ALL INFORMATION FURNISHED REGARDING PROPERTY FOR SALE. RENTAL OR FINANCING IS
FROM SOURCES DEEMED RELIABLE. BUT NO WARRANTY OR REPRESENTATION IS MADE AS TO
THE ACCURACY THEREOF AND ,SAME IS SUBJECT TO ERRORS. OMISSIONS. CHANGE OF PRICE.
RENTAL OR OTHER CONDITIONS. PRIOR SALE LEASE OR FINANCING OR WITHDRAWAL WITHOUT
NOTICE
CANUS 1 CABLE SYSTEM
INDEFEASIBLE RIGHT OF USE AGREEMENT
BETWEEN
TELEGLOBE CANTAT-3 INC.
AND
STARTEC INC.
TELEGLOBE REGISTRY NO.: TC3-229
THIS AGREEMENT, made and entered into as of September 15th, 1997 (the
"Effective Date").
BY AND BETWEEN:
TELEGLOBE CANTAT-3 INC., a corporation incorporated under the laws of
Barbados, having its principal office at 1st Floor, Building ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
(P.O. Box 1210, Bridgetown), ▇▇▇▇▇▇▇▇▇ Rock, St. ▇▇▇▇▇▇▇, BARBADOS, hereinafter
referred to as "TC-3";
AND:
STARTEC INC., a corporation incorporated under the laws of Maryland, having
its principal office at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.,
hereinafter referred to as the "Grantee".
WHEREAS TC-3 owns capacity on the CANUS I cable system (the "CANUS 1
System");
WHEREAS TC-3 is entitled to transfer capacity on the CANUS 1 System on an
indefeasible right of use ("IRU") basis;
WHEREAS the Grantee desires to acquire from TC-3, on an IRU basis, capacity
on the CANUS 1 System;
NOW, THEREFORE, the Parties agree as follows:
ARTICLE 1 INTERPRETATION
1.1 Definitions. This Section 1.1 lists all defined terms used in this
Agreement. Capitalized terms used in any provision of this Agreement and not
otherwise defined therein shall have the following meanings, respectively,
unless the context otherwise requires.
(A) "Agreement" shall mean this Agreement and the schedule attached
hereto, as amended from time to time;
(B) "Assignable Capacity" shall mean the capacity for sale, assignment
or disposition on the CANUS I System as determined from time to
time. The "Initial Assignable Capacity" of the CANUS I System is
equal to 1,260 half-MIUs;
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(C) "Branching Unit" shall mean a junction point for the CANUS I
System, and includes a housing and any associated plant and
equipment (including any spare plant and equipment);
(D) "Business Day" shall mean any day (except a Saturday, Sunday or
other day on which commercial banks in the United States are
authorized by law to close);
(E) "Dollar" and "dollars" and the symbol "$" shall mean lawful money
of the United States of America;
--
(F) "Effective Date" shall mean October, 15th 1997. This Agreement
shall be deemed to have taken effect as of the Effective Date,
notwithstanding the formal date of its execution by the Parties;
(G) "Libor" shall mean the London Inter-Bank Offered Rates;
(H) "MIU" shall mean a unit designated as the minimum unit of
investment between System Interfaces of the CANUS I System and
shall consist of a Virtual Container 12 (VC-12), allowing the use
of 2,048,000 bits per second (nominal 2 Mbit/s) digital stream.
MIU may be expressed in terms of whole or half-MIUs.
(I) "Parties" shall mean all of the parties hereto collectively; and
"Party" shall mean any one of them;
(J) "Person" shall mean an individual, corporation, company,
cooperative, partnership, trust or unincorporated association and
pronouns have a similarly extended meaning;
(K) "System Interface" shall be the input/output ports on a
distribution frame (excluding the distribution frame itself) which
shall terminate either electrical or optical connections from the
CANUS I System. These terminations shall be in accordance with
ITU-T recommendations G.703, G.708, G.709 and G.957 and shall be
of STM-1 and or 139,264,000 bit/s capacity. The distribution frame
shall be regarded as a system interface location where the CANUS 1
System connects with other transmission facilities or equipment.
The following terms are defined in the Sections indicated below.
TERM SECTION
"CANUS 1 System" Preamble
"Capacity" 2.1
"DISPUTE" 15.1
"Grantee" Preamble
"Granting Price"
3.1
"IRU" Preamble
"Losses" 14.1
"Proprietary Information" 16.5
"Representatives" 16.5
"Segment A" Schedule A
"SEGMENT A PRICE" 3.2
"Segment D" Schedule A
"TC-" Preamble
1.2 Gender. Any reference in this Agreement to any gender shall include all
genders and words used herein importing the singular number only shall include
the plural and vice versa.
1.3 Headings. The division of this Agreement into Articles, Sections,
Subsections and other Subdivisions and the insertion of headings are for
convenience of reference only and shall not affect or be utilized in the
construction or interpretation hereof.
1.4 Severability. Any Article, Section, Subsection or other Subdivision of this
Agreement or any other provision of this Agreement which is proven to be
illegal, invalid or unenforceable shall be severed herefrom and shall be
ineffective to the extent of such illegality, invalidity or unenforceability and
shall not affect or impair the remaining provisions hereof, which provisions
shall be severed from any illegal, invalid or unenforceable Article, Section,
Subsection or other subdivision of this Agreement or any other provision of this
Agreement and shall otherwise remain in full force and effect.
1.5 Entire Agreement. This Agreement constitutes the entire agreement by and
between the Parties pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the Parties. Except as provided for herein, this Agreement may be
amended only by an instrument in writing signed by both Parties.
1.6 Governing Law. This Agreement shall be interpreted and construed in
accordance with the laws of Barbados, without giving effect to the laws of such
state governing conflicts of laws.
1.7 Ownership. Nothing in this Agreement shall vary rights of ownership in those
segments of the CANUS I System in which IRUs have been granted to the Grantee.
Ownership of all segments of the CANUS 1 System shall remain with TC-3 and the
other owners of the CANUS I System.
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ARTICLE 2 GRANTING OF IRU
2. l Granting. As and from the Effective Date, TC-3 grants to the Grantee, on an
IRU basis, an interest in one (1) half-MIU in Segment D of the CANUS 1 System as
well as an IRU in Segment A of the CANUS 1 System (all such segments hereinafter
defined as the "Capacity") to the extent required for the use of its capacity in
the CANUS I System (exclusive of any interconnection between cable systems,
leases, Droits-de-Passage or other rearward facilities arrangement for which the
Grantee shall be solely responsible), for providing telecommunications services
between points in or reached via the United States of America on the one hand,
and points reached via Canada on the other hand.
The IRU granted herein does not include the right to use the Capacity for
traffic terminating in Canada, unless otherwise permitted by applicable law.
ARTICLE 3
GRANTING PRICE AND PRICE FOR SEGMENT A
3.1 Granting Price for the Capacity. The aggregate granting price for the
Capacity, exclusive of the right granted in Segment A shall be $28, 100 (the
"Granting Price").
3.2 Price for Segment A. For the right to use that portion of Segment A of the
CANUS 1 System granted to the Grantee, the Grantee shall pay a lump sum of
$3,900 (the "Segment A Price"), namely $3,900 per MIU.
3.3 Payment of the Granting and Segment A Prices. The Grantee hereby agrees and
covenants to pay the Granting Price and the Segment A Price by wire transfer,
certified cheque or
LUMP SUM
bank draft m the aggregate amount of $32,000. The Granting and Segment A Prices
shall be payable by the Grantee no later than (i) the thirtieth (30th) day
following receipt by the Grantee of an invoice to that effect, or (ii) the
Effective Date, whichever comes last.
ARTICLE 4
PAYMENT OF CHARGES AND EXPENSES
4.1 O&M Charges. The Grantee shall pay a charge for the operating and
maintenance of Segment A and Segment D. For Segment D, the operating and
maintenance charges shall consist of the standby charges and the running
charges:
(A) the standby charges for Segment D (including but not limited
to the cost of attendance, testing, adjustments, storage of
plant and equipment, the maintenance of
the procurement of cable ship services covering, inter alia,
depreciation, ship retrofit, crew, insurance (other than
at-sea insurance), in-port expenses, the storage of
submersible plant, remotely operated vehicles and other
devices, custom duties and other taxes relating thereto) shall
be recovered through an annual fixed charge of $2,680 per
half-MIU payable quarterly in advance by the Grantee, which
amount shall also include the operating and maintenance costs
of Segment A. Such annual fixed charge shall be adjusted as of
January 1st of each year using the consumer 'price index in
the United States as published by the United States Department
of Labour for the immediately preceding calendar year.
(B) The running charges, which shall be limited to the recovery of
the direct cost incurred in connection with a repair involving
Segment D (including, but not limited to, the cost of repair
(including repair at sea), of fuel, at-sea insurance, costs of
cable working exercises, cable-handling costs, additional crew
at-sea, crew overtime, victualling, telecommunications,
mobilization and demobilization expenses, consumables,
replenished equipment, custom duties and other taxes relating
thereto) shall be apportioned among the grantees of IRUs on
Segment D in accordance with the following formula:
A = B X D
---
C
where:
A = portion of the running charges to be borne by the
Grantee
B = the Capacity (expressed in terms of half- MIUs)
acquired pursuant to this Agreement
C = total Assignable Capacity of the CANUS I System
on the date of the invoice (expressed in terms of
half-MIUs)
D = total running charges incurred
4.2 Restoration Costs. The Granting Price includes the costs of restoration for
the first thirty (30) days of outage on the CANUS-I System per calendar year
(regardless of the Effective Date of this Agreement) for the first ten (10)
years of the term of this Agreement. The Grantee shall pay its proportionate
share (as calculated by TC-3) of the cost of any additional restoration required
beyond the first thirty (30) days per year and shall also pay its proportional
share of any and all restoration required after year ten (10) of the term of
this Agreement.
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4.2 Invoicing and Payments. From and after the Effective Date, TC-3 shall
submit, or cause to be submitted, to the Grantee an invoice for costs provided
for hereinabove. Invoices for costs referred to in Section 4. l shall be
submitted on a quarterly basis in advance. All payments shall be made no later
than the last day of the month immediately following the month the invoice was
submitted in order that the funds are available for use by TC-3 by the end of
said month. Invoices rendered shall contain details to support the amounts
contained therein and shall identify charges and costs related to Segment A and
Segment D, all operating and maintenance and restoration charges and costs
allocatable to the Capacity and payable by the Grantee. Invoices shall be paid
in the currency in which the invoice is rendered.
All payments made by the Grantee under this Agreement shall be made by wire
transfer, certified cheque or bank draft and be free and clear of all bank
charges, commissions or other charges.
In the event of non-payment of any sum under this Agreement by the due date, an
interest charge shall be paid on overdue amounts calculated on the day-to-day
balance from such date, but excluding the actual payment date thereof. The
annual rate of interest shall be the higher of (i) sixteen percent (16%) or (ii)
eight (8) percentage points above the ninety (90)-day Libor rate of interest as
published by the Wall Street Journal on the date the bill is due to be paid or,
if such is not a Business Day, the next Business Day.
TC-3 may designate, at its sole discretion, any Person for the purpose of
invoicing or receiving payment of all costs charged to the Grantee hereunder
(including the Granting Price and the Segment A Price). TC-3 shall notify in
writing the Grantee of the identity of such Person. Notwithstanding such
designation, TC-3 only shall be liable towards the Grantee for any and all
obligations of TC-3 as provided hereunder.
4.3 Disputes. Should any bill or part thereof be under dispute as to its
correctness, then interest shall not accrue on the amount of such bill provided
always that:
(A) before the payment date, TC-3 (or its designee, as the case
may be) is advised by letter or fax by the Grantee of the
amount in dispute and the nature of that dispute; and
(B) TC-3 (or its designee, as the case may be) shall, if requested
by the Grantee within thirty (30) days of receipt of the bill
in dispute, submit a replacement bill omitting the amount in
dispute, and such replacement bill shall become due for
payment on the date the disputed bill was due. The amount in
dispute shall be investigated by the Parties in good faith
within a thirty (30)-day period and if the amount in dispute
or part of it is found to be correct, any necessary bill with
respect to such amount or part of it shall be raised and paid.
Notwithstanding the foregoing, if on investigation of the
amount in dispute or part thereof such amount is found to be
correct, then the Grantee shall pay interest at the rate
determined hereabove on the unpaid amount or part of it which
is found to be correct from the day after the due
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date for payment of the original bill in dispute up to and
including the date the outstanding payment is received by TC-3
(or its designee, as the case may be).
4.4 Adjustments. In the case of invoices containing any costs billed on
preliminary billing basis, appropriate adjustments will be made in subsequent
invoices promptly after actual costs involved are determined to insure that the
Grantee bears a proper share of the costs as provided under this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE GRANTEE
5.1 Representations and Warranties. The Grantee represents and warrants to TC-3
that the Grantee has obtained all relevant telecommunications licenses necessary
for the acquisition of the Capacity, the execution and delivery of and the
performance of its obligations under this Agreement and shall use all reasonable
efforts to have continued in effect such exemptions, 'approvals, consents,
authorizations, licenses and permits as long as it shall have obligations under
this Agreement.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF TC-3
6.1 Representations and Warranties. TC-3 represents and warrants to the Grantee
that it is authorized under the CANUS 1 C&MA to assign interests in the capacity
as contemplated hereunder.
6.2 No representation on the Capacity. Except as expressly set forth in this
Agreement, TC-3 has not made or shall not be deemed to have made any
representations or warranties whatsoever with respect to the Capacity. TC~3
expressly disclaims with respect to the Grantee and the Grantee hereby expressly
waives, releases and renounces, all warranties, obligations and liabilities of
TC-3 and all rights, claims and remedies against TC-3, express or implied,
arising by law or otherwise, with respect to any failure, delay in installation,
cancellation of, non- conformance, temporary or permanent failure of or defect
in the CANUS 1 System or the Capacity, as the case may be, whatsoever shall have
been the cause and however long it shall have lasted (whether or not TC-3 has
been advised of the possibility of such loss or damage arising). Without
limiting the generality of the foregoing, the Grantee acknowledges and agrees
that the Capacity is being assigned on an "as is, where is" basis.
-8-
ARTICLE 7
COVENANTS OF THE GRANTEE
7.1 Covenants of the Grantee. During the term of this Agreement, the Grantee
shall:
(A) pay to TC-3 (or its designee, as may be notified in writing to
the Grantee, as the case may be) when they become due all
amounts payable under this Agreement and otherwise comply with
all other provisions of this Agreement;
(B) maintain, at its own expense, all appropriate insurance policy
against all risks associated with the Capacity as reasonably
deemed necessary by the Grantee;
(C) undertake to keep the Capacity free of liens, charges and
other encumbrances (including any inchoate liens or floating
charges) and shall reimburse TC-3 (or its designee, as the
case may be), and in the event of accidental breach, to take
all steps required to discharge such liens, charges and other
encumbrances;
(D) not use the Capacity for any illegal, unlawful, fraudulent or
unauthorized purposes and, without limiting the generality of
the foregoing, use the Capacity, at all time, in a manner
consistent with the applicable authorization, licences and
permits for the landing, construction and operation of the
CANUS 1 System;
(E) use the Capacity in such a way as to avoid degrading the
overall performance of the CANUS I System or causing
interruptions of, or interference with, impairment or
degradation of the use of any other capacity in the CANUS 1
System. If, after notification by TC-3, the Grantee does not
take immediate and effective action to comply with its
obligations, TC-3 may take reasonable action required to
protect the other capacity in the CANUS I System up to and
including the interruption of the Capacity responsible for the
interruption, interference, impairment or degradation. The
Grantee shall bear the total cost of any protective measures
reasonably required by TC~3 to be installed on the CANUS I
System resulting from the use of the CANUS 1 System by the
Grantee or any subgrantee, lessee or assignee of the Grantee
or any customer of either the Grantee or any subgrantee,
lessee or assignee of the Grantee.
(F) upon at least a 24-hour prior notice or, at any time, if the
situation or circumstance so justify, make available to TC-3
the Capacity for such test and adjustment as may be necessary
for the Capacity to be maintained in efficient working order.
-9-
ARTICLE 8
COVENANTS OF TC-3
8.1 Books and Records. TC~3 shall keep and maintain such books, records,
vouchers and accounts of all costs that it receives from the Maintenance
Authority with respect to the repair and restoration of the CANUS 1 System as
may be appropriate to support the billing of any running charges or restoration
costs by TC-3 and such books that relates to the running charges and restoration
costs shall at all reasonable times be made available for inspection by the
Grantee for a period of three (3) years from the date of billing. At Grantee's
request and at ▇▇▇▇▇▇▇'s sole cost and expense, TC-3 will request an audit under
the CANUS 1 C&MA to the extent that it has the right to do so.
8.2 Sharing of Liquidation Proceeds and Costs. In the event of liquidation of
Segment A or any part thereof and/or Segment D or any part thereof by sale or
other disposition, TC-3 shall share with the Grantee any proceeds or costs of
such liquidation, sale or disposition received or incurred by TC-3, including,
without limitation, any costs related to the removal of such Segment A and/or
Segment D. The Grantee's share of such proceeds or costs shall be determined in
accordance with the following formula:
A = B X D
---
C
where:
A = portion of the net proceeds or costs to be paid to, or
payable by, the Grantee
B = the Capacity (expressed in terms of half-MIUs)
C = total Assignable Capacity of the CANUS 1 System on the
date of disposition or liquidation (expressed in terms
of half-MIUs)
D = total net proceeds or costs of disposition or
liquidation
8.3 Maintenance of the Capacity. TC-3 agrees to act reasonably in the
performance of its obligations as a party to the CANUS I C&MA.
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8.4 Provision of TRANSIT FACILITIES. TC-3 shall use all reasonable efforts to
provide suitable digital transit facilities as and when required for use in
connection with circuits in the CANUS 1 System so as to provide through circuits
between points reached via Segment A.
ARTICLE 9
INTELLECTUAL PROPERTY RIGHTS
9.1 No License. No license under patents is granted by TC-3 or shall be implied
or arise by estoppel in favour of the Grantee with respect to any apparatus,
system or method used by the Grantee in connection with the use of the MIUs
granted to the Grantee under this Agreement.
9.2 SPECIFIC INDEMNIFICATION. With respect to claims of patent infringement made
by third Persons, the Grantee will save TC-3 and the other owners of the CANUS 1
System harmless against claims arising out of or based on the use by the
Grantee, in combination or in connection with the Capacity, any apparatus,
system or method provided by the Grantee, any subgrantee or lessee of the
Grantee or any customer of the Grantee, of such subgrantee or of such lessee.
ARTICLE 10
RECONFIGURATION OF CAPACITY
10.1 REDUCTION IN THE CAPACITY. In the event that the total number of MIUs on
Segment D is reduced below the Initial Assignable Capacity, as a result of
physical deterioration, or for any other reason, during the term of this
Agreement, TC-3 shall give the Grantee written notice of said decrease and the
MIUs in which the Grantee has been granted an IRU hereunder shall be reduced in
the same proportion as the total number of MIUs assigned to TC-3 in Segment D is
reduced, except that such reductions shall not extend to fractions of half-MIUs.
10.2 Adjustment in O&M and Other Charges. If the number of MIUs on Segment D is
decreased as provided in Section 10.1 and that operating and maintenance charges
related thereto are reduced proportionally, the Grantee's payments with respect
to operating and maintenance charges for the IRU granted under this Agreement
shall be adjusted proportionally to such reduction.
10.3 INCREASE IN COMMUNICATION CAPABILITY.
(A) The communication capability of the Capacity used by the
Grantee on Segment D may be increased, subject to prior notice
to TC-3, by the use of equipment which will make more
efficient use of such MIUs, provided that such use of the
Capacity does not cause an interruption of or interference in
the CANUS 1 System or other systems interconnecting with the
CANUS I System.
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(B) The Grantee shall not be entitled to share in any increase in
capacity or be entitled to credits or reduction in the sums
paid for the Capacity in the event that the Initial Assignable
Capacity is increased beyond 1,260 half-MIUs.
ARTICLE 11
TERM
11.1 Term. This Agreement shall continue in effect for the initial term up to
the end of the expected useful life of the CANUS 1 System at 23:59 Universal
Time Coordinated, on September 15, 2020, unless the CANUS 1 System is taken out
of service earlier, in which case this Agreement will terminate on the same date
as that of the CANUS I System. TC-3 shall give the Grantee prompt notice of the
taking out of service of the CANUS 1 System. In the event that the CANUS 1
System is extended tacitly beyond its initial term as stated above, this
Agreement will continue in effect tacitly during such extension under the same
terms and conditions.
Notwithstanding the termination of this Agreement, all payment obligations of
the Grantee for amounts still due or payable under this Agreement for the period
ending at the date of termination shall survive until full payment and the
Grantee shall be liable for any costs and shall benefit from any proceeds under
Section 8.2 hereof incurred or received, as the case may be, in the case of
liquidation, sale or disposition occurring within two (2) years after the
termination date.
ARTICLE 12
EVENT OF DEFAULT
12.1 Event of Default. The occurrence of any one or more of the following events
shall constitute an Event of Default under this Agreement:
(A) If the Grantee fails to make the payment of any amount due to
TC-3 (or its designee, as the case may be) under the provisions
of this Agreement, when the same becomes due and payable as
herein provided and such default has not been cured within ten
(10) days after receipt by the Grantee of a notice to that
effect;
(B) If the Grantee fails to duly observe, perform and discharge the
covenants, conditions and obligations on its part to be
observed, performed or discharged hereunder. (other than the
default of payment of amounts under any provisions of this
Agreement which is subject to Subsection 12.1(a)) and such
default has not been cured within twenty (20) days after receipt
by the Grantee of a notice from TC-3;
(C) If any representation or warranty made herein shall prove at any
time to be materially incorrect;
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(D) If the Grantee has defaulted on its payment obligations to TC-3
or any of its affiliates under any telecommunications service
agreements including or incorporating the provision of CANUS 1
capacity, or if the Grantee becomes insolvent or bankrupt or
ceases paying its debts generally as they mature or has a
receiver, administrative receiver or manager appointed over the
whole or any part of its assets or goes into liquidation
(whether compulsorily or voluntarily), otherwise than' for the
purpose of an amalgamation or reconstruction, or makes any
arrangements with its creditors or has any form of execution or
distress levied upon its assets or ceases to carry on its
business.
ARTICLE 13
TERMINATION
13.1 Termination Upon Default. Upon the occurrence of an Event of Default, TC-3
shall have the right to terminate this Agreement immediately, and, in addition
to any other remedies available hereunder, at law or in equity, shall be
entitled to repossess the Capacity without any other notice or action, with or
without legal process. In addition, upon occurrence of an Event of Default, TC-3
may temporarily discontinue use of the Capacity without incurring any liability
to the Grantee, its subgrantees, its lessees or its customers, until the default
is duly cured by the Grantee to the complete satisfaction of TC-3.
13.2 Termination After Initial Term. In the event that this Agreement is
continued beyond the expected useful life of the CANUS 1 System in conformity
with Section 11.1, any Party may thereafter terminate this Agreement by giving
the other Party a notice of not less than one (1) year.
13.3 Other Remedies. Termination of this Agreement by the Party not in default
in accordance with the terms hereof shall be without prejudice to any other
rights or remedies such Party shall have hereunder, at law or in equity.
ARTICLE 14
GENERAL INDEMNIFICATION
14.1 General Indemnification. The Grantee shall indemnify and save TC-3
harmless, from and against any direct or consequential claims, demands, actions,
causes of action, damages, losses (which shall include any reduction in value),
liabilities, costs or expenses (including, without limitation, interest,
penalties and reasonable attorneys' fees and disbursements) (collectively, the
"Losses") which may be made against TC-3 or which TC-3 may suffer or incur as a
result of, arising out of or relating to:
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(A) any non-performance of or non-compliance with any covenant,
agreement or obligation of the Grantee under or pursuant to
this Agreement;
(B) any incorrectness in, or breach of, any representation or
warranty made by the Grantee; and
(C) any action, suit, claim, trial, demand, investigation,
arbitration or other proceeding by any Person containing
allegations which, if true, would constitute an event
described in Subsection 14.1(a) or 14. l(b).
ARTICLE 15
DISPUTE RESOLUTION
15.1 Arbitration. Any difference, controversy or claim arising out of or
relating to this Agreement, its interpretation or performance, shall be
considered a "Dispute". Any Dispute shall be subject to binding arbitration as
provided hereafter.
(A) The aggrieved Party shall diligently notify the other Party of
the occurrence of a Dispute. The notification shall be deemed
diligently made if communicated to the other Party within five
(5) Business Days of the knowledge of the occurrence of the
Dispute.
(B) Within ten (10) Business Days following such notification,
each Party shall prepare and disclose to the other Party a
brief on its position and within fifteen (15) days thereafter
the parties shall prepare a common brief which shall contain
all points of Agreement and all points of disagreement in
relation to the Dispute.
(C) Notwithstanding Subsection 15.1(b) above, if no resolution of
the Dispute has occurred thirty (30) days after the date on
which a Party has submitted the Dispute to its Chief Executive
Officer or a Person appointed by him, then the Dispute shall
be submitted for resolution by binding arbitration under the
Rules of Conciliation and Arbitration of the International
Chamber of Commerce in effect on the date the arbitration is
submitted to the tribunal of arbitration. In such event:
(I) a sole arbitrator shall be appointed, unless the parties
agree in a particular case within thirty (30) days of the
submission of the Dispute to arbitration that the
tribunal should consist of more than one arbitrator. Such
arbitrator(s) shall be knowledgeable in the field of law
involved;
(II) the place of arbitration shall be Washington, D.C. and
the arbitration shall be conducted in English;
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(III) responsibility for paying the costs of the arbitration,
including the costs incurred by the parties themselves in
preparing and presenting their cases, shall be
apportioned by the tribunal of arbitration;
(IV) the award shall be rendered in the English language and
shall state the reasons upon which it is based;
(V) the award of the tribunal of arbitration may be entered
and enforced as a judgment against a Party in 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, as the case may be.
(D) Nothing in the foregoing shall prevent a Party from initiating
such protective measure proceedings as are necessary to
protect any arm's length third-party rights.
(E) The fact that a dispute is brought to arbitration does not
relieve either Party from its obligation to fulfill its other
covenants or agreements as provided by this Agreement which
are not affected by the Dispute.
ARTICLE 16
MISCELLANEOUS
16.1 Assignment. Neither this Agreement nor any rights, remedies, liabilities or
obligations arising under it or by reason of it shall be assignable by the
Grantee without the prior written consent of TC-3, which consent shall not be
unreasonably withheld. Subject thereto, this Agreement shall inure to the
benefit of and be binding on the Parties and their respective successors and
permitted assigns.
16.2 Further Assurances. The Parties shall, with reasonable diligence, do all
things and provide all reasonable assurances as may be required to consummate
the transactions contemplated by this Agreement, and each Party shall provide
further documents or instruments required by the other Party as may be
reasonably necessary or desirable to effect the purpose of this Agreement.
16.3 Notices. Any notice, consent, request, authorization, permission, direction
or other communication required or permitted to be given hereunder shall be in
writing and shall be delivered either by personal delivery or by telex,
telecopier or similar telecommunications device, return receipt requested, and
addressed as follows:
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(A) in the case of TC-3:
TELEGLOBE CANTAT-3 INC.
1st Floor, Building ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, BARBADOS
Attention: ▇▇. ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President and
General Manager
Telephone: ▇▇▇ ▇▇▇ ▇▇▇▇
Telecopier: ▇▇▇ ▇▇▇ ▇▇▇▇
(B) in the case of the Grantee:
STARTEC INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.,
Attention: Mr. ▇▇▇ ▇▇▇▇▇▇▇, President
Telephone: ▇▇▇ ▇▇▇ ▇▇▇▇
Telecopier: ▇▇▇ ▇▇▇ ▇▇▇▇
Any notice, consent, request, authorization, permission, direction or other
communication delivered as aforesaid shall be deemed to have been effectively
received, if sent by telex, telecopier or similar telecommunication device, on
the Business Day next following transmission thereof, or, if personally
delivered, on the date of such delivery, provided, however, that if such date is
not a Business Day then it shall be deemed to have been received on the Business
Day next following such delivery. An address may be modified by written notice
delivered as aforesaid.
16.4 No Partnership. The relationship between TC-3 and the Grantee under this
Agreement shall not be that of partners or joint venturers and nothing herein
contained shall be deemed to constitute a partnership or joint venture between
them and the rights and obligations of the Parties shall be limited to the
express provisions of this Agreement.
16.5 Confidentiality and Public Announcement. It is expected that the Parties
may disclose to each other proprietary or confidential technical, financial and
business information ("Proprietary Information"). Except as necessary to perform
its obligations under this Agreement, the receiving Party shall not make any use
of Proprietary Information for its own benefit or for the benefit of any other
Person, and, except with the prior written consent of the disclosing Party or as
otherwise specifically provided herein, the receiving Party will not, during and
for a period of three (3) years after the termination of this Agreement,
duplicate, use or disclose any Proprietary Information to any Person.
-16-
The receiving Party shall not disclose all or any part of the disclosing Party's
Proprietary Information to any affiliates, agents, officers, directors,
employees or representatives (collectively, "Representatives") of the receiving
Party, except on a need to know basis. Such Representatives shall be informed of
the confidential and proprietary nature of the Proprietary Information. Each
Party shall maintain the other Party's Proprietary Information with at least the
same degree of care each Party uses to maintain its own proprietary information.
The receiving Party shall immediately advise the disclosing Party in writing of
any misappropriation or misuse by any Person of the disclosing Party's
Proprietary Information of which the receiving Party is aware.
All Proprietary Information in whatever form shall be promptly returned by the
receiving Party to the disclosing Party upon written request by the disclosing
Party for any reason or upon termination of this Agreement.
Each receiving Party acknowledges that the Proprietary Information of the
disclosing Party is central to the disclosing Party's business and was developed
by or for the disclosing Party at a significant cost. Each receiving Party
further acknowledges that damages would not be an adequate remedy for any breach
of this Agreement by the receiving Party or its Representatives and that the
disclosing Party may obtain injunctive or other equitable relief to remedy or
prevent any breach or threatened breach of this Agreement by the receiving Party
or any of its Representatives. Such remedy shall not be deemed to be the
exclusive remedy for any such breach of this Section 16.5, but shall be in
addition to all other remedies available at law or in equity to the disclosing
Party.
None of the Parties shall disclose or make any public announcement of the
existence of this Agreement, the transaction contemplated hereby or the contents
hereof without in each case the prior written consent of the other, unless such
disclosure is required by law and then only after prior notice to the other
Party.
16.6 Waiver. No waiver of any right under this Agreement shall be deemed
effective unless contained in writing signed by the Party charged with such
waiver, and no waiver of any right arising from any breach or failure to perform
shall be deemed to be a waiver of any future such right or any other right
arising under this Agreement.
16.7 Force Majeure. Neither Party shall be responsible for failures to perform
or delays in performing its obligations due to causes beyond its reasonable
control and without its fault or negligence.
SCHEDULE A
DESCRIPTION OF THE CANUS 1 SYSTEM
Segment D: shall mean the whole of the submarine cable provided between,
among and including the System Interfaces at the following
cable stations:
Segment A: The cable station at Pennant Point, Nova Scotia, Canada;
Segment B: The cable station at Manasquan, New Jersey, United States of
America;
Segment A and B shall each consist of an appropriate share of
land, civil work, equipment and buildings at the specified
locations for the cable landing and for the cable rights-of-
ways and ducts including manholes, between a cable station and
its respective cable landing point, and an appropriate share
of common service and equipment other than services and
equipment associated solely with the CANUS 1 System, at each
of those locations together with equipment in each of those
cable stations solely associated with the CANUS 1 System, but
which is not a part of Segment D, consisting of Subsegments D1
and D2.
Subsegment D1: That part of Segment D between and including the System
Interface at the cable station in Canada and the Branching
Unit known as Subsegment D3A;
Subsegment D2: That part of Segment D between and including the System
Interface at the cable station in the United States of America
and the Branching Unit known as Subsegment D3A;
Segment D shall also include:
all transmission equipment, power feeding equipment, system
monitoring and control equipment and special test equipment
directly associated with the submersible plant;
the transmission cable equipped with appropriate repeaters and
joint housings between the cable stations and the Branching
Unit known as Subsegment D3A;
- the sea earth cable and electrode system and/or
the land earth system, or an appropriate share
thereof, associated with the CANUS 1 System
power feeding equipment; and
all associated spare parts and components.
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IN WITNESS WHEREOF the Parties have signed this Agreement as of the date first
above written.
TELEGLOBE CANTAT-3 INC. STARTEC INC.
Per: Per:
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Name: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President and General Manager Title:CHIEF FINANCIAL OFFICER
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Place: St. Michael, Barbados Place: BETHESDA, MD USA
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DATE: DATE: Sept/22/97
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