Exhibit 10.27
PRIMARY SUPPLIER AGREEMENT
THIS PRIMARY SUPPLIER AGREEMENT, dated as of January 18, 2000 (as
amended, supplemented or otherwise modified from time to time, this
"AGREEMENT"), between FLAG TELECOM HOLDINGS LIMITED, a company organized and
existing under the laws of Bermuda and having its principal office in Hamilton,
Bermuda (said company, and any permitted successor or assign hereunder, the
"GRANTOR"), and XXXX ATLANTIC GLOBAL SYSTEMS COMPANY, a corporation organized
and existing under the laws of Delaware and having its principal office in New
York, New York (said company, and any permitted successor or assign hereunder,
the "PURCHASER"). The Grantor and the Purchaser are herein sometimes
collectively referred to as the "PARTIES" and individually referred to as a
"Party".
W I T N E S S E T H:
WHEREAS, an Affiliate of the Grantor has constructed a 10 gigabit per
second undersea fiber optic cable system connecting the United Kingdom with
Japan (the "FLAG Europe-Asia System"); an affiliate of Grantor is constructing,
through a 50/50 joint venture with GTS TransAtlantic Holdings, Ltd. ("GTS"), a
fiber optic cable system connecting London, UK and Paris, France to New York,
New York with initial fully redundant capacity of at least 160 gigabits per
second, and with potential for future upgrade to 2.4 terabits per second (the
"FLAG Atlantic-1 System"); the Grantor has terrestrial connectivity between its
landing stations in the United Kingdom and Spain to the city centers of London
and Madrid and the Grantor has acquired the right to obtain through contractual
arrangements with other facilities based bandwidth capacity providers
intra-European connectivity from London to Xxxxx, Xxxxxxxx, Xxxxxxxxx, Xxxxxxxxx
and other major European metropolitan areas (the "European Terrestrial System");
and
WHEREAS, the FLAG Europe-Asia System, the FLAG Atlantic-1 System, and
the European Terrestrial System are referred to herein individually as a
"System" and collectively as the "FLAG Network"; and
WHEREAS, Grantor may in the future construct or acquire other
terrestrial and undersea fiber optic cable systems in which case such additional
systems will be deemed to be a "System" and part of the FLAG Network under this
Agreement; and
WHEREAS, the Purchaser desires to acquire rights with respect to
Capacity on the FLAG Network;
NOW, THEREFORE, the Parties, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, covenant and agree with each other as follows:
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1. DEFINITIONS
Unless otherwise defined herein, all terms which are commonly used in
the telecommunications industry shall have the meanings commonly given
such terms in such industry. In addition to terms defined in the
preamble, the recitals and in the text of this Agreement (which shall
have their assigned meanings when used herein), the following terms
shall have the following meanings:
"AFFILIATE" (Purchaser) means, at any time, any United States domestic
Person, (excluding Puerto Rico and the Northern Mariana Islands) that
at such time, directly or indirectly through one or more
intermediaries, Controls, or is Controlled by, or is under common
Control with Purchaser.. As used in this definition, "Control" means
the ability to direct the purchasing decisions of such Person. Where
10% or more of a Person's voting or equity interests are directly or
indirectly held by Purchaser, its parent company, subsidiary or
Affiliate, and such Person is not an Affiliate of Purchaser, such
Person will have the option but not the obligation to purchase Capacity
under this Agreement. Should such Person determine to purchase Capacity
under this Agreement, such Person's Capacity Requirements after the
opt-in date would then be counted towards determining the Minimum Xxxx
Purchase Requirement. Such Person who opts in shall be treated as an
Affiliate of Purchaser for purposes of this Agreement and shall be
subject to all terms of this Agreement binding on Purchaser.
"Affiliate" (Grantor) means, at any time, and with respect to any
Person, any other Person that at such time, directly or indirectly
through one or more intermediaries, Controls or is Controlled by, or is
under common Control with Grantor. As used in this definition,
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract
or otherwise.
"APPLICABLE ROUTE" means any specific route served by the FLAG Network.
"CAPACITY" means undersea facilities based communications capacity in
any fiber optic cable, including any terrestrial backhaul circuits
required as part of the System design.
"CAPACITY REQUIREMENTS" means a Purchase or Purchases by Purchaser
and/or any Affiliate of Purchaser, of Capacity on any Applicable Route,
PROVIDED, HOWEVER, that Capacity Requirements shall not include (a)
Capacity that is provided through the Purchaser's and its Affiliates'
wholly owned facilities, (b) Capacity that is provided through
facilities that are not wholly owned by Purchaser (e.g. a consortium
cable) but on which Purchaser or its Affiliates have acquired rights
including upgrade rights prior to the date hereof or the Affiliate opt
in date, whichever is later for such Affiliate, (c) Capacity that is
provided through any facilities or rights in facilities including
upgrade rights thereto that are owned by any Person or its Affiliates
at the time that such Person is
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acquired by or merged with the Purchaser (but only to the extent such
facilities or rights to facilities were acquired by such Person or its
Affiliates prior to the completion of the acquisition or merger), (d)
Purchases of Capacity made by any Person acquired by or merged with the
Purchaser, including any associated upgrade rights, (but only to the
extent that the Commitment Date for the initial Purchase of Capacity
occurred prior to the completion of the acquisition or merger), (e)
services, including but not limited to switched and/or dedicated
services or international minutes of use, purchased from persons other
than Grantor or Purchaser and/or their Affiliates, for internal use or
resale to other persons by Purchaser, and (f) those circumstances where
Grantor is unable to provide undersea facilities sufficient to meet
Purchaser's reasonable service and ready-for-service date requirements,
including the specific route on which Purchaser wishes to secure
Capacity.
"CAPACITY REQUIREMENTS ATTRIBUTABLE TO ANY COMMITMENT YEAR " means all
Capacity Requirements with a Commitment Date during such Commitment
Year.
"COMMITMENT DATE" means, with respect to any Capacity Requirement, the
date that Purchaser shall have signed, or otherwise becomes bound
under, a capacity purchase agreement or, in the case of any exercise of
any option or right to obtain additional Capacity pursuant to an
existing capacity purchase agreement, the date of such exercise.
"COMMITMENT YEAR" means each calendar year during the Minimum Capacity
Period.
"CPA" means any written agreement between the Purchaser and any of its
Affiliates and Grantor or any of its Affiliates providing for the
purchase, lease or other acquisition of any Interest in Capacity to
meet the Minimum Xxxx Purchase Requirement.
"DOLLARS" or "$" means United States dollars.
"FLAG COST" means the capitalized cost of constructing each System
divided by the Capacity provided by that System, and, in the case of a
non point-to-point system (e.g. the FLAG Europe-Asia System, not the
FLAG Atlantic-1 System), divided by the then current estimate of the
maximum potential fill rate of the System. Where Grantor or an
Affiliate acquires Capacity from other Providers (including for this
purpose affiliates Grantor does not control), FLAG Cost means the price
Grantor pays to acquire the amount of Capacity requested by Purchaser.
After any System has been upgraded, FLAG Cost shall be recalculated as
follows:
(a) Where Purchaser has made a Purchase commitment for any
System before the date of financial closure of that System (a "Founding
Purchaser Commitment"), and for an amount of additional Capacity equal
to the Capacity purchased in the Founding Purchaser Commitment in
proportion to the percentage increase in the Capacity of the System on
an upgrade, FLAG Cost means the incremental capitalized cost of the
upgrade divided by the incremental Capacity provided by the upgrade.
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(b) In all other cases, FLAG Cost means the capitalized cost
of the System plus the capitalized cost of all upgrades up to the date
of the Purchase divided by the Capacity of the System at the date of
the Purchase and, in the case of a non point-to-point system (e.g. the
FLAG Europe-Asia System, not the FLAG Atlantic-1 System), divided by
the then current estimate of the maximum potential fill rate of the
System.
For the purposes of this definition, capitalized cost shall include all
relevant costs relating to the design, development, financing,
construction and bringing into service of each System, including all
relevant costs of technical infrastructure, program management, finance
charges (including bank fees), licenses and permits, and other related
costs. FLAG Cost shall not include sales and general administrative
costs. Purchaser and its Affiliates shall have the right to audit FLAG
Cost upon reasonable notice to Grantor.
"INTEREST IN CAPACITY" means any ownership interest in or right to use
Capacity (including, without limitation, by way of lease or
indefeasible right of use).
"MINIMUM CAPACITY PERIOD" shall mean the four-year period commencing on
1 January 2000.
"MINIMUM XXXX PURCHASE REQUIREMENT" means, for each Commitment Year,
50% of the Capacity Requirements. Except as otherwise provided herein,
Purchaser shall have the option, but not be obligated, to make
Purchases of Capacity on any FLAG terrestrial system and have those
purchases applied towards the Minimum Xxxx Purchase Requirement. Except
as otherwise provided herein, Purchaser's aggregate global subsea
Capacity Requirements may be met by making capacity purchases on any
one System or a combination of Systems. The calculation of the Minimum
Xxxx Purchase Requirement shall be in STM-1 equivalents. In the case of
a purchase of non-specific capacity (e.g. a fiber pair) the number of
STM-1 equivalents shall be derived by reference to the number of STM-1s
available within such non-specific capacity in the Commitment Year.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, consortium,
partnership, governmental authority or other entity.
"PREVAILING CURRENT MARKET PRICE" means, with respect to any Capacity,
the lowest market price generally available at the time such Capacity
is committed, for a like amount of substantially similar Capacity
(which such similarities shall include substantially similar
geographical route, timing, restoration capabilities and quality) but
shall exclude Capacity that is being sold at prices materially below
what would be attributable to supply and demand factors in a
competitive marketplace. The calculation of Prevailing Current Market
Price shall consider, among other things, consortium cable pricing,
including initial party and upgrade prices when being compared to the
initial founding investor price on a System and IRU pricing for other
purchases.
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"PROVIDER" means any Person who provides an Interest in Capacity.
"PURCHASE OF CAPACITY" means any purchase, lease or other acquisition
of an Interest in Capacity by Purchaser, whether such Interest in
Capacity is acquired for cash, on credit or in exchange for
non-monetary assets.
"TERMINATION DATE" means the date on which this Agreement is
terminated.
2. MINIMUM CAPACITY COMMITMENT AND PROVISIONING
(a) The Purchaser hereby agrees to purchase from Grantor and
its Affiliates, during each Commitment Year, Interests in Capacity
equivalent to the Minimum XXXX Purchase Requirement. The Parties agree
that any of Purchaser's Capacity Requirements in excess of the Minimum
XXXX Purchase Requirement may be acquired by the Purchaser from other
Providers.
(b) Purchaser will pay for the Minimum XXXX Purchase
Requirement and any associated upgrade Capacity in accordance with the
terms on Schedule A attached hereto.
(c) Purchases of Capacity on any System pursuant to this
Agreement shall be effected by Purchaser executing, delivering and
complying with a CPA with Grantor or any of its Affiliates. Purchaser
acknowledges that the purpose of this Agreement is to support the
development of Purchaser's international communications transport and
services business and Purchaser may utilize its Capacity purchased
pursuant hereto in any manner it chooses. Notwithstanding the
foregoing, if any of the Capacity is being resold in a manner that
causes Purchaser or any of its Affiliates to be in competition with
Grantor or any of its Affiliates, Grantor or Purchaser may, by notice
to the other terminate this Agreement. If this Agreement is so
terminated by either Party, that Capacity (including applicable upgrade
rights) which Purchaser has purchased from Grantor or its Affiliates
pursuant hereto may be used by Purchaser in any manner it chooses.
(d) The Purchaser will use all commercially reasonable efforts
to make Purchases of Capacity to satisfy the Minimum XXXX Purchase
Requirement for each Commitment Year from time to time throughout such
Commitment Year so as to maintain a balance between Capacity
Requirements acquired from Grantor and its Affiliates and those
acquired from other Providers, subject to the following true up. Within
thirty (30) days after the end of each Commitment Year, Purchaser shall
determine (i) the aggregate Capacity Requirements for such Commitment
Year and (ii) the amount of Capacity purchased by the Purchaser from
Grantor and its Affiliates during such Commitment Year. If Purchaser
had not satisfied the Minimum Xxxx Purchase Requirement for such
Commitment Year, Purchaser shall forthwith pay to Grantor the amount of
the deficiency. Such amount shall be credited against amounts payable
by Purchaser and its Affiliates in
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connection with subsequent Purchases of Capacity on the FLAG Network,
provided that such amount shall not be credited against or otherwise
reduce the Minimum XXXX Purchase Requirement for the then current or
any subsequent Commitment Year. The pricing for Capacity purchased by
Purchaser with such a credit shall be calculated pursuant to Section
2(b) above.
(e) Subject to the terms and conditions of the CPAs, the
Grantor and its Affiliates shall have full and complete control,
authority and responsibility for determining any system configuration
or designs or changes therein, system upgrades, routing configurations
or rearrangement and all related functions with regard to each System
and the provisions of Capacity thereon to the Purchaser and shall keep
Purchaser apprised of any and all developments that might impact
Purchaser's commitments hereunder. However, Grantor shall not
substitute routes or Systems chosen by Purchaser without the express
written consent of Purchaser. The Grantor and its Affiliates will have
sole responsibility for negotiating, executing and administering
contracts and all other aspects related to the construction, operation,
maintenance and repair of each System. The Parties shall negotiate in
good faith to include the following in each CPA where, and to the
extent, applicable per system design and offered to other customers of
Grantor: service levels for essential metrics including bit error rate,
availability, mean time to respond and restore, and fulfillment of
provisioning times; service level relief in the event of failure to
meet service levels; a failure to fulfill provisioning times shall have
the result that Purchaser's procurement of replacement Capacity shall
not be counted when calculating the Minimum Xxxx Purchase Requirement;
and chronic failure to meet service levels shall be a material breach.
Failure of the Parties to agree on each of the foregoing terms in a CPA
shall have the result that Purchaser's procurement of such Capacity
from a third party shall not be counted when calculating the Minimum
Xxxx Purchase Requirement.
(f) Purchaser shall pay Grantor such amounts for reasonable
operation and maintenance at a price of cost (to be defined on a case
by case basis) plus 10%, with such payments tied to Purchaser's request
for circuit activation. Purchaser and its Affiliates shall have the
right, upon reasonable notice to Grantor, to audit the cost components
of Operation and Maintenance.
(g) After the end of each Commitment Year, Grantor will be
entitled to request Purchaser to provide an annual Letter of
Representation from Purchaser's Auditor (or other professional advisor)
that confirms the Minimum XXXX Purchase Requirement for that year.
3. GLOBAL PORTABILITY
Purchases of Capacity under this Agreement may be swapped for Capacity
of equivalent value under Grantor's Global Portability Program. This
Program will be described in detail in any CPA signed by the Parties.
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4. CHANGE IN CONTROL
If during the term of this Agreement, any person acquires a majority of
the equity interest, assets or Control of Grantor or any Affiliate
controlling the FLAG Network and Purchaser has not participated in that
transaction, the Purchaser shall have the right to terminate its future
Minimum XXXX Purchase Requirements described in Section 2(a) hereof by
delivering written notice to the Grantor within 30 days of the
consummation of any such acquisition transaction, which such written
notice shall specify a termination date (the "COMMITMENT TERMINATION
DATE") determined by the Purchaser in its sole discretion; PROVIDED
that any Capacity previously purchased by the Purchaser may not be
terminated.
5. REPRESENTATIONS
(a) The Grantor hereby represents and warrants to the
Purchaser that (i) the Grantor is a company duly organized and validly
existing under the laws of Bermuda; (ii) the execution, delivery and
performance of this Agreement by the Grantor have been duly authorized
by all necessary corporate action on the part of the Grantor and this
Agreement is a valid, binding and enforceable obligation of the Grantor
enforceable against the Grantor in accordance with its terms; and (iii)
the execution, delivery and performance of this Agreement by the
Grantor do not violate, conflict with or constitute a breach of, the
organizational documents or any order, decree or judgment of any court,
tribunal or governmental authority binding on the Grantor.
(b) The Purchaser hereby represents and warrants to the
Grantor that (i) the Purchaser is a corporation duly organized and
validly existing under the laws of its jurisdiction of organization;
(ii) the execution, delivery and performance of this Agreement by the
Purchaser have been duly authorized by all necessary corporate action
on the part of the Purchaser and this Agreement is a valid, binding and
enforceable obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms; and (iii) the execution,
delivery and performance of this Agreement by the Purchaser do not
violate, conflict with or constitute a breach of, the organizational
documents or any order, decree or judgment of any court, tribunal or
governmental authority binding on the Purchaser.
6. SETTLEMENT OF DISPUTES
(a) The Parties shall endeavor to settle amicably by mutual
discussions any disputes, differences, or claims whatsoever related to
this Agreement.
(b) Failing such amicable settlement, any controversy, claim
or dispute arising under or relating to this Agreement shall be finally
settled under the Rules of Arbitration of the International Chamber of
Commerce by one arbitrator appointed in accordance with
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such Rules. The place of arbitration shall be London. The arbitration
shall be conducted in English. The decision and award resulting from
such arbitration shall be final and binding on the Parties. Judgement
on the arbitration award may be rendered by any court of competent
jurisdiction, or application may be made to such court for a judicial
acceptance of the award and an award of enforcement. Insofar as
permissible under the applicable laws, the Parties hereby waive all
rights to object to any action for judgement or execution which may be
brought before a court of competent jurisdiction on an arbitration
award or on a judgement rendered thereon.
7. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT
REGARD TO CONFLICT OF LAWS PROVISIONS.
8. WAIVER OF IMMUNITY
The Parties acknowledge that this Agreement is commercial in nature,
and each Party hereto expressly and irrevocably waives any claim or
right which it may have to immunity (whether sovereign immunity, act of
state or otherwise) for itself or with respect to any of its assets in
connection with an arbitration, arbitral award or other proceeding to
enforce this Agreement, including, without limitation, immunity from
service of process, immunity of any of its assets from pre- or
post-judgment attachment or execution and immunity from the
jurisdiction of any court or arbitral tribunal.
9. NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and is not intended to provide third
parties (including, but not limited to, customers of the Purchaser)
with any remedy, claim, liability, reimbursement, cause of action, or
any other right.
10. ASSIGNMENT
(a) 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, neither
this Agreement nor any of the rights, interest or obligations hereunder
shall be assigned or transferred by either of the Parties hereto
without the prior written consent of the other Party, and any attempted
assignment or transfer in violation of this clause shall be void.
Notwithstanding the foregoing, Purchaser may assign its rights, duties
and obligations under this Agreement upon notice to Grantor, but
without Grantor's prior consent, to Purchaser's Affiliates or to any
transferee of or successor to all or substantially all of the business
assets of Purchaser, provided:
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(i) the Affiliate, transferee or successor agrees to be bound
by all terms and conditions of this Agreement; and
(ii) the Affiliate, transferee or successor is authorised or
permitted under the laws and regulations of its country to
acquire and use the Capacity.
(b) Grantor may use subcontractors or agents to fulfil its
obligations as set forth in the applicable CPAs.
11. NOTICES
Each notice, demand, certification or other communication given or made
under this Agreement shall be in writing and shall be delivered by hand
or sent by registered mail or by facsimile transmission to the address
of the respective Party as shown below (or such other address as may be
designated in writing to the other party hereto in accordance with the
terms of this Section):
If to the Purchaser: Xxxx Atlantic Global Systems Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
Fax No: 000-000-0000
With Copy to: Xxxx Atlantic Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: International Counsel
Fax No. 000-000-0000
With Copy to Xxxx Atlantic International
1095 Avenue of the Americas
Xxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
Fax No.: 000-000-0000
If to the Grantor: FLAG Telecom Holdings Limited
The Xxxxxxxx Xxxxxxxx
00 Xxxxx Xxxxxx
4th Floor
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Xxxxxxxx XX 12
Bermuda
Attn: Chief Executive Officer
Fax No.: 000-000-0000
With Copy to: FLAG Telecom Limited
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxxxxx X0X 0XX XX
Attn: General Counsel
Fax No.: 011-44-20-7317-0808
Any change to the name, address and facsimile numbers may be
made at any time by giving fifteen (15) days prior written notice in
accordance with this Section. Any such notice, demand or other
communication shall be deemed to have been received, if delivered by
hand, at the time of delivery or, if posted, at the expiration of seven
(7) days after the envelope containing the same shall have been
deposited in the post maintained for such purpose, postage prepaid, or,
if sent by facsimile, at the date of transmission if confirmed receipt
is followed by postal notice.
12. SEVERABILITY
If any provision of this Agreement is found by an arbitral, judicial or
regulatory authority having jurisdiction to be void or unenforceable,
such provision shall be deemed to be deleted from this Agreement and
the remaining provisions shall continue in full force and effect.
13. HEADINGS
The Section headings of this Agreement are for convenience of reference
only and are not intended to restrict, affect or influence the
interpretation or construction of provisions of such Section.
14. COUNTERPARTS
This Agreement may be executed in counterparts. Any single counterpart
or set of counterparts signed, in either case, by both of the Parties
hereto shall constitute a full and original agreement for all purposes.
15. ENTIRE AGREEMENT
This Agreement supersedes all prior oral or written understandings
between the parties hereto and constitutes the entire agreement with
respect to the subject matter herein. Any
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and all prior or contemporaneous agreements and understandings between
or among the Parties regarding the subject matter hereof, whether
written or oral, are superseded by this Agreement.
16. AMENDMENTS AND WAIVERS
No amendment or waiver of any provisions of this Agreement, and no
consent to any default under this Agreement, shall be effective unless
the same shall be in writing and duly executed by the party against
whom such amendment, waiver or consent is claimed. In addition, no
course of dealing or failure of either Party to enforce strictly any
term, right or condition of this Agreement shall be construed as a
waiver of such term, right or condition.
17. PUBLICITY AND CONFIDENTIALITY
The provisions of this Agreement and any other information, written or
oral, with respect to this Agreement or delivered hereunder
("Confidential Information") will be kept confidential and shall not be
disclosed, in whole or in part, to any person other than affiliates,
officers, directors, employees, agents or representatives of a party
(collectively, "Representatives") who need to know such Confidential
Information for the purpose of negotiating, executing and implementing
this Agreement. Each party agrees to inform each of its Representatives
of the non-public nature of the Confidential Information and to direct
such persons to treat such Confidential Information in accordance with
the terms of this Section. Nothing herein shall prevent a Party from
disclosing Confidential Information (i) upon the order of any court or
administrative agency, (ii) upon the request or demand of, or pursuant
to any regulation of, any regulatory agency or authority, (iii) to the
extent reasonably required in connection with the exercise of any
remedy hereunder, (iv) to a party's legal counsel or independent
auditors or other advisers, (v) to existing or prospective lenders to
the Grantor or any of its affiliates, and (vi) to any actual or
proposed permitted assignee of all or part of its rights hereunder
provided that such actual or proposed assignee agrees in writing to be
bound by the provisions of this Section.
Neither Party shall make any public announcement with respect to this
Agreement or the contents hereof without the other Party's consent.
18. LIMITATION OF LIABILITY
In no event shall the Purchaser or the Grantor be liable to the other
for consequential, incidental, indirect or special damages, including,
but not limited to, loss of revenue, loss of business opportunity, or
the costs associated therewith.
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19. TERMINATION AND BREACH
(a) In addition to any other rights or remedies that either Party may
have hereunder or at law or in equity, in the event that either Party
defaults in the performance of any material term hereunder (a "Material
Breach") and fails to cure such Material Breach within forty-five (45)
days after written notice from the other Party, then the other Party
may, by giving not less than ten (10) days prior written notice to the
breaching Party, terminate this Agreement as of a date specified in
such notice of termination.
(b) In the event that either Party hereto (i) files a voluntary
petition for protection under any applicable bankruptcy law; (ii) is
the subject of any involuntary proceedings, in bankruptcy, insolvency
or for the appointment of a receiver or similar officer for it and such
proceeding is not dismissed within sixty (60) days of the filing
thereof; (iii) makes an assignment for the benefit of all or
substantially all of its creditors; or (iv) enters into an agreement
for the composition, extension, or readjustment of all or substantially
all of its obligations, then the other Party hereto may, by giving
written notice thereof to such Party, terminate this Agreement as of a
date specified in such notice of termination, which date will be at
least two (2) months following the date of such notice.
(c) In the event of termination by a Party, each Party will perform its
obligations under this Agreement up to the effective date of
termination. Each Party shall also perform obligations which survive
termination under this Agreement. In the event of termination for
cause, the terminating Party will have no further obligation or
liability to the other Party after the effective date of termination
except for obligations or liabilities that survive termination of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first
written above.
FLAG TELECOM HOLDINGS LIMITED
By: /s/ Xxxxxx Bande
----------------------------
Name: Xxxxxx Bande
----------------------------
Title: Chairman & CEO
----------------------------
XXXX ATLANTIC GLOBAL SYSTEMS COMPANY
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
----------------------------
Title: President
----------------------------
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