Exhibit 10.17
EXECUTION COPY
CAPACITY RIGHT OF USE AGREEMENT
THIS AGREEMENT, dated as of the 7th 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 NYNEX LONG
DISTANCE COMPANY, D/B/A XXXX ATLANTIC LONG DISTANCE, a Delaware corporation,
with principal offices at 1327 Broadway, 0xx Xxxxx Xxxx, Xxx Xxxx, Xxx Xxxx,
00000 XXX ("XXXX ATLANTIC").
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, XXXX ATLANTIC desires to acquire from FA-1, and FA-1 is willing to
provide to XXXX ATLANTIC, 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 XXXX ATLANTIC (the "Parties") desire to define the terms and
conditions under which the Capacity will be acquired by XXXX ATLANTIC.
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. XXXX ATLANTIC 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. XXXX ATLANTIC may exercise its option to acquire the
Capacity in Tranches 2, 3, 4 and (if applicable) 5 by notice to FA-1
***. XXXX ATLANTIC shall by the earlier of *** notify FA-1 whether
Schedule 2A or 2B shall apply to this Agreement (and if XXXX ATLANTIC
fails
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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
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 XXXX ATLANTIC 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 XXXX ATLANTIC
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 XXXX ATLANTIC 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 XXXX ATLANTIC has activated all the Capacity within the
previous Tranche.
1.3 ***
1.4 FA-1 shall:
1.4.1 Provide to XXXX ATLANTIC the circuit designations within one
day after receipt of an Activation Notice from XXXX ATLANTIC;
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 XXXX ATLANTIC paying the Purchase Price in accordance with
the terms of this Agreement, XXXX ATLANTIC 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 XXXX ATLANTIC 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 XXXX ATLANTIC to use
purchased Capacity for transport of communications until such time as
(a) XXXX ATLANTIC, in its sole discretion, determines to use such
purchased Capacity, and (b) XXXX ATLANTIC has obtained all necessary
approvals to use such purchased Capacity.
1.8 XXXX ATLANTIC shall have an ownership interest in the Capacity as
provided herein but XXXX ATLANTIC 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").
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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 to the extent
necessary to be consistent with the grant of a lease to XXXX ATLANTIC.
All other terms and conditions of this Agreement shall remain unchanged
and fully valid and enforceable.
2. PAYMENTS
2.1 XXXX ATLANTIC 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 XXXX ATLANTIC 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 XXXX ATLANTIC 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 XXXX ATLANTIC 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 XXXX ATLANTIC 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 XXXX ATLANTIC.
2.4 If XXXX ATLANTIC disputes any invoiced amount for O&M payments in good
faith, XXXX ATLANTIC 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 XXXX ATLANTIC 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 XXXX ATLANTIC, at
XXXX ATLANTIC's request, reasonable supporting documentation
concerning any invoice amount to XXXX ATLANTIC ***.
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. ***
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2.7 All amounts payable by XXXX ATLANTIC 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 XXXX
ATLANTIC 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 XXXX ATLANTIC is required by law to make
any deduction or withholding from any payment hereunder, XXXX ATLANTIC
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 amount FA-1 would have received had such deduction or withholding
not been required. XXXX ATLANTIC 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 XXXX ATLANTIC'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 XXXX ATLANTIC 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. XXXX
ATLANTIC 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 XXXX ATLANTIC 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
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deactivate all then activated Capacity (and refuse to activate any
additional Capacity) until XXXX ATLANTIC has paid in full all amounts
overdue together with applicable default interest provided that prior
to such deactivation, FA-1 shall notify XXXX ATLANTIC in writing of its
concern regarding the overdue payment and shall provide XXXX ATLANTIC
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. ***
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 XXXX ATLANTIC, either:
4.2.1 require XXXX ATLANTIC forthwith to pay the unpaid balance of
the Purchase Price for Capacity in Tranche 1; or
4.2.2 terminate this Agreement and relieve XXXX ATLANTIC 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 XXXX ATLANTIC of its obligation to pay
amounts already due hereunder plus default interest thereon.
4.3 In the event that XXXX ATLANTIC shall have failed to pay any amount
(including O&M Payments) payable by XXXX ATLANTIC pursuant hereto (and
not being disputed in good faith) for more than *** days after its due
date, then XXXX ATLANTIC 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 XXXX ATLANTIC 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 XXXX ATLANTIC required by this Agreement and to deny XXXX
ATLANTIC the right of access to collocated spaces until XXXX ATLANTIC
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 XXXX ATLANTIC's equipment from the
System in the event XXXX ATLANTIC's use of the System may result in
material damage or disruption to the System provided that where
practicable FA-1 shall notify XXXX ATLANTIC prior to such deactivation
or disconnection and shall provide XXXX ATLANTIC 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, XXXX ATLANTIC 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 *** XXXX ATLANTIC may by two months written notice
terminate its purchase of the Capacity. XXXX ATLANTIC 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 XXXX ATLANTIC any portion of the Purchase Price already paid
by XXXX ATLANTIC to FA-1 which has not been used to
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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 XXXX
ATLANTIC'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 XXXX ATLANTIC for any loss or damage
sustained by reason of any failure in or breakdown of the facilities
constituting the System or any interruption of XXXX ATLANTIC's use
of the Capacity, regardless of the cause of such failure, breakdown
or interruption, and regardless of how long it shall last. XXXX
ATLANTIC'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.
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 XXXX ATLANTIC with a copy thereof. FA-1 may, from time to
time, amend such procedures and shall provide XXXX ATLANTIC 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 XXXX ATLANTIC, then XXXX
ATLANTIC 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
XXXX ATLANTIC in determining the date, time and expected duration of
any such interruption, interference or impairment.
7.2 XXXX ATLANTIC 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.
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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 XXXX ATLANTIC whether XXXX ATLANTIC voted for
or against decommissioning. This provision is without prejudice to the
rights of FA-1 to decommission the System without any liability to XXXX
ATLANTIC 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 XXXX ATLANTIC of the possibility of any such
decommissioning of the System by FA-1 and give due consideration to
XXXX ATLANTIC's position and concerns regarding such possible
decommissioning when considering whether to decommission the System.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 XXXX ATLANTIC represents and warrants to FA-1 as follows:
9.1.1 XXXX ATLANTIC is duly established and in good standing under
the laws of Delaware and has full power and authority to enter
into this Agreement.
9.1.2 This Agreement constitutes the legal, valid and binding
obligation of XXXX ATLANTIC, enforceable against XXXX ATLANTIC
in accordance with its terms.
9.1.3 XXXX ATLANTIC has obtained or will obtain all necessary
consents, licenses, permits and other approvals, both
governmental and private, as may be necessary to permit XXXX
ATLANTIC to perform its obligations under this Agreement and
to acquire and use the Capacity.
9.1.4 XXXX ATLANTIC 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 XXXX ATLANTIC 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 XXXX ATLANTIC's use of the
Capacity will be as a result of the System failing to comply
with the "Year 0000 Xxxxxxxx" provided below.
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"Year 2000 Criteria" 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 XXXX ATLANTIC 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 XXXX ATLANTIC's requirements for the equipment to be deployed
by XXXX ATLANTIC in connection with the Capacity or services to be
offered by XXXX ATLANTIC utilising this equipment.
10. FORCE MAJEURE
"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 XXXX ATLANTIC shall disclose the terms of this
Agreement to any third party without the prior written consent of the
other Party. Notwithstanding the foregoing, XXXX ATLANTIC 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 XXXX ATLANTIC 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 XXXX
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ATLANTIC 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 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, XXXX ATLANTIC may assign its rights,
duties and obligations under this Agreement upon notice to FA-1, but
without FA-1's prior consent, to XXXX ATLANTIC Affiliates or to any
transferee of or successor to all or substantially all of the business
assets of XXXX ATLANTIC, 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
XXXX ATLANTIC.
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,
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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
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:
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If to XXXX ATLANTIC:
NYNEX Long Distance Company
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
With copies to:
Xxxx Atlantic International
1095 Avenue of the Americas
Room: 444
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Fax: 0-000-000-0000
Xxxx Atlantic Corporation
Legal Department
1095 Avenue of the Americas
Xxxx 0000
Xxx Xxxx, XX 00000
Attention: International Counsel
Fax: 000-000-0000
Xxxx Atlantic Network Services, Inc.
Legal Department
0000 Xxxxx Xxxxxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Long Distance Counsel
Fax: 000-000-0000
If to FA-1:
FLAG Atlantic Limited
The Emporium Building
69 Front Xxxxxx
0xx Xxxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: Co-chairmen
Tel: x0-000-000-0000
Fax: x0-000-000-0000
With a copy to:
FLAG Telecom Limited
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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 XXXX ATLANTIC acknowledges that all communications in connection with
this Agreement shall be between XXXX ATLANTIC 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) arising out of this Agreement or from any breach of any of
the terms and conditions of this Agreement.
20.3 ***
21. COUNTERPARTS
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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 XXXX ATLANTIC 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. 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
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It is expressly understood and agreed that this Agreement does not
grant to FA-1 an exclusive privilege to sell or otherwise provide to
XXXX ATLANTIC any or all products and services of the type described in
this Agreement. It is, therefore, understood that XXXX ATLANTIC 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 XXXX ATLANTIC may acquire the Capacity in
place of XXXX ATLANTIC 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
XXXX ATLANTIC under this Agreement and as to orders by such Affiliates,
references in this Agreement to XXXX ATLANTIC 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. ***
29. CUSTOMER INPUT
Following the Initial RFS Date, FA-1 shall solicit 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 XXXX ATLANTIC 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
BY /s/ Name of Signatory
------------------------
Name:
Title:
FLAG ATLANTIC USA LIMITED
BY /s/ Xxxxx X. Xxxxxxxx BY /s/ Xxxxx X. Xxxxxxx
----------------------- -----------------------
Name: Name: Xxxxx X. Xxxxxxx
Title: Title:
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NYNEX LONG DISTANCE COMPANY
By /s/ Xxxxxxxx Xxxxxx
----------------------
Name: Xxxxxxxx Xxxxxx
Title: President
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