Exhibit 10.22
THE SOUTH EAST ASIA
AND
INDIAN OCEAN
CABLE MAINTENANCE AGREEMENT
INDEX
CLAUSE PAGE
1. DEFINITIONS...........................................................6
2. PREVIOUS AGREEMENTS..................................................10
3. OBJECT...............................................................10
4. MANAGEMENT COMMITTEE.................................................10
5. PROVISION OF CABLESHIPS AND DEPOT(S).................................10
6. USE OF CABLESHIPS....................................................12
7. OPERATION OF THE CABLESHIPS..........................................14
8. USE AND OPERATION OF THE DEPOT(S)....................................16
9. USE OF SPARE SUBMERSIBLE PLANT.......................................17
10. TRANSFER OF SPARE SUBMERSIBLE PLANT..................................18
11. NOTIFICATION OF CABLESHIP REQUIREMENT................................18
12. PLANNING AND DIRECTION...............................................20
13. CABLESHIP BASE PORT..................................................20
14. CLEARANCES...........................................................21
15. PERIODS OF CABLESHIP UNAVAILABILITY..................................21
16. MUTUAL SUPPORT COVENANT..............................................22
17. PERIOD OF AGREEMENT..................................................24
18. INCLUSION AND DELETION OF ADDITIONAL PARTIES AND SCHEDULED
CABLES...............................................................24
19. BASIS OF CABLESHIP'S COST ALLOCATION.................................25
20. BASIS OF DEPOT COST ALLOCATION.......................................28
21. BILLING, ACCOUNTING AND SETTLEMENT ARRANGEMENTS......................29
22. RECORDS..............................................................32
23. LIABILITY AND INDEMNITY..............................................32
24. INSURANCE............................................................33
25. FORCE MAJEURE........................................................33
26. PREROGATIVES OF THE COMMANDER........................................35
27. DISTRESS AND SALVAGE.................................................36
28. LEGAL INTERPRETATION.................................................36
29. ARBITRATION..........................................................36
30. RELATIONSHIP OF THE PARTIES..........................................37
31. STATUS OF CABLESHIPS AND ASSOCIATED FACILITIES.......................37
32. AMENDMENTS...........................................................37
33. ASSIGNMENT...........................................................37
34. EXECUTION AND COUNTERPARTS...........................................37
35. ENTIRE AGREEMENT.....................................................38
36. HEADINGS.............................................................38
37. REPRESENTATIVES AND CORRESPONDENCE...................................38
38. NOTICES..............................................................38
39. PUBLICITY............................................................38
40. CONFIDENTIAL INFORMATION.............................................38
41. PERFORMANCE OF AGREEMENT.............................................39
42. INSOLVENCY...........................................................39
43. TRANSFER OF RESPONSIBILITIES.........................................40
SCHEDULES
Al. LIST OF PARTIES TO THIS AGREEMENT - MAINTENANCE AUTHORITIES
A2. LIST OF PARTIES TO THIS AGREEMENT - FACILITY PROVIDERS
Bl. LIST OF SCHEDULED CABLES
B2. CENTRAL BILLING PARTIES
C. CABLESHIP OPERATIONAL ALLOCATION DEFINING EACH CABLESHIP'S,
NORMAL OPERATIONAL ZONE
Dl. CABLESHIP RUNNING COSTS
D2. CABLESHIP FIXED STANDING CHARGE ALLOCATION
El. DEPOT COST DERIVATION
E2. DEPOT -- CABLE STORAGE DATA
E3. DEPOT COST ALLOCATION TO EACH SCHEDULED CABLE
E4. DEPOT COST ALLOCATION TO MAINTENANCE AUTHORITIES
F. PROFORMA DOCUMENT OF ACCESSION
G. BASIC CABLESHIP TECHNICAL CRITERIA
H. MANAGEMENT COMMITTEE -- TERMS OF REFERENCE
I. PREVIOUS CABLESHIP AND DEPOT AGREEMENTS
J. DEPOT TECHNICAL CRITERIA
K. ALLOCATION OF COSTS OF ADDITIONAL SERVICES
L. REPRESENTATIVES OF THE PARTIES AND MAILING ADDRESSES AND
CONTACTS FOR FINANCIAL AND MAINTENANCE PURPOSES
This AGREEMENT entitled THE SOUTH EAST ASIA AND INDIAN OCEAN CABLE MAINTENANCE
AGREEMENT made between and among the Parties listed in Schedules Al and A2
hereto.
WHEREAS:
(a) The Maintenance Authorities under various Construction and Maintenance
Agreements are responsible for the maintenance and repair of the
submersible plant of certain submarine telecommunications cable systems
in the South East Asia and Indian Ocean areas.
(b) The Maintenance Authorities wish to have made available cableships and
storage depots for the repair and maintenance and storage of such
submarine telecommunication cable systems.
(c) ASEAN Cableship Private Limited a limited company having its registered
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 1543, Republic of
Singapore and Cable and Wireless (Marine) Ltd. a limited company having
its registered office at Mercury House, Theobalds Road, London WCI, in
their separate capacities as Cableship Operators propose to make
available two Cableships namely the C.S. Retriever and the C.S. Cable
Enterprise respectively to the Maintenance Authorities for the repair
and maintenance of such submarine telecommunications cables as are
listed in Schedule B1 of this Agreement.
(d) Sembawang Cable Depot Private Limited owns and operates a cable depot
located at Sembawang Singapore and proposes to make available the Cable
Depot to the Maintenance Authorities for the storage of spare
submersible plant for the repair and maintenance of such submarine
telecommunications cable systems as are listed in Schedule B1 of this
Agreement.
NOW THEREFORE the Parties hereto covenant and agree with each other as follows:
1. DEFINITIONS
In this Agreement the following terms shall have the meaning hereby
assigned to them:
(a) "Cableship Operator" means either ASEAN Cableship
Private Ltd. or Cable and
Wireless (Marine) Ltd. or both
where the context so requires.
(b) "Cableship" means any Cableship provided by
a Cableship Operator under this
Agreement
which is a vessel fully capable
of and equipped as shown in
Schedule G for the repair and
maintenance of the Scheduled
Cables, as shown in Schedule
Bl, at the inception of this
Agreement.
(c) "Chargeable Sheath Mileage" means the sheath mileage of a
Scheduled Cable adjusted in
accordance with Schedule D2
which unless otherwise agreed
by the Management Committee is
the method by which the
Quarterly Net Chargeable Cost
to the Maintenance Authorities
is allocated.
(d) "Combined ▇▇▇▇▇▇▇" means that each Cableship shall
be on standby with a reduced
level of officers and crew and
that the Cableship Operators
shall have agreed arrangements
between themselves to bring the
level of one or both Cableships
up to a Fully Manned basis as
required.
(e) "Depot" means the landbased storage
facilities for Spare
Submersible Plant.
(f) "Depot Owner" means Sembawang Cable Depot
Private Limited who currently
own and operates a depot at
Sembawang, Singapore and any
other Depot Owner who may
become Party to this Agreement
in accordance with Clause 5(f)
herein.
(g) "Facility oviders" means any or all of the
Cableship Operator(s) and Depot
Owner(s) where the context so
requires, as listed in Schedule
A2.
(h) "Financial Year" means consecutive twelve-month
periods ending on the 31st of
March of each year.
(i) "Fixed Standing Charges" means the annual amount
indicated in, or determined in
accordance with Clause 19(a),
19(b) and 19(c).
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(j) "Full ▇▇▇▇▇▇▇" means that each Cableship has a
full complement of officers and
crew at all times.
(k) "Fully Manned" means that one or both of the
two Cableships shall be brought
up to a full complement of
officers and crew from a
Combined ▇▇▇▇▇▇▇ level while on
standby, or to undertake a
repair and maintenance
operation, or on charter.
(l) "LIBOR" means the London Interbank
Offered Rate being the
arithmetic mean, rounded to the
nearest one-sixteenth, of the
offered rates for ten million
(10,000,000) United States
Dollars quoted by the market of
five (5) reference banks at
11:00 am each working day. The
banks are National Westminster,
Bank of Tokyo, Deutsche Bank,
Banque Nationale de Paris and
▇▇▇▇▇▇ Guaranty Trust.
(m) "Maintenance Authority" means any Party or group of
Parties, as listed in Schedule
Al, primarily responsible for,
or which acts as agent on
behalf of other parties for,
the repair and maintenance of a
Scheduled Cable.
(n) "Management Committee" means the committee formed by
the Maintenance Authorities
pursuant to Clause 4.
(o) "Normal Operational Zone" means the area within the
Operational Zone containing the
Scheduled Cables for which a
particular Cableship is
primarily responsible, and
hence normally the first
choice, to effect repair and
maintenance to such Scheduled
Cables, as shown in Schedule C.
(p) "Operational Zone" means the larger of the ocean
areas bounded either by the
Scheduled Cables or by the
Great Circle Lines connecting
Djibouti in
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the West, Perth in the South,
Guam in the East, and Toucheng
in the North.
(q) "Party" means a party to this Agreement
as listed in Schedules Al and
A2.
(r) "PIOCMA" means the agreement entitled
"Mutual Assistance Agreement
for Pacific and Indian Ocean
Cable Maintenance" between the
parties contained therein for
mutual assistance arrangements
between the maintenance zones
of the Pacific Ocean and Indian
Ocean regions.
(s) "PIOCMA Cables" means cables under the PIOCMA
for which the Maintenance
Authorities have agreed that
the Cableship Operators may
repair and maintain in addition
to the Scheduled Cables.
(t) "Quarterly Net Chargeable means the quarterly amount
Cost" determined in accordance with
Clause 19(d).
(u) "Running Costs" means variable costs for a
Cableship over and above the
Fixed Standing Charge which are
incurred in respect of repairs,
maintenance, and other such
operational circumstances as
stipulated in this Agreement.
(v) "Scheduled Cable" means any submarine
telecommunications cable system
or part thereof to be repaired
and maintained under this
Agreement and which is listed
in Schedule Bl.
(w) "Spare Submersible Plant" means the spare submarine
cable, repeaters and equalisers
and other associated spare
submersible parts of a
Scheduled Cable.
(x) "Submersible Plant" means that part of a Scheduled
Cable that is between and
includes the respective beach
joints of the terminal
countries.
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(y) "United Kingdom RPI" means the United Kingdom Retail
Price Index which is a monthly
statistic officially published
by the United Kingdom
Government, which indicates on
a weighted average price index
basis the current overall rate
of United Kingdom inflation.
Under this Agreement and where the context so requires the singular shall be
taken to mean the plural and vice versa.
2. PREVIOUS AGREEMENTS
Prior to the effective Date of this Agreement pursuant to Clause 17
herein certain Parties hereto had rights and obligations under various
existing cableship and depot agreements which are listed in Schedule I
herein (called "Previous Agreements" for the purposes of this Clause).
It is a condition precedent to the commencement of this Agreement that
all Parties having rights and obligations under Previous Agreements
shall relinquish the same and that this Agreement shall supersede the
Previous Agreements Provided Always that such termination of the
Previous Agreements shall not in any way prejudice any rights and
remedies which may have accrued to any Party prior to the date of
termination of such Previous Agreements.
3. OBJECT
The Maintenance Authorities hereby appoint, from the date specified in
Clause 17 herein, each Cableship Operator to provide repair and
maintenance facilities for the Submersible Plant by means of the
Cableships, and the Depot Owner to provide storage facilities for the
Spare Submersible Plant by means of the Depot, as defined in the
appropriate Schedules for each facility.
4. MANAGEMENT COMMITTEE
The Maintenance Authorities shall form a Management Committee
comprising one representative from each Maintenance Authority, and such
Management Committee shall be governed by the terms of reference
contained in Schedule H. The Facility Providers shall attend meetings
of the Management Committee as reasonably required to do so by any
Maintenance Authority.
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5. PROVISION OF CABLESHIPS AND DEPOT(S)
(a) On and from the date specified in Clause 17 herein, the repair
and maintenance of the Scheduled Cables shall be carried out
by two Cableships, such Cableships being as specified in
Schedule G hereto, namely:
(i) The C.S. Retriever based in Singapore; and
(ii) The C.S. Cable Enterprise based in Manila.
(b) Spare Submersible Plant for the Scheduled Cables shall, from
the effective date of this Agreement, be stored at a Depot
provided under this Agreement located at Sembawang Singapore,
other than that which may be on board the Cableships.
Throughout the term of this Agreement Spare Submersible Plant
may be stored at another Depot under this Agreement as the
Parties may from time to time agree. Notwithstanding the
foregoing some Spare Submersible Plant may be stored at
alternative depots or locations not under this Agreement such
as the Guam Depot.
(c) Each Cableship Operator at the outset of this Agreement
individually warrants, and will exercise due diligence
throughout the term of this Agreement to ensure that the
Cableship it provides under this Agreement is tight, staunch
and strong and fit for telecommunications cable work and each
Cableship Operator shall exercise due diligence to maintain
its Cableship to ensure that it is equipped with the necessary
gear to a standard to enable the Cableship Operator to fulfil
its obligations under this Agreement. Each Cableship Operator
shall ensure that when at sea its Cableship is furnished with
a complete complement of suitably qualified and competent
officers and seamen for the proper functioning of the
Cableship so as to fulfil the Cableship Operator's obligations
under this Agreement.
(d) The Cableship Operators shall carry out repairs and
maintenance work expeditiously and in accordance with
internationally accepted standards. However, if, in the
opinion of the Cableship Operator, a repair requires the use
of equipment in addition to the Cableship's normal cable
repairing gear, such additional equipment including but not
limited to diving services, support vessels and/or a Remotely
Controlled Submersible Vehicle (RCSV), then the Cableship
Operator shall use reasonable endeavours to provide, with the
consent of the Maintenance Authority responsible for a
particular operation, such additional services and equipment
as it deems necessary to enable it to carry out any such
repair in an expeditious manner. The cost of such additional
facilities shall be regarded as Running Costs and charged as
follows:
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(i) the cost of additional facilities provided directly
in respect of a particular repair or maintenance
operation shall be charged directly to that operation
in accordance with Clause 19(g); and
(ii) any costs incurred in making such additional
facilities generally available, including but not
limited to annual retainers in respect of diving
services and other equipment hire or depreciation
charges, shall be allocated among all appropriate
Scheduled Cables in accordance with Clause 19(1).
(e) Each Cableship Operator shall ensure that its Cableship shall
meet the technical criteria agreed between and amongst the
Parties and attached hereto as Schedule G. Should any of the
Maintenance Authorities require any improvements,
modifications or additions to be carried out to the Cableships
(including modification to the Cableships to deploy an RCSV)
which are beyond the agreed technical criteria defined in
Schedule G then such modifications or improvements shall be to
the cost of those Maintenance Authorities and will be
reflected in an increase to the Fixed Standing Charge. The
nature and cost of such improvements and modifications and
associated increase to the Fixed Standing Charge shall be
subject to the prior agreement of the Management Committee and
the Cableship Operator before such improvements and
modifications are carried out.
(f) For the duration of this Agreement additional facilities (in
terms of cableships, depots and any other facilities) may be
added to this Agreement by agreement amongst the Parties to
this Agreement.
6. USE OF CABLESHIPS
(a) The Cableships shall be used primarily for the repair and
maintenance of all the Scheduled Cables listed in Schedule Bl.
(b) The Scheduled Cables applicable to each Cableship's Normal
Operational Zone are listed in Schedule C.
(c) It is recognised by the Parties hereto, being parties to the
PIOCMA agreement, that the Cableship Operators may be
requested from time to time to provide assistance to cable
systems outside the Operational Zone. Therefore the Parties
hereto agree that the Cableship Operators shall be at liberty
to respond to requests for such assistance with the prior
agreement of the chairman of the Management Committee.
(d) The Cableship Operators shall actively seek to undertake other
work on a charter basis within the Operational Zone, provided
that within the applicable charter
12
agreement there is a provision for the Cableship to be
withdrawn, normally within 24 hours, so as to undertake a
repair of a Scheduled Cable, if so required by the Maintenance
Authority responsible and except as provided for in Clauses
6(e) and 6(f). The Cableship Operators shall advise the
Management Committee promptly by telex of the duration and
general location of such interruptable charter work.
(e) The Cableship Operators may undertake other charter work, on a
non-interruptable basis, for a period of up to three weeks
within the Operational Zone provided that one Cableship will
be available to fulfil the obligations of the Cableship
Operators under this Agreement. The Cableship Operators shall
advise the Management Committee promptly by telex of the
nature and duration of such non-interruptable work.
(f) If non-interruptable charter work within the Operational Zone
pursuant to Clause 6(e) is in excess of three weeks the
Cableship Operators shall seek the prior agreement of the
Management Committee. The decision of the Management Committee
shall be given by the chairman of the Management Committee to
the Cableship Operators within 36 hours upon receipt of such
application by the Cableship Operators to the chairman of the
Management Committee.
(g) During the term of this Agreement either or both of the
Cableships may only be removed from the Operational Zone for
Charter or PIOCMA work, with the prior agreement of the
Management Committee, or due to Force Majeure as defined in
Clause 25.
(h) All charter work undertaken by the Cableships shall be subject
to the Cableship Operator's charter terms and conditions
relevant to that Cableship, as may be amended by the Cableship
Operator from time to time, which amendments shall be agreed
by the Management Committee.
(i) The charter fees applicable to any charter under Clause 6(d),
6(e) and 6(f) and which, subject to Clause 6(j), the Cableship
Operator shall be deemed to have received from the respective
charterer shall comprise the following:
(i) the Fixed Standing Charge calculated on a daily basis
in accordance with Clause 19(e)(i) which shall apply
for the total period from the start of any unloading
of Spare Submersible Plant necessary to allow the
charter to proceed until the return of the Cableship
to its base port.
(ii) an additional charge which shall be determined by the
current market rate and agreed between the Cableship
Operators and the chairman of the Management
Committee and shall be allocated in accordance with
Clause 19(d)(v).
13
(iii) a fixed charge which should be made up from the
Running Costs incurred if Clause 7(g) is activated
and the Transfer Costs incurred under Clause 20 (f),
and which shall be allocated in accordance with
Clause 19 (d)(viii).
(j) A Cableship Operator may undertake charter work as described
in this Clause at lower charter fees than that defined in
Clause 6(i)(i) with the prior agreement of the Management
Committee.
7. OPERATION OF THE CABLESHIPS
(a) The Cableship Operators hereto jointly agree that the CS
Retriever and the CS Cable Enterprise may be operated on
either a Combined ▇▇▇▇▇▇▇ basis or on a Full ▇▇▇▇▇▇▇ basis
while on standby for repair and maintenance work as required
by the Management Committee.
(b) At the inception of this Agreement the Cableship Operators
shall operate the CS Retriever and CS Cable Enterprise on a
Combined ▇▇▇▇▇▇▇ basis while the Cableships are on standby for
repair and maintenance work.
(c) At any time during the period of this Agreement the Management
Committee may request the Cableship Operators to change-over
from the Combined ▇▇▇▇▇▇▇ arrangement to the Full ▇▇▇▇▇▇▇
arrangement or from the Full ▇▇▇▇▇▇▇ arrangement to the
Combined ▇▇▇▇▇▇▇ arrangement and the Cableship Operators shall
comply accordingly subject to:
(i) the Management Committee giving a minimum notice of 6
months for such change-over from Combined ▇▇▇▇▇▇▇ to
Full ▇▇▇▇▇▇▇; and
(ii) the Management Committee giving a minimum notice of
12 months for such change-over from Full ▇▇▇▇▇▇▇ to
Combined ▇▇▇▇▇▇▇; and
(iii) a minimum duration of a ▇▇▇▇▇▇▇ arrangement of 2
years; and
(iv) any Running Costs or other payments incurred in the
change-over to be to the cost of the Maintenance
Authorities and charged in accordance with Clause
19(h).
(d) Under the Full ▇▇▇▇▇▇▇ arrangement each Cableship Operator
shall ensure that its Cableship is operated in such a manner
so as to be able to put to sea without undue delay and
normally within 24 hours of receipt of notification from the
14
appropriate Maintenance Authority that the Cableship's
services are required in accordance with Clause 11 and except
as provided for in Clause 15 and Clause 25 hereto.
(e) Under the Combined ▇▇▇▇▇▇▇ arrangement the Cableship Operators
shall subject to Clause 7(f) ensure that the Cableships are
operated in such a manner as for the first called of the
Cableships to be able to put to sea without undue delay and
normally within 24 hours of receipt of notification from the
appropriate Maintenance Authority that the Cableship's
services are required in accordance with Clause 11 except as
provided for in Clause 15 and Clause 25 hereto.
(f) Under the Combined ▇▇▇▇▇▇▇ arrangement when one Cableship is
already operationally engaged the Cableship Operator
responsible for the Cableship remaining on standby shall
ensure that it is operated in such a manner so as normally to
be able to put to sea within 2 to 3 days of receipt of
notification from the Maintenance Authority that the
Cableship's services are required in accordance with Clause 11
and except as provided for in Clause 15 and Clause 25. Any
Running Costs incurred in bringing the Cableships from a
standby basis to a Fully Manned basis shall be allocated to
the Scheduled Cables on the basis defined in Clause 19(h).
(g) When under the Combined ▇▇▇▇▇▇▇ arrangement one Cableship is
operationally engaged, or is unavailable in accordance with
Clause 15 and Clause 25, the Management Committee may require
the Cableship Operator responsible for the Cableship on
standby to temporarily bring that Cableship up to a Fully
Manned level on the operational basis described in Clause 7(d)
within 2 to 3 days of the receipt by the Cableship Operator of
notice of such temporary requirement. The Running Costs
associated with such a temporary Fully Manned level shall be
charged to the Scheduled Cables on the basis defined in Clause
19(h). In the case of a charter or work under the PIOCMA the
Running Costs shall be recovered in accordance with Clause
6(i)(iii).
(h) The Cableship Operators may as considered necessary in
consultation with the relevant Maintenance Authority and as
circumstances so permit utilise additional officers and crew
to supplement the Fully Manned Cableship in the circumstances
of any anticipated long or difficult repair and maintenance
operations. The costs associated with such supplementing of
the Fully Manned Cableships shall be incurred as a Running
Cost and allocated to the Scheduled Cable being repaired or
maintained on the basis defined in Clause 19(g).
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8. USE AND OPERATION OF THE DEPOT(S)
(a) The Depot(s) shall be used primarily for the storage of Spare
Submersible Plant other than that which may be on board the
Cableships.
(b) Each Depot Owner at the outset of this Agreement individually
warrants, and will exercise due diligence throughout the term
of this Agreement to ensure that its Depot is fit for the
storage of Spare Submersible Plant and shall exercise due
diligence to maintain its Depot to ensure that it is equipped
with the necessary gear and staffed with suitable personnel to
enable the Depot Owner to fulfill its obligations under this
Agreement.
(c) Each Depot Owner shall at all times keep secure the Spare
Submersible Plant and ensure that its Depot is maintained so
as to preserve the Spare Submersible Plant, normal wear and
tear and obsolescence excepted, in the highest state of
operational readiness for use in the repair and maintenance of
the Submersible Plant. Each Depot Owner shall ensure adequate
provision and maintenance of all necessary equipment to enable
expeditious transfer of the Spare Submersible Plant to and
from a Cableship subject to the conditions of Clause 10 and
except as provided for in Clause 25.
(d) Each Depot Owner shall ensure that its Depot meets the
relevant technical criteria agreed between and amongst the
Parties and attached hereto as Schedule J.
Should the Maintenance Authorities require any improvements,
modifications or additions to be carried out to the Depot
which are beyond the technical criteria defined in Schedule J
then such modifications, improvements, or additions shall be
to the cost of the Maintenance Authorities and reflected in
the Depot Capital Charge as defined in Schedule El. The nature
and cost of such improvements, modifications or additions and
the associated increase to the Depot's costs shall be subject
to the prior agreement of the Management Committee and the
Depot Owner before such improvements, modifications or
additions are carried out.
(e) in the event of circumstances beyond the Depot Owner's control
forcing the closure of a Depot the Depot Owner concerned
shall, if so required by the Management Committee, use
reasonable endeavours to provide alternative storage
facilities for the Spare Submersible Plant stored at its Depot
subject at the time to the Parties reaching agreement as to
the necessary financial arrangements, such agreement not to be
unreasonably withheld.
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9. USE OF SPARE SUBMERSIBLE PLANT
In order that repairs to the Scheduled Cables are carried out with the
minimum of delay, any of the Spare Submersible Plant stored either on
board a Cableship or in a Depot or both may be used with prior mutual
agreement between the Maintenance Authority responsible for the said
Spare Submersible Plant and the Maintenance Authority responsible for
carrying out the repair work Provided Always That such Submersible
Plant is considered by the Maintenance Authorities concerned to be
technically compatible with the Scheduled Cable to be repaired. Upon
completion of the repair the Cableship Operator shall promptly inform
the Maintenance Authority concerned of the type and quantity of Spare
Submersible Plant used and the Maintenance Authorities involved shall
thereupon determine amongst themselves the consequential financial
adjustments or replacement arrangements.
10. TRANSFER OF SPARE SUBMERSIBLE PLANT
(a) A Maintenance Authority shall be entitled to require that its
Spare Submersible Plant be transferred to or from a vessel or
depot not provided under this Agreement, provided that the
said Maintenance Authority shall undertake to be absolutely
responsible and liable unless otherwise agreed in advance with
either the Depot Owner or Cableship Operator, or both, for the
following:
(i) the berthing of any vessel so provided by the
Maintenance Authority together with any port dues,
pilotage, or any other levies and costs incurred by
such transfer operation, and
(ii) the arrangement and payment of any labour, equipment,
insurance costs, and any other handling charges to
effect such transfer.
(b) In the event of a transfer of any Spare Submersible Plant to
or from a vessel or depot not provided under this Agreement,
the Cableship Operator or the Depot Owner shall make available
to the Maintenance Authority concerned or its duly authorised
servants and/or agents any equipment and manpower to operate
such equipment on board the Cableship or within the Depot, as
appropriate for effecting such transfer between the Cableship
or Depot and the said vessel or depot, providing such
equipment and manpower supplied by the Cableship Operator or
Depot Owner shall be under the sole control and direction of
the Maintenance Authority and that the Maintenance Authority
shall indemnify and hold harmless the Cableship Operator or
the Depot Owner for any injury, loss and/or damage which may
result from such transfer and in no event shall the Cableship
Operator or Depot Owner be liable for any indirect or
consequential loss. Notwithstanding that the Maintenance
Authority shall direct and control the operation, the decision
of the Commander of the Cableship shall be absolute in
17
carrying out or not carrying out any directions if he
considers that the carrying out of such directions concerning
the Cableship would endanger the Cableship or the lives or
safety of any person thereof.
11. NOTIFICATION OF CABLESHIP REQUIREMENT
(a) When the Cableship Operator receives notification from a
Maintenance Authority that the services of the Cableship are
required to repair or maintain any of the Scheduled Cables the
Cableship Operator shall make arrangements for the despatch of
the Cableship to the required place of operation without undue
delay. In the case of a repair notification the Cableships
shall be put to sea as set forth in Clause 7.
(b) Repairs to the Scheduled Cables shall normally be effected by
the Cableships in accordance with Schedule C. However, if at
that time the relevant Cableship has already been assigned to
another repair operation, the second Cableship will attend to
the fault. In the event of the unavailability of the second
Cableship or of a conflict on the assignment of the Cableships
or on the sequence of the repair operations, the following
shall apply:
(i) the Maintenance Authorities concerned and the
Cableship Operators shall consult with one another
with a view to agreeing which Cableship, including
under the terms of the PIOCMA, should be assigned to
which operation and the sequence of the operations.
(ii) if no agreement is reached repairs shall be effected
within the Normal Operational Zone in the order of
notification to the relevant Cableship Operator.
(iii) if a Cableship is on the repair ground and has
already engaged a repair, such repair should be
completed before assigning the Cableship to another
operation.
(c) The Cableships shall normally mutually support each other and
the Maintenance Authorities hereto agree that if one Cableship
is engaged on charter work then the second Cableship may be
notified by the Maintenance Authority to attend the repair in
the other Cableship's Normal Operational Zone thereby allowing
the continuation of the said charter work, Provided Always
That effective maintenance coverage of the Operational Zone is
not considered by the Maintenance Authorities to be
disadvantaged by the continuation of such charter work.
18
(d) If at the time the notification described in Clause 11(a) is
received the Cableship normally expected to repair and
maintain that particular Scheduled Cable is engaged in charter
work of the interruptable nature referred to in Clause 6(d)
then such charter work shall be stopped, if so required by the
Maintenance Authorities, in accordance with the aforesaid
charter agreement interruption provision upon receipt of
notification to enable the Cableship to be diverted to repair
the Scheduled Cable.
(e) For the purposes of notification each Cableship Operator shall
appoint a representative to whom notification should be sent.
12. PLANNING AND DIRECTION
(a) The Maintenance Authority requiring any repair or maintenance
work to be carried out may elect to be responsible for
planning and directing that repair or maintenance operation
which shall be performed by the personnel of the Cableship
under the control and supervision of the Commander of the
Cableship in accordance with the Cableship Operator's "Cable
Working Procedures" or "Standing Instructions" as may be
amended from time to time by the Cableship Operator. Such
amendments shall be approved by the Management Committee. If
the Maintenance Authority does not so elect to be responsible
then the Cableship Operator shall be responsible for the
planning and direction of the cable repair or maintenance
operation. In all cases the Maintenance Authority shall make
available to the Cableship Operator the necessary technical
information required for repairs and maintenance to be carried
out to the appropriate Scheduled Cable.
(b) The Cableship Operators hereby agree that any Maintenance
Authority who elects to be responsible for planning and
directing any particular repair and maintenance work or for
purposes of observing the operation shall have the right to
have representatives on board the Cableship during the
relevant cable operations. The number of representatives shall
be subject to accommodation availability.
(c) The Maintenance Authorities shall appoint one of the
authorised representatives, should more than one be carried,
as a "Senior Representative". The Senior Representative shall
be responsible for planning and directing the repair or
maintenance operation, pursuant to Clause 12(a) above.
(d) Notwithstanding Clause 12 (a), (b) and (c) above, the decision
of the Commander shall be final in carrying out or not
carrying out any directions or plans issued by the Senior
Representative if the Commander considers that the carrying
out of
19
such instructions would endanger the Cableship or the lives or
safety of any person thereof.
13. CABLESHIP BASE PORT
(a) At the inception of this Agreement the C.S. Retriever and the
C.S. Cable Enterprise shall be based, while on standby for
repair and maintenance, at the ports of Singapore and Manila
respectively.
(b) Should the Management Committee require at some stage during
the term of this Agreement a Cableship base port to be changed
in order to provide more efficient maintenance coverage of the
Scheduled Cables then the Cableship Operator shall implement
the necessary change subject to the prior agreement of the
Cableship Operator(s) involved and subject to Clause 26(a).
Any costs incurred as a result of the necessary change of base
port shall be borne by the Maintenance Authorities and
allocated to the Maintenance Authorities in proportion to each
Scheduled Cable's Chargeable Sheath Mileage in accordance with
Schedule D2.
14. CLEARANCES
(a) The Cableship Operators shall inform themselves as to the laws
and regulations pertaining to the maritime waters in which
they are required to operate. The Maintenance Authorities will
assist the Cableship Operators where possible by bringing to
the attention of the Cableship Operators changes in
legislation of which they may from time to time become aware.
The Cableship Operators shall initiate procedures and the
relevant Maintenance Authorities and the Cableship Operators
shall jointly be responsible for obtaining all the necessary
clearances, permits and authorisations in the maritime waters
where the work is to be carried out and all other relevant
clearances to ensure the smooth implementation and successful
completion of repair and maintenance operations.
(b) No Party shall incur any liability to any other Party in the
event of clearances being delayed or refused due to reasons
beyond the control of any Party as defined in Clause 25.
15. PERIODS OF CABLESHIP UNAVAILABILITY
(a) A Cableship will be considered temporarily unavailable for the
repair and maintenance of the Scheduled Cables in the
following circumstances:
(i) when the Cableship undergoes periodic refits, or
20
(ii) when the Cableship undergoes any modification or
alteration, or
(iii) if at any time the Cableship is unable to function
due to damage or breakdown and requires a period of
repair, or
(iv) if at any time the Cableship for reasons other than
as stated above or for reasons of Force Majeure as
defined in Clause 25 becomes unavailable other than
as a total loss or constructive total loss.
Upon the occurrence of any of the above events the appropriate
Cableship Operator shall notify the chairman of the Management
Committee promptly and in writing of the expected period of
unavailability of that Cableship.
(b) If a Cableship becomes a total loss or a constructive total
loss the Cableship Operators shall notify the chairman of the
Management Committee and, if required by the Management
Committee, use reasonable endeavours to provide a substitute
Cableship subject to terms and conditions to be proposed by
the Cableship Operator.
(c) If a Cableship is damaged to such an extent as to have to
undergo repairs that cause the Cableship to be unavailable for
a period exceeding 120 days in any one instance then the Fixed
Standing Charge for that Cableship shall be abated for the
duration of the period of unavailability beyond the first 120
days.
16. MUTUAL SUPPORT COVENANT
(a) For the purposes of this Agreement both Cableship Operators
mutually covenant that both the Cableships shall be mutually
supporting, and they shall use reasonable endeavours to ensure
that the Operational Zone is covered by at least one Cableship
and accordingly:
(i) the Cableships shall undergo normal refit at
different times, and
(ii) if one Cableship requires repairs or becomes a total
loss or a constructive total loss the remaining
Cableship shall cover the Operational Zone, where
practicable, on a temporary basis.
The Cableship Operators agree that in the fulfilment of the
mutual support covenant they will maintain any of the
Scheduled Cables within the overall Operational Zone if so
required by the Maintenance Authorities.
21
(b) In the event that either Cableship is unavailable for any
reason the Management Committee shall consider implementing
arrangements under the terms of the PIOCMA.
(c) The Cableship Operators agree that if one Cableship is engaged
in refit and in such circumstances the Cableship is reasonably
deemed by the Management Committee to be urgently required due
to an emergency requirement involving coincident faults then
the Cableship Operator will disengage the required Cableship,
from refit as soon as considered possible. Nothing in this
Clause shall be construed as requiring a Cableship Operator to
operate a Cableship out of classification in any respect or if
in the Commander's sole discretion the safety of the Cableship
and its personnel might be jeopardised by such operation. The
costs associated with disengaging the Cableship from the refit
shall be included as Running Costs for that Cableship, and
allocated to the Scheduled Cables in accordance with Clause
19(h).
17. PERIOD OF AGREEMENT
This Agreement shall become effective on the first day of June, 1986
and shall expire after a period of ten (10) years but may continue
beyond that date by agreement amongst the Parties.
18. INCLUSION AND DELETION OF ADDITIONAL PARTIES AND SCHEDULED
CABLES
(a) Where any maintenance authority assumes the maintenance
responsibility for any cable system, or part thereof within
the Operational Zone, and if that maintenance authority is not
a Party to this Agreement then that maintenance authority may,
with the prior written agreement of all the Parties hereto and
in recognition of the mutual benefits to be obtained, be
entered as a Maintenance Authority under this Agreement for
the balance of the term of the Agreement by means of a
Document of Accession, as set forth in Schedule F, and hence
upon the coming into force of such document shall be entered
into Schedule Al.
(b) Subject to the prior agreement of the Parties, when a
Maintenance Authority assumes responsibility for any cable
system, or part thereof, it shall be entered into Schedule BI
and hence become a Scheduled Cable; other appropriate
Schedules shall be amended accordingly.
(c) A Scheduled Cable may be removed from this Agreement in the
event of that cable being taken out of service.
22
(d) For the duration of this Agreement a Maintenance Authority
shall have the right to implement an early withdrawal of a
Scheduled Cable from the Agreement Provided Always That the
Maintenance Authority shall give a minimum of TWO YEARS NOTICE
of such withdrawal to the other Parties hereto and save that a
Maintenance Authority may not issue such a notice until this
Agreement has been in force for three years.
(e) In the case of Clause 18(a), agreement shall be obtained from
the Parties as follows:
(i) notification to the Parties of the proposed change by
telex.
(ii) upon the expiration of thirty (30) days from the date
of such notification and, except in the event of any
Party advising any objections in writing or by telex
during such notice period the relevant Schedules
shall be amended and a Document of Accession shall be
executed as set forth in Schedule F. All revised
Schedules and, where appropriate, certified copies of
the Document of Accession shall be distributed to
each of the Parties.
(iii) in the event that a Party objects in accordance with
Clause 18(e)(ii) above the Parties shall consult each
other to ascertain what action should be taken.
(f) The Management Committee shall be responsible for
administering the implementation of this Clause on behalf of
the Parties.
19. BASIS OF CABLESHIP'S COST ALLOCATION
(a) The respective costs of each Cableship shall comprise Fixed
Standing Charges and Running Costs. Running Costs incurred are
calculated in accordance with Schedule Dl. The Fixed Standing
Charges for the first three Financial Years of this Agreement
shall be as shown below:
***
(b) At the end of the first Financial Year of this Agreement each
Cableship Operator shall advise the Maintenance Authorities of
the Fixed Standing Charge for the fourth Financial Year of the
Agreement. At the end of the second and each subsequent
Financial Year thereafter each Cableship Operator shall advise
the Maintenance Authorities of the Fixed Standing Charge for
the next unpriced
23
Financial Year, namely the third Financial Year forward, and
this method of Cableship pricing shall be maintained
throughout the term of the Agreement.
(c) Each successive Financial Year's Fixed Standing Charge advised
under Clause 19(b) shall not constitute an increase of more
than ***. If a Cableship Operator requires an increase to the
annual maintenance and refit element in the Fixed Standing
Charge in excess of the foregoing then the Cableship Operator
shall submit details of such increase for the consideration of
the Management Committee.
(d) The Quarterly Net Chargeable Cost shall be one quarter of the
annual Fixed Standing Charges which are abated or adjusted as
appropriate by any sums received or paid by the Cableship
Operator during the previous quarter in respect of:
(i) amounts receivable by the Cableship Operator after
the deduction of all Running Costs incurred in
respect of repair and maintenance services to PIOCMA
Cables in accordance with Clause 6(c);
(ii) the charter fees defined in Clause 6(i) (i),
excepting the circumstances defined in Clauses 6(j)
and 19(d) (vi);
(iii) one half of any surplus remaining f rom the sum or
sums received or recovered by the respective
Cableship Operator in respect of any salvage or
assistance to other vessels given by the Cableship
during the course of this Agreement. Such surplus
shall be the total sum received less the proportion
due to the Commander and crew, all legal costs,
Running Costs, any other costs associated with the
salvage or assistance and, should at such time the
Cableship be on charter work as agreed under Clause
6, any share due to the charter party in the manner
described in the Cableship Operator's charter terms
and conditions,
(iv) any revenue other than;
a) amounts that are otherwise due under this
Agreement and,
b) receipts arising from insurance claims,
accruing in respect of the Cableship during
any period of temporary unavailability as
described in Clause 15(a);
(v) one half of any additional charge applied in
accordance with Clause 6(i)(ii);
24
(vi) the entire charter fees, after the deduction of all
Running Costs incurred by the Cableship Operator,
accruing in respect of any period that the Cableships
are engaged in charter work where the Management
Committee has agreed in accordance with Clause 6(j)
to charter fees that are less than the charges
defined in Clause 6 (i)(i);
(vii) the Fixed Standing Charge for periods in excess. of
120 days when a Cableship is unavailable in
accordance with Clause 15(c);
(viii) amounts receivable from a charter in accordance with
Clause 6(i)(iii).
(e) Fixed Standing Charges applicable to periods of time in
respect of;
(i) Clause 6(d), 6(e) and 6(f) shall be determined on a
daily basis by dividing the annual Fixed Standing
Charge of the Cableship by a figure of 335.
(ii) Clause 19(d)(vii) shall be determined by dividing the
annual Fixed Standing Charge of the Cableship by a
figure of 365.
(f) The Quarterly Net Chargeable Cost for each Cableship shall be
allocated to the Maintenance Authorities in proportion to each
Scheduled Cable's Chargeable Sheath Mileage during the quarter
in accordance with Schedule D2 at all times (including repair
and maintenance operations);
(g) The Running Costs of a Cableship for the entire duration that
such Cableship is engaged in any repair or maintenance
operation on a Scheduled Cable or PIOCKA cable, including
passage time, shall be allocated entirely to the Scheduled
Cable or PIOCMA cable involved;
(h) Running Costs incurred in respect of Clauses 7(c), 7(f), 7(g)
and 16(c) shall be allocated amongst the Maintenance
Authorities responsible for the Scheduled Cables in proportion
to each Scheduled Cable's Chargeable Sheath Mileage in
accordance with Schedule D2 or in accordance with the
provisions of the PIOCMA if applicable;
(i) In the event of any Cableship being engaged in multiple work
operations, the Running Costs for the passage time before such
work starts on the first operation, the time spent in passage
between the end of each completed operation and the start of
the next operation, and the time spent in passage from the end
of the last operation in the series of operations to the
arrival of the Cableship at its base port, shall be aggregated
and shared to the operations in proportion to the distance of
each operation from the Cableship's base port;
25
(j) The Running Costs of the Cableship for the entire periods when
engaged in charter work (including the Running Costs of
bringing the chartered Cableship up to a Fully Manned level
from a Combined ▇▇▇▇▇▇▇ level) shall be borne wholly by such
charter work;
(k) The Running Costs of the Cableships for the duration of any
period when engaged in cable working exercises shall be
allocated between Scheduled Cables in proportion to their
Chargeable Sheath Mileage in accordance with Schedule D2.
(l) The Running Costs identified in Clause 5(d)(ii) in respect of
the provision of additional facilities shall be allocated on
the basis identified in Schedule K amoung the Scheduled Cables
having been agreed as requiring the availability of such
additional facilities.
(m) Any amounts paid by the Cableship Operator In respect of
services provided to a Scheduled Cable by other cableships
under the provisions of the PIOCMA shall be allocated and
billed to Maintenance Authorities by the Cableship Operator as
a part of and in accordance with the cost sharing and payment
provisions of this Agreement.
20. BASIS OF DEPOT COST ALLOCATION
(a) The operational costs of the Depot shall be specified as
Storage Costs and Transfer Costs which are both defined in
Schedule El.
(b) Storage costs shall be allocated to Scheduled Cables in the
same proportion as the volume of spare cable of each Scheduled
Cable stored collectively in the Depot(s) and on board the
Cableships provided in accordance with Clause 5, to the total
volume of all spare cable belonging to the Scheduled Cables
being stored therein. Schedule E2 gives data for each type of
cable and Schedule E3 shows the volume of spare cable of the
Scheduled Cables which utilise the storage facilities of the
Depot and Cableships. Schedule E4 shows the derived percentage
allocation of the Storage Costs to be allocated to each
Maintenance Authority at the commencement of this Agreement.
Schedules ▇▇, ▇▇ and E4 will be revised from time to time by
the Depot Owner in consultation with the Cableship Operators
during the term of this Agreement to reflect changes in spare
cable storage.
(c) The Cableship Operators shall supply the Depot Owner(s) with
details of the volume of spare cable of each Scheduled Cable
stored on board the Cableships within 14 days of being so
requested by a Depot Owner.
26
(d) In the event of additional storage facilities being provided
in accordance with Clause 5 each Depot Owner will supply the
other Depot Owner with details of the volume of spare cable of
each Scheduled Cable stored in their respective Depot(s),
within 14 days of being so requested by the other Depot Owner.
(e) Transfer Costs shall with the exception of Clause 20(f) be
borne by and charged to the Maintenance Authorities for which
transfer work is undertaken.
(f) Where Transfer Costs are incurred in respect of either a
charter for the Cableship, or undertaking PIOCMA work pursuant
to Clause 6, such Transfer Costs shall be borne by the
Maintenance Authorities in proportion to each Scheduled
Cable's Chargeable Sheath Mileage as defined in Schedule D2.
21. BILLING, ACCOUNTING AND SETTLEMENT ARRANGEMENTS
(a) During the quarter preceding each Financial Year each Depot
Owner(s) shall supply the Maintenance Authorities with an
estimate of the annual Storage Costs for that Financial Year.
These estimates shall be presented in the detailed categories
set out in Schedule El. Billing of Storage Costs during the
course of the Financial Year shall be submitted on a quarterly
basis and based on such estimates.
(b) Bills in respect of the Quarterly Net Chargeable Cost of the
Cableships, and the Storage Costs in respect of the Depot(s)
shall be submitted by each Facility Provider 15 days prior to
the first day of the quarter in which they apply.
(c) The Cableship, Operator(s) shall as necessary submit a final
billing after the completion of each Financial Year as soon as
the Quarterly Net Chargeable Costs for that Financial Year are
known. This final billing shall comprise the final
retrospective adjustments to the amounts billed in accordance
with Clause 19(d) and such adjustments shall be included and
settled as a part of the next billing submission to the
Maintenance Authorities.
(d) The Depot Owner(s) shall submit a final billing after the
completion of each Financial Year as soon as the annual
Storage Costs are known This final billing shall comprise the
final retrospective adjustments to the amounts billed in
accordance with Clause 20 and such adjustments shall be
included and settled as a part of the next billing submission
to the Maintenance Authorities.
(e) Bills in respect of Running Costs and Transfer Costs shall be
submitted on a monthly basis in arrears and include actual
costs as they become known.
27
(f) Schedule Bl identifies the Maintenance Authorities responsible
and individually liable for the payment of any amounts due
under this Agreement in respect of each Scheduled Cable. Bills
shall detail the amount payable for each Scheduled Cable and
for this purpose Schedules D2 (Page 2) and E3 summarise
respectively the total billing allocation of Cableship
Quarterly Net Chargeable Costs and annual Storage Charges
respectively to each Scheduled Cable. Schedule D2 (Page 4) and
Schedule E4 (Page 1) show the allocated billing of Quarterly
Net Chargeable Cost and Storage Charges respectively as
derived after application of Central Billing parties in
accordance with Clause 21(j).
(g) All bills shall be submitted and paid in the currency of issue
which shall be UK pounds sterling or Singapore dollars. All
bills shall be paid within sixty (60) days of the date of
receipt of such bills by the relevant Maintenance Authority or
the appropriate Central Billing party. In this respect, the
Cableship Operators and the Depot Owner(s) shall provide to
the relevant Maintenance Authority or Central Billing party by
telex, or like means of communication, advice of the date of
despatch of all bills being submitted under this Agreement.
Within ten (10) days of such advice of the date of despatch of
a ▇▇▇▇, the relevant Maintenance Authority or Central Billing
party shall advise by telex the Party issuing the ▇▇▇▇ of its
receipt or non-receipt. Should the Maintenance Authority or
Central Billing party fail to provide such advice, the ▇▇▇▇
shall be deemed to have been received on the tenth day after
the date of advice of despatch as above.
(h) The Cableship Operators and the Depot Owner respectively shall
be entitled to charge interest at a rate of 3 percentage
points per annum greater than the LIBOR effective on the date
of issuing of the ▇▇▇▇ for such interest for each billing
period. Interest will be charged on this basis for the period
that payment of any ▇▇▇▇ remains overdue after the date
defined by Clause 21(g) or 21(l). Such interest shall be
calculated on a simple interest basis and become payable
immediately on demand. Unless otherwise agreed by the
respective Cableship Operator or Depot Owner all interest
charges under this Clause shall be billed directly to the
Maintenance Authorities, as indicated in Schedule Bl,
responsible for payments under this Agreement or to the
appropriate Central Billing party if the Central Billing party
is a Party to this Agreement.
(i) Should any ▇▇▇▇ or part thereof be under dispute as to its
correctness, then interest as defined in Clause 21(h) shall
not apply provided that;
(i) before the due date for payment the Cableship
Operator and Depot Owner(s) are advised by telex or
like means of communication of the amount in dispute
and the nature of that dispute; and
28
(ii) where the matter under dispute represents less than
twenty (20) percent of the total amount billed, an
interim payment of at least eighty (80) percent of
the total ▇▇▇▇ has been made. In this respect, the
Cableship Owner and Depot Owner(s) shall, if
requested by an appropriate Maintenance Authority
within 14 days of receipt of the ▇▇▇▇ in dispute,
issue a replacement ▇▇▇▇ omitting the amount in
dispute, such replacement ▇▇▇▇ shall become due for
payment in accordance with Clause 21(g). The amount
in dispute shall be investigated and after any
necessary corrections shall be re-issued;
Notwithstanding the foregoing, in the event that on
investigation the disputed ▇▇▇▇ or part thereof is found to be
correct, then the Maintenance Authorities shall pay interest
on the unpaid part from the day after the due date for payment
of the disputed ▇▇▇▇ in accordance with Clause 21(h) above.
(j) Recognising that some Maintenance Authorities within various
construction and maintenance agreements have appointed a
Central Billing party in respect of their Scheduled Cables,
the Cableship Operators and Depot Owner(s) respectively shall
forward the original invoice to that Central Billing party for
payment. Information copies of bills shall be forwarded at the
same time to all the relevant Maintenance Authorities. The
Central Billing parties appropriate to Scheduled Cables under
this Agreement are indicated in Schedule B2.
(k) Notwithstanding Clause 21(j) the respective Maintenance
Authorities shall remain responsible and individually liable
for all payments due by them under this Agreement and as
indicated in Schedule Bl.
(l) Any amount billed to but not paid by an appointed Central
Billing party before the expiry of thirty (30) days after its
due date for payment in accordance with Clause 21(g) may be
re-billed by the respective Facility Provider to the
Maintenance Authorities responsible for payment in accordance
with Schedule Bl. Such rebilled amounts shall become due for
payment within 7 days of receipt by the Maintenance Authority.
Any re-billed amount not paid within 7 days shall accrue
interest in accordance with Clause 21(h).
22. RECORDS
(a) The Facility Providers shall as appropriate keep for a period
of not less than six years from the date of issue, such
records, vouchers, accounts, or reproduction thereof in
whatever form, of all costs incurred in connection with the
Cableship Running Costs, and the Storage Costs and Transfer
Costs of the Depot(s) to support their billing or derived
settlements of such costs to and amongst the
29
Maintenance Authorities and shall make such records, vouchers,
and accounts available at all reasonable times for inspection
by the Maintenance Authorities.
(b) The Cableship Operator shall keep repair and maintenance
records relating to Scheduled Cables for a period of not less
than six years from the date of issue of such records and the
Maintenance Authorities shall have a right to obtain copies of
such records upon request.
(c) After each repair operation the Cableship Operator shall
forward to the relevant Maintenance Authority a report on the
repair work which shall include a schedule of events,
electrical data and diagrams and charts of the operation.
23. LIABILITY AND INDEMNITY
(a) For the purposes of this Clause the reference to Owner shall
refer to either the Cableship Operator or Depot Owner or both
concerned when a claim or liability arises under the terms of
the Agreement. In no event shall there be joint liability
between any Cableship Operator or Depot Owner unless otherwise
agreed in writing between or amongst them.
(b) Each Owner shall be liable for all direct damages to persons
or property arising in the discharge of its obligations under
the Agreement to the extent that such damages have resulted
from the intentional or negligent acts or omissions of the
Owner, its agents or employees. The Owner shall indemnify and
hold harmless the Maintenance Authority concerned against all
claims, actions, demands or judgments for such direct damages.
(c) Each Owner shall be liable for injury or damages to persons or
property sustained by its employees or agents in the course of
their employment or agency to the extent that such injury or
damages are not caused by negligence or intentional acts of a
Maintenance Authority and to that extent the said Owner will
indemnify and hold harmless the Maintenance Authority against
all claims, actions, demands, or judgments for damages by
employees or agents of the Owner except to the extent that
such claims, actions, demands and judgments arise out of the
negligence or intentional acts of a Maintenance Authority.
(d) Each Maintenance Authority shall be liable for all direct
damages to persons or property arising in the discharge of its
obligations under the Agreement to the extent that such
damages have resulted from the intentional or negligent acts
or omissions of the Maintenance Authority, its agents or
employees. The Maintenance Authorities shall indemnify and
hold harmless the Owner concerned against all claims, actions,
demands or judgments for such direct damages.
30
(e) Except as stated in Clauses 23 (a), (b), (c) and (d) no Owner
or Maintenance Authority shall be liable for any other damages
suffered by the other nor shall either or any of them be
required to indemnify or hold harmless the other against
claims made by any person or entity against either or any of
them for damages arising from the acts or omissions of either
or any of them in the discharge of their respective
obligations under this Agreement.
24. INSURANCE
(a) The Cableship Operators and Depot Owner(s) respectively shall
be responsible for obtaining their necessary insurance
coverage as specified in Schedules Dl and El respectively.
(b) if requested by a Maintenance Authority the Facility Providers
shall provide individually and on a confidential basis to that
Maintenance Authority copies of relevant insurance policies
and, if applicable, copies of the booklet giving details of
the Protection and Indemnity cover and proper evidence of the
payment of all premiums.
25. FORCE MAJEURE
(a) Neither the Cableship Operators, nor the Depot Owner(s) shall
be liable for any inability or delay in carrying out work on
the Scheduled Cables if prevented from doing so for reasons
beyond their reasonable control.
(b) In particular neither the Cableship Operators nor the Depot
Owner(s) shall be liable for any delay or failure to carry out
their duties and obligations hereunder arising or resulting
from:
- Fire, unless caused by the actual fault or privity of a
Cableship Operator or Depot Owner or both.
- Perils, dangers, and accidents of the sea or other navigable
waters.
- Act of God.
- Act of War.
- Act of public enemies.
31
- Arrest or restraint of princes, rulers or people, or seizure
under legal process.
- Quarantine restrictions.
- Act or omission of the Maintenance Authority, his agent or the
Maintenance Authority's authorised representative(s).
- Strikes or lockouts or stoppage or restraint of labour from
whatever cause, whether partial or general.
- Riots and civil commotions.
- Saving or attempting to save life or property at sea or to
take aboard or land refugees.
- Loss or damage arising from Inherent defect, quality or vice
of the Maintenance Authority's plant and equipment.
- Latent defects not discoverable by due diligence.
- Pirates or assailing thieves.
- Adverse weather conditions.
26. PREROGATIVES OF THE COMMANDER
(a) The Cableships shall not be obliged to proceed to, nor remain
at, or enter any port or place which is, or which is
considered by the Commander or the Cableship Operator in his
or its discretion to be dangerous by reason of fever,
epidemics, ice, blockade, war, hostilities, warlike
operations, civil war, civil commotions, revolutions,
operation of law or any other reason considered by the
Commander or the Cableship Operator in his or its discretion
to be dangerous, or to which the Cableships are prohibited
from going by the government of the nation under whose flag
the Cableship sails, or by any other government. In the event
that a Cableship is ordered to such a port or place the
Cableship Operator shall seek instructions from the
Maintenance Authorities as to an alternative port or place.
The Cableship Operator shall also be entitled to charge any
expenses incurred in proceeding thereto as a Running Cost to
the Maintenance Authority concerned in accordance with Clause
19.
(b) The Cableships shall not be obliged to force ice. If on
account of ice the Commander considers it dangerous to remain
at a port or place for fear of the
32
Cableships being frozen in and/or damaged, he has liberty to
sail to a convenient open place and await new instructions.
(c) The Commander shall have liberty to comply with any orders or
directions as to departure, arrival, routes, ports of call,
stoppages, destination, delivery or otherwise, howsoever
given, by the government of the nation under whose flag the
Cableship sails or any department thereof, or by any other
government or any department thereof, or any person acting or
purporting to act with the authority of any such government or
any department thereof or by any committee or person having,
under the terms of the war risk insurance on the Cableship,
the right to give such orders or directions and if by reason
of and in compliance with any such orders or directions
anything is done or is not done, the same shall not be deemed
a deviation, and performance in accordance with such orders or
directions shall be a fulfilment of this Agreement.
(d) The Cableship Operator agrees where possible to use its
reasonable endeavours to ensure that the duration of any
deviation or detention under Clauses 26(a) and (b) and (c) are
kept to a minimum. The costs of such deviations or detentions
shall be charged as Running Costs to the relevant Maintenance
Authority in accordance with Clause 19.
27. DISTRESS AND SALVAGE
(a) At all times during the term of this Agreement the Cableships
shall have liberty to sail with or without pilots, to tow or
be towed, deviate to assist vessels in distress, or to deviate
for the purpose of saving life or property, to take aboard
carry and land refugees, to secure medical attention for any
person onboard suffering from accident or illness, to deviate
for reason of bad weather, to call at any ports for fuel or
other supplies, or for any other valid or customary cause. The
Management Committee shall be advised as soon as possible of
any of these causes.
(b) The Cableship Operators shall be at liberty to engage in
salvage without the written consent of the Maintenance
Authorities. All salvage money earned by the Cableships shall
be divided equally between the Cableship Operator and the
Maintenance Authorities after deducting the Cableship
Operator's Commander's, Pilot's, Officer's and Crew's share,
legal expenses, Fixed Standing Charges and Running Costs
during the time lost, repairs to damage if any and any other
loss or expense sustained as a result of the salvage. The
Maintenance Authorities shall be bound by any measure taken by
the Cableship Operator in order to secure payment of salvage
and to fix its amount.
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28. LEGAL INTERPRETATION
This Agreement shall in all respects be governed by and be construed in
accordance with the laws of England.
29. ARBITRATION
(a) All disputes arising in connection with this Agreement and
which cannot be settled to the mutual satisfaction of the
Parties shall be finally settled under the Rules of
Conciliation and Arbitration of the International Chamber of
Commerce by one or more arbitrators appointed in accordance
with the said Rules.
(b) Notwithstanding Clause 29(a), if there is no unanimous
agreement by all the Parties to have the dispute heard before
an arbitrator in accordance with Clause 29(a), the dispute
shall be heard before a court of Law in accordance with Clause
28.
(c) The performance of this Agreement by the Parties shall
continue during such arbitration or legal proceedings.
30. RELATIONSHIP OF THE PARTIES
The relationship between or amongst the Parties shall not be that of
partners and nothing herein contained shall be deemed to constitute a
partnership between them, and the common enterprise amongst the Parties
shall be limited to the express provisions of this Agreement.
31. STATUS OF CABLESHIPS AND ASSOCIATED FACILITIES
Nothing herein shall be construed as a demise or charter of a Cableship
to any of the Parties.
32. AMENDMENTS
(a) This Agreement and any of the provisions herein, unless as
expressly provided for herein, may only be altered or added to
in writing signed by a duly authorised person on behalf of
each Party.
(b) Except as otherwise provided for herein Schedules may be
amended subject to agreement by telex between and amongst all
the Parties.
34
33. ASSIGNMENT
No Party shall, without the written consent of all the other Parties,
which consent shall not be unreasonably withheld, sell, transfer or
dispose of its rights or obligations under this Agreement except to a
statutory successor of the same.
34. EXECUTION AND COUNTERPARTS
This Agreement shall be executed in 16 (sixteen) counterparts in the
English language and each counterpart when delivered shall be
considered an original. New Maintenance Authorities shall be added to
this Agreement by means of a Document of Accession as set forth in
Schedule F and the Document of Accession shall for each such addition
be executed in two counterparts in the English language and certified
copies shall be delivered to all the Parties.
35. ENTIRE AGREEMENT
This Agreement together with the Schedules hereto constitute the entire
agreement between the Parties in relation to its subject matter. All
references to the Party(ies), Clause(s) and Schedule(s) refer to the
Party(ies), Clause(s) and Schedule(s) under this Agreement. In
addition, and where the context requires, the singular shall be taken
to mean the plural and the plural shall be taken to mean the singular.
36. HEADINGS
For the purposes of interpretation of this Agreement and Schedules all
headings thereof shall be deemed not to form part of this Agreement.
37. REPRESENTATIVES AND CORRESPONDENCE
The Parties shall inform each other of their representatives for the
purpose of correspondence between the Parties.
38. NOTICES
(a) Any notice or consent required or permitted hereunder shall be
given in writing or confirmed in writing as the context so
requires and shall be deemed to be duly
35
given if deposited by hand at, or despatched by airmail of the
most expeditious class or by telex or electronic mail
addressed to, the last known registered office of the Party to
whom it is addressed.
(b) Unless it is expressly provided for herein or otherwise agreed
any such notice or consent shall be deemed to be served ten
days from the date of despatch.
39. PUBLICITY
Any publicity or news releases regarding this Agreement shall not br
issued or published without the prior agreement of the Parties.
40. CONFIDENTIAL INFORMATION
All Parties to this Agreement shall treat as confidential any
information arising from and in connection with this Agreement and
shall not divulge or turn to account any information oral or written to
a third party without the prior written agreement of all Parties.
41. PERFORMANCE OF AGREEMENT
The performance of this Agreement by the Parties hereto shall be
contingent upon either:
(i) the continued operation of at least one Scheduled
Cable;
or
(ii) the necessary government approvals.
42. INSOLVENCY
Upon the happening of each or any of the following events:
(i) if, except for the purposes of re-organisation, any
Party is wound up or a petition is presented or an
order is made or a resolution is passed for the
winding up of any Party or a meeting is convened for
the purpose of considering any such resolution;
36
(ii) if any Party is placed under official management,
that is, if pursuant to a resolution of creditors or
members of that Party or an order of a court a person
is appointed to take custody of all or part of the
property of that Party and to conduct its business
and manage its affairs and comply with the
legalisation in respect of companies applicable in
the place where he is so appointed, or if any Party
causes a meeting of its members or creditors to be
summoned for the purpose of placing it under official
management;
(iii) if any Party makes default under any charge or
security in favour of any creditor of that Party;
(iv) if any indebtedness of any Party becomes due and
payable prior to the stated maturity thereof as a
result of a default or is not paid upon the maturity
thereof;
(v) if an inspector of all or any part of the affairs of
any Party is appointed pursuant to the legislation in
respect of companies applicable in the place of
incorporation of that Party or in a place where that
Party carries on business;
(vi) if a compromise or arrangement is proposed between
any Party and its creditors or any class of them or
if an application is made to a court for an order
summoning a meeting of creditors or any class of them
of any Party;
then any Party affected by each or any of the above listed
events shall immediately inform all the other Parties thereof,
and all the Parties shall then consult to decide what further
action is necessary.
43. TRANSFER OF RESPONSIBILITIES
(a) In the case of any of the events in Clause 42 occurring to
ASEAN Cableship Private Limited which consequently require
ASEAN Cableship Private Limited to withdraw from this
Agreement, Cable and Wireless (Marine) Limited undertake to
provide the repair and maintenance responsibilities of the
Cableship Retriever under the terms and conditions of this
Agreement for the remainder of the term.
(b) The ASEAN Cableship Private Limited hereto agrees and the
Parties hereto agree that such transfer of responsibilities
referred to in Clause 43(a) is deemed to be effective upon any
of the events referred to in Clause 42 occurring to ASEAN
Cableship Private Limited.
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SIGNED:
For and on behalf of Attest Date
ASEAN CABLESHIP PRIVATE LTD
/s/ Name of Signatory Name of Attestor 29/5/86
-------------------------------- ---------- -------
For and on behalf of Attest
COMMUNICATIONS AUTHORITY OF
THAILAND
/s/ Name of Signatory Name of Attestor 30/5/86
-------------------------------- ---------- -------
For and on behalf of Attest
CABLE AND WIRELESS (HONG KONG)
LTD
/s/ Name of Signatory Name of Attestor 27/5/86
-------------------------------- ---------- -------
For and on behalf of Attest
CABLE AND WIRELES (MARINE) LTD
/s/ Name of Signatory Name of Attestor 20/5/86
-------------------------------- ---------- -------
For and on behalf of Attest
CABLE AND WIRELESS PLC
/s/ Name of Signatory Name of Attestor 20/5/86
-------------------------------- ---------- -------
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For and on behalf of Attest Date
EASTERN TELECOMMUNICATIONS
PHILIPPINES INC
/s/ Name of Signatory Name of Attestor 27/5/86
-------------------------------- ---------- -------
For and on behalf of Attest
INTERNATIONAL TELE-
COMMUNICATION DEVELOPMENT
CORPORATION
/s/ Name of Signatory Name of Attestor 27/5/86
-------------------------------- ---------- -------
For and on behalf of Attest
JABATAN TELEKOM MALAYSIA
/s/ Name of Signatory Name of Attestor 30/5/86
-------------------------------- ---------- -------
For and on behalf of Attest
KOKUSAI DENSHIN DENWA CO., LTD.
/s/ Name of Signatory Name of Attestor 26/5/86
-------------------------------- ---------- -------
For and on behalf of Attest
OVERSEAS TELECOMMUNICATIONS
SERVICES
/s/ Name of Signatory Name of Attestor 27/5/86
-------------------------------- ---------- -------
39
For and on behalf of Attest Date
OFFICE DES POSTES ET
TELECOMMUNICATIONS
/s/ Name of Signatory Name of Attestor 26/5/86
-------------------------------- ---------- -------
For and on behalf of Attest
OVERSEAS TELECOMMUNICATIONS
COMMISSION (AUSTRALIA)
/s/ Name of Signatory Name of Attestor 28/5/86
-------------------------------- ---------- -------
For and on behalf of Attest
P.T. (PERSERO) INDONESIAN
SATELLITE CORPORATION
/s/ Name of Signatory Name of Attestor 29/5/86
-------------------------------- ---------- -------
For and on half of Attest
SEMBAWANG CABLE DEPOT
PRIVATE LIMITED
/s/ Name of Signatory Name of Attestor 12/6/86
-------------------------------- ---------- -------
For and on behalf of Attest
THE TELECOMMUNICATION
AUTHORITY OF SINGAPORE
/s/ Name of Signatory Name of Attestor 29/5/86
-------------------------------- ---------- -------
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For and on behalf of Attest Date
VIDESH ▇▇▇▇▇▇▇ ▇▇▇▇▇ LTD.
/s/ Name of Signatory Name of Attestor 23/5/86
-------------------------------- ---------- -------
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