Common use of Sales of Capacity Clause in Contracts

Sales of Capacity. The Borrower shall not, and shall not ----------------- permit the Subsidiaries to, sell or otherwise dispose Capacity except (a) pursuant to Capacity Sale Agreements substantially in the form of Exhibit L or --------- (b) pursuant to other agreements or arrangements which are on commercially reasonable terms (which shall include the disposition of Capacity without cash compensation in exchange for mutual restoration agreements); provided that, in -------- any event, (i) all such agreements and arrangements shall provide that amounts payable to the Borrower shall be paid to the Revenue Account, (ii) no agreement providing for future payments shall prohibit the granting of a security interest in such agreement by the Borrower to the Lenders and (iii) without derogation of the provisions of Section 6.24, such agreements shall provide that payments ------------ thereunder shall be in cash and at least 80% of such payments shall be due and payable before the Maturity Date; and provided, further, that (A) no individual -------- ------- sale shall defer more than $4,000,000 beyond the Maturity Date without prior written consent of the Lead Agents and (B) once the aggregate amount of payments deferred beyond the Maturity Date exceeds $20,000,000, no further deferral of payments beyond the Maturity Date shall be permitted without the prior written consent of the Majority Lenders (or the Lead Agents if, as of any date of determination, the cumulative Capacity Sales Revenue received by the Borrower and the Subsidiaries as of such date exceeds 175% of the cumulative Capacity Sales Revenue set forth in Section 6.24(a) with respect to such date) (and --------------- subject, in any event, to clause (A) above). ----------

Sales of Capacity. (a) The Borrower shall not, and shall not ----------------- permit the Subsidiaries any Subsidiary to, sell or otherwise dispose of Capacity except (a) pursuant to Capacity Sale Sales Agreements substantially in the form of Exhibit L I or otherwise --------- on commercially reasonable terms, which shall, subject to paragraph (b) pursuant to other agreements or arrangements which are on commercially reasonable terms (which shall below, include the disposition of Capacity without thereof for non-cash compensation in exchange consideration, such as for mutual restoration agreements)capacity on other systems; provided that, in -------- any event, (i) all such agreements and -------- arrangements shall provide that any amounts payable to the Borrower or any Subsidiary shall be paid to the Revenue Account, Account or the U.S. Backhaul Account (as the case may be) in accordance with the provisions of the Securities Accounts Agreement and (ii) no agreement providing for future payments shall prohibit restrict either contractually or as a matter of law the granting of a security interest in such agreement by the Borrower or any Subsidiary to the Lenders Lenders. (1) The Borrower shall not, and shall not permit any Subsidiary to, sell, lease, transfer or otherwise dispose of System Capacity in exchange for non-cash consideration (iiisuch System Capacity being referred to as "Swapped ------- System Capacity" and such sale, lease, transfer or other disposition being --------------- referred to as a "Swap") without derogation to Affiliates of the provisions Borrower or any Subsidiary, ---- whether in one transaction or a series of Section 6.24related transactions, such agreements shall provide that payments ------------ thereunder if the aggregate value of the Swapped System Capacity (which shall be in cash and determined by reference to the Borrower's listed prices for such System Capacity at least 80% the time of such payments shall be due and payable before the Maturity Date; and provideddisposition) being disposed of to all such Affiliates exceeds $10,000,000, further, that (A) no individual -------- ------- sale shall defer more than $4,000,000 beyond the Maturity Date without prior written consent of unless the Lead Agents otherwise agree to the contrary. If any non-cash consideration received by the Borrower or any Subsidiary in exchange for Swapped System Capacity disposed of to an Affiliate of the Borrower or a Subsidiary is disposed of for cash (the amount of such cash being referred to as the "Affiliate Capacity Cash Amount"), the ------------------------------- amount of Swapped System Capacity disposed of to Affiliates of the Borrower and such Subsidiary shall be deemed to be reduced by an amount equal to the amount of System Capacity that a third party could purchase for the Affiliate Capacity Cash Amount at the Borrower's listed System Capacity prices at the time of such disposition. (B2) once Swapped System Capacity shall only be disposed of in exchange for fair value for other fiber optic cables or capacity thereon which can and will be connected to the System or are being acquired in connection with facilitating sales of Capacity or for other assets relating to and useful for the System (which would not, for the avoidance of doubt, include satellite capacity or wireless capacity (other than for restoration purposes)). (3) The Borrower shall not, and shall not permit any Subsidiary to, Swap any System Capacity if, after giving effect to such Swap, the aggregate amount of payments deferred beyond System Capacity disposed of pursuant to Swaps exceeds (i) prior to the Maturity Date exceeds $20,000,000First Permitted Upgrade Final Completion, no further deferral of payments beyond the Maturity Date shall be permitted without the prior written consent of the Majority Lenders one STM-16 and (or the Lead Agents ifii) on and after First Permitted Upgrade Final Completion, as of any date of determination, the cumulative Capacity Sales Revenue received by the Borrower and the Subsidiaries as of such date exceeds 175% of the cumulative Capacity Sales Revenue set forth in Section 6.24(a) with respect to such date) (and --------------- subject, in any event, to clause (A) above). ----------two STM-16's.

Sales of Capacity. The Borrower shall not, and shall not ----------------- permit the Subsidiaries to, sell or otherwise dispose Capacity except (a) pursuant to Capacity Sale Agreements substantially in the form of Exhibit L or --------- (b) pursuant to other agreements or arrangements which are on commercially reasonable terms (which shall include the disposition of Capacity without cash compensation in exchange for mutual restoration agreements); provided that, in -------- any event, (i) all such agreements and arrangements shall provide that amounts payable to the Borrower shall be paid to the Revenue Account, (ii) no agreement providing for future payments shall prohibit the granting of a security interest in such agreement by the Borrower to the Lenders and (iii) without derogation of the provisions of Section 6.24, such agreements shall provide that payments ------------ thereunder shall be in cash and at least 80% of such payments shall be due and payable before the Maturity Date; and provided, further, that (A) no individual -------- ------- sale shall defer more than $4,000,000 beyond the Maturity Date without the prior written consent of the Lead Agents and (B) once the aggregate amount of payments deferred beyond the Maturity Date exceeds $20,000,000, no further deferral of payments beyond the Maturity Date shall be permitted without the prior written consent of the Majority Lenders (or the Lead Agents if, as of any date of determination, the cumulative Capacity Sales Revenue received by the Borrower and the Subsidiaries as of such date exceeds 175% of the cumulative Capacity Sales Revenue set forth in Section 6.24(a) with -------------- respect to such date) (and --------------- subject, in any event, to clause (A) above). ------------------- Prior to the date upon which a Certificate of Commercial Service has been issued under the Supply Contract for the United Kingdom to Germany Segment of the System, the Borrower and its Subsidiaries may dispose of up to 10% of the System's initial Capacity for non-cash consideration permitted under this Agreement and constituting System Activities and, thereafter, if and when the option under the Supply Contract for the First Permitted System Upgrade has been duly exercised by the Borrower, up to 20% (in the aggregate and inclusive of dispositions theretofore made pursuant to this sentence) of the System's initial Capacity, in each case on commercially reasonable terms, provided that in the event that any such non-cash -------- consideration received by the Borrower and/or its Subsidiaries is ultimately disposed of for cash, the corresponding capacity on the System will no longer be deemed to have been disposed of for non-cash consideration." SECTION 2.5 Modification of Article VIII (Accounts). Article VIII of the --------------------------------------- Existing Credit Agreement is hereby amended in accordance with Sections 2.5.1 -------------- through 2.5.6. ----- SECTION 2.5.1. Clause (a) of Section 8.08 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows: