EXHIBIT 10.21
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TAX SHARING AND INDEMNIFICATION AGREEMENT
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Among
ATLANTIC TELE-NETWORK, INC.
EMERGING COMMUNICATIONS, INC.,
Xxxxxxxxx X. Prior, Jr.
and
Xxxxxxx X. Xxxxxxx
Dated December 30, 1997
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TAX SHARING AND INDEMNIFICATION AGREEMENT
This Tax Sharing and Indemnification Agreement is entered into as of
December 30, 1997 by and among Atlantic Tele-Network, Inc., a Delaware
corporation ("ATN"), Emerging Communications, Inc., a Delaware corporation
("ECI"), Xxxxxxxxx X. Prior, Jr. ("Prior") and Xxxxxxx X. Xxxxxxx ("Xxxxxxx").
Capitalized terms used in this Agreement are defined in Section 1 below. Unless
otherwise indicated, all "Section" references in this Agreement are to sections
of this Agreement.
RECITALS
WHEREAS, as of the date hereof ATN is the common parent of an affiliated
group of corporations, including ECI and Atlantic Aircraft, Inc., a Delaware
corporation ("Aircraft Corp."), which has elected to file consolidated Federal
and combined Delaware income tax returns; and
WHEREAS, the execution and delivery of this Agreement by the parties hereto
is contemplated by the Subscription Agreement dated as of August 11, 1997 (the
"Subscription Agreement") between ATN and ECI and is a condition to the Closing
(as defined in the Subscription Agreement); and
WHEREAS, as a result of the Transactions, ECI and Aircraft Corp. will cease
to be members of the affiliated group of which ATN is the common parent as of
the end of the day which is the Closing Date; and
WHEREAS, ATN, ECI, Prior and Xxxxxxx desire to provide for and agree upon
the allocation among them of liabilities for Taxes arising prior to and as a
result of the Transactions, and to provide for and agree upon other matters
relating to Taxes;
NOW THEREFORE, in consideration of the mutual agreements contained herein,
ATN, ECI, Prior and Xxxxxxx hereby agree as follows:
SECTION 1. Definition of Terms. For purposes of this Agreement (including
the recitals hereof), the following terms have the following meanings:
"Accounting Cutoff Date" means, with respect to each of ATN and ECI, any
date as of the end of which there is a closing of the financial accounting
records for such entity.
"Accounting Firm" shall have the meaning provided in Section 15.
"Affiliate" means any entity that directly or indirectly "controls" or is
"controlled" by the person or entity in question. "Control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through ownership
of voting securities, by contract or otherwise.
"Agreement" means this Tax Sharing and Indemnification Agreement.
"ATN Group" means ATN and its Affiliates as determined immediately after
the Transactions.
"Closing" means the Closing as that term is defined in the Subscription
Agreement.
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"Closing Date" means the Closing Date as that term is defined in the
Subscription Agreement.
"Code" means the U.S. Internal Revenue Code of 1986, as amended, or any
successor law.
"Companies" means ATN and ECI and "Company" means either ATN or ECI.
"Debits" shall have the meaning ascribed to it in the Subscription
Agreement.
"Distribution" means the distribution to certain ATN shareholders on the
Closing Date of all of the outstanding stock of ECI owned by ATN.
"ECI Group" means ECI and its Affiliates as determined immediately after
the Transactions.
"Federal Income Tax" means any Tax imposed by Subtitle A of the Code, or to
the extent related to such Tax, any Tax imposed by Subtitle F of the Code.
"Final Closing Adjustment" shall have the meaning ascribed to it in the
Subscription Agreement.
"Final Determination" means the final resolution of any Tax liability for a
Tax Period, including any related interest or penalties, by (i) a decision of
the Tax Court or judgment, decree, or other order by a court of competent
jurisdiction, which has become final and unappealable; (ii) IRS Form 870-AD (or
any successor forms thereto), on the date of acceptance by or on behalf of the
Internal Revenue Service, or by a comparable agreement form under other
applicable Tax Laws; except that a Form 870-AD or comparable form that by its
terms reserves the right of the taxpayer to file a claim for refund and/or the
right of the Tax Authority to assert a further deficiency shall not constitute a
final determination; (iii) a closing agreement under Section 7121 of the Code or
under corresponding provisions of any subsequently enacted federal Tax Laws, or
comparable agreements under other applicable Tax Laws; and (iv) any other final
disposition by reason of the expiration of the applicable statute of
limitations.
"Foreign Income Tax" means any Tax imposed by any foreign country or any
territory or possession of the United States, or by any political subdivision of
any foreign country or United States territory or possession, which is an income
tax as defined in Treasury Regulation Section 1.901-2.
"Group" means the ATN Group or the ECI Group, as the context requires.
"GT&T" means Guyana Telephone & Telegraph Company Limited, a Guyana
corporation.
"Income Tax" means any Federal Income Tax, State Income Tax, or Foreign
Income Tax.
"Intercompany Tax Allocation Agreements" means any written or oral
agreement or any other arrangements relating to allocation of Taxes existing
between ATN and Aircraft Corp. or any other member of the ECI Group in effect as
of the Closing Date (other than this Agreement).
"Letter Request" means the letter filed by ATN with the Internal Revenue
Service requesting a ruling from the Internal Revenue Service regarding certain
tax consequences of the Transactions, including the job descriptions of certain
officers and employees of ATN attached as Exhibit 9 to such letter and the
Revenue Procedure 96-30 Checklist attached as Exhibit 1 to such letter and any
amendment or supplement to such letter or such exhibits.
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"LLC" means a limited liability company organized under the laws of
Delaware of which Xxxxxxx is the sole beneficial owner, member and manager and
which, for United States federal tax purposes and United States Virgin Islands
tax purposes, is disregarded as an entity separate from Xxxxxxx under Treasury
Regulations Section 301.7701-3.
"Payment Date" means (i) with respect to any Tax Return relating to Federal
Income Taxes, the due date for any required installment of estimated taxes
determined under Code Section 6655, the due date (determined without regard to
extensions) for filing the Tax Return determined under Code Section 6072, and
the date the Tax Return is filed, and (ii) with respect to any Tax Return
relating to other Taxes, the corresponding dates determined under the applicable
Tax Law.
"Permitted Pledge" means a bona fide pledge of stock or securities of ATN
or ECI by Prior or Xxxxxxx or the LLC to a bank (including, without limitation,
the RTFC) or brokerage firm as collateral for a full recourse loan to Prior or
Xxxxxxx or a loan to the LLC with full recourse to Xxxxxxx.
"Post-Distribution Period" means any Tax Period beginning after the Closing
Date, and, in the case of any Straddle Period, the portion of such Straddle
Period beginning the day after the Closing Date.
"Pre-Distribution Period" means any Tax Period ending on or before the
Closing Date, and, in the case of any Straddle Period, the portion of such
Straddle Period ending on the Closing Date.
"Prime Rate" means the base rate on corporate loans charged by Citibank,
N.A., New York, New York from time to time, compounded daily on the basis of a
year of 365 or 366 (as applicable) days and actual days elapsed.
"Repurchase and Recapitalization Agreement" means that certain repurchase
and recapitalization agreement dated as of August 11, 1997 by and among ATN,
Prior, individually and as Trustee of the 1994 Prior Charitable Remainder Trust,
and Xxxxxxx.
"Responsible Company" means, with respect to any Tax Return, the Company
having responsibility for preparing and filing such Tax Return under this
Agreement.
"Restructuring Tax" means any Taxes resulting from any income or gain
recognized as a result of the Transactions including, without limitation, any
Taxes resulting from any income or gain recognized as a result of the
Transactions failing to qualify for tax-free treatment under Code Sections 355
or 361 or other provisions of the Code (as contemplated by the Ruling Request)
and any Taxes resulting from any income or gain recognized under Treasury
Regulations Section 1.1502-13 or 1.1502-19 (or any corresponding provisions of
other applicable Tax Laws) as a result of the Transactions.
"RTFC" means the Rural Telephone Finance Cooperative.
"Ruling Request" means the letter filed by ATN with the Internal Revenue
Service requesting a ruling from the Internal Revenue Service regarding certain
tax consequences of the Transactions (including all attachments, exhibits, and
other materials submitted with such ruling request letter) and any amendment or
supplement to such ruling request letter.
"Specified Action" shall have the meaning provided in Section 10.
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"Straddle Period" means any Tax Period that begins on or before and ends
after the Closing Date.
"State Income Tax" means any Tax imposed by any State of the United States
or by any political subdivision of any such State which is imposed on or
measured by net income, including state and local franchise or similar Taxes
measured by net income.
"Tainting Act" shall have the meaning provided in Section 10.
"Tax" or "Taxes" means any Income Tax, any Tax on gross income, gross
receipts, profits, or capital stock, or any franchise, withholding, payroll,
social security, workers compensation, unemployment, disability, property, ad
valorem, stamp, excise, severance, occupation, service, sales, use, license,
lease, transfer, import, export, value added, alternative minimum, estimated or
other similar tax (including any fee, assessment, or other charge in the nature
of or in lieu of any tax) imposed by any governmental entity or political
subdivision thereof, and any interest, penalties, additions to tax, or
additional amounts in respect of the foregoing.
"Tax Authority" means, with respect to any Tax, the governmental entity or
political subdivision thereof that imposes such Tax, and the agency (if any)
charged with the collection of such Tax for such entity or subdivision.
"Tax Contest" means an audit, review, examination, or any other
administrative or judicial proceeding with the purpose or effect of
redetermining Taxes or any claim for refund or credit of Taxes of any of ATN,
ECI or the Aircraft Corp. (including any administrative or judicial review
thereof) for any Tax Period ending on or before the Closing Date or any Straddle
Period.
"Tax Item" means, with respect to any Income Tax, any item of income, gain,
loss, deduction, or credit.
"Tax Law" means the law of any governmental entity or political subdivision
thereof relating to any Tax.
"Tax Period" means, with respect to any Tax, the period for which the Tax
is reported as provided under the Code or other applicable Tax Law.
"Tax Records" means Tax Returns, Tax Return workpapers, documentation
relating to any Tax Contests, and any other books of account or records required
to be maintained under the Code or other applicable Tax Laws or under any record
retention agreement with any Tax Authority.
"Tax Return" means any report of Taxes due, any claim for refund or credit
of Taxes paid, any information return with respect to Taxes, or any other
similar report, statement, declaration, or document required or permitted to be
filed under the Code or other Tax Law, including any attachments, exhibits, or
other materials submitted with any of the foregoing, and including any
amendments or supplements to any of the foregoing.
"Transactions" shall have the meaning ascribed to that term in the
Subscription Agreement.
"Transfer" shall have the meaning set forth in Section 11(a).
"Treasury Regulations" means the regulations promulgated from time to time
under the Code as in effect for the relevant Tax Period.
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SECTION 2. Allocation of Tax Liabilities. The provisions of this Section 2
are intended to determine each of ATN's, ECI's, Prior's and Xxxxxxx'x liability
for Taxes with respect to Pre-Distribution Periods. Once the liability has been
determined under this Section 2, Section 5 determines the time when payment of
the liability is to be made, and whether the payment is to be made to the Tax
Authority directly or to ATN or ECI, as the case may be.
2.01. Taxes of GT&T and the Virgin Islands Subsidiaries. This Agreement
does not allocate liability for Taxes imposed on GT&T, Atlantic Tele-Network
Co., a Virgin Islands corporation, or any of the subsidiaries of Atlantic
Tele-Network Co. (except for any withholding of Foreign Income Taxes imposed
with respect to payments made by any of such companies to ATN) and, as between
the parties to this Agreement, such Taxes and Tax Returns relating to such Taxes
shall be solely the responsibility of the legal entity on which such Taxes are
imposed.
2.02. ATN and ECI Liability.
(a) ATN Liability. Notwithstanding the provisions of Section 2.03, as
between ATN and ECI, ATN shall be liable for, and shall indemnify and hold
harmless the ECI Group from and against:
(i) any Restructuring Taxes which arise from any breach by ATN of its
representations or covenants under Section 10 or from any Tainting Act by ATN or
its Affiliates or the inaccuracy of any factual statements or representations
made in or in connection with the Ruling Request with respect to the activities
of ATN and its Affiliates after the Closing;
(ii) all Taxes to the extent taken into account in clauses (b) or (r) of
the definition of "Debits" for purposes of calculating the Final Closing
Adjustment;
(iii) an amount of Income Tax equal to the provision for income tax expense
of ATN which would be accrued on a hypothetical statement of operations of ATN
for the period after April 30, 1997 to and including the Closing Date which
statement of operations includes as revenues or gross income only dividends paid
by GT&T to ATN during such period, interest accrued during such period on
indebtedness of GT&T to ATN and advisory fees payable by GT&T to ATN during such
period (computed on an accrual basis) and includes as expense all expenses of
ATN during such period (to the extent such expenses are deductible for Income
Tax purposes) except for expenses charged to ECI under clauses (c), (j), (k),
(m), (n), (o), and (s) of the definition of "Debits" in the Subscription
Agreement;
(iv) any withholding of Foreign Income Taxes imposed with respect to
payments from GT&T to ATN; and
(v) 50% of all other Taxes (including Restructuring Taxes) of ATN or
Aircraft Corp. (in each case, whether computed on a separate company or
consolidated basis) with respect to all Pre-Distribution Periods, except for
Taxes described in clauses (i), (ii) or (iii) of Section 2.02(b).
(b) ECI Liability. Notwithstanding the provisions of Section 2.03, as
between ATN and ECI, ECI shall be liable for, and shall indemnify and hold
harmless the ATN Group from and against:
(i) Any Restructuring Taxes which arise from any breach by ECI of its
representations or covenants under Section 10 or from any Tainting Act by
ECI or its Affiliates or the inaccuracy of any fac-
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tual statements or representations made in or in connection with the Ruling
Request with respect to the activities of ECI and its Affiliates after the
Closing;
(ii) 100% of all Taxes of ECI (computed on a separate company basis)
for all Pre-Distribution Periods;
(iii) any withholding of Foreign Income Taxes imposed with respect to
payments from Atlantic Tele-Network Co. or any of its subsidiaries to ATN
except to the extent taken into account in clauses (b) or (r) of the
definition of "Debits" for purposes of calculating the Final Closing
Adjustment; and
(iv) 50% of all other Taxes (including Restructuring Taxes) of ATN or
Aircraft Corp. (in each case, whether computed on a separate company or
consolidated basis) for all Pre-Distribution Periods, except for Taxes
described in clauses (i), (ii), (iii) or (iv) of Section 2.02(a).
2.03. Liability of Prior and Xxxxxxx.
(a) Prior Liability. Prior shall be liable for, and shall indemnify and
hold harmless the ATN Group and the ECI Group from and against any liability
for, any Restructuring Taxes which arise from (x) any breach of Prior's
representations and covenants under Section 11(a) or (y) the inaccuracy of any
factual statements or representations relating to Prior or members of Prior's
family made in the Letter Request or in any certificate provided by Prior in
connection with the Ruling Request or in connection with an opinion of tax
counsel with respect to the Transactions.
(b) Xxxxxxx Liability. Xxxxxxx shall be liable for, and shall indemnify and
hold harmless the ATN Group and the ECI Group from and against any liability for
any Restructuring Taxes which arise from (x) any breach of Xxxxxxx'x
representations and covenants under Section 11(b) or (y) the inaccuracy of any
factual statements or representations relating to Xxxxxxx or members of
Xxxxxxx'x family made in the Letter Request or in any certificate provided by
Xxxxxxx in connection with the Ruling Request or in connection with an opinion
of tax counsel with respect to the Transactions.
2.04. Expenses. Each of ATN, ECI, Prior and Xxxxxxx shall be liable for all
fees, costs and expenses, including without limitation reasonable attorneys'
fees, arising out of, or incident to, any proceeding before any Tax Authority,
or any judicial authority, with respect to any Taxes for which it or he (as the
case may be) is liable under Section 2.02(a) (in the case of ATN), 2.02(b) (in
the case of ECI), 2.03(a) (in the case of Prior) or 2.03(b) (in the case of
Xxxxxxx). In addition, an indemnified party under Section 2.02 or 2.03 shall be
entitled to recover from the indemnifying party thereunder all fees, costs and
expenses, including without limitation reasonable attorneys' fees, incurred by
the indemnified party in connection with enforcement of its rights to
indemnification against the indemnifying party.
SECTION 3. Proration of Taxes for Straddle Periods.
3.01. General Method of Proration. For purposes of Section 2, in the case
of any Straddle Period, Tax Items shall be apportioned between Pre-Distribution
Periods and Post-Distribution Periods in accordance with the principles of
Treasury Regulation Section 1.1502-76(b). No election shall be made under
Treasury Regulation Section 1.1502-76(b)(2)(ii) (relating to ratable allocation
of a year's items). If the Closing Date is not an Accounting Cutoff Date, the
provisions of Treasury Regulation Section 1.1502-76(b)(2)(iii) will be applied
to ratably allocate the items (other than extraordinary items) for the month
which includes the Closing Date.
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3.02. Transaction Treated as Extraordinary Item. In determining the
apportionment of Tax Items between Pre-Distribution Periods and
Post-Distribution Periods, any Tax Item relating to the Transactions shall be
treated as an extraordinary item described in Treasury Regulation Section
1.1502-76(b)(2)(ii)(C) and shall be allocated to Pre-Distribution Periods, and
any Taxes related to any such Tax Item (including Restructuring Taxes) shall be
treated under Treasury Regulation Section 1.1502-76(b)(2)(iv) as relating to
such extraordinary item and shall be allocated to Pre-Distribution Periods.
3.03. Proration of Other Taxes. For purposes of Section 2, in the case of
any Straddle Period, Taxes that are not susceptible to apportionment in the
manner described in Section 3.01 (e.g., real and personal property taxes) shall
be apportioned between Pre-Distribution Periods and Post-Distribution Periods on
a pro rata basis based on the number of days in the relevant Tax Period.
SECTION 4. Preparation and Filing of Tax Returns.
4.01. General.
(a) All Tax Returns shall be prepared and filed when due (including
extensions) by the person obligated to file such Tax Returns under the Code or
applicable Tax Law. ATN and ECI shall provide, and shall cause their respective
Affiliates to provide, assistance and cooperate with one another in accordance
with Section 6 with respect to the preparation and filing of all Tax Returns,
including, without limitation, providing information required to be provided in
Section 6.
(b) ECI shall, for each Tax Period or portion thereof for which ECI or
Aircraft Corp. is included in a Tax Return required to be filed by ATN, provide
ATN with (i) a true and correct schedule in the form of a separate Federal
Income Tax Return for each of ECI and Aircraft Corp., and (ii) a reconciliation
of book income to federal taxable income for ECI and Aircraft Corp. ECI hereby
agrees to use its best efforts to provide ATN with such schedules and
computations no later than the first day of the sixth month following the end of
the period to which such schedules and computations relate.
4.02. Manner of Filing.
(a) All Tax Returns filed or caused to be filed by ATN or ECI after the
Closing Date shall be prepared on a basis that is consistent with (i) any IRS
ruling obtained by ATN in connection with the Transactions, (ii) the treatment
of ATN's purchase pursuant to Article I of the Repurchase and Recapitalization
Agreement of 416,998 shares of common stock at ATN owned by Prior and 384,564
shares of common stock of ATN owned by the 1994 Prior Charitable Remainder Trust
as distributions of property to which Section 301 of the Code applies, and (iii)
the treatment of the transactions contemplated by Article II of the Repurchase
and Recapitalization Agreement as tax-free to ATN, Prior and Xxxxxxx for Federal
Income Tax purposes by reason of such transactions qualifying as reorganizations
within the meaning of Section 368(a) of the Code or otherwise (in each case, in
the absence of a controlling change in law or circumstances), and shall be filed
on a timely basis by the Responsible Company.
(b) Except as otherwise agreed in writing by ATN and ECI, and in the
absence of a controlling change in law or circumstances, all Tax Returns filed
or caused to be filed by ATN or ECI after the Closing Date shall be prepared
consistent with past practices, elections, accounting methods, conventions, and
principles of taxation used for the most recent taxable periods for which Tax
Returns involving similar items have been filed prior to the Closing Date,
except that, with respect to any Tax Item not relating to the Transactions, one
party may take
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an inconsistent position without the agreement of the other party only to the
extent such position does not create a Tax detriment to the other party or any
member of such other party's Group.
SECTION 5. Tax Payments and Intercompany Xxxxxxxx.
5.01. Payment of Taxes With Respect to Pre-Distribution or Straddle Period
Returns Filed After the Distribution Date. In the case of any Tax Return
required to be filed by ATN under Section 4.01 with respect to a
Pre-Distribution Period or Straddle Period the due date for which Tax Return
(including extensions) is after the Closing Date, at least 10 business days
prior to any Payment Date, ATN (i) shall compute the amount of Tax required to
be paid to the relevant Tax Authority (taking into account the requirements of
Section 4.02(b) relating to consistent accounting practices) with respect to
such Tax Return on such Payment Date and (ii) shall send to ECI a written notice
and demand for payment by ECI of its share (if any) of such Tax payment
determined by ATN in accordance with Section 2.02(b) and accompanied by a
statement detailing the Taxes to be paid and describing in reasonable detail the
particulars relating thereto. ECI shall deliver to ATN on or before the business
day immediately preceding such Payment Date a cashier's check made to the order
of the applicable Tax Authority for the amount of ECI's share of such Tax
Payment, and ATN shall remit such check and make the remainder of such Tax
payment to the relevant Tax Authority on or before such Payment Date.
5.02. Payment of Tax Related to Adjustments. ATN shall pay to the relevant
Tax Authority when due any additional Taxes required to be paid as a result of
any adjustment to Taxes with respect to any Pre-Distribution Period. At least 10
business days before such additional Tax payment is due to be paid by ATN, ATN
shall send to ECI, Prior or Xxxxxxx, as the case may be, a written notice and
demand from ATN for payment by it or him, as the case may be, of its or his
share (if any) of any such additional Tax payment determined by ATN in
accordance with Section 2 accompanied by a statement detailing the Taxes to be
paid and describing in reasonable detail the particulars relating thereto;
provided, however, that ATN will not make a demand for an indemnification
payment attributable to any Restructuring Taxes under Section 2.02(b)(i) or 2.03
until the liability for such Restructuring Taxes either (i) is established by a
Final Determination or (ii) subject to Section 8.02, is otherwise agreed to in
writing by ATN with the applicable Tax Authority. ECI, Prior or Xxxxxxx, as the
case may be, shall pay to ATN, in immediately available funds, ECI's or his
share (if any) of any such additional Tax Payment on or before the business day
immediately preceding the date such additional Tax is due to be paid by ATN;
provided, however, that if any portion of such additional Tax payment is
indemnified by Prior or Xxxxxxx under Section 2.03, (x) ECI may reduce the
amount of its payment to ATN under this Section 5.02 in respect of such
additional Tax payment by 50% of the amount of any indemnification payment in
respect of such additional Tax payment actually received by ATN from Prior or
Xxxxxxx, as the case may be, on or prior to the date that ECI is required to
make such payment to ATN, and (y) ATN shall immediately remit to ECI 50% of the
amount of any indemnification payment in respect of such additional Tax payment
actually received by ATN from Prior or Xxxxxxx, as the case may be, after ECI
actually made a payment to ATN under this Section 5.02 in respect of such
additional Tax payment.
5.03. Indemnification Payments. Without overriding the procedures set forth
in Sections 5.01 and 5.02, if a Company (the "payor") pays to a Tax Authority a
Tax for which the other Company (the "responsible party") is liable under this
Agreement, the responsible party shall reimburse the payor within 10 business
days of delivery by the payor to the responsible party of an invoice for the
amount due, accompanied by evidence of payment and a statement detailing the
Taxes paid and describing in reasonable detail the particulars relating thereto.
The reimbursement shall include interest on the Tax payment computed at the
Prime Rate based on the number of days from the date of the payment to the Tax
Authority to the date of reimbursement under this Section 5.03.
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SECTION 6. Assistance and Cooperation.
6.01. General. After the Closing Date, each of ATN and ECI shall cooperate
(and cause their respective Affiliates to cooperate) with each other and with
each other's agents, including accounting firms and legal counsel, in connection
with Tax matters relating to ATN and ECI and their respective Affiliates
including, without limitation, (i) preparation and filing of Tax Returns, (ii)
determining the liability for and amount of any Taxes due (including estimated
Taxes) or the right to and amount of any refund of Taxes, (iii) examinations of
Tax Returns, and (iv) any administrative or judicial proceeding in respect of
Taxes assessed or proposed to be assessed. Such cooperation shall include making
all information and documents in their possession relating to the other Company
and its Affiliates reasonably available to such other Company as provided in
Section 7. Each of the Companies shall also make available to each other, as
reasonably requested and available, personnel (including officers, directors,
employees and agents of the Companies or their respective Affiliates)
responsible for preparing, maintaining, and interpreting information and
documents relevant to Taxes, and personnel reasonably required as witnesses or
for purposes of providing information or documents in connection with any
administrative or judicial proceedings relating to Taxes. Any information or
documents provided under this Section 6 shall be kept confidential by the
Company receiving the information or documents, except as may otherwise be
necessary in connection with the filing of Tax Returns or in connection with any
administrative or judicial proceedings relating to Taxes.
6.02. Income Tax Return Information. Each Company will provide to the other
Company information and documents relating to its Group required by the other
Company to prepare Tax Returns. The Responsible Company shall determine a
reasonable compliance schedule for such purpose in accordance with ATN's past
practices. Any additional information or documents the Responsible Company
requires to prepare such Tax Returns will be provided in accordance with past
practices, if any, or as the Responsible Company reasonably requests and in
sufficient time for the Responsible Company to file such Tax Returns timely.
SECTION 7. Tax Records.
7.01. Retention of Tax Records. Except as provided in Section 7.02, each of
ATN and ECI shall preserve and keep all Tax Records exclusively relating to the
assets and activities of its Group for Pre-Distribution Tax Periods and all
other Tax Records relating to Taxes of the Groups for Pre-Distribution Tax
Periods, for so long as the contents thereof may become material in the
administration of any matter under the Code or other applicable Tax Law, but in
any event until the later of (i) the expiration of any applicable statutes of
limitation, and (ii) seven years after the Closing Date. If, prior to the
expiration of the applicable statute of limitation and such seven-year period, a
Company reasonably determines that any Tax Records which it is required to
preserve and keep under this Section 7 are no longer material in the
administration of any matter under the Code or other applicable Tax Law, such
Company may dispose of such records upon 90 days prior notice to the other
Company. Such notice shall include a list of the records to be disposed of
describing in reasonable detail each file, book, or other record accumulation to
be disposed of. The notified Company shall have the opportunity, at its cost and
expense, to copy or remove, within such 90-day period, all or any part of such
Tax Records.
7.02. State and Foreign Income Tax Returns. Tax Returns with respect to
State Income Taxes and Foreign Income Taxes and workpapers prepared in
connection with preparing such Tax Returns shall be preserved and kept, in
accordance with the guidelines of Section 7.01, by the person responsible for
preparing and filing the applicable Tax Return.
7.03. Access to Tax Records. The Companies and their respective Affiliates
shall make available to each other for inspection and copying during normal
business hours upon reasonable notice all Tax Records in
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their possession to the extent reasonably required by the other Company in
connection with the preparation of Tax Returns, audits, litigation, or the
resolution of items under this Agreement.
SECTION 8. Tax Contests.
8.01. Notice. Each of ATN and ECI shall provide prompt notice to the other
and to Prior and Xxxxxxx of any pending or threatened Tax audit, assessment or
proceeding or other Tax Contest of which it becomes aware related to Taxes for
Tax Periods for which it is indemnified by the other or Prior or Xxxxxxx, as the
case may be, hereunder. Such notice shall contain factual information (to the
extent known) describing any asserted Tax liability in reasonable detail and
shall be accompanied by copies of any notice and other documents received from
any Tax Authority in respect of any such matters. If an indemnified party has
knowledge of an asserted Tax liability for which it is to be indemnified
hereunder and such party fails to give the indemnifying party prompt notice of
such asserted Tax liability, such failure to give notice will not relieve the
indemnifying party of its obligations hereunder, except to the extent that the
indemnifying party is materially prejudiced by such failure.
8.02. Control of Tax Contests. Each of ATN and ECI shall have full
responsibility and discretion in handling, settling or contesting any Tax
Contest involving a Tax Return for which it has filing responsibility pursuant
to Section 4 of this Agreement; provided, however, ECI, Prior or Xxxxxxx, at it
or his sole cost and expense, may participate in any Tax Contest with respect to
any Restructuring Taxes for which it or he has liability or an indemnification
obligation with respect to such Taxes under this Agreement; provided, further,
that ECI, at its sole cost and expense and employing Xxxxxx Xxxxxx & Xxxxxxx or
other counsel reasonably acceptable to ATN, shall be permitted to jointly share
with ATN, employing Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx or other counsel
reasonably acceptable to ECI, the responsibility and discretion in handling,
settling or contesting any Tax Contest with respect to any Taxes for which ECI
has liability or an indemnification obligation to ATN with respect to such
Taxes, unless ECI fails to provide to ATN a written acknowledgment of ECI's
potential liability for such Taxes or indemnification obligation to ATN with
respect to such Taxes within 10 business days of ECI's receipt of a written
request by ATN therefor. Except as otherwise provided in Section 2.04 hereof,
any costs incurred in handling, settling or contesting any Tax Contest shall be
borne by the party having full responsibility and discretion thereof.
SECTION 9. Effective Date; Termination of Prior Intercompany Tax Allocation
Agreements. This Agreement shall be effective on the Closing Date. Immediately
prior to the close of business on the Closing Date, all Intercompany Tax
Allocation Agreements shall be terminated.
SECTION 10. No Inconsistent Actions.
(a) Each of the Companies covenants and agrees that, except as disclosed in
the Letter Request, it will not take any action, and it will cause its
Affiliates to refrain from taking any action, which may be inconsistent with the
Tax treatment of the Transactions as contemplated in the Ruling Request (any
such action is referred to in this Section 10 as a "Tainting Act"), unless (i)
the Company or Affiliate thereof proposing such Tainting Act (the "Requesting
Party") either (A) obtains a ruling with respect to the Tainting Act from the
Internal Revenue Service or other applicable Tax Authority that is reasonably
satisfactory to the other Company (the "Requested Party") (except that the
Requesting Party shall not submit any such ruling request if a Requested Party
determines in good faith that filing such request might have a materially
adverse effect upon such Requested Party), or (B) obtains an unqualified
opinion, reasonably satisfactory in form and substance to Requested Party, of
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx or Xxxxxx Xxxxxx & Xxxxxxx or other
independent nationally recognized tax counsel acceptable to the Requested Party,
on a basis of assumed facts and representations consistent with
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the facts at the time of such action, that such Tainting Act will not affect the
Tax treatment of the Transactions as contemplated in the Ruling Request, or (ii)
the Requested Party consents in writing to such Tainting Act, which consent
shall be granted or withheld in the sole and absolute discretion of the
Requested Party. Without limiting the foregoing:
(i) Specified Actions. During the two-year period beginning on (and
including) the Closing Date, unless clause (i) or (ii) of the preceding
paragraph is satisfied with respect to the applicable action, and except as
disclosed in the Letter Request, ATN and ECI will not (and neither will
cause or permit any of its Affiliates to) (A) liquidate or merge with or
into any other corporation; (B) issue any capital stock that in the
aggregate exceeds 45%, by vote or value, of its capital stock issued and
outstanding immediately after the Distribution; (C) redeem, purchase or
otherwise reacquire its capital stock issued and outstanding immediately
after the Distribution (other than through stock purchases meeting the
requirements of section 4.05(1)(b) of Rev. Proc. 96-30); (D) make a
material disposition (including transfers from one member of a Group to
another member of that Group) or cessation of operations by means of a sale
or exchange of assets or capital stock, a distribution to stockholders, or
otherwise, of the assets constituting the trades or businesses relied upon
in the Ruling Request to satisfy Section 355(b) of the Code; or (E)
discontinue or cause to be discontinued the active conduct of the trades or
businesses relied upon in the Ruling Request to satisfy Section 355(b) of
the Code (each of the foregoing, a "Specified Action").
(ii) No Inconsistent Plan or Intent. Each of ATN and ECI represents
and warrants that it shall, and shall cause each of its Affiliates to,
comply with each factual statement and representation in the Ruling
Request, and that neither it nor any of its Affiliates has any plan or
intent to take any Specified Action or any action which is inconsistent
with any factual statements or representations in the Ruling Request.
Regardless of any change in circumstances, each of ATN and ECI covenants
and agrees that it will not take, and it will cause its Affiliates to
refrain from taking, any such Specified Action or inconsistent action on or
before the last day of the calendar year ending after the second
anniversary of the Closing Date other than as permitted in this Section 10.
(iii) Amended or Supplemental Rulings. Each of ATN and ECI covenants
and agrees that it will not file, and it will cause its Affiliates to
refrain from filing, any amendment or supplement to the Ruling Request
subsequent to the Closing Date without the consent of the other, which
consent shall not be unreasonably withheld.
(b) Notwithstanding anything to the contrary in this Agreement, each
Company shall be solely liable for, and shall indemnify and hold harmless the
other Company from any Restructuring Tax resulting from a Tainting Act by such
first Company or its Affiliates, regardless of whether clause (i) or (ii) of
Section 10(a) was satisfied with respect to such Tainting Act.
SECTION 11. Certain Representations and Covenants of Prior and Xxxxxxx.
(a) Representations and Covenants of Prior.
(i) Transfer Restrictions. Prior represents and warrants that he has no
plan or intention to sell, exchange, transfer by gift, pledge or otherwise
dispose of or encumber, whether actually or constructively by means of a
short sale, equity swap, forward or futures contract, option or otherwise
(collectively, a "Transfer") any stock or securities of ATN, or any
beneficial or financial interest therein, after the Transactions except for
Permitted Pledges. Prior covenants and agrees that during the two-year
period
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beginning on (and including) the Closing Date, without the prior written
consent of ECI (which consent ECI may grant or withhold in its sole
discretion), he will not Transfer any stock or securities of ATN, or any
beneficial or financial interest therein, except for Permitted Pledges,
unless he first obtains either (A) a ruling with respect to the Transfer
from the Internal Revenue Service or other applicable Tax Authority that is
reasonably satisfactory to ECI (acting on advice of counsel, such counsel
to be reasonably satisfactory to ATN) or (B) an unqualified opinion,
reasonably satisfactory in form and substance to ECI (acting on advice of
counsel, such counsel to be reasonably satisfactory to ATN), of Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx or other independent nationally
recognized tax counsel acceptable to ECI, on a basis of assumed facts and
representations consistent with the facts at the time of such Transfer,
that such Transfer will not affect the Tax treatment of the Transactions as
contemplated in the Ruling Request. In order to ensure compliance with the
requirements of this Section 11(a)(i), during the two-year period beginning
on (and including) the Closing Date, Prior shall maintain at least a
majority of the outstanding common stock of ATN (or all stock or securities
in ATN owned by him if he shall then own less than a majority of the
outstanding common stock of ATN) in accounts with one or more banks or
brokerage firms (collectively, "Financial Institutions"), which accounts
may be margin accounts, provided that each such Financial Institution shall
deliver a written undertaking to ECI stating that such Financial
Institution will not permit any Transfer of Mr. Prior's stock or securities
in ATN from such account without the prior written approval of ECI except
for (i) sales of such stock or securities made by such Financial
Institution for the purpose of obtaining repayment of any loans or advances
made to Prior by such Financial Institution following a default by Prior in
respect of such loans or advances, and (ii) any Transfer of such stock or
securities from an account of Prior with such Financial Institution to an
account of Prior with another Financial Institution which shall have given
ECI a written undertaking described in this Section 11(a)(i).
Notwithstanding anything to the contrary in this Agreement, Prior shall be
liable for, and shall indemnify and hold harmless the ATN Group and the ECI
Group from and against any liability for, any Restructuring Taxes which
arises out of any Transfer of any of his stock or securities in ATN or any
beneficial or financial interest therein (including, without limitation,
any sale of stock subject to a Permitted Pledge on foreclosure of such
pledge) regardless of whether the provisions of this Section 11(a)(i) were
satisfied with respect to such Transfer.
(ii) No Inconsistent Plan or Intent. Prior represents and warrants that he
has no plan or intent to cause ATN or any of its Affiliates to take any
Tainting Act (including any Specified Action) or any action inconsistent
with any factual statement or representation in the Letter Request. Prior
covenants and agrees that, so long as he owns a majority of the voting
power of the outstanding capital stock of ATN, he will cause ATN and its
Affiliates to refrain from taking any Tainting Act (including any Specified
Action) or any action inconsistent with any factual statement or
representation in the Letter Request on or before the last day of the
calendar year ending after the second anniversary of the Closing Date other
than as permitted in Section 10.
(b) Representations and Covenants of Xxxxxxx.
(i) Transfer Restrictions. Xxxxxxx represents and warrants that other than
a Transfer of ECI stock to the LLC, neither he nor the LLC has any plan or
intention to sell, exchange, transfer by gift, pledge or otherwise dispose
of or encumber, whether actually or constructively by means of a short
sale, equity swap, forward or futures contract, option or otherwise
(collectively, a "Transfer") any ownership interest, stock or securities of
ECI or the LLC, or any beneficial or financial interest therein, after the
Transactions except for Permitted Pledges. Xxxxxxx covenants and agrees
that during the two-year period beginning on (and including) the Closing
Date, without the prior written consent of ATN (which consent
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ATN may grant or withhold in its sole discretion), (x) neither he nor the
LLC will Transfer any ownership interest, stock or securities of ECI or the
LLC, or any beneficial or financial interest therein, except for Permitted
Pledges, (y) Xxxxxxx will remain the only beneficial owner, member and
manager of the LLC and (z) Xxxxxxx will not take and will not permit the
LLC to take any action which would result in the LLC not being disregarded
as an entity separate from Prosser for United States federal tax purposes
and United States Virgin Islands federal tax purposes under Treasury
Regulations section 301.7701-3, unless he first obtains either (A) a ruling
with respect to the Transfer, Xxxxxxx ceasing to be the only beneficial
owner, member and manager of the LLC or any such action referred to in the
preceding clause (z), as the case may be, from the Internal Revenue Service
or other applicable Tax Authority that is reasonably satisfactory to ATN
(acting on advice of counsel, such counsel to be reasonably satisfactory to
ECI) or (B) an unqualified opinion, reasonably satisfactory in form and
substance to ATN (acting on advice of counsel, such counsel to be
reasonably satisfactory to ECI), of Xxxxxx Xxxxxx & Xxxxxxx or other
independent nationally recognized tax counsel acceptable to ATN, on a basis
of assumed facts and representations consistent with the facts at the time
of such Transfer, or at the time that Xxxxxxx ceases to be the sole
beneficial owner, member and manager of the LLC or takes any action or
permits the LLC to take any action referred to in the preceding clause (z),
as the case may be, that such Transfer, Xxxxxxx ceasing to be the sole
beneficial owner, member and manager of the LLC or the taking of any action
referred to in the preceding clause (z), as the case may be, will not
affect the Tax treatment of the Transactions as contemplated in the Ruling
Request. In order to ensure compliance with the requirements of this
Section 11(b)(i), during the two-year period beginning on (and including)
the Closing Date, Xxxxxxx, together with the LLC, shall maintain at least a
majority of the outstanding common stock of ECI (or all stock or securities
in ECI owned by him and the LLC if he, together with the LLC, shall then
own less than a majority of the outstanding common stock of ECI) in
accounts with one or more banks (including, without limitation, the RTFC)
or brokerage firms (collectively, "Financial Institutions"), which accounts
may be margin accounts, provided that each such Financial Institution shall
deliver a written undertaking to ATN stating that such Financial
Institution will not permit any Transfer of Xx. Xxxxxxx'x or the LLC's
stock or securities in ECI from such account without the prior written
approval of ATN except for (i) sales of such stock or securities made by
such Financial Institution for the purpose of obtaining repayment of any
loans or advances made to Xxxxxxx or the LLC by such Financial Institution
following a default by Xxxxxxx or the LLC in respect of such loans or
advances, and (ii) any Transfer of such stock or securities from an account
of Xxxxxxx or the LLC with such Financial Institution to an account of
Xxxxxxx or the LLC with another Financial Institution which shall have
given ATN a written undertaking described in this Section 11(b)(i).
Notwithstanding anything to the contrary in this Agreement, Xxxxxxx shall
be liable for, and shall indemnify and hold harmless the ATN Group and the
ECI Group from and against any liability for, any Restructuring Taxes which
arises out of (w) any Transfer of any of his ownership interest, stock or
securities in ECI or the LLC or any beneficial or financial interest
therein (including, without limitation, any sale of stock subject to a
Permitted Pledge on foreclosure of such pledge) (x) any Transfer of any of
the LLC's stock or securities in ECI or any beneficial or financial
interest therein including, without limitation, any sale of Stock subject
to a Permitted Pledge on foreclosure of such pledge, (y) Xxxxxxx ceasing to
be the sole beneficial owner, member and manager of the LLC or (z) Xxxxxxx
taking any action or permitting the LLC to take any action which would
result in the LLC ceasing to be disregarded as an entity separate from
Prosser for United States federal tax purposes and United States Virgin
Islands federal tax purposes under Treasury Regulations section 301.7701-3,
as the case may be, regardless of whether the provisions of this Section
11(b)(i) were satisfied with respect to such Transfer.
(ii) No Inconsistent Plan or Intent. Xxxxxxx represents and warrants that
he has no plan or intent to cause ECI or any of its Affiliates to take any
Tainting Act (including any Specified Action) or any
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action inconsistent with any factual statement or representation in the
Letter Request. Xxxxxxx covenants and agrees that, so long as he owns a
majority of the voting power of the outstanding capital stock of ECI, he
will cause ECI and its Affiliates to refrain from taking any Tainting Act
(including any Specified Action) or any action inconsistent with any
factual statement or representation in the Letter Request on or before the
last day of the calendar year ending after the second anniversary of the
Closing Date other than as permitted in Section 10.
(c) Upon compliance by Prior or Xxxxxxx with the requirements for a
Transfer specified in Sections 11(a)(i) or 11(b)(i), ECI or ATN, as the case may
be, shall promptly give written permission for such Transfer to the Financial
Institution holding the stock or securities proposed to be Transferred.
SECTION 12. Survival of Obligations. The representations, warranties,
covenants and agreements set forth in this Agreement shall be unconditional and
absolute and shall remain in effect without limitation as to time.
SECTION 13. Treatment of Payments; Tax Gross Up.
13.01. Treatment of Tax Indemnity Payments. In the absence of any change in
tax treatment under the Code or other applicable Tax Law, any Tax indemnity
payments made by a Company under Section 5 shall be reported for Tax purposes by
the payor and the recipient as distributions or capital contributions, as
appropriate, occurring immediately before the Distribution on the Closing Date,
but only to the extent the payment does not relate to a Tax allocated to the
payor in accordance with Treasury Regulation Section 1.1502-33(d) (or under
corresponding principles of other applicable Tax Laws).
13.02. Tax Gross Up. If notwithstanding the manner in which Tax indemnity
payments were reported, there is an adjustment to the Tax liability of a Company
as a result of its receipt of a Tax indemnity payment in respect of
Restructuring Taxes resulting from a breach of a representation or covenant made
hereunder by the indemnifying party, such payment shall be appropriately
adjusted so that the amount of such payment, reduced by the amount of all Income
Taxes payable with respect to the receipt thereof, shall equal the amount of the
payment which the Company receiving such payment would otherwise be entitled to
receive pursuant to this Agreement.
SECTION 14. Disagreements. If after good faith negotiations the parties
cannot agree on the application of this Agreement to any matter, then the matter
will be referred to a nationally recognized accounting firm acceptable to each
of the parties (the "Accounting Firm"). The Accounting Firm shall furnish
written notice to the parties of its resolution of any such disagreement as soon
as practical, but in any event no later than 45 days after its acceptance of the
matter for resolution. Any such resolution by the Accounting Firm will be
conclusive and binding on all parties to this Agreement. In accordance with
Section 17, each party shall pay its own fees and expenses (including the fees
and expenses of its representatives) incurred in connection with the referral of
the matter to the Accounting Firm. All fees and expenses of the Accounting Firm
in connection with such referral shall be shared equally by the parties affected
by the matter.
SECTION 15. Late Payments. Any amount owed by one party to another party
under this Agreement which is not paid when due shall bear interest at the Prime
Rate plus two percent, compounded semiannually, from the due date of the payment
to the date paid. To the extent interest required to be paid under this Section
15 duplicates interest required to be paid under any other provision of this
Agreement, interest shall be computed at the higher of the interest rate
provided under this Section 15 or the interest rate provided under such other
provision.
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SECTION 16. Expenses. Except as provided in Section 14 and Section 2.04,
each party and its Affiliates shall bear their own expenses incurred in
connection with preparation of Tax Returns, Tax Contests, and other matters
related to Taxes under the provisions of this Agreement.
SECTION 17. General Provisions.
17.01. Addresses and Notices. Any notice, demand, request or report
required or permitted to be given or made to any party under this Agreement
shall be in writing and shall be deemed given or made when delivered in party or
when sent by first class mail or by other commercially reasonable means of
written communication (including delivery by an internationally recognized
courier service or by facsimile transmission) to the party at the party's
address as follows:
If to ATN or Prior:
Atlantic Tele-Network, Inc.
Estate Havensight
X.X. Xxx 00000
Xx. Xxxxxx, X.X. Xxxxxx Xxxxxxx 00000
(000) 000-0000 or 000-0000
Attention: Xxxxxxxxx X. Prior
Telecopy: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxx, P.C.
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Telecopy: (000) 000-0000
If to ECI or Xxxxxxx:
Atlantic Tele-Network, Inc.
Chase Financial Center
X.X. Xxx 0000
Xx. Xxxxx, X.X. Xxxxxx Xxxxxxx 00000-0000
(000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
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With a copy to:
Xxxxx Xxxxxxx, Esq.
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Telecopy: (000) 000-0000
A party may change the address for receiving notices under this Agreement
by providing written notice of the change of address to the other parties.
17.02. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their successors and assigns.
17.03. Waiver. No failure by any party to insist upon the strict
performance of any obligation under this Agreement or to exercise any right or
remedy under this Agreement shall constitute waiver of any such obligation,
right, or remedy or any other obligation, rights, or remedies under this
Agreement.
17.04. Invalidity of Provisions. If any provision of this Agreement is or
becomes invalid, illegal or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions contained herein shall
not be affected thereby.
17.05. Further Action. The parties shall execute and deliver all documents,
provide all information, and take or refrain from taking action as may be
necessary or appropriate to achieve the purposes of this Agreement, including
the execution and delivery to the other parties and their Affiliates and
representatives of such powers of attorney or other authorizing documentation as
is reasonably necessary or appropriate in connection with Tax Contests (or
portions thereof) under the control of such other parties in accordance with
Section 8.
17.06. Integration. This Agreement constitutes the entire agreement among
the parties pertaining to the subject matter of this Agreement and supersedes
all prior agreements and understandings pertaining thereto. In the event of any
inconsistency between this Agreement and any other agreements relating to the
Transactions, the provisions of this Agreement shall control.
17.07. Construction. The language in all parts of this Agreement shall in
all cases be construed according to its fair meaning and shall not be strictly
construed for or against any party.
17.08. No Double Recovery; Subrogation. No provision of this Agreement
shall be construed to provide an indemnity or other recovery for any costs,
damages, or other amounts for which the damaged party has been fully compensated
under any other provision of this Agreement or under any other agreement or
action at law or equity. Unless expressly required in this Agreement, a party
shall not be required to exhaust all remedies available under other agreements
or at law or equity before recovering under the remedies provided in this
Agreement. Subject to any limitations provided in this Agreement, the
indemnifying party shall be subrogated to all rights of the indemnified party
for recovery from any third party.
17.09. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
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17.10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts
executed in and to be performed in that State.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by the respective officers as of the date set forth above.
ATLANTIC TELE-NETWORK, INC.
By: /s/ Xxxxxxxxx X. Prior, Jr
-----------------------------------------
Its: Chief Executive Officer
-----------------------------------------
EMERGING COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Its: Chief Executive Officer
-----------------------------------------
/s/ Xxxxxxxxx X. Prior, Jr.
-----------------------------------------
Xxxxxxxxx X. Prior, Jr.
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
