6, the
foregoing shall be the limit of Purchaser's rights for delays to the
Initial RFS Date.
4.5 ***
4.6 ***
5. OPERATION AND MAINTENANCE
5.1 FA-1 shall be responsible for the operation and maintenance of the
System including arranging for the repair of the System in the event of
any fault. Purchaser's responsibility with regard to operation and
maintenance of the System shall be to make the O&M Payments as and when
they become due pursuant to this Agreement and to notify FA-1 of each
fault related to the Dark Fibre Pair/Capacity on becoming aware of the
same, locate the site of such fault, and in relation to the Dark Fibre
Pair to shut down Purchaser's lasers within two hours of receipt of
instructions to enable FA-1 to safely repair the fault. If Purchaser
fails to shut down its lasers within the required time period, FA-1
shall be entitled to remove the lasers from the Dark Fibre Pair in
order to safely repair the Dark Fibre Pair or the System provided that
FA-1 takes reasonable care in so doing. Purchaser shall also be
required to provide FA-1 reasonable assistance to determine if a fault
on the System is due to one or more of Purchaser's break-out points on
the System.
5.2 FA-1 shall be responsible for maintaining sufficient spares and
adequate inventory tracking systems to ensure that the System is
properly and efficiently maintained and repaired, in accordance with
industry standards.
5.3 Any planned works that will interrupt the Capacity on any Link of the
Subsea Element or will interrupt the Dark Fibre Pair or will hinder
access to the Facilities shall be notified to Purchaser at least 15
days in advance.
5.4 FA-1 shall promulgate procedures for the maintenance, use and operation
of the System according to standards generally accepted in the
telecommunications cable industry and in order to maintain the
Standards and shall provide Purchaser with a copy thereof. FA-1 may
from time to time amend such procedures provided that such amendments
do not affect the quality or use of the Rights and remain consistent
with standards generally accepted in the telecommunications cable
industry and shall provide Purchaser with a copy of each amendment
prior to its effectiveness.
5.5 In operating and maintaining the System, FA-1 shall provide operation
and maintenance on an equal and non-discriminatory basis.
5.6 Except where FA-1 is acting in a reasonable manner in carrying out
emergency, routine or preventative maintenance or repair activities,
FA-1 shall conduct all operations and use of the System in a manner
which does not interrupt, impair or interfere with the use of the
Rights by Purchaser or Purchaser's customers.
5.7 FA-1 undertakes to operate and maintain the System as economically as
is reasonably possible.
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6. INTENTIONALLY LEFT BLANK
7. SYSTEM ENHANCEMENTS AND UPGRADES
7.1 FA-1 reserves the right to upgrade the amount of the capacity of the
System and to make any enhancements to the System from time to time.
FA-1 shall use reasonable efforts to minimize the interruption,
interference or impairment of the System caused by the implementation
of any such enhancement or upgrade and shall indemnify Purchaser for
any damage or interruption to the Dark Fibre or Capacity as a result of
FA-1's failure to use such reasonable efforts.
7.2 FA-1 will notify Purchaser of any planned upgrade of, or enhancement
to, the System. Such notice shall set forth the costs of such upgrade
or enhancement, based on its pricing agreement with or proposal from
its suppliers. If Purchaser wishes to participate in such upgrade or
enhancement for the purposes of upgrading or enhancing the Capacity it
shall notify FA-1 within 30 days of receiving notice from FA-1. If
Purchaser agrees to participate in the upgrade or enhancement, the
upgrade or enhancement will then be treated as FA-1 project managing
the upgrade or enhancement, pursuant to clause 7.3. If Purchaser elects
not to participate or fails to timely respond to the notice, FA-1 shall
be entitled to proceed with the upgrade or enhancement without
participation by Purchaser.
7.3 Purchaser shall be entitled at its own cost at any time to upgrade the
Capacity, including upgrading the Capacity to over 400 Gbps if this
becomes possible. FA-1 shall carry out each upgrade (including the
provision of the necessary transponders) on Purchaser's behalf in
increments of 40 Gbps on each Link being upgraded. *** Upon FA-1
receiving a request to upgrade from Purchaser, FA-1 will within 60
days, subject to receiving from Purchaser the information required,
submit to Purchaser costs for the upgrade. The Proposal will identify
third party costs and project management costs and a completion
timeline for the upgrade ***. The upgrade will be carried out in
accordance with the terms of this Agreement (including BIS Testing).
7.4 Purchaser shall be entitled at its own cost at any time to equip the
Dark Fibre Pair provided that such activities are carried out in
consultation with FA-1 and at a time, not later than 30 days after the
date Purchaser wishes to do the work, mutually agreed by the Parties
(which agreement shall not be unreasonably withheld or delayed).
8. SYSTEM DECOMMISSIONING
The System shall be decommissioned at such time, no earlier than 15
years and no later than 25 years from the Initial RFS Date, as either
FA-1 or the holders of three quarters of the then activated capacity on
the System determine that the System is technically obsolete or has
reached the end of its useful economic life. There shall be no
compensation payable to Purchaser whether Purchaser voted for or
against decommissioning. FA-1 shall where possible notify Purchaser if
the System or any material portion thereof is to be decommissioned at
least 12 months prior to such decommissioning (or by such later date as
may be possible if 12 months notice is not possible). This provision is
without prejudice to
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the rights of FA-1 to decommission the System without any liability to
Purchaser whatsoever in the event of a force majeure event which makes
it impossible to maintain the business efficacy of the System.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 Purchaser represents, warrants and covenants to FA-1 as follows:
9.1.1 Purchaser is duly established and in good standing under the laws of
Bermuda and has full power and authority to enter into this Agreement.
9.1.2 This Agreement constitutes the legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms.
9.1.3 Purchaser or its affiliate has obtained or will obtain all necessary
consents, licenses, permits and other approvals, both governmental and
private, as may be necessary to permit Purchaser to perform its
obligations under this Agreement and to acquire and use the Capacity.
9.1.4 Purchaser shall perform its obligations under this Agreement and use
the Capacity in a manner consistent with applicable law, and shall not
use, or permit the Capacity to be used, for any illegal purpose or in
any other unlawful manner.
9.2 FLAG Atlantic Limited and FLAG Atlantic USA Limited each represents,
warrants and covenants to Purchaser as follows:
9.2.1 It is duly established and in good standing under the laws of the
country of its incorporation and has full power and authority to enter
into this Agreement.
9.2.2 This Agreement constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms.
9.2.3 It shall perform its obligations under this Agreement in a manner
consistent with applicable law.
9.2.4 It shall use reasonable commercial efforts to design the System in a
manner consistent with and to require its suppliers to construct and
install the system in accordance with Schedule 1 and the Standards.
9.2.5 It shall enforce the warranties, guarantees, indemnities,
undertakings, representations, covenants, or other assurances
provided by suppliers of the System to FA-1 or its Affiliates,
including but not limited to the Design Life Warranty, the Defects
Warranty and other warranties expressly provided by Alcatel
Submarine Networks in its supply agreement relating to the Subsea
Element (each a "Warranty"). In the event FA-1***
9.2.6 ***
9.3 Except as provided above, FA-1 disclaims, and Purchaser waives, all
representations and warranties regarding the System, including any
warranty of merchantability or fitness for a particular use, and in
particular, without limiting the foregoing FA-1 does not warrant that
the Dark Fibre Pair or Capacity will be uninterrupted or error free or
that the Dark Fibre Pair or Capacity will meet Purchaser's requirements
for the equipment to be deployed by Purchaser
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in connection with the Dark Fibre Pair or Capacity or services to be
offered by Purchaser utilising this equipment.
10. FORCE MAJEURE
No failure or omission by any Party to carry out or observe any of the
terms and conditions of this Agreement (other than any payment
obligation) shall give rise to any claim against such Party or be
deemed a breach of this Agreement if such failure or omission arises
from an act of God, an act of any government or any other circumstance
beyond the reasonable control of that Party commonly known as "force
majeure".
11. CONFIDENTIALITY
Other than in connection with an assignment permitted under clause 13
or if it is required by applicable law in connection with the
enforcement of this Agreement, neither FA-1 nor Purchaser shall
disclose the terms of this Agreement to any third party without the
prior written consent of the other Party. Without limiting the
generality of the foregoing, neither FA-1 nor Purchaser shall issue
any press release or otherwise publicise the existence or the terms of
this Agreement without the prior written consent of the other Party.
12. NO LICENCE
12.1 Nothing in this Agreement shall or shall be deemed to give rise to
any right of Purchaser to use any FA-1 Intellectual Property.
12.2 For the purposes of this clause "Intellectual Property" means any and
all patents, trade marks, rights in designs, copyrights, and topography
rights, (whether registered or not and any applications to register or
rights to apply for registration of any of the foregoing), rights in
inventions, know-how, trade secrets and other confidential information,
rights in databases and all other intellectual property rights of a
similar or corresponding character which may now or in the future
subsist in any part of the world, and "FA-1 Intellectual Property"
means Intellectual Property owned by or licensed to FA-1 together with
the goodwill relating thereto.
13. ASSIGNMENT
13.1 This Agreement and all the provisions hereof shall be binding upon and
inure to the benefit of the Parties hereto and their respective
successors and permitted assigns; provided that, except for the
assignment of a Party's rights (but not its obligations) under this
Agreement to one or more financial institutions and/or export credit
agencies as collateral security for financing provided to that Party or
in connection with a sale of receivables by that Party and the
assignment by such financial institutions (and their assignees) of the
rights and obligations
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under this Agreement to any other persons following exercise of any
rights or remedies on such collateral security, neither this Agreement
nor any of the rights, interest or obligations hereunder shall be
assigned or transferred by any of the Parties hereto without the prior
written consent of the other Parties, and any attempted assignment or
transfer in violation of this clause shall be void.
13.2 Notwithstanding clause 13.1, FLAG Atlantic Limited and FLAG Atlantic
USA Limited may allocate their rights and obligations under this
Agreement between themselves and their Affiliates.
13.3 FLAG Atlantic Limited and FLAG Atlantic USA Limited may use
subcontractors or agents to fulfil their obligations hereunder provided
that FLAG Atlantic Limited and FLAG Atlantic USA Limited remain fully
liable for the performance of those obligations.
13.4 Notwithstanding Clause 13.1, Purchaser may assign its rights under this
Agreement to its Affiliates.
13.5 For the purpose of this clause and clause 19.1 "Affiliate" means any
person or body corporate, controlling, controlled by or under common
control with the relevant Party.
14. ENTIRE AGREEMENT
This Agreement constitutes the whole agreement between the Parties and
supersedes any previous agreements, arrangements or understandings
between them relating to the subject matter hereof. Each of the Parties
acknowledges that it is not relying on any statements, warranties or
representations given or made by any of them relating to the subject
matter hereof, save as expressly set out in this Agreement.
15. VARIATION
No variation or amendment to this Agreement shall be effective unless
in writing signed by authorised representatives of each of the Parties.
16. WAIVER
16.1 Failure by a Party at any time to enforce any of the provisions of this
Agreement shall neither be construed as a waiver of any rights or
remedies hereunder nor in any way affect the validity of this Agreement
or any part of it and no waiver of a breach of this Agreement shall
constitute a waiver of any subsequent breach.
16.2 Termination of this Agreement shall not operate as a waiver of any
breach by a Party of any of the provisions hereof and shall be without
prejudice to any rights or remedies of a Party which may arise as a
consequence of such breach or which may have accrued hereunder up to
the date of such termination.
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16.3 No waiver of a breach of this Agreement shall be effective unless given
in writing.
17. INVALIDITY
17.1 If any provision of this Agreement is or becomes (whether pursuant to
any judgement or otherwise) invalid, illegal or unenforceable in any
respect under the law of any applicable jurisdiction:
(a) the validity, legality and enforceability under the law of
that jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any
other jurisdiction of that or any other provision,
shall not be affected or impaired in any way thereby.
18. NOTICE
18.1 Any notice, request, demand or other communication required or
permitted hereunder shall be sufficiently given if in writing in
English and delivered by hand or sent by prepaid registered or
certified mail (airmail if international), by facsimile or by prepaid
international courier service of international reputation addressed to
the appropriate Party at the following address or to such address as
such Party may from time to time designate:
If to Purchaser:
GTS Transatlantic Carrier Services Limited
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxxxx XX00
Xxxxxxx
With a copy to:
GTS
Xxxxxxxxxxxxxxxxx 0X
0000 Xxxxxxxxx
Xxxxxxx
Attention: Legal Director
Tel: + 00 0 000 0000
Fax: + 00 0 000 0000
If to FA-1:
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FLAG Atlantic Limited
The Emporium Building
69 Front Xxxxxx
0xx Xxxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: FLAG Atlantic-1
Tel: x0-000-000-0000
Fax: x0-000-000-0000
With a copy to:
FLAG Telecom Limited
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxxxxx X0X 0XX
U.K.
Attention: General Counsel
Tel: x00-000-000-0000
Fax: x00-000-000-0000
18.2 Purchaser acknowledges that all communications in connection with this
Agreement shall be between Purchaser and FLAG Atlantic Limited. For
this purpose, FLAG Atlantic USA Limited hereby appoints FLAG Atlantic
Limited as its agent to receive and send all communications in
connection with this Agreement.
18.3 Any notice, request, demand or other communication given or made
pursuant to this clause shall be deemed to have been received (i) in
the case of hand delivery or courier, on the date of receipt as
evidenced by a receipt of delivery from the recipient, (ii) in the case
of mail delivery, on the date which is seven days after the mailing
thereof and (iii) in the case of transmission by facsimile, on the date
of transmission with confirmed answer back. Each such communication
sent by facsimile shall be promptly confirmed by notice in writing
hand-delivered or sent by courier, mail or air mail as provided herein,
but failure to send such a confirmation shall not affect the validity
of such communication.
19. LIABILITY
19.1 Except to the extent stated in clauses 1.4, 4.4 to 4.6 and 9.2.5 ***
FA-1 shall not be liable to Purchaser for any loss or damage sustained
by reason of any delay in completion, failure or breakdown of the
facilities constituting the System or any interruption of service,
regardless of the cause of such delay in completion, failure or
breakdown, and regardless of how long it shall last.
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19.2 Notwithstanding any other provision in this Agreement to the contrary,
no Party shall be liable to any other Party for any indirect, special,
punitive or consequential damages (including, but not limited to, any
loss of profit or business or claim from any customer for loss of
services) arising out of this Agreement or from any breach of any of
the terms and conditions of this Agreement.
19.3 Any financier of the System, at its election, shall have a right to
cure any breach by FA-1 (or, if applicable, an affiliate thereof) under
this Agreement, provided however, that such financier shall not assume
any liabilities of FA-1 under this Agreement.
20. COUNTERPARTS
This Agreement may be executed in counterparts. Any single counterpart
or set of counterparts signed, in either case, by all the Parties
hereto shall constitute a full and original agreement for all purposes.
21. WAIVER OF IMMUNITY
The Parties acknowledge that this Agreement is commercial in nature,
and the Parties expressly and irrevocably waive any claim or right
which they may have to immunity (whether sovereign immunity or
otherwise) for themselves or with respect to any of their assets in
connection with an arbitration, arbitral award or other proceedings to
enforce this Agreement, including, without limitation, immunity from
service of process, immunity of any of their assets from pre- or
post-judgement attachment or execution and immunity from the
jurisdiction of any court or arbitral tribunal.
22. FA-1 FINANCIAL CLOSURE
22.1 The obligation of the Purchaser to pay the Purchase Price (or any
installment thereof) and the obligation of FA-1 to provide the Rights
are conditional upon the occurrence of FA-1 Financial Closure.
22.2 If FA-1 Financial Closure has not occurred by 12 October 1999, then
this Agreement shall terminate (with the exception of clauses 11, 19,
21 and 23 which shall survive termination).
22.3 For the purposes of this Agreement, "FA-1 Financial Closure" shall be
deemed to take place on the date when FA-1 and its shareholders have
put in place arrangements satisfactory to them for the financing of the
construction of the System.
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23. GOVERNING LAW AND DISPUTE RESOLUTION
23.1 This Agreement shall be construed in accordance with New York law,
without regard to the law of New York governing conflicts of law.
23.2 The Parties shall seek to resolve any disputes between them by referral
of such disputes to the Co-Chairmen of the Board of FA-1 and the
Managing Director of Purchaser. If the Parties fail to agree within 7
days of the initiation of this procedure the dispute shall be referred
to arbitration in accordance with the Arbitration Agreement entered
into between FA-1 and Purchaser (amongst others) of even date hereof.
24. FINANCING AGREEMENT
Notwithstanding any in this Agreement to the contrary, Purchaser shall
not be entitled to activate or upgrade any capacity on the System to
the extent and for so long as this would cause FLAG Atlantic Limited to
violate Section 6.30 of the Financing Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first set forth above.
FLAG ATLANTIC LIMITED
/s/ Xxxxx Xxxxx
BY ________________________
Name: Xxxxx Xxxxx
Title: Director
FLAG ATLANTIC USA LIMITED
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
BY ________________________ BY ________________________
Name: Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Authorised Signatory Title: Authorised Signatory
GTS TRANSATLANTIC CARRIER SERVICES LIMITED
/s/ Name of Signatory
By _____________________________
Name: Name of Signatory
Title: 15
