EXHIBIT 10.7
DATED 1998
--------------------------
MCI WORLDCOM GLOBAL NETWORKS U.S. INC
and
MFS CABLECO (BERMUDA) LIMITED
and
EQUITEL BANDWIDTH LIMITED
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TRANSMISSION CAPACITY AGREEMENT
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INDEX
1. Interpretation 1
2. Provision of Capacity 4
3. Acceptance Testing 5
4. Performance Levels 6
5. Payment 6
6. Use of Capacity 7
7. Warranties 7
8. Liability 8
9. Term and Termination 9
10. Force Majeure 10
11. Confidentiality 10
12. Assignment and Subcontracting 11
13. Publicity 11
14. Severability 11
15. Variation 11
16. Partnership 12
17. Waiver 12
18. Notices 12
19. Entire Agreement 12
20. Governing Law 12
21. Counterparts 13
SCHEDULE 1 - Technical Specifications 14
SCHEDULE 2 - Operations and Maintenance Procedures 16
SCHEDULE 3 - Charges 20
SCHEDULE 4 - Performance Levels 21
TRANSMISSION CAPACITY AGREEMENT
THIS AGREEMENT is made the day of 1998
BETWEEN:
(1) MCI WORLDCOM GLOBAL NETWORKS U.S., INC, whose registered office at 0 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxx, Xxxx, Xxxxxxxx 00000 XXX; and
MFS CABLECO (BERMUDA) LIMITED whose registered office is at Xxxxxxxxx
Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, (together with MCI WorldCom
Global Networks U.S., Inc, jointly and severally referred to herein as
"MCI-WorldCom"); and
(2) EQUITEL BANDWIDTH LIMITED, whose registered office is at Craigmuir
Xxxxxxxx, Road Town, Tortola, British Virgin Islands (the "Customer").
WHEREAS
(A) MCI-WorldCom owns or has an interest in international telecommunications
facilities across Europe and the USA.
(B) The Customer wishes to acquire from MCI-WorldCom transmission capacity
over such facilities between the Sites, as defined herein.
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
1.1. The words and phrases used in this Agreement shall, unless otherwise
expressly provided, have the meanings ascribed to them below:
"Acceptance Certificate" means an acceptance certificate in the form
provided by MCI-WorldCom to the Customer from time to time;
"Acceptance Tests" means the tests set out in the Test Specification, to
be conducted by MCI-WorldCom in accordance with Clause 3;
"Act" means the Telecommunications Xxx 0000 (as amended or substituted
from time to time);
"Activation Request Form" means an activation request form in the form
provided by MCI-WorldCom to the Customer from time to time;
"Additional Unit" means, in relation to the Capacity, the fourth Unit of
Capacity as described in Schedule 1;
"Agreement" means this Agreement together with the Schedules hereto;
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"Annual Charge" means, in relation to each Unit of Capacity, the amount
specified in Schedule 3, payable to MCI-WorldCom in accordance with Clause
5, and "Annual Charges" shall be construed accordingly;
"Associated Company" means, in relation to a party, and subsidiary and
holding company of such party and any subsidiary of such holding company
(the terms "holding company" and "subsidiary" being as defined in sections
736 and 736A Companies Act 1985);
"Business Days" means any days excluding Saturdays and Sundays on which
commercial banks are open for business in the country where the relevant
notice is to be delivered or when the relevant activity is to be
performed;
"Cable Lifetime" means the lifetime of the Gemini fibre optic submarine
and terrestrial cable system as set forth in the C&MA;
"Capacity" means the point to point transmission capacity provided between
the Sites, as detailed in Schedule 1;
C&MA" means the construction, operation and maintenance agreement for the
Gemini fibre optic submarine and terrestrial cable system, as amended from
time to time by Gemini Submarine Cable System Limited in accordance with
the terms thereof;
"Charges" means, together, the Purchase Price, the Option Price and the
Annual Charges;
"Confidential Information" means all information (whether written, oral or
in electronic format) designated as such by the disclosing party,
together with all such other information which relates to the business,
affairs, customers, products, developments, trade secrets, know-how and
personnel of the disclosing party which may reasonably be regarded as the
confidential information of the disclosing party;
"Customer Network" means the telecommunications infrastructure owned and
operated by the Customer (or by any Associated Company thereof) under an
applicable regulatory authority;
"Demarcation Point" means that point at which MCI-WorldCom Network is
connected to the Customer Network for the purpose of the provision of
capacity hereunder as specified in Schedule 1;
"Emergency Works" has the meaning ascribed thereto in the Act;
"EquiTel Customer" means a third party with whom the Customer has entered
into an agreement for the grant of rights to a Unit of Capacity provided
hereunder and whose details have been provided to MCI-WorldCom in writing
in accordance with Clause 4.1, and "EquiTel Customers" shall be construed
accordingly;
"Fault" means a material defect, fault or impairment in the Capacity duly
notified to MCI-WorldCom in accordance with Schedule 2;
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"Force Majeure" means any cause beyond a party's reasonable control
affecting the performance by that party of its obligations hereunder
including (to the extent that such events are beyond the affected party's
reasonable control), but not limited to, acts of God, insurrection or
civil disorder, war or military operations, national or local emergency,
acts or omissions of Government, regulatory or highway authority,
industrial disputes of any kind (not involving that party's employees),
fibre cuts, fire, flood, lightning, explosion, subsidence, inclement
weather and acts or omissions of persons or bodies (other than an EquiTel
Customer) beyond the reasonable control of the affected party;
"IRU" means the "indefeasible right of use" in a Unit of Capacity for the
Cable Lifetime;
"LIBOR Rate" means the arithmetic mean of the offered rates of leading
banks for London Interbank deposits expressed as a rate per annum, for
deposits in US Dollars for six months as displayed on the LIBOR page of
the Reuters Monitor Money Rate service at or about 11:00am on the date on
which the LIBOR Rate is to be determined:
"MCI-WorldCom Network" means the Service Equipment and any other
infrastructure used by MCI-WorldCom to provide the Capacity;
"Operations and Maintenance Procedures" means those procedures set out in
Schedule 2;
"Option Price" means the amount payable by the customer to MCI-WorldCom in
respect of the provision to the Customer of the Additional Unit of
Capacity, as such amount is specified in Schedule 3;
"Project Manager" means the representatives nominated by each of the
Parties in accordance with Clause 2.3;
"Purchase Price" means the amount payable by the Customer to MCI-WorldCom
in respect of the provision to the Customer of the Capacity (other than
the Additional Unit), as such amount is specified in Schedule 3;
"RFS Date" means, in respect of each Unit of Capacity, the date upon which
the Acceptance Tests shall have been successfully completed in respect of
such Unit of Capacity as evidenced by the signature by each of the parties
of an Acceptance Certificate in relation thereto, whether actual or deemed
in accordance with Clause 3.9;
"Scheduled Maintenance" means the planned works to be conducted by or on
behalf of MCI-WorldCom in order to maintain or repair the Capacity as
notified to the Customer and affected EquiTel Customers in accordance with
Schedule 2 or otherwise agreed between the parties;
"Service Equipment" means the multiplex or other equipment provided by
MCI-WorldCom and installed at a Site to enable the Customer to receive the
Capacity;
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"Site" means:
(a) for all Units of Capacity other than the Additional Unit, each of 00
Xxxxxx Xxxxxx, Xxx Xxxx, XXX, and the Porthcurno cable station,
Cornwall, England; and
(b) for the Additional Unit, each of 00 Xxxxxx Xxxxxx, Xxx Xxxx, XXX, and
MCI-WorldCom, Xxxxxxxxx Xxxxxx (XX0), Xxxxxx, Xxxxxxx, and
"Sites" shall be construed accordingly;
"Target Date" means that date with effect from which the Customer has
requested that the Capacity be activated, in accordance with Clause 2.5;
"Technical Specification" means the technical specification set out in
Schedule 1 hereto;
"Test Specification" means the test specification set out in Schedule 4
hereto;
"Unit" means, in relation to the Capacity, a transmission channel
comprising a VC-4 container interfaced at STM-1 level, and "Units" shall
be construed accordingly.
1.2. References in this Agreement to "MCI-WorldCom", "the Customer" and
"EquiTel Customers" shall include their respective employees, agents,
successors (whether by operation of law or otherwise) and permitted
assigns.
1.3. The headings are included in this Agreement for ease of reference only and
shall not affect the interpretation or construction of this Agreement.
1.4. References in this Agreement to Clauses and Schedules shall be deemed to
be references to the Clauses of and Schedules to this Agreement.
2. Provision of Capacity.
2.1. With effect from the date of signature of this Agreement and throughout
the term of this Agreement, MCI-WorldCom shall, subject to the Customer
complying with all its obligations and undertakings under this Agreement,
reserve the Capacity (other than the Additional Unit) exclusively for the
Customer.
2.2. In consideration for the obligations and undertakings of the Customer set
out in this Agreement and with effect from the RFS Date in respect of each
Unit of Capacity, MCI-WorldCom shall grant the Customer an IRU in such
Capacity between the Sites and shall make such Capacity available to the
Customer from the applicable RFS Date during the term of this Agreement.
2.3. Each party shall, as soon as reasonably practicable following execution
of this Agreement, nominate a Project Manager who shall be that party's
representative for all operational matters. Each party shall notify the
other party and keep the other party notified of any change in the
identity of such Project Manager.
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2.4. The Customer shall be entitled;
2.4.1. in the case of all Units other than the Additional Unit, at any
time following the execution of this Agreement; and
2.4.2. in the case of the Additional Unit, before 30 June 1999,
by delivery to MCI-WorldCom of a duly completed Activation Request Form,
to request the activation of any or all Units of Capacity between the
Sites, provided that the Customer has entered into a prior agreement with
a third party end user for the grant of an IRU in such Unit of Capacity to
such third party in accordance with Clause 12.4.
2.5. Any Activation Request Form delivered by the Customer to MCI-WorldCom in
accordance with Clause 2.4 shall specify, in respect of each Unit of
Capacity, the identity of the third party end user of such Unit and the
date on which the Customer requires activation of such Unit of Capacity;
2.5.1. in respect of all Units other than the Additional Unit, being a
date no later than 30 June 1999; and
2.5.2. in respect of the Additional Unit, being a date no later than 31
July 1999 or such other date as may be agreed between the parties.
Provided that such date is not less than 30 Business Days' following the
date of delivery of such Activation Request Form to MCI-WorldCom, such
date shall be the Target Date for such Unit of Capacity. If the Customer
has failed to notify MCI-WorldCom in respect of any Unit of Capacity
(other then the Additional Unit) in accordance with this Clause 2.5, the
Target Date for that Unit of Capacity shall be 30 June 1999. If the
Customer has failed to notify MCI-WorldCom in respect of the Additional
Unit prior to 30 June 1999, the Customer's right to call for that
Additional Unit shall expire. MCI-WorldCom acknowledges that if no
Activation Request Form is delivered to it by the Customer in respect of
the Additional Unit prior to 30 June 1999, the Customer shall be under no
obligation to pay the Option Price.
2.6. MCI-WorldCom shall use its reasonable endeavors to ensure that the RFS
Date for each Unit of Capacity occurs on or prior to the applicable Target
Date.
2.7. MCI-WorldCom shall liaise with the Project Manger appointed by the
Customer in accordance with Clause 2.3 and shall notify such Project
Manager not less than bi-monthly of any delays which it reasonably
believes are likely to occur in a RFS Date.
2.8. In the event that MCI-WorldCom shall fail, within a period of eight weeks
following the applicable Target Date in respect of each Unit of Capacity,
to activate such Unit of Capacity (or in the event that MCI-WorldCom shall
notify the Customer, in accordance the Clause 2.7, that the applicable
RFS Date is likely to occur following the expiry of such eight week
period) the Customer shall be entitled to notify MCI-WorldCom in writing,
such notice to take effect immediately on receipt, that it no longer
requires delivery of such Unit of Capacity, in which case MCI-WorldCom
shall following the date of service of such notice refund to the Customer
any percentage of
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the Purchase Price already paid by it in relation to such Unit of Capacity
and, save in respect of any liability arising up to the date of such
notice, neither party shall have any further obligations in relation to
the provision of such Unit of Capacity.
2.9. The Customer acknowledges that MCI-WorldCom may from time to time revise
or vary any aspect of the Capacity save that the Capacity and each Unit
shall notwithstanding such variation remain compliant with the terms of
this Agreement, including, without limitation, the Technical
Specification.
3. Acceptance Testing
3.1. MCI-WorldCom shall, following the delivery to it of a notice in
accordance with Clause 2.4, install the Service Equipment at the Sites.
3.2. Following the installation by MCI-WorldCom of the Service Equipment it
shall perform the Acceptance Tests in relation to the Service Equipment
and the relevant Unit of Capacity in accordance with the Test
Specification.
3.3. MCI-WorldCom shall notify the Customer (through the Project Manager
appointed in accordance with Clause 2.3) of its intention to conduct
Acceptance Tests.
3.4. MCI-WorldCom shall notify the Customer of the successful completion of
the Acceptance Tests by delivery to the Customer of and Acceptance
Certificate duly signed on behalf of MCI-WorldCom and shall provide to the
Customer a copy of the results of such Acceptance tests.
3.5. The Customer shall be entitled upon delivery to it of an Acceptance
Certificate in accordance with Clause 3.4 to perform such testing of the
Capacity as it may require to demonstrate compliance of the Capacity with
the Technical Specification.
3.6. The Customer shall, within a five day period following the date of the
receipt of the Acceptance Certificate in accordance with Clause 3.4
either:
3.6.1. confirm to MCI-WorldCom its acceptance of the Capacity by its
counter-signature of such Acceptance Certificate, and such date
shall be the RFS Date (such confirmation not to be unreasonably
withheld); or
3.6.2. notify MCI-WorldCom of those aspects of the Capacity which it
does not believe to be compliant with the Technical Specification
and provide to MCI-WorldCom together with such notice the results
of the testing conducted by it evidencing such non-compliance.
3.7. In the event that the Customer shall notify MCI-WorldCom in accordance
with Clause 3.6.2, MCI-WorldCom shall perform such works as shall be
required to remedy such defects as are notified to it. Upon the completion
of such works the provisions of Clauses 3.2-3.9 shall apply.
3.8. In the event that any defects notified to MCI-WorldCom in accordance with
Clause 3.6.2 shall be attributable to the equipment of the Customer or
otherwise to the act or omission of the Customer, MCI-WorldCom shall be
entitled to invoice the Customer
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for any costs reasonably incurred in investigating and remedying such
defects in accordance with Clause 3.7, such invoice being payable in
accordance with Clause 5.6 and the date of signature by MCI-WorldCom of
the Acceptance Certificate shall be the RFS Date.
3.9. In the event that the Customer shall fail within the timescales set out
in Clause 3.6 to deliver a notice to MCI-WorldCom, it shall be deemed to
have accepted such Capacity and to have counter-signed the Acceptance
Certificate on the date of signature of such Acceptance Certificate by
MCI-WorldCom. The date of signature of such Acceptance Certificate by
MCI-WorldCom shall be the RFS Date.
4. Operations and Maintenance Procedures
4.1. The Customer shall promptly notify MCI-WorldCom in writing of the details
of any third party with whom with the Customer has entered into an
agreement for the grant of rights to any Unit of Capacity provided
hereunder. Such details are to include:
4.1.1. identification of the relevant Unit of Capacity;
4.1.2. the address, telephone number and fax number of the third party's
local network operations centre or equivalent; and
4.1.3. the name, title, address, telephone number and fax number of the
appropriate contact person at that network operations centre or
equivalent.
MCI-WorldCom shall have no obligation to comply with the Operations and
Maintenance Procedures in respect of the performance of Scheduled
Maintenance and Emergency Works and the reporting and rectification of
Faults in respect of such third party unless and until MCI-WorldCom
has received written notification of the third party details in
accordance with this Clause 4.1.
4.2. Subject to Clause 4.1, the parties shall comply, and the Customer shall
procure the compliance of the EquiTel Customers, with the Operations and
Maintenance Procedures in respect of the performance of Scheduled
Maintenance and Emergency Works and the reporting and rectification of
Faults.
4.3. MCI-WorldCom shall furnish the Capacity and shall cause the Capacity to be
maintained in accordance with the terms of the C&MA.
5. Payment
5.1. In consideration for the obligations and undertakings of MCI-WorldCom set
out in this Agreement, the Customer shall pay the Charges in accordance
with the provisions of this Clause 5.
5.2. MCI-WorldCom shall be entitled to invoice the Customer for the Purchase
Price on or after the date of signature hereof.
5.3. MCI-WorldCom shall be entitled to invoice the Customer for the Option
Price on or after the RFS Date for the Additional Unit.
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5.4. MCI-WorldCom shall be entitled to invoice the Customer for the Annual
Charges annually in advance on or about 1 January of each year. Liability
for payment of the Annual Charge due in respect of each Unit of Capacity
shall commence on the relevant RFS Date. The Annual charges for the
partial year commencing on the RFS Date shall be pro-rated. MCI-WorldCom
shall be entitled to invoice the Customer for such pro-rated amount on the
RFS Date for each Unit of Capacity.
5.5. The Annual Charges shall be increased, on a compound basis, by 3.5 per
cent on 1 January 2000 and annually thereafter.
5.6. The Customer shall make payment for all Charges or other amounts duly
invoiced to it in accordance with this Clause 5 within thirty (30) days of
the date of delivery to it of an invoice.
5.7. The Customer acknowledges that the Charges are exclusive of VAT (or such
other similar taxes as may be levied from time to time) which shall be
invoiced to and payable by the Customer in accordance with this Clause 5.
5.8. MCI-WorldCom shall be entitled to charge and receive interest on any sums
other than the Purchase Price which are overdue at the rate of 3% above
the LIBOR Rate until the date of payment in full, whether before or after
any judgment. Such interest shall be calculated and shall accrue on a
daily basis.
5.9. Subject to Clause 5.10, MCI-WorldCom shall be entitled to charge and
receive interest on:
5.9.1. that portion of the Purchase Price applicable to two Units of
Capacity, if such amount has not been paid in full on or by the
earlier of:
(a) 30 June 1990; or
(b) a date three Business Days after the later of: (i) the date
on which the customer receives payment from any third party
to whom it has granted rights to such Unit of Capacity of the
purchase price in full for such Unit, and (ii) the RFS Date;
and
5.9.2. that portion of the Purchase Price applicable to the third Unit
of Capacity, if such amount has not been paid in full on or by the
earlier of:
(a) 31 July 1999; or
(b) a date three Business Days after the later of: (i) the date
on which the Customer receives payment from any third party
to whom it has granted rights to such Unit of Capacity of the
purchase price in full for such Unit, and (ii) the RFS Date,
at the rate of 3% above the LIBOR Rate, calculated from the invoice due
date of the Purchase Price until the date of payment in full, whether
before or after any judgment. Such interest shall be calculated and shall
accrue on a daily basis.
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5.10. In the event that the Customer shall, by notice to MCI-WorldCom, request
activation of a Unit of Capacity on or prior to a Target Date being a date
prior to 30 June 1999 and the RFS Date in respect of such Unit of Capacity
is delayed beyond that date due to MCI-WorldCom'd default, then,
notwithstanding the provisions of Clause 5.9, MCI-WorldCom shall only be
entitled to charge and receive interest on the portion of the Purchase
Price relating to such Unit of Capacity from the later of the date
specified in Clause 5.9 in respect of such Unit of Capacity and the RFS
Date. Such interest shall be at the rate of 3% above the LIBOR Rate,
calculated from the invoice due date of the Purchase Price until the
date of payment in full, whether before or after any judgment, and shall
be calculated and shall accrue on a daily basis.
6. Use of Capacity
6.1. The Customer shall provide to MCI-WorldCom such information as
MCI-WorldCom may reasonably require to enable it to perform its
obligations under this Agreement.
6.2. The Customer acknowledges that where the provision by MCI-WorldCom of the
Capacity shall require the modification of any equipment of the Customer
or EquiTel Customer, MCI-WorldCom shall not be liable for the performance
of any works entailed in effecting such modification and such works shall
be the sole responsibility of and shall be performed at the sole expense
of the Customer or relevant EquiTel Customer.
7. Warranties
7.1. MCI-WorldCom represents to, warrants and covenants with the Customer as
follows:
7.1.1. MCI-WorldCom is duly organised and validly existing under the laws
of its State or jurisdiction of organisation, and has the
requisite authority to execute this Agreement and to perform its
obligations hereunder;
7.1.2. This Agreement constitutes a valid and binding obligation of
MCI-WorldCom, enforceable against MCI-WorldCom in accordance with
its terms;
7.1.3. MCI-WorldCom has obtained, and shall use commercially reasonable
efforts to maintain in good standing, all such consents,
approvals, licenses, permits and other approvals, both
governmental and private, as may be necessary (as at the date of
performance) to permit MCI-WorldCom to perform its obligations
under this Agreement; and
7.1.4. MCI-WorldCom shall perform its obligations under this Agreement in
a manner consistent with applicable law.
7.2. Save as expressly provided herein, no warranties, conditions,
representations or agreements are expressed or implied by MCI-WorldCom in
relation to the Capacity. Notwithstanding anything of the contrary in this
Agreement, MCI-WorldCom does not warrant or represent the Capacity will be
fault-free and any implied warranties and conditions of any nature are
hereby expressly excluded.
7.3. The Customer represents to warrants and covenants with MCI-WorldCom as
follows:
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7.3.1. The Customer is a limited liability company, duly organised and
validly existing under the laws of its State or jurisdiction of
organisation, is qualified to do business in all jurisdictions
(domestic and foreign) in which such qualification is required by
applicable law, and has the requisite authority to execute this
Agreement and to perform its obligations hereunder;
7.3.2. This Agreement constitutes a valid and binding obligation of the
Customer, enforceable against the Customer in accordance with its
terms;
7.3.3. There are no pending and, to the Customer's knowledge, no
threatened claims, actions, suits, audits, investigations or
proceedings by or against the Customer which could have an adverse
effect on the Customer's ability to perform its obligations under
this Agreement;
7.3.4. The Customer has obtained, and shall use commercially reasonable
efforts to maintain in good standing, and shall ensure that all
third parties with whom it has entered into an agreement for the
purchase or use of part or all of the Capacity have so obtained
and so maintain, all such consents, approvals, licenses, permits
and other approvals, both governmental and private, as may be
necessary (as at the date of performance) to permit the Customer
to perform its obligations under this Agreement and to permit the
Customer and such third parties to acquire and use the Capacity;
7.3.5. The Customer shall not create or permit to exist, any liens,
encumbrances or charges to be placed upon the Capacity or the
Customer's rights under this Agreement other than liens,
encumbrances or charges of financial institutions or others
against the Customer's assets generally in connection with
financing arrangements by the Customer;
7.3.6. The Customer shall perform its obligations under this Agreement
and use the Capacity in a manner consistent with applicable law,
and shall not use the Capacity, or permit the Capacity to be used,
for any illegal purpose or in any other unlawful manner; and
7.3.7. The Customer shall use the Capacity and shall cause all other
persons using the Capacity to use such Capacity in such a manner
so as not to cause any interruption of, or interference to, the
MCI-WorldCom Network or the use of any other capacity on the
MCI-WorldCom Network.
8. Liability
8.1. Subject to Clause 8.3 and save in respect of any amounts due and owing in
accordance with Clause 5 and save in respect of any liability arising out
of a party's wilful act or omissions, but notwithstanding anything else in
this Agreement, each party's liability to the other in contract, tort
(including negligence or breach of statutory duty) or otherwise arising in
connection with this Agreement shall be limited to:
8.1.1. one million pounds ((pound sign)1,000,000) per event or series of
connected events, and
8.1.2. two million pounds ((pound sign)2,000,000) in any twelve (12)
month period.
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8.2. Subject to Clause 8.3 but notwithstanding anything else in this Agreement,
neither party shall in any event be liable to the other in contract, tort
(including negligence or breach of statutory duty) or otherwise for
indirect or consequential losses under of arising in connection with this
Agreement including, but not limited to, loss of business, revenues,
anticipated savings or profit.
8.3. Nothing in this Agreement shall be deemed to limit either party's
liability in respect of death or personal injury caused by or arising from
that party's negligence or of fraud.
8.4. Should any limitation or provision contained in this Clause 8 be held to
be invalid under any applicable statute or rule of law, it shall to that
extent be deemed omitted.
9. Term, Termination and Suspension
9.1. This Agreement shall come into effect on the date hereof and shall,
subject to earlier termination in accordance with this Clause 9 or Clause
10.5, continue in effect for the Cable Lifetime.
9.2. Either party may terminate this Agreement by service on the other party
of notice in writing, having effect forthwith, if the other party shall
become insolvent or have an administrator or administrative receiver
appointed over a substantial part of its assets or go into liquidation
(whether compulsory or voluntary) otherwise than for the purpose of
amalgamation or reconstruction or shall make any agreement with its
creditors or have any form of execution or distress levied upon a
substantial part of its assets or cease to carry on business, PROVIDED
THAT, if the Customer has paid the Purchase Price or Option Price, as
applicable, to MCI-WorldCom in full in respect of any Unit of Capacity in
accordance with this Agreement and MCI-WorldCom is the terminating party
under this Clause 9.2, then:
9.2.1. MCI-WorldCom shall give the customer seven (7) days notice in
writing of termination under this Clause 9.2;
9.2.2. the Customer shall be entitled to assign and transfer its rights
and obligations under this Agreement in respect of such Unit if
Capacity to the relevant EquiTel Customer (if any), provided that
during such notice period:
(a) the Customer gives MCI-WorldCom written notice of such
assignment; and
(b) such EquiTel Customer enters into an agreement with
MCI-WorldCom to MCI-WorldCom's reasonable satisfaction
whereby such EquiTel Customer agrees to be bound by the terms
of this Agreement; and
9.2.3 the rights of each EquiTel Customer to any Unit of Capacity validly
assigned by the Customer to that EquiTel Customer in accordance
with Clause 9.2.2 shall be unaffected by and survive termination
of this Agreement.
9.3. Either party may terminate this Agreement by service on the other party of
not less than thirty (30) days notice in writing specifying a material
breach by the other party
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of a material obligation (other than an obligation to pay the Charges) and
requiring that the breach is remedied, providing that the breach is not
remedied during such period.
9.4. In the event that MCI-WorldCom has not received payment in full of the
Annual Charge in respect of a Unit of Capacity on the applicable due date,
MCI-WorldCom shall be entitled to suspend service across such Unit of
Capacity on giving seven (7) Business Days' notice in writing to the
Customer. MCI-WorldCom shall restore service across such Unit of Capacity
only on receipt0t by MCI-WorldCom of payment by the Customer of that
annual Charge, together with a restoration fee of 25% of such annual
Charge. In the event that the overdue Annual Charge and restoration fee
are not paid on or by 1 January of the year following the date of the
notice of suspension of service, MCI-WorldCom shall be entitled to revoke
the IRU granted in respect of such Unit of Capacity, with immediate
effect.
9.5. Subject to Clause 9.6, MCI-WorldCom shall be entitled to revoke the IRU
granted in respect of a Unit of Capacity on giving seven (7) seven
Business Days' notice in writing to the Customer:
9.5.1. in respect of each of the first two Units of Capacity activated
by MCI-WorldCom, in the event that MCI-WorldCom has not received
that portion of the Purchase Price applicable to such Unit of
Capacity on or by the earlier of:
(a) 30 June 1999; or
(b) a date three Business Days after the later of: (i) the date
on which the Customer receives payment from any third party
to whom it has granted rights to such Unit of Capacity of the
purchase price in full for such Unit, and (ii) the RFS Date;
9.5.2. in respect of the third Unit of Capacity activated by
MCI-WorldCom, in the event that MCI-WorldCom has not received the
Purchase Price in full on or by the earlier of:
(a) 31 July 1999; or
(b) a date three Business Days after the later of: (i) the date
on which the Customer receives payment from any third party
to whom it has granted rights to such Unit of Capacity of the
purchase price in full for such Unit, and (ii) the RFS Date;
and
9.5.3. in respect of the Additional Unit of Capacity, in the event that
MCI-WorldCom has not received the Option Price in full within
thirty (30) days of the applicable due date (as determined in
accordance with Clause 5.6), and
the Customer shall within thirty (30) days of such notice of revocation
pay MCI-WorldCom a cancellation fee of 20% of the portion of the Purchase
Price applicable to each Unit of Capacity (other than the Additional Unit)
to which such revocation notice applies. The Customer acknowledges that
the obligation to pay any cancellation fee in accordance with this Clause
9.5 is a material obligation for the purposes of Clause 9.3.
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9.6. In the event that the Customer shall, be notice to MCI-WorldCom, request
activation of a Unit of Capacity (other than the Additional Unit) on or
prior to a Target Date being a date prior to 30 June 1999 and the RFS Date
in respect of such Unit of Capacity is delayed beyond that date due to
MCI-WorldCom's default, then, notwithstanding Clauses 9.5.1 and 9.5.2,
MCI-WorldCom shall only be entitled to serve notice of revocation on the
customer in accordance with Clause 9.5 on or after the later of the date
specified in Clause 9.5 in respect of such Unit of Capacity and the RFS
Date.
9.7. Clauses 7, 8, this Clause 9.7 and Clauses 11, 13 and 20 shall continue in
full force and effect notwithstanding termination of this Agreement.
9.8. Termination of this Agreement shall not operate as a waiver of any breach
by a party of any of the provisions hereof and shall be without prejudice
to any rightful remedies of either party which may arise as a consequence
of such breach or which may have accrued hereunder up to the date of such
termination.
10. Force Majeure
10.1. Subject to Clauses 10.2, 10.3 and 10.4, any delay or failure to perform an
obligation under this Agreement by a party (the "affected party") shall
not constitute a breach of this Agreement to the extent that it is caused
by an event of Force Majeure.
10.2. The affected party shall promptly notify the other party in writing of the
estimated extent and duration of the inability to perform its
obligations.
10.3. Upon the cessation of the event of Force Majeure, the affected party shall
promptly notify the other party in writing of such cessation.
10.4. The affected party shall use all reasonable endeavors to mitigate the
effect of each event of Force Majeure.
10.5. If, following three months from the date of notification under Clause
10.2, the event of Force Majeure persists, the unaffected party may
forthwith terminate this Agreement by service of notice in writing on the
affected party.
11. Confidentiality
11.1 Subject to Clauses 11.2 and 11.3, in respect of Confidential Information
disclosed to it by the other party, each party shall:
11.1.1. only use such Confidential Information for the purposes of this
Agreement;
11.1.2. only disclose such confidential Information to a third party
with the prior written consent of the other party; and
11.1.3. ensure that any third party, to which Confidential Information is
disclosed under Clause 11.1.2, executes a confidentiality
undertaking on the terms of this Clause 11.
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11.2. The provisions of Clause 11.1 shall not apply to any Confidential
Information which:
11.2.1. is in or comes into the public domain other than by default of
the recipient party;
11.2.2. is or has already been independently generated by the recipient
party;
11.2.3. is in the possession of or is known by the recipient party prior
to its receipt from the disclosing party; or
11.2.4. is properly disclosed pursuant to and in accordance with a
relevant statutory or regulatory obligation or (with the prior
consent of either party, such consent not to be unreasonably
withheld) to obtain or maintain any listing on a stock exchange.
11.3. Either party may disclose the Confidential Information provided to it to
any Associated Company and to its professional advisors if and to the
extent that such disclosure is required in the performance of its
obligations hereunder.
12. Assignment and Subcontracting
12.1. Subject to Clause 9.2, this Agreement is personal to the parties hereto
and neither party shall, without the prior consent in writing of the other
(such consent not to be unreasonably withheld or delayed), assign, charge
or otherwise deal with the whole or any part of this Agreement or its
rights or obligations hereunder other than to or in favour of any
Associated Company of such party.
12.2. In the event of an assignment under Clause 12.1, the assignor shall
ensure that:
12.2.1. not less than fourteen (14) days' prior notice in writing of such
assignment is given to the other party; and
12.2.2. the assignee shall enter into an agreement with the other party
whereby the assignee shall agree to be bound by the terms of this
Agreement and, if required by the other party, the assignor shall
guarantee the performance of this Agreement by the assignee.
12.3. Either party may delegate the performance of its obligations hereunder to
any Associated Company. Such party shall, notwithstanding such delegation,
remain liable to the other party for the acts and omissions of such
Associated Company as if they were its own acts and omissions.
12.4. MCI-WorldCom agrees that the Customer shall be entitled to grant rights to
one or more Units of Capacity to other licensed or legally qualified third
party end users, provided that:
12.4.1. such grant is conditional on the Customer making available to
MCI-WorldCom the terms and conditions of such grant (other than
price), such terms and conditions to reflect underlying terms and
conditions of this Agreement to MCI-WorldCom's reasonable
satisfaction;
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12.4.2. such third parties shall meet with MCI-WorldCom's prior
reasonable approval; and
12.4.3. MCI-WorldCom receives the benefit of the representations,
warranties and covenants in Clause 7.3 from that third party in
relation to itself.
Notwithstanding any grant by the Customer of the Capacity to a third
party, the Customer shall remain liable for the performance of its
obligations hereunder.
12.5. In the event that the Customer grants rights to one or more Units of
Capacity pursuant to Clause 12.4, for the purposes of administering the
network operation centre of the Gemini cable network (the "NOC"), the
Customer shall notify MCI-WorldCom of such grant and shall provide MCI-
WorldCom with the following information: (a) the name and address of the
grantee or assignee; (b) the interest in the Capacity transferred; (c) the
name, address, telephone number, facsimile number and e-mail address of
the person (including appropriate escalation parties and procedures)
authorised on behalf of the grantee or assignee to interact with the NOC;
(d) a certification by the Customer that, notwithstanding such grant, the
Customer shall be fully liable for the performance of all its obligations
under this Agreement; and (e) any other information as MCI-WorldCom may
reasonably request.
13. Publicity
Neither party shall without the prior approval in writing of the other
(such approval not to be unreasonably withheld) directly or indirectly
make any release or statement to the press, radio, television or other
media in any way connected with this Agreement.
14. Severability
14.1. The invalidity or unenforceability for any reason of any part of this
Agreement shall not prejudice or affect the validity or enforceability of
the remainder of this Agreement.
14.2. If further lawful performance of this Agreement or any part of it shall be
made impossible by the final judgement or final order of any court of
competent jurisdiction, commission or government agency or similar
authority having jurisdiction over either party, the parties shall
forthwith use their reasonable endeavours to agree amendments to this
Agreement so as to comply with such judgement or order.
15. Variation
No variation, modification or addition to or cancellation of any provision
of this Agreement shall be effective unless agreed in writing by a duly
authorised representative of MCI-WorldCom and of the Customer.
16. Partnership
Nothing herein shall be deemed to constitute a partnership or joint
venture between the parties or to constitute one party the agent of the
other for any purpose whatsoever.
17. Waiver
Failure by either party at any time to enforce any of the provisions of
this Agreement shall neither be construed as a waiver of any rights or
remedies hereunder nor in any way affect the validity of this Agreement or
any part of it. No waiver shall be
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effective unless given in writing and no waiver of a breach of this
Agreement shall constitute a waiver of any antecedent or subsequent
breach.
18. Notices
18.1. Any notice required or authorised by this Agreement shall be in writing
sent by prepaid registered post or facsimile transmission (immediately
confirmed by post) and shall be deemed to have been received forty-eight
(48) hours after such posting or transmission. Any such notices shall be
addressed as follows:
to MCI-WorldCom: to the Customer:
---------------- ----------------
WorldCom International Limited EquiTel Bandwidth Limited
00 Xxxxx Xxx Xxxx 0, Xxx xx Xxxxxx
Xxxxxx XX0X 0XX XX Xxx 00
Attention: General Counsel 1299 Crans
Fax: 0000 000 0000 Vaud
Copy to: Account Manager (EquiTel) Switzerland
Attention: Xxxx Xxxxxxx
Copy to: WorldCentre MCI-WorldCom Fax: 0000 00 000 0000
Xxxxxx Xxxxxxxx Xxxxxx 000
0000 XX Copy to: Xxx Xxxxxxx
Amsterdam Director, Legal Services
The Netherlands Fax: 0000 000 0000
Fax: 0000 00 000 0000
18.2. Either party may amend its address and facsimile number specified in
Clause 18.1 by notice to the other party.
19. Entire Agreement
This Agreement constitutes the entire understanding between the parties
relating to the Capacity and supersedes all previous agreements,
understandings or commitments between the parties or representations or
warranties made by either party whether oral or written with respect to
the Capacity. Each party warrants to the other that it has not relied on
any such agreement, understanding, commitment, representation or warranty
(whether oral or in writing) in entering into this Agreement.
20. Governing Law
20.1. This Agreement shall be governed and construed in accordance with English
law.
20.2. The parties hereby submit to the non-exclusive jurisdiction of the English
Courts.
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21. Counterparts
This Agreement may be executed in counterparts and shall, if signed by an
authorised signatory of each of the parties hereto, be deemed to have been
duly executed.
AS WITNESS the hands of the duly authorised representatives of the parties at
the date first above written
} for and on behalf of
[illegible]
} MCI WorldCom Global Networks U.S., Inc.
} for and on behalf of
[illegible]
} MFS CableCo (Bermuda) Limited
/s/ X. Xxxxxxx } for and on behalf of
X. Xxxxxxx
FOR XXXXX TRUST LTD } EquiTel Bandwidth Limited
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