Exhibit 10.18
EXECUTION COPY
CAPACITY RIGHT OF USE AGREEMENT
THIS AGREEMENT, dated as of the 8th day of October 1999, is among FLAG
ATLANTIC LIMITED, a company organised under the laws of Bermuda and having
its principal office at The Emporium Building, 69 Front Street, 4th Floor,
Hamilton, Bermuda, FLAG ATLANTIC USA LIMITED, a company organised under the
laws of Delaware, USA and having its principal office at 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, XXX, (together hereinafter referred
to as "FA-1") and GTE GLOBAL NETWORKS INCORPORATED ("GTE"), a Delaware
corporation having its principle office 0 Xxx xx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000, XXX.
WITNESSETH:
WHEREAS, except as set out below, FLAG Atlantic Limited is constructing and will
directly and/or indirectly own, operate and maintain a fiberoptic cable system
to be known as FLAG Atlantic-1 as more fully described in Schedule 1 (the
"System"); and
WHEREAS, FLAG Atlantic USA Limited is constructing and will own all that part of
the System that is within the territory (including the territorial waters) of
the United States of America; and
WHEREAS, the System is currently scheduled to go into service in stages with the
initial stage, as more particularly described in Schedule 1, ("Initial Stage")
currently scheduled to go into service on or about 31 March 2001 ("Scheduled
Initial RFS Date"); and
WHEREAS, GTE desires to acquire from FA-1, and FA-1 is willing to provide to
GTE, an indefeasible right of use ("IRU") (except as otherwise provided herein)
in the capacity on the System as set out in Schedule 2A or 2B, as applicable
(the "Capacity"); and
WHEREAS, FA-1 and GTE (the "Parties") desire to define the terms and conditions
under which the Capacity will be acquired by GTE.
NOW, THEREFORE, the Parties hereby agree as follows:
1. PURCHASE OF CAPACITY
1.1 Individual units of Capacity as set out in Schedule 2A or 2B, as
applicable, (each a "Unit") shall be available for activation in
tranches (each a "Tranche") pursuant to the delivery schedule set out
in Schedule 6A or 6B, as applicable. GTE agrees to acquire the IRU
(except as otherwise provided herein) in the Capacity in Tranche 1 and
has the option to acquire the IRU (except as otherwise provided herein)
in the Capacity in Tranches 2, 3, 4 and (if applicable) 5 for the
purchase price set forth in Schedule 2A or 2B, as applicable (the
"Purchase Price"), subject to the terms and conditions of this
Agreement. GTE may exercise its option to acquire the Capacity in
Tranches 2, 3, 4 and (if applicable) 5 by notice to FA-1 ***. GTE shall
by the earlier of ***
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Confidential Treatment has been requested with respect to the portions of
this agreement marked with three asterisks (***) and the redacted material has
been filed separately with the Securities and Exchange Commission.
notify FA-1 whether Schedule 2A or 2B shall apply to this Agreement
(and if GTE fails to give such notice by the required date Schedule 2A
shall apply). If Schedule 2A applies then Schedule 6A shall apply and
if Schedule 2B applies then Schedule 6B shall apply.
1.2 FA-1 shall notify GTE of the actual date upon which the Initial
Stage of the System is able to carry commercial traffic ("Initial
RFS Date"). Subject to the foregoing, when GTE wishes to activate
one or more units of Capacity as set out in Schedule 2A or 2B, as
applicable, (each a "Unit") it shall provide FA-1 with a notice
("Activation Notice") indicating the number of Units of Capacity that
GTE wishes to activate ("Requested Capacity") and a proposed
activation date for each Unit of Capacity. An Activation Notice for
Units of Capacity in a Tranche shall not be valid unless GTE has
activated all the Capacity within the previous Tranche.
1.3 ***
1.4 FA-1 shall:
1.4.1 Provide to GTE the circuit designations within one day after
receipt of an Activation Notice from GTE; and
1.4.2 Provision the Requested Capacity within *** days (*** days in
the case of the initial Requested Capacity to be activated
following the Initial RFS Date) after receipt of an Activation
Notice for such Requested Capacity in accordance with the
standards described in Schedule 7.
1.5 Subject to GTE paying the Purchase Price in accordance with the terms
of this Agreement, GTE shall have the right, subject to the terms of
this Agreement, to use such Requested Capacity from the date
provisioned under clause 1.4.2 until the System is decommissioned.
1.6 GTE shall be entitled to collocation pursuant to a collocation
agreement to be negotiated between the Parties within 90 days of the
execution of this Agreement, based on the principles set out in
Schedule 4.
1.7 Nothing set forth in this Agreement shall require GTE to use purchased
Capacity for transport of communications until such time as (a) GTE, in
its sole discretion, determines to use such purchased Capacity, and (b)
GTE has obtained all necessary approvals to use such purchased
Capacity.
1.8 GTE shall have an ownership interest in the Capacity as provided herein
but GTE shall have no legal title or ownership in the physical assets
of the System itself, including any proceeds from the disposition of
the System.
1.9 In the event that (i) after using commercially reasonable efforts, FA-1
does not have the underlying rights to grant an IRU in portions of the
System located in France, England and between France and England and/or
(ii) if any jurisdiction in which the System is located does not
currently recognize or does not recognize in the future the conveyance
of communications facilities on an IRU basis and/or (iii) FA-1 chooses
not to obtain an IRU on the portion of the System located in England
that FLAG Atlantic Limited or a subsidiary will not own outright, then
as to the Capacity on such portions of the System or within such
jurisdiction(s) only, this Agreement shall be considered an agreement
for a lease of such Capacity ("Lease").
1.10 In the event that this Agreement is to be treated as a Lease for any
portion of the Capacity, then as to such portion only, the terms
"purchase" and any variations thereon shall mean "lease" or the
appropriate variation thereof, and the terms "indefeasible right of
use" and "IRU" shall mean "Lease." Any other terms and conditions of
this Agreement also shall be deemed modified only
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to the extent necessary to be consistent with the grant of a lease to
GTE. All other terms and conditions of this Agreement shall remain
unchanged and fully valid and enforceable.
2. PAYMENTS
2.1 GTE shall pay to FA-1 the Purchase Price for Capacity to be acquired
pursuant hereto as follows (and all such payments shall be
non-refundable except as otherwise provided in clause 4):
2.1.1 GTE shall pay to FA-1 the Purchase Price for Capacity in
Tranche 1 pursuant to the payment schedule set out in Schedule
3.
2.1.2 If GTE exercises its option in clause 1.1 to acquire Capacity
in Tranche 2, 3, 4 or (if applicable) 5 it shall pay *** of
the Purchase Price specified for the Capacity in that Tranche
on notice to FA-1 of the exercise of its option, with the
remaining *** of the Purchase Price being payable when such
Capacity has passed the bringing-into-service tests specified
in Schedule 7.
2.2 GTE shall pay to FA-1 such amounts for the operation and maintenance of
the System as are set forth in, or determined pursuant to, Schedule 5
("O&M Payments").
2.3 FA-1 shall render to GTE invoices for amounts payable pursuant to this
Agreement. Invoices for the Purchase Price shall be rendered in
accordance with clause 2.1. Invoices for O&M Payments shall be rendered
pursuant to Schedule 5. All invoices shall be due and payable within 30
days after receipt by GTE.
2.4 If GTE disputes any invoiced amount for O&M payments in good faith, GTE
must provide to FA-1, on or before the due date of the invoice,
reasonable notice and a detailed explanation of the basis of the
dispute, and pay any undisputed amount in accordance with this
Agreement. *** The parties will make a good faith effort to resolve all
billing disputes as expeditiously as possible.
2.5 FA-1 shall maintain complete and accurate records of all amounts
billable to and payments made by GTE under this Agreement and in
accordance with generally accepted accounting principles. FA-1 shall
retain and preserve such records in accordance with FA-1's standard
record-retention practices during the term of this Agreement and for
a period of three years after expiration or termination of this
Agreement. FA-1 will provide GTE at GTE's request, reasonable
supporting documentation concerning any invoice amount to GTE ***.
2.6 Any amount payable pursuant to this Agreement which is not paid when
due shall accrue interest at the annual rate of *** above the U.S.
Dollar LIBOR for one month as quoted in THE WALL STREET JOURNAL on the
first business day of the month in which the payment is due or the
maximum rate permitted under the laws of the State of New York, USA,
whichever is less. All such default interest shall accrue from the day
following the date payment of the relevant amount was due until it is
paid in full and shall accrue both before and after judgement. Such
interest shall be payable on demand. ***
2.7 All amounts payable by GTE pursuant hereto shall be paid in full in
U.S. dollars by wire transfer, free and clear of all bank or transfer
charges to such account(s) as FA-1 may by notice to GTE designate
without reduction for any deduction or withholding for or on account of
any tax, duty or other charge of whatever nature imposed by any taxing
authority in lieu of a direct tax on FA-1 in connection with its
income. If GTE is required by law to make any deduction or withholding
from any payment hereunder, GTE shall pay such additional amount to
FA-1 so that after such deduction or withholding the net amount
received by FA-1 will be not less than the
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amount FA-1 would have received had such deduction or withholding not
been required. GTE shall make the required deduction or withholding,
shall pay the amount so deducted or withheld to the relevant
governmental authority and shall promptly provide FA-1 with evidence
of such payment.
2.8 In the case of payments of the Purchase Price, until the Initial RFS
Date there shall be such controls over the account(s) designated by
FA-1 pursuant to clause 2.7 so as to ensure that payments of the
Purchase Price may only be used to make timely payments required to be
made by FA-1 in connection with the planning, design, construction and
project management of the System. Any interest arising from amounts
held in the account(s) shall accrue for the benefit of FA-1.
2.9 GTE's obligation to pay the Purchase Price and other amounts shall not
be subject to any rights of set-off, counterclaim, deduction, defence
or other right which GTE may have against FA-1 or any other party under
this Agreement or otherwise.
3. TAXES
Save as the context requires or as otherwise stated herein all
references to payments made in this Agreement are references to such
payments exclusive of all applicable sales and use taxes, gross
turnover taxes, value added taxes, or other similar turnover or sales
based taxes, excise taxes, duties and levies chargeable under
applicable law in respect of the supply for which the payment is or is
deemed to be consideration. Where applicable, such taxes shall be added
to the invoice and shall be paid to FA-1 at the same time as the
relevant invoice is settled in accordance with clause 2. FA-1 shall be
solely responsible for payment of taxes on its income and, except as
provided in clause 2.7, for withholding taxes, including, but not
limited to, social security and payroll taxes for its employees. GTE
shall be solely responsible for payment of taxes on its income and for
withholding taxes, including, but not limited to, social security and
payroll taxes for its employees. Neither Party shall have any liability
for such taxes which are to be borne by the other Party. Each Party
indemnifies the other Parties and their respective affiliates for all
claims, losses, penalties, interest, attorney's fees, and costs and
expenses, including litigation costs, arising from any failure to make
timely payment of such taxes, duties, and fees such Party is required
to pay under this Agreement. Each Party shall co-operate in any effort
by any other Party to contest application or payment or to seek refunds
of any such taxes, duties, and levies.
4 DEFAULT AND TERMINATION
4.1 In the event that GTE shall have failed to pay any portion of the
Purchase Price for Capacity in Tranche 1 for more than *** days after
its due date, then FA-1 may deactivate all then activated Capacity (and
refuse to activate any additional Capacity) until GTE has paid in full
all amounts overdue together with applicable default interest provided
that prior to such deactivation, FA-1 shall notify GTE in writing of
its concern regarding the overdue payment and shall provide GTE with an
opportunity to discuss this matter with FA-1 in order to reach an
amicable solution to the issue of non-payment and avoid deactivation.
***
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4.2 If such default in payment of any portion of the Purchase Price for
Capacity in Tranche 1 continues for a further period of *** days FA-1
may in its discretion by notice to GTE, either:
4.2.1 require GTE forthwith to pay the unpaid balance of the
Purchase Price for Capacity in Tranche 1; or
4.2.2 terminate this Agreement and relieve GTE of its obligation to
pay any portion of the Purchase Price which has not yet become
due and its right to acquire Capacity pursuant hereto.
Neither such termination of this Agreement nor the exercise by FA-1 of
such remedy shall relieve GTE of its obligation to pay amounts already
due hereunder plus default interest thereon.
4.3 In the event that GTE shall have failed to pay any amount (including
O&M Payments) payable by GTE pursuant hereto (and not being disputed in
good faith) for more than *** days after its due date, then GTE shall
not be entitled to activate any additional Capacity or to exercise its
option to acquire any additional Capacity in Tranche 2, 3, 4 or (if
applicable) 5 pursuant to clause 1.1 until GTE has paid in full all
amounts overdue together with applicable default interest. If such
failure continues for a further *** days, FA-1 shall be entitled to
refrain from performing any services for GTE required by this Agreement
and to deny GTE the right of access to collocated spaces until GTE has
paid in full all amounts overdue together with applicable default
interest.
4.4 FA-1 reserves the right to temporarily or permanently deactivate all
then activated Capacity (and refuse to activate any additional
Capacity) and/or to disconnect GTE's equipment from the System in the
event GTE's use of the System may result in material damage or
disruption to the System provided that where practicable FA-1 shall
notify GTE prior to such deactivation or disconnection and shall
provide GTE with an opportunity to discuss this matter with FA-1 in
order to reach a solution to avoid deactivation or disconnection.
4.5 Except as provided herein, GTE shall have no right to terminate or
cancel this Agreement for any reason whatsoever. If the Initial RFS
Date has not occurred within *** months after the Scheduled Initial RFS
Date *** GTE may by two months written notice terminate its purchase of
the Capacity. GTE shall have no obligation to make any further payments
under this Agreement following such termination and FA-1 shall within
60 days of such termination refund to GTE any portion of the Purchase
Price already paid by GTE to FA-1 which has not been used to make
timely payments required to be made by FA-1 in connection with the
planning, design, construction and project management of the System.
Subject to clause 20.1, the foregoing shall be the limit of GTE's
rights for delays to the Initial RFS Date.
5. OPERATION AND MAINTENANCE
5.1 FA-1 shall be responsible for the operation and maintenance of the
System including arranging for the repair of the System in the event of
any fault. FA-1 shall use reasonable commercial efforts to operate
and maintain the System in accordance with acceptable industry
standards and by reference to Schedule 7, provided that except in the
case of FA-1's gross negligence or wilful misconduct FA-1 shall not be
liable to GTE for any loss or damage sustained by reason of any
failure in or breakdown of the facilities constituting the System or
any interruption of GTE's use of the Capacity, regardless of the cause
of such failure, breakdown or interruption, and regardless of how long
it shall last. GTE's sole responsibility with regard to operation and
maintenance of the System shall be to make the O&M Payments as and when
they become due pursuant to this Agreement.
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5.2 FA-1 shall promulgate procedures for the maintenance, use and operation
of the System according to standards generally accepted in the ocean
cable industry meeting the standards of Schedule 7 and shall provide
GTE with a copy thereof. FA-1 may, from time to time, amend such
procedures and shall provide GTE with a copy of each amendment.
6. RESTORATION
FA-1 shall provide restoration on the System as set forth in Schedule
1. If such restoration is not sufficient for GTE, then GTE shall be
responsible for making its own restoration arrangements for Capacity
which is then activated.
7. SYSTEM ENHANCEMENTS, UPGRADES AND ADDITIONAL CAPACITY
7.1 FA-1 reserves the right to further upgrade the capacity of the System
and to make any enhancements to the System from time to time. FA-1
shall provide at least 45 days advance notice for System upgrades or
enhancements. FA-1 shall use reasonable efforts to minimise the
interruption, interference or impairment of the System caused by the
implementation of any such enhancement or upgrade and will consult with
GTE in determining the date, time and expected duration of any such
interruption, interference or impairment.
7.2 GTE shall have the right to acquire the IRU in the Capacity in Tranches
2, 3, 4 and (if applicable) 5 pursuant to clause 1.1 whether or not
FA-1 upgrades the capacity of the System in accordance with clause 7.1.
8. SYSTEM DECOMMISSIONING
The System shall be decommissioned at such time, no earlier than 15
years and no later than 25 years from the Initial RFS Date, as either
FA-1 or the holders of three quarters of the then activated capacity on
the System determine that the System is technically obsolete or has
reached the end of its useful economic life. There shall be no
compensation payable to GTE whether GTE voted for or against
decommissioning. This provision is without prejudice to the rights of
FA-1 to decommission the System without any liability to GTE
whatsoever, in the event of a Force Majeure Event which makes it
impossible to maintain the business efficacy of the System. FA-1 will
notify GTE of the possibility of any such decommissioning of the System
by FA-1 and give due consideration to GTE's position and concerns
regarding such possible decommissioning when considering whether to
decommission the System.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 GTE represents and warrants to FA-1 as follows:
9.1.1 GTE is duly established and in good standing under the laws of
Delaware and has full power and authority to enter into this
Agreement.
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9.1.2 This Agreement constitutes the legal, valid and binding
obligation of GTE, enforceable against GTE in accordance with
its terms.
9.1.3 GTE has obtained or will obtain all necessary consents,
licenses, permits and other approvals, both governmental and
private, as may be necessary to permit GTE to perform its
obligations under this Agreement and to acquire and use the
Capacity.
9.1.4 GTE shall perform its obligations under this Agreement and use
the Capacity in a manner consistent with applicable law, and
shall not use, or permit the Capacity to be used, for any
illegal purpose or in any other unlawful manner.
9.2 FA-1 represents and warrants to GTE as follows:
9.2.1 It is duly established and in good standing under the laws of
the country of its incorporation and has full power and
authority to enter into this Agreement.
9.2.2 This Agreement constitutes its legal, valid and binding
obligation enforceable against it in accordance with its
terms.
9.2.3 FA-1 shall perform its obligations under this Agreement and
construct, acquire, provide, sell, operate, and maintain the
System and Capacity in a manner consistent with applicable
law.
9.2.4 No interruption or impairment of GTE's use of the Capacity
will be as a result of the System failing to comply with the
"Year 0000 Xxxxxxxx" provided below.
"Year 0000 Xxxxxxxx" means the System and its components
accurately processes date/time data from, into, and between
the twentieth and twenty-first centuries and the years 1999
and 2000.
9.3 FA-1 will, to the extent applicable, comply with the Government
Requirements set forth in Schedule 8 in the performance of this
Agreement. Reference to "Seller" in Schedule 8 shall be deemed to be
references to FA-1.
9.4 FA-1 will use commercially reasonable efforts to obtain all necessary
consents, licenses and permits and other approvals, both governmental
and private, as may be necessary to permit FA-1 to perform its
obligations under this Agreement and to construct, acquire, operate,
provide, sell, operate and maintain the System and Capacity.
9.5 Except as provided above, FA-1 disclaims, and GTE waives, all
representations and warranties regarding the Capacity, including any
warranty of merchantability or fitness for a particular use, and in
particular, without limiting the foregoing FA-1 does not warrant that
the Capacity will be uninterrupted or error free or that the Capacity
will meet GTE's requirements for the equipment to be deployed by GTE in
connection with the Capacity or services to be offered by GTE utilising
this equipment.
10. FORCE MAJEURE
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"Force Majeure Event" means fire, strike, embargo, any requirement
imposed by government regulation, civil or military authorities, act of
God or by the public enemy, or other cause beyond a Party's reasonable
control. Default of any of FA-1's subcontractors or suppliers shall not
constitute a Force Majeure Event unless such default arises out of
causes beyond the reasonable control of both FA-1 and its
subcontractors or suppliers and without the fault or negligence of
either of them. No failure or omission by any Party to carry out or
observe any of the terms and conditions of this Agreement (other than
payment obligations) shall give rise to any claim against such Party or
be deemed a breach of this Agreement if such failure or omission arises
from a Force Majeure Event.
11. CONFIDENTIALITY
Other than in connection with an assignment permitted under clause 13,
or if it is required by applicable law in connection with the
enforcement of this Agreement, or as required under subpoena or rule of
order of a court or other governmental body of competent jurisdiction,
neither FA-1 nor GTE shall disclose the terms of this Agreement to any
third party without the prior written consent of the other Party.
Notwithstanding the foregoing, GTE may disclose this Agreement to
persons with whom it or its affiliates propose to merge, including, but
not limited to, GTE Corporation and its affiliates, and/or to any GTE
affiliate provided such affiliate is bound by these obligations of
confidentiality. In the event of a demand to disclose the Agreement
under such rule, order, or subpoena, the Party subject to such demand
shall where possible give prompt notice to the other Parties in advance
of disclosure to permit the other parties to seek reasonable protective
arrangements. Without limiting the generality of the foregoing, neither
FA-1 nor GTE shall issue any press release or otherwise publicise the
existence or the terms of this Agreement without the prior written
consent of the other Party.
12. NO LICENCE
Nothing in this Agreement shall or shall be deemed to give rise to any
right on the part of any Party to use any other Party's Intellectual
Property. For the purposes of this clause "Intellectual Property" means
any and all patents, trade marks, rights in designs, copyrights, and
topography rights, (whether registered or not and any applications to
register or rights to apply for registration of any of the foregoing),
rights in inventions, know-how, trade secrets and other confidential
information, rights in databases and all other intellectual property
rights of a similar or corresponding character which may now or in the
future subsist in any part of the world, and a Party's Intellectual
Property means Intellectual Property owned by or licensed to that Party
together with the goodwill relating thereto.
13. ASSIGNMENT
13.1 This Agreement and all the provisions hereof shall be binding upon and
inure to the benefit of the Parties hereto and their respective
successors and permitted assigns; provided that, except for the
assignment of FA-1's rights (but not FA-1's obligations) under this
Agreement to one or more financial institutions, lenders, creditors and
export credit agencies as collateral security for financing provided to
FA-1 or in connection with a sale of receivables by FA-1, neither this
Agreement nor any of the rights, interest or obligations hereunder
shall be assigned or
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transferred by any of the Parties hereto without the prior written
consent of the other Parties, and any attempted assignment or transfer
in violation of this clause shall be void. Notwithstanding the
foregoing, GTE may assign its rights, duties and obligations under
this Agreement upon notice to FA-1, but without FA-1's prior consent,
to GTE Affiliates or to any transferee of or successor to all or
substantially all of the business assets of GTE, provided:
13.1.1 the Affiliate, transferee or successor agrees to be
bound by all terms and conditions of this Agreement; and
13.1.2 the Affiliate, transferee or successor is authorised or
permitted under the laws and regulations of its country to
acquire and use the Capacity.
For the purposes of this clause, an "Affiliate" shall mean any other
entity that controls, is controlled by or is under common control with
GTE.
13.2 FLAG Atlantic Limited and FLAG Atlantic USA Limited may use
subcontractors or agents to fulfil their obligations hereunder.
14. ENTIRE AGREEMENT
This Agreement constitutes the whole agreement between the Parties and
supersedes any previous or contemporaneous agreements, arrangements or
understandings between them, oral or written, relating to the subject
matter hereof. Each of the Parties acknowledges that it is not relying
on any statements, warranties or representations given or made by any
of them, whether written or oral, relating to the subject matter
hereof, save as expressly set out in this Agreement.
15. VARIATION
No variation or amendment to this Agreement shall be effective unless
in writing signed by authorised representatives of each of the Parties.
16. HEADINGS
The Clause headings of this Agreement are for convenience of reference
only and are not intended to restrict, affect or influence the
interpretation or construction of provisions of such Clause.
17. SEVERABILITY
If any provision of this Agreement is found by an arbitral, judicial or
regulatory authority having jurisdiction to be void or unenforceable,
such provision shall be deemed to be deleted from this Agreement and
the remaining provisions shall continue in full force and effect.
18. WAIVER
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18.1 Failure by a Party at any time to enforce any of the provisions of this
Agreement shall neither be construed as a waiver of any rights or
remedies hereunder nor in any way affect the validity of this Agreement
or any part of it and no waiver of a breach of this Agreement shall
constitute a waiver of any subsequent breach.
18.2 Termination of this Agreement shall not operate as a waiver of any
breach by a Party of any of the provisions hereof and shall be without
prejudice to any rights or remedies of a Party which may arise as a
consequence of such breach or which may have accrued hereunder up to
the date of such termination.
18.3 No waiver of a breach of this Agreement shall be effective unless given
in writing.
19. NOTICE
19.1 Any notice, request, demand or other communication required or
permitted hereunder shall be sufficiently given if in writing in
English and delivered by hand or sent by prepaid registered or
certified mail (airmail if international), by facsimile or by prepaid
international courier service of international reputation addressed to
the appropriate Party at the following address or to such address as
such Party may from time to time designate in writing by notice sent in
accordance with this clause:
If to GTE:
GTE Global Networks Incorporated
0000 X. X'Xxxxxx Xxxxxxxxx
Xxxx Xxxxx
Xxxxxx
Xxxxx 00000
Attention: AVP Product Market Management
With copies to:
GTE Global Networks Incorporated
0000 Xxxxxxxx Xxxxx
Xxxxxx
Xxxxx 00000
Attention: Contract Management
If to FA-1:
FLAG Atlantic Limited
The Emporium Building
00 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx XX 12
Bermuda
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Attention: Co-chairmen
Tel: x0-000-000-0000
Fax: x0-000-000-0000
With a copy to:
FLAG Telecom Limited
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxxxxx X0X 0XX
U.K.
Attention: General Counsel
Tel: x00-000-000-0000
Fax: x00-000-000-0000
With a copy to:
GTS Carrier Services
Xxxxxxxxxxxxxxxxx 0X
Xxxxxxxxx 0000
Xxxxxxx
Attention: General Counsel
Tel: x000-000-0000
Fax: x000-000-0000
19.2 GTE acknowledges that all communications in connection with this
Agreement shall be between GTE and FLAG Atlantic Limited. For this
purpose, FLAG Atlantic USA Limited hereby appoints FLAG Atlantic
Limited as its agent to receive and send all communications in
connection with this Agreement.
19.3 Any notice, request, demand or other communication given or made
pursuant to this clause shall be deemed to have been received (i) in
the case of hand delivery or courier, on the date of receipt as
evidenced by a receipt of delivery from the recipient, (ii) in the case
of mail delivery, on the date which is seven days after the mailing
thereof, and (iii) in the case of transmission by facsimile, on the
date of transmission with confirmed answer back. Each such
communication sent by facsimile shall be promptly confirmed by notice
in writing hand-delivered or sent by courier, mail or air mail as
provided herein, but failure to send such a confirmation shall not
affect the validity of such communication.
20. LIABILITY
20.1 ***
20.2 Notwithstanding any other provision in this Agreement to the contrary,
no Party shall be liable to any other Party for any indirect, special,
punitive or consequential damages (including, but not limited to, any
loss of profit or business or claim from any customer for loss of
services)
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arising out of this Agreement or from any breach of any of the terms
and conditions of this Agreement.
20.3 ***
21. COUNTERPARTS
This Agreement may be executed in counterparts. Any single counterpart
or set of counterparts signed, in either case, by all the Parties
hereto shall constitute a full and original agreement for all purposes.
22. WAIVER OF IMMUNITY
The Parties acknowledge that this Agreement is commercial in nature,
and the Parties expressly and irrevocably waive any claim or right
which they may have to immunity (whether sovereign immunity or
otherwise) for themselves or with respect to any of their assets in
connection with an arbitration, arbitral award or other proceedings to
enforce this Agreement, including, without limitation, immunity from
service of process, immunity of any of their assets from pre- or
post-judgement attachment or execution and immunity from the
jurisdiction of any court or arbitral tribunal.
23. FA-1 FINANCIAL CLOSURE
23.1 The obligation of GTE to pay the Purchase Price (or any instalment
thereof) and the obligation of FA-1 to provide the Capacity is
conditional upon the occurrence of FA-1 Financial Closure.
23.2 If FA-1 Financial Closure has not occurred by 31 October 1999, then
this Agreement shall terminate (with the exception of clauses 11, 20,
22 and 24 which shall survive termination).
23.3 For the purposes of this Agreement, "FA-1 Financial Closure" shall be
deemed to take place on the date when FA-1 and its shareholders have
put in place arrangements satisfactory to them for the financing of the
construction of the System.
24. GOVERNING LAW AND DISPUTE RESOLUTION
24.1 This Agreement shall be governed by and construed in accordance with
the laws of the state of New York, United States of America, without
regard to the law of New York governing conflicts of law.
24.2 Except as otherwise provided herein, any dispute or controversy arising
under or in connection with this Agreement shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce
by one arbitrator appointed in accordance with such Rules. The place of
arbitration shall be London. The arbitration shall be conducted in
English. The decision and award resulting from such arbitration shall
be final and binding on the Parties. Judgement upon the arbitration
award may be rendered by any court of competent jurisdiction, or
application may be made to such court for a judicial acceptance of the
award and an order of enforcement.
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Insofar as permissible under the applicable laws, the Parties hereby
waive all rights to object to any action for judgement or execution
which may be brought before a court of competent jurisdiction on an
arbitration award or on a judgement rendered thereon.
25. NON-EXCLUSIVE MARKET RIGHTS
It is expressly understood and agreed that this Agreement does not
grant to FA-1 an exclusive privilege to sell or otherwise provide to
GTE any or all products and services of the type described in this
Agreement. It is, therefore, understood that GTE may contract with
other suppliers for the procurement of comparable products and
services.
26. AFFILIATE PURCHASES
Affiliates (which shall have the same meaning as that term is given in
clause 13.1) designated by GTE may acquire the Capacity in place of GTE
by issuing an order to FA-1 that incorporates this Agreement by
reference. Such Affiliates that order Capacity shall be entitled to all
the rights, and subject to all the obligations, of GTE under this
Agreement and as to orders by such Affiliates, references in this
Agreement to GTE shall be deemed to be references to such Affiliates.
27. SURVIVAL
Clauses 11, 20, 22 and 24 and any rights of a Party which have accrued
prior to the cancellation, termination, or expiration of this Agreement
shall survive such cancellation, termination, or expiration.
28. ***
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29. CUSTOMER INPUT
Following the Initial RFS Data, FA-1 shall collect views from its
customers on operation and maintenance (including assignment and
routing of capacity) of the System through such means as FA-1 shall
consider appropriate, including by way of periodic conference calls
with a representative sampling of such customers.
IN WITNESS WHEREOF, FA-1 and GTE have each caused this Agreement to be signed
and delivered by its duly authorised representatives, effective as of the date
first set forth above.
FLAG ATLANTIC LIMITED
/s/ Xxxxx Xxxxx
BY ________________________
Name: Xxxxx Xxxxx
Title: Director
FLAG ATLANTIC USA LIMITED
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
BY ________________________ BY ________________________
Name: Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Authorised Signatory Title: Authorised Signatory
GTE INTELLIGENT NETWORK SERVICES INCORPORATED
/s/ Xxxxxx X. Xxxxxxxxxx
By __________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Engineering GTEI
GTE GLOBAL NETWORKS INCORPORATED
/s/ Xxxx X. Xxxxxxx
By __________________________
Name: Xxxx X. Xxxxxxx
Title: Assistant Secretary-GNI
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