EXHIBIT 10.8
DATED 31 March 1999
MCI WORLDCOM GLOBAL NETWORKS U.S. INC
and
MCI WORLDCOM GLOBAL NETWORKS LIMITED
and
TELEMONDE INTERNATIONAL BANDWIDTH LIMITED
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TRANSMISSION CAPACITY AGREEMENT
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XXXXXXXX CHANCE
Table of Contents
1. Interpretation .................................................. 1
2. Provision of Capacity............................................ 4
3. Acceptance Testing............................................... 6
4. Operations and Maintenance Procedures............................ 7
5. Payment.......................................................... 7
6. Use of Capacity.................................................. 9
7. Warranties....................................................... 10
8. Liability........................................................ 11
9. Term, Termination and Suspension................................. 12
10. Force Majeure.................................................... l5
11. Confidentiality.................................................. 15
12. Assignment and Subcontracting.................................... 16
13. Publicity........................................................ 17
14. Severability..................................................... 17
15. Variation........................................................ 18
16. Partnership...................................................... 18
17. Waiver........................................................... 18
18. Notices.......................................................... 18
19 Entire Agreement................................................. 19
20. No Exclusive Remedy.............................................. 19
21. Governing Law.................................................... 19
22. Counterparts..................................................... 19
SCHEDULE 1 Technical Specifications................................... 21
SCHEDULE 2 Operations and Maintenance Procedures..................... 23
SCHEDULE 3 Charges................................................... 28
SCHEDULE 4 Acceptance Test Specification............................. 29
TRANSMISSION CAPACITY AGREEMENT
THIS AGREEMENT is made the day of 1998
BETWEEN:
(1) MCI WORLDCOM GLOBAL NETWORKS U.S., INC. whose registered office is
at 0 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx, Xxxx, Xxxxxxxx 00000 XXX; and
(2) MCI WORLDCOM GLOBAL NETWORKS LIMITED whose registered office is at
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx (together with
MCI WorldCom Global Networks U.S., Inc., referred to herein as "MCI
WorldCom"); and
(3) TELEMONDE INTERNATIONAL BANDWIDTH LIMITED, whose registered
office is at Xxxxxxxxx Xxxxxxxx, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx
Xxxxxxx ("Telemonde").
WHEREAS:
(A) MCI WorldCom owns or has an interest in international
telecommunications facilities across Europe and the USA.
(B) Telemonde wishes to acquire from MCI WorldCom transmission capacity
over such facilities between the Sites, as defined herein.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 The words and phrases used in this Agreement shall, unless otherwise
expressly provided, have the meanings ascribed to them below:
"Acceptance Certificate" means an acceptance certificate in the form
provided by MCI WorldCom to Telemonde from time to time;
"Acceptance Tests" means the tests set out in the Test Specification,
to be conducted by MCI WorldCom in accordance with Clause 3;
"Act" means the Telecommunications Xxx 0000 (as amended or
substituted from time to time);
"Activation Request Form" means an activation request form in the
form provided by MCI WorldCom to Telemonde from time to time;
"Agreement" means this Agreement together with the Schedules hereto:
"Annual Charge" means, in relation to each Unit of Capacity, the
amount specified in Schedule 3 and payable to MCI WorldCom in
accordance with Clause 5, and "Annual Charges" shall be construed
accordingly;
"Associated Company" means, in relation to a party, any subsidiary
or holding company of such party and any subsidiary of such holding
company (the terms "holding company" and "subsidiary" being as defined
in sections 736 and 736A Companies Act 1985);
"Business Days" means any days excluding Saturdays and Sundays on
which commercial banks are open for business in the country where the
relevant notice is to be delivered or where the relevant activity
is to be performed;
"Cable Lifetime" means the lifetime of the Gemini fibre optic
submarine and terrestrial cable system as set forth in the C&MA;
"Capacity" means the point to point transmission capacity provided
between the Sites, as detailed in Schedule 1;
"C&MA" means the construction, operation and maintenance agreement
for the Gemini fibre optic submarine and terrestrial cable system,
as amended from time to time by Gemini Submarine Cable System Limited
in accordance with the terms thereof;
"Charges" means, together, the Purchase Price and the Annual Charges;
"Confidential Information" means all confidential information
(whether written, oral or in electronic format) designated as such by
the disclosing party, together with all such other information which
relates to the operations, business, affairs, customers, services,
products, developments, plans, intentions, trade secrets, know-how and
personnel of the disclosing party which may reasonably be regarded as
the confidential information of the disclosing party;
"Demarcation Point" means that point at which MCI WorldCom Network is
connected to Telemonde Network for the purpose of the provision of
Capacity hereunder as specified in Schedule 1;
"Emergency Works" has the meaning ascribed thereto in the Act;
"Fault" means a material defect, fault or impairment in the Capacity
duly notified to MCI WorldCom in accordance with Schedule 2;
"Force Majeure" means any event beyond a party's reasonable control
affecting the performance by that party of its obligations hereunder
including (to the extent that such events are beyond the affected
party's reasonable control), but not limited to, acts of God,
insurrection or civil disorder, malicious damage, accident,
breakdown, war or military operations, national or local emergency,
acts or omissions of Government regulatory or highway authority,
industrial disputes of any kind, fibre cuts, fire, flood, lightning,
explosion, subsidence, inclement weather and acts or omissions of
persons or bodies (other than a Telemonde Customer) beyond the
reasonable control of the affected party;
"IRU" means the "indefeasible right of use" in a Unit of Capacity
for the Cable Lifetime;
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"LIBOR Rate" means the arithmetic mean of the offered rates of
leading banks for London Interbank deposits expressed as a rate per
annum, for deposits in US Dollars for six months as displayed on
the LIBOR page of the Reuters Monitor Money Rate service at or about
11:00am on the date on which the LIBOR Rate is to be determined;
"London Site" means an On-Net Location in London;
"MCI WorldCom Network" means the Service Equipment and any other
infrastructure used by MCI WorldCom to provide the Capacity;
"New York Site" means one of 00 Xxxxxx Xxxxxx, Xxx Xxxx, XXX and 000
0xx Xxxxxx, Xxx Xxxx, XXX;
"On-Net Location" means any site having a direct connection to the
MCI WorldCom Network via an MCI WorldCom point of presence;
"Operations and Maintenance Procedures" means those procedures set
out in Schedule 2;
"Project Manager" means the representatives nominated by each of the
Parties in accordance with Clause 2.3 from time to time;
"Purchase Price" means the amount specified in Schedule 3 and payable
to MCI WorldCom for the Capacity in accordance with Clause 5;
"RFS Date" means, in respect of each Unit of Capacity, the date upon
which the Acceptance Tests shall have been successfully completed in
respect of such Unit of Capacity as evidenced by the signature by
each of the parties of an Acceptance Certificate in relation thereto,
whether actual or deemed in accordance with Clause 3.9;
"Scheduled Maintenance" means the planned works to be conducted by
or on behalf of MCI WorldCom in order to maintain or repair the
Capacity as notified to Telemonde and affected Telemonde Customers
in accordance with Schedule 2 or otherwise agreed between the
parties;
"Service Equipment" means the multiplex or other equipment provided
by MCI WorldCom and installed at a Site to enable Telemonde to
receive the Capacity;
"Site" means a New York Site or London Site, as specified in the
Activation Request Form, and "Sites" shall be construed accordingly;
"Target Date" means that date with effect from which Telemonde has
requested or the parties have agreed that the Capacity be activated,
` in accordance with Clause 2.5 or Clause 2.7.1;
"Technical Specification" means the technical specifications set
out in Schedule 1 hereto;
"Telemonde Customer" means a third party with whom Telemonde has
entered into an end user capacity supply agreement for the grant of
rights to a Unit of Capacity in
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accordance with Clause 12.4, and "Telemonde Customers" shall be
construed accordingly;
"Telemonde Equipment" means any equipment owned or used by
Telemonde (other than Service Equipment) that is installed at a
Site and which is used by Telemonde to access the Capacity;
"Telemonde Network" means the telecommunications infrastructure
owned and operated by Telemonde (or by any Associated Company
thereof) under an applicable regularity authority;
"Test Specification" means the test specification set out in
Schedule 4 hereto;
"Unit" means, in relation to the Capacity, a transmission channel
comprising a VC-4 container interfaced at STM-1 level, and "Units"
shall be construed accordingly.
1.2 References in this Agreement to "MCI WorldCom", and "Telemonde",
"Telemonde Customers" and "Communications Collateral Limited" shall
include their respective successors (whether by operation of law or
otherwise) and permitted assigns.
1.3 The headings are included in this Agreement for ease of reference only
and shall not affect the interpretation or construction of this
Agreement.
1.4 References in this Agreement to Clauses and Schedules shall be deemed
to be references to the clauses of and schedules to this Agreement.
2. PROVISION OF CAPACITY
2.1 With effect from the date of signature of this Agreement and
throughout the term of this Agreement, MCI WorldCom shall, subject to
Telemonde complying with all its obligations and undertakings under
this Agreement, reserve the Capacity exclusively for Telemonde.
2.2 In consideration for the obligations and undertakings of Telemonde set
out in this Agreement and with effect from the RFS Date in respect of
each Unit of Capacity, MCI WorldCom shall:
2.2.1 grant Telemonde an IRU in the Capacity between the specified
New York Site and MCI WorldCom, Xxxxxxxxx Xxxxxx (XX0),
Xxxxxx, Xxxxxxx; and
2.2.2 lease Telemonde the Capacity between MCI WorldCom, Xxxxxxxxx
Xxxxxx (XX0), Xxxxxx, Xxxxxxx and the specified London Site,
and
shall make such Capacity available to Telemonde from the applicable
RFS Date for the term of this Agreement.
2.3 Each party shall, as soon as reasonably practicable following
execution of this Agreement, nominate a Project Manager who shall be
that party's representative for all operational matters. Each party
shall notify the other party and keep the other party notified of any
change in the identity of such Project Manager.
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2.4 Telemonde shall be entitled at any time following the execution of
this Agreement by delivery to MCI WorldCom of an Activation Request
Form duly completed in accordance with Clause 2.5 to request the
activation of up to two Units of Capacity between the Sites.
2.5 Each Activation Request Form delivered by Telemonde to MCI WorldCom
shall specify, in respect of each Unit of Capacity:
2.5.1 which New York Site is to be used;
2.5.2 the exact location of the London Site; and
2.5.3 the date on which Telemonde requires activation of such Unit
of Capacity (being a date not less than 30 Business Days'
following the date of delivery of such Activation Request
Form to MCI WorldCom), which date shall be the Target Date for
such Unit of Capacity.
2.6 Telemonde acknowledges that MCI WorldCom may have insufficient
capacity available to it within the MCI Network to provide the
Capacity to each On-Net Location. Where there is insufficient capacity
within the MCI WorldCom Network to permit the provision of the
Capacity to any Site specified by Telemonde in its Activation Request
Form by the proposed Target Date, MCI WorldCom shall notify Telemonde
within 12 Business Days following receipt of such Activation Request
Form and shall confirm to Telemonde the date on which MCI WorldCom
reasonably anticipates being able to make the Capacity available.
2.7 In the event that MCI WorldCom delivers to Telemonde a notice in
accordance with Clause 2.6, Telemonde shall by written notice to MCI
WorldCom either:
2.7.1 conform its requirements as set out in the Activation Request
form, in which case the parties shall use reasonable endeavors
to agree a revised Target Date; or
2.7.2 revise its requirements by delivery to MCI WorldCom of a
revised Activation Request Form and the provisions of Clauses
2.4 to 2.11 shall apply.
2.8 MCI WorldCom shall use its reasonable endeavors to ensure that the RFS
Date for each Unit of Capacity occurs on or prior to the applicable
Target Date.
2.9 MCI WorldCom shall liaise with the Project Manager appointed by
Telemonde in accordance with Clause 2.3 and shall notify such Project
Manager not less than bi-monthly of any delays which it reasonably
believes are likely to occur in a RFS Date.
2.10 In the event that the RFS Date does not occur within a period of eight
weeks following the applicable Target Date in respect to each Unit of
Capacity (or in the event that MCI WorldCom shall notify Telemonde, in
accordance with Clause 2.9, that the applicable RFS Date is likely to
occur following the expiry of such eight week period), Telemonde shall
be entitled to notify MCI WorldCom in writing, such notice to take
effect immediately on receipt, that it no longer requires delivery of
such Unit of
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Capacity, in which case MCI WorldCom shall following the date of
service of such notice refund to Telemonde any portion of the Purchase
Price already paid by it in relation to such Unit of Capacity and,
save in respect of any liability arising up to the date of such
notice, neither party shall have any further obligations in relation
to the provision of such Unit of Capacity.
2.11 Telemonde acknowledges that MCI WorldCom may from time to time revise
or vary any aspect of the Capacity save that the Capacity and each
Unit shall notwithstanding such variation remain compliant with the
terms of this Agreement, including, without limitation, the Technical
Specification.
3. ACCEPTANCE TESTING
3.1 MCI WorldCom shall, following the delivery to it of a notice in
accordance with Clause 2.4, install the Service Equipment at the
Sites.
3.2 Following the installation by MCI WorldCom of the Service Equipment
MCI WorldCom shall perform the Acceptance Tests in relation to the
Service Equipment and the relevant Unit of Capacity in accordance with
the Test Specification.
3.3 MCI WorldCom shall notify Telemonde (through the Project Manager
appointed in accordance with Clause 2.3) of its intention to conduct
Acceptance Tests.
3.4 MCI WorldCom shall notify Telemonde of the successful completion of
Acceptance Tests by delivery to Telemonde of an Acceptance Certificate
duly signed on behalf of MCI WorldCom and shall provide to Telemonde a
copy of the results of such Acceptance Tests.
3.5 Telemonde shall be entitled upon delivery to it of an Acceptance
Certificate in accordance with Clause 3.4 to perform such testing of
the Capacity as it may require to demonstrate compliance of the
Capacity with the Technical Specification.
3.6 Telemonde shall, within a five day period following the date of the
receipt of the Acceptance Certificate in accordance with Clause 3.4
either:
3.6.1 confirm to MCI WorldCom its acceptance of the Capacity by its
counter-signature of such Acceptance Certificate, in which
case such date shall be the RFS Date (such confirmation not to
be unreasonably withheld); or
3.6.2 notify MCI WorldCom of those aspects of the Capacity which it
does not believe to be compliant with the Technical
Specification and provide to MCI WorldCom together with such
notice the results of the testing conducted by it evidencing
such non-compliance.
3.7 In the event that Telemonde shall notify MCI WorldCom in accordance
with Clause 3.6.2, MCI WorldCom shall perform such works as MCI
WorldCom reasonably deems to be required to remedy the defects
notified to MCI WorldCom. Upon the completion of such works the
provisions of Clauses 3.2 to 3.9 shall apply.
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3.8 In the event that any defects notified to MCI WorldCom in accordance
with Clause 3.6.2 shall be attributable to the equipment of Telemonde
or otherwise to an act or omission of Telemonde or its agents, MCI
WorldCom shall be entitled to invoice Telemonde for any costs
reasonably incurred in investigating and remedying such defects in
accordance with Clause 3.7, such invoice being payable in accordance
with Clause 5.5, in which case the date of signature by MCI WorldCom
of the Acceptance Certificate shall in this case by the RFS Date.
3.9 In the event that Telemonde shall fail within the timescales set out
in Clauses 3.6 to deliver a notice to MCI WorldCom, it shall be deemed
to have accepted such Capacity and to have counter-signed the
Acceptance Certificate on the date of signature of such Acceptance
Certificate by MCI WorldCom and the date of signature of such
Acceptance Certificate by MCI WorldCom shall be the RFS Date.
4. OPERATIONS AND MAINTENANCE PROCEDURES
4.1 The parties shall comply, and Telemonde shall procure the compliance
of the Telemonde Customers, with the Operations and Maintenance
Procedures in respect of the performance of Scheduled Maintenance and
Emergency Works and the reporting and rectification of Faults. MCI
WorldCom shall have no obligation to comply with Operations and
Maintenance Procedures in respect of any Telemonde Customer in respect
of whom Telemonde has not provided MCI WorldCom with the information
set out in Clause 12.5.
4.2 MCI WorldCom shall furnish the Capacity and shall cause the Capacity
to be maintained in accordance with the terms of the C&MA.
5. PAYMENT
5.1 In consideration for the obligations and undertakings of MCI WorldCom
set out in this Agreement, Telemonde shall pay the Charges in
accordance with the provisions of this Clause 5.
5.2 MCI WorldCom shall be entitled to invoice Telemonde for the Purchase
Price on or after the date of signature hereof.
5.3 MCI WorldCom shall be entitled to invoice Telemonde for the Annual
Charges annually in advance on or about 1 January of each year.
Liability for payment of the Annual Charge due in respect of each Unit
of Capacity shall commence on the earlier of the relevant RFS Date
and 30 June 1999. The Annual Charges for the partial year commencing
on the relevant RFS Date or 30 June 1999 shall be pro-rated and MCI
WorldCom shall be entitled to invoice Telemonde for such pro-rated
amount for each Unit of Capacity on or after the earlier of those two
dates.
5.4 Telemonde shall pay or shall procure payment to MCI WorldCom of US$
6,500,000 (being the portion of the Purchase Price applicable to the
first Unit activated) by no later than 10 a.m. on 12 April 1999 into a
bank account designated by MCI
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WorldCom. Telemonde acknowledges that the obligation to pay this
amount in accordance with this Clause 5.4 is a material obligation
for the purposes of Clause 9.3.
5.5 Telemonde shall make payment for all Charges or other amounts duly
invoiced to it in accordance with this Clause 5 (other than the
portion of the Purchase Price applicable to the first Unit) within
thirty (30) days of the date of delivery to it of an invoice.
5.6 Telemonde acknowledges that the Charges are exclusive of VAT (or such
other similar taxes as may be levied from time to time) which shall be
invoiced to and payable by Telemonde in accordance with this Clause 5
where applicable.
5.7 On receiving any payment of or towards the purchase price for the
second Unit of Capacity from a Telemonde Customer under an end user
capacity supply agreement, Telemonde shall immediately pay such amount
(up to the Purchase Price owing in respect of such Unit) into a bank
account controlled and operated jointly by MCI WorldCom and Telemonde,
in accordance with the Designated Account Agreement dated
31 March 1999.
5.8 Subject to Clause 5.10, MCI WorldCom shall be entitled to charge and
receive interest on any sums (other than the portion of the Purchase
Price applicable to the second Unit) which are overdue at the rate of
3% above the LIBOR Rate until the date of payment in full, whether
before or after any judgment. Such interest shall be calculated and
shall accrue on a daily basis.
5.9 Subject to Clause 5.10, MCI WorldCom shall be entitled to charge and
receive interest on any portion of the Purchase Price applicable to
the second Unit of Capacity, if such amount has not been paid to MCI
WorldCom in full on or by the earlier of:
5.9.1 30 June 1999; and
5.9.2 a date three Business Days after the earlier of: (1) the date
on which Telemonde receives payment of the purchase price in
full for such Unit from the relevant Telemonde Customer, and
(ii) the RFS Date plus 30 days,
at the rate of 3% above the LIBOR Rate, calculated from the earlier
of the dates specified in this Clause 5.9 until the date of payment
to MCI WorldCom in full, whether before or after any judgment. Such
interest shall be calculated and shall accrue on a daily basis.
5.10 In the event that Telemonde shall, by notice to MCI WorldCom, request
activation of a Unit of Capacity on or prior to a Target date being a
date prior to 30 June 1999 and the RFS Date in respect of such Unit of
Capacity is delayed beyond that date due to MCI WorldCom's default,
then, notwithstanding the provisions of Clauses 5.8 and 5.9, MCI
WorldCom shall only be entitled to charge and receive interest on
the portion of the Annual Charge and Purchase Price relating to such
Unit of Capacity from the later of the dates specified in Clauses 5.8
and 5.9 in respect of such Unit of Capacity and the RFS Date. Such
interest shall be at the rate of 3% above LIBOR Rate, calculated from
the later of the dates specified in this Clause 5.10 until the date
of payment in
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full, whether before or after any judgment, and shall be calculated
and shall accrue on a daily basis.
6. USE OF CAPACITY
6.1 Telemonde shall grant or shall procure the grant to MCI WorldCom of
such rights of access to each Site and shall provide to MCI WorldCom
such facilities and information as MCI WorldCom may reasonably
require to enable it to perform its obligations and exercise its
rights under this Agreement.
6.2 Telemonde acknowledges that, where the provision by MCI WorldCom of
the Capacity shall require the modification of any equipment of
Telemonde or Telemonde Customer, MCI WorldCom shall not be liable
for the performance of any works entailed in effecting such
modification and such works shall be the sole responsibility of and
shall be performed at the sole expense of Telemonde or relevant
Telemonde Customer.
6.3 Telemonde warrants and undertakes that it shall, and where a London
Site is a third party site, shall procure that a third party shall:
6.3.1 house the Service Equipment in accordance with MCI WorldCom's
reasonable instructions as may be given from time to time;
6.3.2 not move, modify, relocate or in any way interfere with the
Service Equipment;
6.3.3 not cause the Service Equipment to be repaired, serviced or
otherwise attended to otherwise than by an authorised
representative of MCI WorldCom;
6.3.4 not let, sell or transfer any Service Equipment nor create or
allow any mortgage, charge, lien, pledge or other encumbrance
or security interest whatsoever to be placed on the Service
Equipment;
6.3.5 not use the Service Equipment except in accordance with such
reasonable instructions as MCI WorldCom may from time to time
give;
6.3.6 permit MCI WorldCom to inspect or test the Service Equipment at
all reasonable times;
6.3.7 upon termination of this Agreement, permit MCI WorldCom access
to each Site to facilitate the removal of the Service
Equipment.
6.3.8 not, through its use of any Telemonde Equipment or otherwise,
cause any interruption of, or interference to, the MCI WorldCom
Network, prevent the use of similar equipment by other owners,
operators or users of the MCI WorldCom Network, impair privacy
of any communications over the MCI WorldCom Network or cause
damage to any plant or equipment or create hazards to any user,
owner or operator of the MCI WorldCom Network.
6.4 Telemonde may, at its option, by notice in writing, request access to
any Unit of Capacity at the Porthcurno cable station or other access
point. MCI WorldCom shall,
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on delivery of such notice, discuss with Telemonde in good faith the
technical and commercial feasibility of such access. Telemonde
acknowledges that the provision of such access shall in all cases be
subject to payment by Telemonde of MCI WorldCom's and any third party's
reasonable costs in providing such access.
6.5 If MCI WorldCom and Telemonde agree to provide access to the Porthcurno
cable station in accordance with Clause 6.4, MCI WorldCom shall, on
Telemonde's request, use reasonable endeavors to facilitate the onward
connection of that Unit on to the Flag cable system through the
interconnection at the Porthcurno cable station facility. Telemonde
acknowledges that MCI WorldCom does not represent or warrant that onward
connection will be possible, available or permitted.
7 WARRANTIES
7.1 MCI WorldCom represents to, warrants and covenants with Telemonde as
follows:
7.1.1 MCI WorldCom is duly organised and validly existing under the laws
of its State or jurisdiction of organisation, and has the
requisite authority to execute this Agreement and to perform its
obligations hereunder;
7.1.2 This Agreement constitutes a valid and binding obligation of MCI
WorldCom, enforceable against MCI WorldCom in accordance with its
terms;
7.1.3 MCI WorldCom has obtained, and shall use commercially reasonable
efforts to maintain in good standing, all such consents,
approvals, licences, permits and other approvals, both
governmental and private, as may be necessary (as at the date of
performance) to permit MCI WorldCom to perform its obligations
under this Agreement; and
7.1.4 MCI WorldCom shall perform its obligations under this Agreement in
a manner consistent with applicable law.
7.2 Save as expressly provided herein, no warranties, conditions,
representations or agreements are expressed or implied by MCI WorldCom in
relation to the Capacity. Notwithstanding anything to the contrary in this
Agreement, MCI WorldCom does not warrant or present that the Capacity
will be fault-free and any implied warranties and conditions of any nature
are hereby expressly excluded.
7.3 Telemonde represents to, warrants and covenants with MCI WorldCom as
follows:
7.3.1 Telemonde is a limited liability company, duly organised and
validly existing under the laws of its State or jurisdiction of
organisation, is qualified to do business in all jurisdiction
(domestic and foreign) in which such qualification is required
by applicable law, and has the requisite authority to execute this
Agreement and to perform its obligations hereunder;
7.3.2 This Agreement constitutes a valid and binding obligation of
Telemonde, enforceable against Telemonde in accordance with its
terms;
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7.3.3 There are no pending and, to Telemonde's knowledge, no threatened
claims, actions, suits, audits, investigations or proceedings by
or against Telemonde which could have an adverse effect on
Telemonde's ability to perform its obligations under this
Agreement.
7.3.4 Telemonde has obtained, and shall use commercially reasonable
efforts to maintain in good standing, and shall ensure that all
third parties with whom it has entered into an agreement for the
purchase or use of part or all of the Capacity have so obtained
and so maintain, all such consents, approvals, licenses, permits
and other approvals, both governmental and private, as may be
necessary (as at the date of performance) to permit Telemonde to
perform its obligations under this Agreement and to permit
Telemonde and such third parties to acquire and use the Capacity;
7.3.5 Telemonde shall not create or permit to exist, any liens,
encumbrances or charges to be placed upon the Capacity or
Telemonde's rights under this Agreement other than liens,
encumbrances or charges of financial institutions or others
against Telemonde's assets generally in connection with financing
arrangements by Telemonde;
7.3.6 Telemonde shall perform its obligations under this Agreement and
use the Capacity in a manner consistent with applicable law, and
shall not use the Capacity, or permit the Capacity to be used, for
any illegal purpose or in any other unlawful manner; and
7.3.7 Telemonde shall use the Capacity and shall cause all other persons
using the Capacity to use such Capacity in such a manner so as not
to cause any interruption of, or interference to, the MCI WorldCom
Network or the use of any other capacity on the MCI worldCom
Network.
8. LIABILITY
8.1 Subject to Clause 8.3 and save in respect of any amounts due and owing in
accordance with Clause 5 and save in respect of any liability arising out
of a party's wilful default, but notwithstanding anything else in this
Agreement, each party's liability to the other in contract, tort
(including negligence or breach of statutory duty) or otherwise arising in
connection with this Agreement shall be limited to:
8.1.1 one million pounds ((pound sign)1,000,000) per event or series of
connected events; and
8.1.2 two million pounds ((pound sign)2,000,000 in any twelve (12) month
period.
8.2 Subject to Clause 8.3 but notwithstanding anything else in this Agreement,
neither party shall in any event be liable to the other in contract, tort
(including negligence or breach of statutory duty) or otherwise for
indirect or consequential losses under or arising in connection with this
Agreement including, but not limited to, loss of business, revenues,
anticipated savings or profit.
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8.3 Nothing in this Agreement shall be deemed to limit either party's
liability in respect of death or personal injury caused by or arising from
that party's negligence or of fraud.
8.4 Should any limitations or provision contained in this Clause 8 be held to
be invalid under any applicable statute or rule of law, it shall to that
extent be deemed omitted.
9. TERM, TERMINATION AND SUSPENSION
9.1 This Agreement shall come into effect on the date hereof and shall,
subject to earlier termination in accordance with this Clause 9 or Clause
10.5, continue in effect for the Cable Lifetime.
9.2 Either party may terminate this Agreement by service on the other party of
notice in writing, having effect forthwith, if the other party shall
become insolvent or have an administrator, receiver or administrative
receiver appointed over a substantial part of its assets or go into
liquidation (whether compulsory or voluntary) otherwise than for the
purposes of amalgamation or reconstruction or be subject to an order for
dissolution by a court of competent jurisdiction or shall make any
compromise or arrangement with its creditors or make an application a
court of competent jurisdiction for protection from creditors or have any
form of execution or distress levied upon, or an encumbrancer take
possession of or sell, a substantial part of its assets or cease to carry
on business, or if, an equivalent event occurs in relation to that party
in any jurisdiction, PROVIDED THAT, if Telemonde has paid the Purchase
Price to MCI WorldCom in full in respect of any Unit of Capacity in
accordance with this Agreement and MCI WorldCom is the terminating party
under this Clause 9.2, then:
9.2.1 MCI WorldCom shall give Telemonde and Communications Collateral
Limited seven (7) days' notice in writing of termination under
this Clause 9.2;
9.2.2 during such notice period, the relevant Telemonde Customer may, at
its option, enter into an agreement in a form reasonably approved
by MCI WorldCom or, in the case of Communications Collateral
Limited, the form of the transmission capacity resale agreement
entered into between Communications Collateral Limited and
Telemonde (as approved by MCI WorldCom); and
9.2.3 the rights of a Telemonde Customer to any Unit of Capacity under
any agreement entered into under clause 9.2.2 shall be unaffected
by and survive termination of this Agreement.
9.3 Either party may terminate this Agreement by service on the other party of
not less than thirty (30) days' notice in writing specifying a material
breach by the other party of a material obligation (excluding an
obligation to pay the charges other than the portion of the Purchase Price
applicable to the first Unit) and requiring that the breach is remedied,
such notice only taking effect where that breach is not remedied during
such period, PROVIDED THAT, if:
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9.3.1 the Purchase Price has been paid to MCI WorldCom in full in
respect of the first Unit of Capacity in accordance with
Clause 5.4;
9.3.2 MCI WorldCom is the terminating party under this
Clause 9.3; and
9.3.3 neither Communications Collateral Limited nor any of its end
customers nor any person with an interest in or right to all
or part of the Capacity obtained through Communications
Collateral Limited has caused or contributed to such breach.
then:
9.3.4 MCI WorldCom shall give Telemonde and Communications Collateral
Limited seven (7) days' notice in writing of termination under
this Clause 9.3;
9.3.5 during such notice period, Communications Collateral Limited
may, at its option, enter into an agreement with MCI WorldCom
in the form of the transmission capacity resale agreement
entered into between Communications Collateral Limited and
Telemonde (as approved by MCI WorldCom), and Communications
Collateral Limited warrants and undertakes that immediately
upon entry into that agreement it shall not be in breach of
its terms;
9.3.6 the rights of Communications Collateral Limited to the first
Unit of Capacity under an agreement entered into under Clause
9.3.5 shall be unaffected by and survive termination of this
Agreement; and
9.3.7 MCI WorldCom acknowledges that Communications Collateral
Limited is not required to remedy the breach giving rise to
termination of this Agreement by MCI WorldCom under this
Clause 9.3.
9.4 In the event that MCI WorldCom has not received payment in full of the
Annual Charge in respect of a Unit of Capacity on the applicable due
date, MCI WorldCom shall be entitled to suspend service across such
Unit of Capacity on giving seven (7) Business Days' notice in writing
to Telemonde. MCI WorldCom shall restore service across such Unit of
Capacity only on receipt by MCI WorldCom of payment by Telemonde of
that Annual Charge, together with a restoration fee of 25% of such
Annual Charge. In the event that the overdue Annual Charge and
restoration fee are not paid on or by 1 January of the year following
the date of the notice of suspension of service, MCI WorldCom shall be
entitled to revoke the IRU and lease granted in respect of such Unit
of Capacity, with immediate effect. Notwithstanding any other
provision of this Agreement, MCI WorldCom acknowledges that it has no
revocation rights in respect of the first Unit of Capacity during the
term of the Agreement other than as set out in this Clause 9.4.
9.5 Subject to Clause 9.6, MCI WorldCom shall be entitled to revoke the
IRU and lease granted in respect of the second Unit of Capacity
activated on giving seven (7) Business Days' notice in writing to
Telemonde in the event that MCI WorldCom has not received the
Purchase Price on or by the earlier of:
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9.5.1 30 June 1999; and
9.5.2 a date three Business Days after the earlier of: (i) the date on
which Telemonde receives payment of the purchase price in full
for such Unit from the relevant Telemonde Customer, and (ii) the
RFS Date plus 30 days.
9.6 Clauses 7, 8, this Clause 9.6 and Clauses 11, 13 and 21 shall continue in
full force and effect notwithstanding termination of this Agreement.
9.7 Termination of this Agreement shall not operate as a waiver of any breach
by a party of any of the provisions hereof and shall be without prejudice
to any rightful remedies of either party which may arise as a consequence
of such breach or which may have accrued hereunder up to the date of such
termination.
10. FORCE MAJEURE
10.1 Subject to compliance with Clauses 10.2, 10.3 and 10.4, any delay or
failure to perform an obligation under this Agreement by a party (the
"affected party") shall not constitute a breach of this Agreement to the
extent that it is caused by an event of Force Majeure.
10.2 The affected party shall promptly notify the other party in writing of
the estimated extent and duration of the affected party's inability to
perform its obligations.
10.3 Upon the cessation of the event of Force Majeure, the affected party
shall promptly notify the other party in writing of such cessation.
10.4 The affected party shall use all reasonable endeavours to mitigate the
effect of each event of Force Majeure.
10.5 If, following three months from the date of notification under
Clause 10.2, the event of Force Majeure persists, the unaffected party
may forthwith terminate this Agreement by service of notice in writing on
the affected party.
11. CONFIDENTIALITY
11.1 Subject to Clauses 11.2 and 11.3, in respect of Confidential Information,
each party shall:
11.1.1 use such Confidential Information only for the purposes of this
Agreement;
11.1.2 disclose such Confidential Information to a third party only with
the prior written consent of the other party or in accordance
with Clause 11.3; and
11.1.3 ensure that any third party to whom Confidential Information is
disclosed under Clause 11.1.2 or 11.3 executes a confidentiality
undertaking on the terms of this Clause 11.
11.2 The provisions of Clause 11.1 shall not apply to any Confidential
Information which:
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11.2.1 is in or comes into the public domain other than by default of
the recipient party;
11.2.2 is or has already been independently generated by the recipient
party;
11.2.3 is in the possession of or is known by the recipient party prior
to its receipt from the disclosing party; or
11.2.4 is properly disclosed pursuant to and in accordance with a
relevant statutory or regulatory obligation or (with the prior
consent of either party, such consent not to be unreasonably
withheld) to obtain or maintain any listing on a stock exchange.
11.3 Either party may disclose the Confidential Information provided to it to
any Associated Company and to its professional advisors if and to the
extent that such disclosure is required in the performance of its
obligations hereunder.
12. ASSIGNMENT AND SUBCONTRACTING
12.1 This Agreement is personal to the parties hereto and neither party shall,
without the prior consent in writing of the other (such consent not to be
unreasonably withheld or delayed), assign, charge or otherwise deal with
the whole or any part of this Agreement or its rights or obligations
hereunder other than to or in favour of any Associated Company of such
party.
12.2 In the event of an assignment under clause 12.1, the assignor shall
ensure that:
12.2.1 not less than fourteen (14) days' prior notice in writing of such
assignment is given to the other party;
12.2.2 the assignee shall enter into an agreement with the other party
whereby the assignee shall agree to be bound by the terms of this
Agreement and, if required by the other party, the assignor shall
guarantee the performance of this Agreement by the assignee; and
12.2.3 In case of an assignment to an Associated Company, the assignor
shall procure that all parts, rights and obligations of this
Agreement that have been assigned are immediately reassigned to
the assignor if that assignee ceases to be an Associated Company.
12.3 Either party may delegate the performance of its obligations hereunder to
any Associated Company. Such party shall, notwithstanding such
delegation, remain liable to the other party for the acts and omissions
of such Associated Company as if they were its own acts and omissions.
12.4 MCI WorldCom agrees that Telemonde shall be entitled to grant rights to
one or more Units of Capacity to third party end users, provided that the
following conditions are met to MCI WorldCom's reasonable satisfaction:
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12.4.1 the terms and conditions of such grant (other than price and the
payment terms for the purchase price) do not materially deviate from
the end user capacity supply agreement approved by MCI WorldCom;
12.4.2 Telemonde shall have notified MCI WorldCom of the identity of the
end user prior to execution of the relevant end user capacity supply
agreement;
12.4.3 MCI WorldCom must have approved the financial standing of the end
user (such approval not to be unduly delayed nor unreasonably
withheld). MCI WorldCom shall only refuse approval of an end user on
the basis of objective documentary evidence that indicates that the
end user would be unable or is unlikely to meet its payment
obligations under the relevant end user capacity supply agreement on
an ongoing basis;
12.4.4 MCI WorldCom must receive the benefit of the representations,
warranties and covenants in Clauses 6.3 and 7.3 from the end user in
relation to itself;
12.4.5 Telemonde must have executed a deed of assignment by which it
assigns to MCI WorldCom by way of security all present and future
rights to receive payment from the end user under the end user
capacity supply agreement; and
12.4.6 Telemonde must have delivered to the end user a notice of the
assignment referred to in Clause 12.4.5 in the form annexed to the
deed of assignment.
Any grant of rights to a Unit of Capacity other than in accordance with
this Clause 12.4 shall be of no effect. Notwithstanding any grant by
Telemonde of the Capacity to a third party, Telemonde shall remain liable
for the performance of its obligations hereunder. Telemonde acknowledges
that the Deed of Assignment dated 31 March 1999 and the Designated Account
Agreement 31 March 1999 apply both to this Agreement and to any contractual
arrangements made with Telemonde Customers.
12.5 In the event that Telemonde grants rights to one or more Units of Capacity
pursuant to Clause 12.4, for the purposes of administering the network
operation centre of the Gemini cable network (the "NOC"), Telemonde shall
notify MCI WorldCom of such grant and shall provide MCI WorldCom with the
following information: (a) the name and address of the Telemonde Customer;
(b) the interest in the Capacity transferred; (c) the name, address,
telephone number, facsimile number and e-mail address of the person
(including appropriate escalation parties and procedures) authorised on
behalf of the Telemonde Customer to interact with the NOC and (if
different) the contact name, address, telephone number and fax number of
the Telemonde Customer's local network operations centre or equivalent; (d)
a certification by Telemonde that, notwithstanding such grant, Telemonde
shall be fully liable for the performance of all its obligations under this
Agreement; and (e) any other information as MCI WorldCom may reasonably
request.
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13. PUBLICITY
Neither party shall without the prior approval in writing of the other
(such approval not to be unreasonably withheld) directly or indirectly make
any release or statement to the press, radio, television or other media in
any way connected with this Agreement.
14. SEVERABILITY
14.1 The invalidity or unenforceability for any reason of any part of this
Agreement shall not prejudice or affect the validity or enforceability of
the remainder of this Agreement.
14.2 If further lawful performance of this Agreement or any part of it shall be
made impossible by the final judgement or final order of any court of
competent jurisdiction, commission or government agency or similar
authority having jurisdiction over either party, the parties shall
forthwith use their reasonable endeavours to agree amendments to this
Agreement so as to comply with such judgement or order.
15. VARIATION
No variation, modification or addition to or deletion of any provision of
this Agreement shall be effective unless agreed in writing by a duly
authorised representative of MCI WorldCom and of Telemonde.
16. PARTNERSHIP
Nothing herein shall be deemed to constitute a partnership or joint venture
between the parties or to constitute one party the agent of the other for
any purpose whatsoever.
17. WAIVER
Failure by either party at any time to enforce any of the provisions of
this Agreement shall neither be construed as a waiver of any rights or
remedies hereunder nor in any way affect the validity of this Agreement or
any part of it. No waiver shall be effective unless given in writing and no
waiver of a breach of this Agreement shall constitute a waiver or any
antecedent or subsequent breach. No single or partial exercise of a right
or remedy provided by this Agreement or by law prevents further exercise of
the right or remedy or the exercise of another right or remedy.
18. NOTICES
18.1 Any notice required or authorised by this Agreement shall be in writing
sent by prepaid registered post or facsimile transmission (immediately
confirmed by post) and shall be deemed to have been received forty-eight
(48) hours after such posting or transmission. Any such notices shall be
addressed as follows:
To MCI WorldCom: To Telemonde:
C/- MCI WorldCom Limited Telemonde International Bandwidth Limited
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00 Xxxxx Xxx Xxxx Xxxxxxxx Xxxxx
Xxxxxx XX0X 0XX 0 Xxxx Xxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: General Counsel Attention: M.B. Xxxxxxx
Fax: 0000 000 0000 Fax: + 0 000 000 0000/6260
Copy to: Account Manager Copy to: Xxx Xxxxxxx
(Telemonde) Director, Legal Services
Copy to: WorldCentre MCI WorldCom
Xxxxxx Xxxxxxxx Xxxxxx 000
0000 XX
Xxxxxxxxx
the Netherlands
Fax: + 00 00 000 0000 Fax: 0000 000 0000
18.2 Telemonde shall notify MCI WorldCom promptly following the date of this
Agreement of the contact name, address and facsimile number for
Communications Collateral Limited.
18.3 Either party may amend its address and facsimile number specified in
Clause 18.1 or the address and facsimile number notified in Clause 18.2 by
notice to the other party.
19. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties
relating to the Capacity and supersedes all previous agreements,
understandings or commitments between the parties or representations or
warranties made by either party whether oral or written with respect to the
Capacity. Each party warrants to the other that it has not relied on any
such agreement, understanding, commitment, representation or warranty
(whether oral or in writing) in entering into this Agreement.
20. NO EXCLUSIVE REMEDY
Except where this Agreement expressly provides otherwise, the rights and
remedies contained in this Agreement are cumulative and not exclusive of
rights and remedies provided by law.
21. GOVERNING LAW
21.1 This Agreement shall be governed and construed in accordance with English
law.
21.2 The parties hereby submit to the non-exclusive jurisdiction of the English
courts.
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22. COUNTERPARTS
This Agreement may be executed in counterparts and shall, if signed by an
authorised signatory of each of the parties hereto, be deemed to have been
duly executed.
AS WITNESS the hands of the duly authorised representatives of the parties at
the date first above written
for and on behalf of )
MCI WORLDCOM GLOBAL NETWORKS U.S., INC. )
illegible
-----------------------------------------
for and on behalf of )
MCI WORLDCOM GLOBAL NETWORKS LIMITED )
illegible
-----------------------------------------
for and on behalf of )
TELEMONDE INTERNATIONAL BANDWIDTH LIMITED ) /s/ X. Xxxxxxxx
X. Xxxxxxxx
Director
------------------------------------------
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