FIBER OPTIC LINK AROUND THE GLOBE (FLAG)
CABLE SYSTEM
CONSTRUCTION AND MAINTENANCE
AGREEMENT
FIBER OPTIC LINK AROUND THE GLOBE (FLAG) CABLE SYSTEM
CONSTRUCTION AND MAINTENANCE AGREEMENT
This Agreement is made and entered into this ______ day of ______________ 199_,
between and among the Signatories identified in Schedule A attached hereto;
WHEREAS, the Founding Signatory wishes to provide a fiber optic submarine cable
system to be called the "FLAG Cable System" to furnish digital transmission
facilities between and among points in the United Kingdom, Spain, Italy, Egypt,
the United Arab Emirates, India, Thailand, Malaysia, Hong Kong, the Republic of
Korea and Japan, and
WHEREAS, the Signatories have recognized the need for high capacity fiber optic
cable facilities providing a direct telecommunications link connecting Europe
and the Far East through the Indian Ocean Region, and
WHEREAS, the following Signatories have signed a Memorandum of Understanding
dated as of July 19, 1993, for the purpose of jointly planning the
implementation of the FLAG Cable System in advance of this Agreement; Arab
Republic of Egypt National Telecommunications Organization; The Communications
Authority of Thailand; Emirates Telecommunications Corporation; FLAG Limited;
The Government of Gibraltar; Hong Kong Telecom International Limited;
International Digital Communications Inc.; IRITEL S.p.A. (the predecessor
corporation to TELECOM ITALIA S.p.A.); Korea Telecom; Mercury Communications
Limited; PT (PERSERO) Indonesia Satellite Corporation; SPT Telecom, a.s.;
Telef6nida de Espana S.A.; Telekom Malaysia Berhad; and Videsh ▇▇▇▇▇▇▇ ▇▇▇▇▇
Limited, and
WHEREAS, the Signatories have agreed to set forth the terms and conditions upon
which the FLAG Cable System shall be owned, constructed, maintained and
operated.
NOW WITNESSETH that, in consideration of the mutual covenants and conditions
contained herein, the Signatories hereby covenant and agree with each other as
follows:
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1. DEFINITIONS AND INTERPRETATIONS
1.1 The following definitions shall apply (except where the context
otherwise requires) to certain terms used in this Agreement:
1.1.1. AFFILIATE: An Affiliate shall mean, with. respect to an
entity, any other entity that controls, is controlled by or is
under common control with that entity, control being defined
as ownership of more than fifty percent (50%) in value of the
outstanding voting stock, or other form of interest in the
capital of, or of a partnership interest in, an entity.
1.1.2. BASIC SYSTEM MODULE: A Basic System Module shall
consist of an STM 1digial line signal at 155,520 Kilobits per
second (Kbps) with interface signal in accordance with ITU-TS
Recommendations G707 to G709.
1.1.3. BEACH JOINT A Beach Joint shall be the physical
connection between the submersible portion of the Submarine
System and the land-based portion of the Submarine System.
1.1.4. BIT SEQUENCE INDEPENDENCE: The property of a binary
transmission channel, telecommunication circuit or connection
that permits all sequences of binary signal elements to be
conveyed over it at its specified bit rate, without change to
the value of any signal elements in accordance with the
appropriate ITU-TS Recommendations.
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1.1.5. BRANCHING UNIT: A Branching Unit is a junction point
for the FLAG Cable System, and includes a housing and any
associated plant and equipment.
1.1.6. CABLE LANDING POINT: A Cable Landing Point shall be the
Beach Joint or, if there is no Beach Joint in a particular
Country, the high water ▇▇▇▇ as shown on the nautical charts
of that Country.
1.1.7. CAPACITY: Capacity in the FLAG Cable System shall be
defined as follows:
1.1.7.1. Design Capacity: Design Capacity is the
Capacity which each Segment S and Segments
X-1 and X-2 can ultimately provide. The
Design Capacity of each fiber pair consists
of thirty-two (32) Basic System Modules,
with each Basic System Module providing
sixty-three (63) MIUs, for a Design Capacity
of two thousand sixteen (2,016) MIUs.
1.1.7.2. Assignable Capacity: Assignable Capacity is
Capacity in Segment S and in Segments X-1
and X-2 which: (i) has been conveyed by the
Founding Signatory by sale or lease and is
assigned to Signatories or to International
Telecommunications Entities, or (ii) is
owned by the Founding Signatory and is
expected to be conveyed to Signatories or
International Telecommunications Entities by
sales or leases during a reasonable future
period.
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That portion of Assignable Capacity which is held on
an ownership basis is used to compute the voting
interests of the Signatories as specified in Schedule
C.
1.1.7.3. Latent Capacity: Latent Capacity is the
Design Capacity less the Assignable
Capacity. The Latent Capacity is owned by
the Founding Signatory and is capacity held
in reserve for future sale or lease. Latent
Capacity may be used for restoration
purposes.
1.1.8. COUNTRY: Country shall mean a country, territory or
place, as appropriate.
1.1.9. FLAG CABLE SYSTEM: The cable system described in
Paragraph 2 and Schedule B, together with its associated plant
and equipment.
1.1.10. FLAG INTERFACE POINT: The 155,520 kilobits per second
(Kbps) digital input/output ports on the digital distributing
frame (including the digital distribution frame itself) shall
be the FLAG Interface Point where the Submarine System
connects with other transmission facilities or equipment.
1.1.11. FOUNDING SIGNATORY: Founding Signatory refers to FLAG
Limited, a company incorporated in Bermuda with its principal
place of business office in Bermuda.
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1.1.12. INTERNATIONAL TELECOMMUNICATIONS ENTITY: Any entity
authorized or permitted under the laws and regulations of its
Country to acquire and use facilities for the provision of
international telecommunications services.
1.1.13. ITU-TS: The International Telecommunications Union -
Telecommunication Standardization Sector (previously referred
to as CCITT).
1.1.14. ITU-TS RECOMMENDATION: A recommendation approved in
accordance with the procedure laid down in Resolution No. 2
(IXTH Plenary Assembly, Melbourne, November 1988).
1.1.15. LANDING PARTY SIGNATORY: A Landing Party Signatory is
a Signatory. that is so identified in Schedule A.
1.1.16. LONDON INTERBANK OFFERED RATE (LIBOR): LIBOR shall
mean the London Interbank Offered Rate for ninety (90) day
loans, being the arithmetic mean of the averages, rounded to
the nearest one-sixteenth, of the bid and offered rates for
10,000,000 (ten million) U.S. dollars quoted by the reference
bank at 11:00 a.m. local time each working day. The reference
bank is ▇▇▇▇▇▇ Guaranty Trust Company or such other bank as
may be specified by the Management Committee, as necessary.
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1.1.17. LICENSES: All governmental approvals, consents,
authorizations, licenses and permits and other authorizations
which are necessary to enable the FLAG Cable System to be
landed, installed, operated and maintained.
1.1.18. MINIMUM INVESTMENT UNIT OR MIU: A unit designated as
the minimum unit of investment in any Segment representing 30
bearer channels and allowing the effective use of 2,048 Kbps.
1.1.19. NON-LANDING PARTY SIGNATORY: A Non-Landing Party
Signatory is a Signatory that is so identified on Schedule A.
1.1.20. READY FOR PROVISIONAL ACCEPTANCE (RFPA) DATE: The date
on which Segment S and Segments X-1 and X-2, as described in
Paragraph 2, are accepted by the Founding Signatory, pursuant
to the terms and conditions set forth in the Supply Contract.
The RFPA Date is presently contemplated to be March 2, 1997.
1.1.21. READY FOR CUSTOMER SERVICE (RFCS) DATE: The date on
which the FLAG Cable System shall be available for customer
service. That date shall be at least thirty (30) days after
the RFPA Date. The RFCS Date is presently contemplated to be
April 2, 1997.
1.1.22. SCHEDULING: Any document attached hereto and
identified as a Schedule which is made part hereof, as it may
be amended from time to time in accordance with this
Agreement.
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1.1.23. SEGMENT: A Segment described in Paragraph 2 and
identified by the letters S, X-1, X-2 or T.
1.1.24. SIGNATORIES: Those entities identified in Schedule A,
and such other entities that may subsequently become parties
to this Agreement pursuant to Paragraph 30.
1.1.25. SUBMARINE SVSTEM: The Submarine System shall comprise
all plant and equipment, including spare plant and test
equipment, forming Segment S and connecting the FLAG Interface
Points so as to provide the Basic System Modules described in
Paragraph 5.
1.1.26. SUOPLY CONTRACT: The contract entered into by the
Founding Signatory as described in Paragraph 7.
1.2 Unless the context otherwise requires, the singular shall be taken
to mean the plural and the plural shall be taken to mean the singular.
1.3 The captions of the paragraphs and the initial recitals are for
convenience only, and do not form a part of this Agreement and shall
not have any effect on the interpretation thereof.
1.4 All Schedules and Appendices attached to this Agreement are deemed
to be fully incorporated herein by this reference for all purposes, as
though fully set forth at length herein.
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2. FLAG CABLE SYSTEM SEGMENTS
In accordance with the arrangements contained in this Agreement, the
FLAG Cable System shall be engineered, provided, constructed,
maintained and operated between and among a terminal in the United
Kingdom, a terminal in Spain, a terminal in Italy, a terminal in
Alexandria, Egypt, a terminal in Suez, Egypt, a terminal in the United
Arab Emirates, a terminal in India, a terminal in Malaysia, a terminal
in Thailand, a terminal in Hong Kong, a terminal in the Republic of
Korea and a terminal in Japan. For purposes of this Agreement, the FLAG
Cable System shall be regarded as consisting of the following Segments:
2.1 SEGMENTS T
Segment T-1 A cable station at Porthcurno, the United Kingdom
connecting the United Kingdom to Spain by Segment
S-1.
Segment T-2 A cable station at Estepona, Spain connecting Spain
to the United Kingdom by Segment S-11, and connecting
Spain to Italy by Segment S-2.
Segment T-3 A cable station at Palermo, Italy connecting Italy to
Spain by Segment S-2, and connecting Italy to
Alexandria, Egypt by Segment S-3.
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Segment T-4 A cable station at Alexandria, Egypt connecting Egypt
to Italy by Segment S-3, and connecting Alexandria,
Egypt to Suez, Egypt by Segment X-1 and Segment S-4.
Segment T-5 A cable station at Suez, Egypt connecting Suez, Egypt
to Alexandria, Egypt by Segment X-1 and Segment S-4,
and connecting Suez, Egypt to the United Arab
Emirates by Segment S-5.
Segment T-6 A cable station at Fujairah, the United Arab Emirates
connecting the United Arab Emirates to Suez, Egypt by
Segment S-5, and connecting the United Arab Emirates
to India by Segment S-6.
Segment T-7 A cable station at Bombay, India connecting India to
the United Arab Emirates by Segment S-6, and
connecting India to Malaysia by Segment S-7.
Segment T-8 A cable station at Penang, Malaysia, connecting
Malaysia to India by Segment S-7, and connecting
Malaysia to Songkhla, Thailand by Segment S-8 and
Segment X-2.
Segment T-9 A cable station at Songkhla, Thailand connecting
Thailand to Malaysia by Segment X-2 and Segment S-8,
and connecting Thailand to Hong Kong by Segment S-9.
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Segment T-10 A cable station at Lantau Island, Hong Kong
connecting Hong Kong to Thailand by Segment S-9, and
connecting Hong Kong to the Republic of Korea by
Segment S-10.
Segment T-11 A cable station at Keoje, Korea connecting the
Republic of Korea to Hong Kong by Segment S-10, and
connecting the Republic of Korea to Japan by Segment
S-11.
Segment T-12 A cable station at Miura, Japan connecting Japan to
the Republic of Korea by Segment S-11.
Each aforementioned Segment T shall consist of:
(i) an appropriate share of land, civil works, equipment and
buildings at the specified locations for the cable landing and
for the cable route, including cable rights-of-way and ducts
between a cable station and its respective Cable Landing Point
and an appropriate share of common services and equipment at
each of those locations, together with equipment (other than
multiplex equipment described in (iii) below), including but
not limited to, heating, ventilating, air conditioning, alarm
and station ground systems, in each of those cable stations
which is solely associated with the FLAG Cable System, but not
a part of Segment S; and
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(ii) an appropriate share of AC and DC power including back up
power systems as required; and
(iii) multiplex equipment, if necessary, to establish transmission
rates below the STM-1 (155,520 Kbps) level down to the E-1
(2,048 Kbps) level in each of the cable stations, associated
solely and directly with Assignable Capacity in the FLAG Cable
System.
2.2 SEGMENTS S:
The whole of the submarine cable system provided between and among, and
including, the FLAG Interface Points at the cable stations at
Porthcurno, the United Kingdom; Estepona, Spain; Palermo, Italy;
Alexandria, Egypt; Suez, Egypt; Fujairah, the United Arab Emirates;
Bombay, India; Penang, Malaysia; Songkhla, Thailand; Lantau Island,
Hong Kong; Keoje, Korea and Miura, Japan, consisting of the following
Segments:
Segment S-1 That part of Segment S between the FLAG Interface
Point at the cable station at Porthcurno, the United
Kingdom and the FLAG Interface Point at the cable
station at Estepona, Spain.
Segment S-2 That part of Segment S between the FLAG Interface
Point at the cable station at Estepona, Spain and the
FLAG Interface Point at the cable station at Palermo,
Italy.
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Segment S-3 That part of Segment S between the FLAG Interface
Point at the cable station at Palermo, Italy and the
FLAG Interface Point at the cable station at
Alexandria, Egypt.
Segment S-4 That part of Segment S between the FLAG Interface
Point at the cable station at Alexandria, Egypt and
the point where the digital input/output ports of the
Basic System Module on the digital distribution frame
(including the digital distribution frame itself) of
the Submarine System connect with Segment X-1 at Port
Said, Egypt.
Segment S-5 That part of Segment S between the FLAG Interface
Point at the cable station at Suez, Egypt and the
FLAG Interface Point at the cable ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇.
Segment S-6 That part of Segment S between the FLAG Interface
Point at the cable station at Fujairah, the United
Arab Emirates and the FLAG Interface Point at the
cable station at Bombay, India.
Segment S-7 That part of Segment S between the FLAG Interface
Point at the cable station at Bombay, India and the
FLAG Interface Point at the cable station at Penang,
Malaysia.
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Segment S-8 That part of Segment S between the FLAG Interface
Point at the cable station at Penang, Malaysia and
the point where the digital input/output ports of the
Basic System Module on the digital distribution frame
(including the digital distribution frame itself) of
the Submarine System connect with Segment X-2 at
Satun, Thailand.
Segment S-9 That part of Segment S between the FLAG Interface
Point at the cable station at Songkhla, Thailand and
the FLAG Interface Point at the cable station at
Lantau Island, Hong Kong.
Segment S-10 That part of Segment S between the FLAG Interface
Point at the cable station at Lantau Island, Hong
Kong and the FLAG Interface Point at the cable
station at Keoje, Korea.
Segment S-11 That part of Segment S between the FLAG Interface
Point at the cable station at Keoje Korea and the
FLAG Interface Point at the cable station at Miura,
Japan.
Segments S-1 and S-2 shall each include a one-half
portion of Branching Unit 1 (BU1), as shown in
Schedule B-1, and a one half portion of the Submarine
System between BU1 and Segment T-2.
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Segments S-5 and S-6 shall each include a one-half
portion of Branching Unit 2 (BU2), as shown in
Schedule B-1, and a one-half portion of the Submarine
System between BU2 and Segment T-6.
Segments S-7 and S-8 shall each include a one-half
portion of Branching Unit 3 (BU3), as shown in
Schedule B-1, and a one half portion of the Submarine
System between BU3 and Segment T-8.
2.3 SEGMENT X-1:
That part of the FLAG Cable System between the cable station at
Alexandria, Egypt and the cable station at Suez, Egypt, wholly
dedicated to the provision of the FLAG Cable System, and connecting the
following Segments:
T-4 to T-5; and
S-4 to T-5.
Segment X-1 will consist of dedicated fiber pairs, in two
geographically diverse buried terrestrial cables laid across Egypt,
each providing sufficient capacity for accommodating the whole capacity
required between Alexandria and Suez, Egypt.
SEGMENT X-2:
That part of the Cable System between the cable station at Songkhla,
Thailand, and the point where Segment S-8 connects with Segment X-2 at
Satun, Thailand,
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wholly dedicated to the provision of the FLAG Cable System, and
connecting the following Segments:
S-8 to T-9.
Segment X-2 will consist of dedicated fiber pairs, in two
geographically diverse buried terrestrial cables laid across Thailand,
each providing sufficient capacity for accommodating the whole capacity
required between Segments S-8 and T-9.
2.4 Each aforementioned Segment S shall also include:
(i) all transmission, power feeding and test equipment
directly associated with Segment S;
(ii) the transmission cable equipped with appropriate
repeaters and joint housings between the cable
stations;
(iii) the power feed earth system or an appropriate share
thereof; and
(iv) digital cross connect system equipment, dedicated to
the FLAG Cable System, used to interconnect
Assignable Capacity transiting the FLAG Cable System
through a Segment T and also for Assignable Capacity
accessing a Segment T at the 155,520 Kbps level.
2.5 Segments X-1 and X-2 shall also include:
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(i) all transmission, power feeding and test equipment
directly associated with such Segments X-1 and X-2;
(ii) the power equipment provided wholly for use with the
equipment listed in (i) above; and
(iii) the transmission system including cable equipped with
appropriate repeaters, if required, between the
Segments as defined in Paragraph 2.3.
2.6 ALL SEGMENTS:
In this Agreement, references to any Segment however expressed, shall
include, unless the context otherwise requires, additional property
incorporated therein by agreement of the Founding Signatory and the
Landing Party Signatories. Each Segment shall be regarded as including
its related spare and standby units and components, including, but not
limited to, repeaters, cable lengths and terminal equipment, or an
appropriate share thereof.
3. OWNERSHIP
3.1 Each Segment S shall be owned by the respective Signatories,
retroactive to the RFPA Date, in common and undivided shares in the
proportions set out in Schedule D in respect of such Segment upon
payment to the Founding Signatory in accordance with terms and
conditions of applicable capacity sales agreements. Each Signatory
shall have the right to activate and use its Assignable Capacity in
each relevant Segment S as of the RFPA Date and shall be responsible as
of that date for all obligations arising as an
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incident of ownership in the FLAG Cable System, including, without
limitation, payment of operation and maintenance charges pursuant to
Paragraph 11, provided, however, that if payment for such Assignable
Capacity is not received within thirty (30) days of the due date under
the applicable capacity sales agreement, ownership will not vest
retroactively, and the Founding Signatory may, without prejudice to any
other remedies it may have, deactivate such Assignable Capacity.
3.2 As an incident of ownership of Segment S, each Signatory shall have
the right to use such part of the Assignable Capacity in each relevant
Segment in accordance with Paragraph 13 for the duration of this
Agreement.
3.3. Each Segment T and Segments X-1 and X-2 shall be owned by the
Landing Party Signatory in whose Country the relevant Segment is
physically situated.
3.4. Each Signatory may deal with its ownership share in any Segment S
and the right to use its part of the Assignable Capacity in accordance
with the terms of this Agreement, but no Signatory shall otherwise have
or exercise in relation to any such Segment any right incident to a
right of ownership of property except jointly with all other
Signatories.
4. ESTABLISHMENT OF MANAGEMENT COMMITTEE
4.1. For the purpose of directing the engineering, provision,
installation, bringing into service, continued operation, maintenance
and coordination of exploitation of the FLAG
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Cable System, the Signatories shall form a Management Committee
(hereinafter called the "MC'), which shall continue to exist during the
term of this Agreement and shall consist of a representative of each of
the Signatories. The MC shall make or cause to be made all decisions on
behalf of the Signatories to implement the purposes of this Agreement,
except with respect to matters expressly reserved to the Founding
Signatory pursuant to this Agreement. Although each Signatory must
designate a single representative, each Signatory may bring expert
assistance to the meetings of the MC. Two or more Signatories may
designate the same person to serve as their representative at specific
meetings of the MC and its subcommittees established pursuant to
Paragraph 4.3. In the event of voting as specified pursuant to
Paragraphs 4.5 and 4.6, such person representing more than one
Signatory shall separately vote the interest to which each Signatory
represented is entitled.
4.2. Until the day following the RFPA Date, the chairman of the MC
shall be appointed by the Founding Signatory. Thereafter, the members
of the MC shall appoint a chairman from among the Founding Signatory
and the Landing Party Signatories, for periods determined by them,
provided that the first chairman of the MC appointed after the RFPA
Date shall be selected from among the Landing Party Signatories.
4.3. The MC may form subcommittees to aid in the performance of its
duties. Terms of reference
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for specified subcommittees are attached in Appendix A. Terms of
reference for other subcommittees shall be decided by the MC. The
subcommittees shall consist of representatives of the Founding
Signatory and the other Signatories. The subcommittees shall reach
agreement by consensus. If consensus is not achieved, the matter shall
be referred to the MC for decision. The MC shall be authorized to
dissolve a subcommittee formed pursuant to this paragraph.
4.4. No decisions of the MC or its subcommittees shall override any
provisions of this Agreement or diminish in any way the rights granted
to any Signatory under this Agreement.
4.5. Meetings of the MC may be convened at the discretion of the
chairman and additionally shall be convened by the chairman when
requested to do so by one or more Signatories representing at least
five percent (5%) of the total voting interests. The voting interest of
each Signatory shall be as specified in Schedule C. The chairman shall
in normal circumstances give at least thirty (30) days notice to all
members of the convening of a meeting of the MC and at that time shall
furnish an agenda therefor. In extraordinary circumstances, the period
of notice may be reduced where at least two-thirds (2/3) of the voting
interests is in agreement. The quorum for any meeting of the MC or any
subcommittee shall be the Founding Signatory and two or more
representatives of other Signatories together representing not less
than five percent (5%) of the total voting interests.
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4.6. All decisions made by the MC shall be subject, in the first
instance, to consultation among its members, who shall make every
effort to reach agreement by consensus. Except as otherwise provided in
Paragraph 23, in the event that consensus cannot be reached, the
decisions will be carried on the basis of an affirmative vote of the
representatives of Signatories representing at least a simple majority
of the total voting interests represented at the meeting, provided,
however, that in the case of decisions pursuant to Paragraph 9.1 and
other decisions that may have a financial impact on the rounding
Signatory with respect to contractual obligations incurred by the
Founding Signatory under this Agreement, such simple majority shall
include the Founding Signatory. On and prior to the RFPA Date, if such
vote results in a tie, the chairman of the MC shall cast the deciding
vote.
5. CONFIGURATION OF THE FLAG CABLE SYSTEM
5.1. As shown in Schedule B-1, the FLAG Cable System shall consist of
thirty-two (32) Basic System Modules on one fiber pair available for
traffic and restoration between: the United Kingdom and Italy, Italy
and Egypt, Egypt and India, India and Thailand, Thailand and Hong Kong,
Hong Kong and the Republic of Korea, and the Republic of Korea and
Japan.
5.2. As shown in Schedule B-1, the FLAG Cable System shall also consist
of thirty-two (32) Basic System Modules on a second fiber pair
available for traffic and restoration between: the United Kingdom and
Spain, Spain and Italy, Italy and Egypt, Egypt and the
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, the United Arab Emirates and India, India and
Malaysia, Malaysia and Thailand, Thailand and Hong Kong, Hong Kong and
the Republic of Korea, and the Republic of Korea and Japan.
6. OBLIGATIONS OF THE SIGNATORIES
6.1. Except as otherwise provided in Paragraphs 6.2 and 6.6, all costs
incurred under the Supply Contract for the provision and installation
of the Submarine System and Segments X-1 and X-2 shall be borne by the
Founding Signatory.
6.2. The costs of additional equipment and services requested by the
Landing Party Signatories to be procured under the Supply Contract
pursuant to Paragraph 7.3, which are not included in the Submarine
System or Segments X-1 and X-2, shall be borne by the Landing Party
Signatories.
6.3. Appendix B contains a list of the initial costs associated with
the FLAG Cable System in addition to costs arising under the Supply
Contract. Appendix B specifies which of the Signatories is responsible
for the performance and costs of the specified items.
6.4. Each of the Landing Party Signatories shall provide and install
the Segment T located in its respective country in sufficient time to
permit the FLAG Cable System to be placed in operation by the RFPA
Date.
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▇.▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ of Egypt National Telecommunications Organization
(ARENTO) and the Communications Authority of Thailand (CAT) shall
furnish all necessary and appropriate assistance to the Founding
Signatory in the provision of Segments X-1 and X- 2, respectively, in
sufficient time to permit the FLAG Cable System to be placed in
operation by the RFPA Date.
6.6. The Founding Signatory shall pay for two-thirds of the costs of
the digital cross connect system equipment, as described in Paragraph
2.4 (iv), with each of the Landing Party Signatories paying for the
remaining one-third of such costs of such equipment placed in each of
their respective cable stations and in consideration for such payment
the Landing Parties shall receive Indefeasible Right of Use (IRU) in
such equipment.
6.7. All Signatories shall provide full cooperation with each other in
matters concerning the FLAG Cable System and the promotion of the best
interests of the FLAG Cable System.
6.8. All Signatories shall, as necessary and practical, enter into
agreements for utilizing alternative capacity for restoration purposes
in the event of failure of part or all of the FLAG Cable System.
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7. SUPPLY CONTRACT
7.1. The Founding Signatory shall develop the technical design of the
FLAG Cable System in accordance with good engineering practice and
appropriate international technical and operating standards, shall
ensure the technical compliance of the FLAG Cable System at the FLAG
Interface Points with appropriate ITU-TS Recommendations, and shall
compile a specification of the FLAG Cable System.
7.2. The Founding Signatory shall cause to be conducted a survey of the
submarine route for the Submarine System.
7.3. The Founding Signatory shall have sole responsibility for the
provision and installation of the Submarine System and Segments X-1 and
X-2 and, to that end, shall enter into the Supply Contract with one or
more suppliers for services, plant and equipment and for the
engineering, provision and installation of the Submarine System and
Segments X-1 and X-2. At the request of the Landing Party Signatories
and after consultation with the relevant subcommittee, the Founding
Signatory may include in the Supply Contract equipment and services
which are associated with the FLAG Cable System, but which are not
included in the Submarine System or Segments X-1 and X-2. The costs of
services, plant, and equipment procured under the Supply Contract shall
be allocated as specified in Paragraph 6.
7.4. The Founding Signatory shall ensure that the Supply Contract shall
afford the Founding Signatory or its designated representatives
reasonable rights of access to
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examine, test and inspect all engineering, provisioning and
installation activities and equipment, material and supplies
7.5. The Founding Signatory shall make available to the Landing Party
Signatories on a timely basis technical information relating to the
construction, provision and operation of the FLAG Cable System which
may be required to discharge the responsibilities of the Landing Party
Signatories to obtain and maintain in force Licenses, provide their
respective Segment T and transiting facilities, and connect the FLAG
Cable System to inland systems. The Landing Party Signatories shall
afford confidential treatment to such information.
7.6. The Founding Signatory shall ensure that the Supply Contract shall
require the supplier(s) with whom that Supply Contract is placed to
provide plant, equipment and services necessary to allow the Submarine
System and Segments X-1 and X-2 to be placed into operation on the RFPA
Date, and shall take any and all actions as may be necessary and
appropriate to enforce the terms of the Supply Contract. The Founding
Signatory does not warrant or guarantee that the supplier(s) under the
Supply Contract will place into operation the Submarine System and
Segments X-1 and X-2 either at all or by any particular date.
7.7. The Founding Signatory shall ensure that the Supply Contract shall
require the supplier(s) with whom the Supply Contract is placed to
provide a performance guarantee and warranty in accordance with good
engineering practice and relevant international
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technical and operating standards and which will result in the
technical compliance of the FLAG Cable System at the FLAG Interface
Points with appropriate ITU-TS Recommendations.
7.8. If the costs to correct a failure, breakdown or interruption of
the FLAG Cable System are covered by a warranty under the Supply
Contract, the Founding Signatory shall credit the running charges
otherwise payable by the Signatories based on the share of such costs
allocable to each Signatory, pursuant to Paragraph 11.2, with the
amount received from the supplier under its warranty, less the
reasonable costs expended by the Founding Signatory to pursue such
warranty claim.
7.9. The Signatories acknowledge that the Founding Signatory does not
warrant or guarantee the performance of the Submarine System by reason
of the supplier's failure to perform the terms and conditions of the
Supply Contract. The Founding Signatory shall take any and all actions
as may be necessary and appropriate to enforce the terms of the Supply
Contract.
8. RIGHT OF USE OF SEGMENTS X-1 AND X-2 AND SEGMENT T
8.1. ARENTO grants the right of use of Segment X-1, at no charge to
Signatories and to other International Telecommunication Entities which
have acquired Assignable Capacity, pursuant to Paragraph 13, on
Segments S-3 and S-4 that interconnect with Segment S-5 via Segment X-1
for the purpose of transiting Egypt by the FLAG Cable System.
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CAT grants the right of use of Segment X-2, at no charge to Signatories
and to other International Telecommunication Entities which have
acquired Assignable Capacity, pursuant to Paragraph 13 on Segment S-8
that interconnects with Segment S-9 via Segment X-2 for the purpose of
transiting Thailand by the FLAG Cable System or terminating in Thailand
via Segment S-8.
8.2. Each of the Landing Party Signatories grants to other Signatories,
except the Founding Signatory, to whom Assignable Capacity in the FLAG
Cable System is conveyed, the right of use of the Segment T owned by
the relevant Landing Party Signatory for such Assignable Capacity
entering the FLAG Cable System at the relevant Segment T as specified
in Schedule K. For the right of use granted under this Paragraph 8.2,
each Signatory shall pay the consideration as specified in Paragraph
8.5 in the proportion as set forth in Schedule L. The consideration
payable for the right of use in a Segment T shall be based on a
Signatory's pro-rata share of the notional capacity of the relevant
Segment T as specified in Schedule K and shall be used to recover the
capital and other costs, by a nonrecurrent charge, and the operation
and maintenance costs, by recurrent charges, as defined in Paragraph
8.5.
8.3. Each of the Landing Party Signatories shall make necessary
equipment in its Segment T available to the Founding Signatory on
reasonable terms and conditions so as
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to enable the Founding Signatory to lease Assignable Capacity to
International Telecommunications Entities.
8.4. Each of the Landing Party Signatories shall be obligated to allow
Signatories and other International Telecommunications Entities
acquiring Assignable Capacity the use of the relevant Segment T, at no
charge, solely for the purpose of transiting through the FLAG Cable
System in accordance with this Agreement, other than the Segment T used
for entering the FLAG Cable System.
8.5. The consideration payable by Signatories granted a right of use
pursuant to Paragraph 8.2 shall consist of the following charges:
8.5.1 Non-recurrent charge for capital and other costs as used
in this Paragraph 8 with reference to the provision of each
Segment T including land, access roads, cable rights-of-way,
ducts and buildings at such stations, or to causing them to be
provided and constructed, or to installing or causing to be
installed cable station equipment, shall include all
expenditures incurred which shall be fair and reasonable in
amount and either shall have been directly and reasonably
incurred for the purpose of, or to be properly chargeable in
respect of, such provision, construction, and installation,
including, but not limited to, the purchase costs of land,
building costs, amounts incurred for development, engineering
design, materials, manufacturing, procurement and inspection,
installation, removing (with
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appropriate reduction for salvage), testing associated with
installation, custom duties, taxes (except income tax imposed
upon the income of a Landing Party Signatory), financial
charges attributable to other parties' shares of costs,
supervision, overheads and insurance or a reasonable allowance
in lieu thereof. Losses against which insurance was not
provided, or for which an allowance in lieu thereof was not
taken, shall constitute capital costs.
8.5.2. Recurrent charge for operation and maintenance costs as
used in this Paragraph 8 with reference to each Segment T
shall include costs reasonably incurred in maintaining and
operating the facilities involved, including, but not limited
to, the costs of attendance, testing, adjustments, repairs and
replacements, customs duties, taxes (except income taxes
imposed upon the income of the Landing Party Signatory) paid
in respect of such facilities, administrative costs, financial
charges attributable to other parties' shares of costs, and
costs and expenses reasonably incurred on account of claims
made by or against other persons or entities in respect of
such facilities or any part thereof and damages or
compensation payable by the Landing Party Signatory owning a
Segment T on account of such claims. Costs, expenses, damages,
or compensation payable to such owner on account of such
claims made against other persons shall be shared by the
Signatories and other parties in the same proportions as they
share the costs of maintaining and operating a Segment T.
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8.5.3. Included in the non-recurrent charge and the recurrent
charge specified in Paragraph 8.5 are one-third of the
capital, operation and maintenance costs of the digital cross
connect system equipment as described in Paragraph 2.4 (iv),
located in the Segment T involved.
8.6. Where a cable station, land or buildings or certain equipment
situated therein that is not part of the Submarine System, such as
power supply or testing and maintenance equipment, is or will be shared
by the FLAG Cable System and other communications systems terminating
at the cable station, the capital, operation and maintenance costs of
such shared cable station, land or buildings or equipment (not solely
attributable to a particular communications system or systems) shall be
allocated among the systems involved in the proportions in which they
use the cable station, land or buildings or equipment in order to
determine what charge is reasonable in respect of the right of use
granted in this Paragraph 8. For such purposes, the proportionate use
of a shared cable station, land or buildings or equipment therein
attributable to a particular cable system shall be determined on the
basis of the ratio of: (i) the installed costs of the cable station
equipment (excluding shared equipment) associated with the particular
cable system to (ii) the installed costs of the cable station
'equipment (excluding shared equipment) associated with all systems,
including the FLAG Cable System, which make use of the shared cable
station, land, building or equipment.
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8.7. Payments due under this Paragraph 8 shall be made in accordance
with the following principles and such other billing and payment
procedures as may be determined by the MC from time to time:
8.7.1. On or around sixty (60) days before the RFPA Date the
Landing Party Signatory owning the relevant Segment T (or the
Central Billing Party (CBP) if there shall be one) shall
render the ▇▇▇▇ to each of the other Signatories as specified
in Schedule L of the amount receivable as a non-recurrent
charge in payment of capital and other costs which are due to
other parties which participate in other communications
systems sharing the Segment T and which are entitled to share
such payments at the time the right of use interests commence
pursuant to Paragraph 8.11 hereof. In the case of preliminary
bills, appropriate adjustments will be made as soon as
practicable after the actual costs are determined.
8.7.2. Each billed Signatory shall pay its ▇▇▇▇ to the billing
Landing Party Signatory (or the CBP if there shall be one) on
or before the date on which the right of use in the relevant
Segment T becomes effective under Paragraph 8.1 1. As soon as
practicable after receiving such payments, each Landing Party
Signatory shall distribute the portion of said payments among
the parties to the other communications systems sharing the
same cable station in the proportions to which they are
entitled.
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8.7.3. The Signatories shall be billed individually for, and
shall each pay its proportionate share of any additional
capital costs of the Segment T allocable to this Agreement
incurred after the grant to the Signatories of the right of
use interests in each of the Segment Ts becomes effective, and
of the portion of the recurrent charge of the Segment T for
operation and maintenance costs commencing at the time such
right of use becomes effective. Such bills shall be rendered
in accordance with Schedule L but not more frequently than
once a month.
8.7.4. For the purpose of this -Agreement, financial charges
shall be computed at a rate equal to the lowest publicly
announced rate or minimum commercial lending rate for ninety
(90) day loans, however described, in the currency of the
relevant Landing Party Signatory's Country, or the currency of
billing, as applicable, charged by established commercial
banks in the Country concerned on the fifteenth (15th) day of
the month in which the costs were incurred by the billing
Signatory. If such a day is not a business day, the rate
prevailing on the next business day shall be used.
8.7.5. The billing currencies and computation of extended
payment charges, which shall accrue from the day on which
payment was due until paid in the case that all or a part of
amounts billed were not paid, of each Landing Party Signatory
shall be set forth in Appendix C.
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8.8. For the purpose of effectuating the assignment or transfer of
Assignable Capacity in Segment S pursuant to Paragraph 13, the
following principles shall apply to the Right of Use transactions of
Segment T:
8.8.1. Each of the Landing Party Signatories shall make its
underwritten capacity in the relevant Segment T held by such
Landing Party Signatory, over and above its requirements as
specified in Schedule K, available to other Signatories and
International Telecommunications Entities to whom Assignable
Capacity in the FLAG Cable System is made available by the
Signatories pursuant to Paragraph 13, but not to the Founding
Signatory, on a right of use basis or such a basis other than
transfer of ownership interests, for such Capacity entering
the FLAG Cable System at the relevant Segment T.
8.8.2. For the transfer of right of use interests pursuant to
this Paragraph 8.8, the non-recurrent charge shall be
determined in accordance with Paragraphs 8.5.1 and 8.5.3 and
any additional capital costs incurred subsequent to the RFPA
Date together with, but not limited to, cost factors for
accumulated operation and maintenance costs, financial charges
and depreciation, all to provide a reasonable return to each
Landing Party Signatory for its investment in the underwritten
capacity in its Segment T. The recurrent charges payable shall
be as specified in Paragraphs 8.5.2. and 8.5.3.
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8.8.3. Schedules K and L shall be appropriately modified to
reflect the changes in the Signatories' proportionate shares
in the relevant Segment T pursuant to Paragraphs 8 and 30.
8.9. Each of the Landing Party Signatories shall, in consultation with
the Founding Signatory, increase the national capacity of the relevant
Segment T at the time all the underwritten capacity held by the
relevant Landing Party Signatory is disposed of and additional
requirements exceeding the then notional capacity are identified or
such other occasions as may be determined by the relevant Landing Party
Signatories and Schedules K and L shall be modified as appropriate.
8.10. In the case that the notional capacity of a Segment T is
increased after the RFPA Date, appropriate financial adjustments shall
be made between and among the Signatories, other International
Telecommunications Entities and the Landing Party Signatory involved to
adjust the non-recurrent and recurrent charges paid and to be paid for
the Segment T involved to ensure that each party involved shall bear
its proper share of such charges as provided in this Paragraph 8.
8.11. The right of use granted under Paragraphs 8.1 and 8.2 shall
commence on the RFPA Date or the date a Signatory places any of its
Assignable Capacity into operation, whichever occurs first. The right
of use granted under Paragraphs 8.8 shall commence on the date on which
such Capacity is acquired or placed into operation, whichever occurs
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first. The right of use granted under this Paragraph shall continue for
the term of this Agreement.
8.12. Each Landing Party Signatory shall notify the Founding Signatory.
in writing of the charges it makes in respect of the right of use
granted under Paragraphs 8.2 and 8.8 and of the changes in such charges
sixty (60) days before such changes are implemented.
8.13. If any Segment T, or portion thereof, is not available for any
reason, the relevant Landing Party Signatory, in agreement with the
other Signatories hereto, shall take all necessary measures to ensure
that another suitable cable station shall be made available as a
substitute for such Segment T, on fair and equitable terms not
deviating substantially from the terms contained in this Agreement.
8.14. Nothing contained herein shall be deemed to vest in any Signatory
other than the owner of a particular Segment T, any salvage rights in
such Segment or any cable station substituted therefor.
8.15. Notwithstanding Paragraphs 8.2 and 8.8 the Signatories may, prior
to the commencement of the right of use, elect to renounce their right
of use entitlement and to instead have use of a Segment T for the
duration of this Agreement on such terms and conditions as are agreed
upon between the Signatories concerned.
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9. ADDITIONAL CAPITAL COSTS OF THE SUBMARINE SYSTEM AND SEGMENTS X-1 AND
X-2
9.1. If, subsequent to the RFPA Date, additional work or property is
incorporated in the Submarine System or Segments X-1 and X-2 to
enhance, optimize or increase the efficiency of either the Submarine
System or Segments X-1 and X-2 in accordance with the approval and
directions of the MC, the capital costs thereof shall be borne by all
the Signatories in proportion to their respective Assignable Capacity
in the affected Segment of the FLAG Cable System, as set forth in
Schedule G.
10. OPERATION AND MAINTENANCE DUTIES AND RIGHTS
10.1. The FLAG Cable System shall be jointly operated and maintained in
efficient working order and operation by the Founding Signatory and the
Landing Party Signatories as provided in this Paragraph 10.
10.2. On behalf of all the Signatories, the Founding Signatory and the
Landing Party Signatories shall jointly prepare, and update from time
to time as necessary, a FLAG Operation and Maintenance Plan (FOMP). The
FOMP shall contain detailed procedures that reflect the
responsibilities of the Founding Signatory and the Landing Party
Signatories as defined in this Paragraph 10. The FOMP shall be made
available to all Signatories.
10.3. The Founding Signatory shall be solely responsible for
negotiating, executing, and administering contracts, for the
maintenance and repair of the submersible portion of
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Segment S. The Founding Signatory and the Landing Party Signatories
concerned shall use their best efforts to ensure that the FLAG Cable
System shall be included in the appropriate Maintenance Zone Agreements
on terms no less favorable than those applicable to other fiber optic
cable systems.
10.4. The FLAG Network Operations Center (FNOC) for the FLAG Cable
System shall be provided under a supply contract and will be operated
and maintained by the Founding Signatory in coordination with all
relevant Landing Party Signatories.
10.5. The FNOC shall provide overall network surveillance and overall
coordination of maintenance and repair operations of the FLAG Cable
System. The Founding Signatory shall coordinate the deployment of
vessels for repair and maintenance operations in accordance with the
procedures defined in the FOMP.
10.6. Each Landing Party Signatory shall be responsible for the
operation and maintenance of that portion of Segment S located in its
Country between the Cable Landing Point and the FLAG Interface Point,
and shall use all reasonable efforts to operate and maintain such
portion of Segment S in efficient working order and operation.
10.7. Each Landing Party Signatory shall be responsible for the
operation and maintenance of Segment T located in its Country, and
shall use all reasonable efforts to operate and maintain such Segment
in efficient working order and operation.
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10.8. ARENTO and CAT shall, in addition, be responsible for the
operation and maintenance of Segments X-1 and X-2, respectively, and
shall use all reasonable efforts to maintain such Segments in efficient
working order and operation.
10.9. The Founding Signatory shall, upon suitable notification and in
compliance with applicable laws and regulations, have the right of
reasonable access to Segments S, X-1, X-2 and T located within each
Landing Party Signatory's Country for the purposes of installation,
inspection, testing, training of Landing Party Signatory and Founding
Signatory personnel, and other functions, all in coordination with the
respective Landing Party Signatory. The Founding Signatory shall
identify to the respective Landing Party Signatory the
representative(s) who will be granted access under this Paragraph.
10.10. A Landing Party Signatory shall, upon suitable notification and
in compliance with applicable laws and regulations, have reasonable
access to the FNOC for observation and training of its personnel, in
coordination with the Founding Signatory. The Landing Party Signatory
shall identify to the Founding Signatory the representative(s) who will
be granted access under this Paragraph.
10.11. Should conditions exist in any Segment S or Segments X-1 and X-2
that may impair the integrity of the FLAG Cable System, as identified
by the Founding Signatory or any Landing Party Signatory, the Founding
Signatory shall initiate and coordinate planned maintenance on such
relevant Segment S, which may include the deactivation of such Segment.
Prior to the initiation of such planned maintenance operations, the
Founding
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Signatory shall coordinate, where appropriate, with the other
Signatories. The Founding Signatory shall, to the extent possible,
advise the other Signatories in writing sixty (60) days, or such
shorter period as may be agreed by the Signatories, prior to initiating
a planned maintenance operation, of the timing, scope, and costs of
such planned maintenance operations of Segments S, X-1 and X-2. Should
one or more Signatories representing at least ten percent (10%) of the
total voting interest , specified in Schedule C, wish to review or
change such an operation prior to its occurrence, the Founding
Signatory shall be notified in writing within thirty (30) days of such
advice. Upon such notification, the Founding Signatory shall convene an
ad hoc meeting of the Signatories. to consider such review or change.
10.12. Should a Landing Party Signatory believe a maintenance activity
will require an interruption of service to Segments T, X-1 and X-2 or
that portion of Segment S between the Cable Landing Point and the FLAG
Interface Point, the Landing Party Signatory shall notify the Founding
Signatory. The Landing Party Signatory, in consultation with the
Founding Signatory, shall determine whether an interruption of service
is warranted and, if so, the timing and duration of an interruption.
The Landing Party Signatory shall, to the extent possible, advise the
other Signatories in writing sixty (60) days, or such shorter period as
may be agreed by the Signatories, prior to initiating a planned
maintenance operation, of the timing, scope, and costs of such planned
maintenance operations of Segments T or X-1 and X-2. Should one or more
Signatories representing at least ten percent (10%) of the total voting
interest, specified in Schedule C, wish to review or
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change such an operation prior to its occurrence, the Founding
Signatory shall be notified in writing within thirty (30) days of such
advice. Upon such notification, the Founding Signatory shall convene an
ad hoc meeting of the Signatories to consider such review or change.
10.13. Should a Landing Party Signatory become aware of any dangerous
activities, attributable to a third party, which may cause an
interruption of service to Segments T, X-1 and X-2 or that portion of
Segment S between the Cable Landing Point and the FLAG Interface Point,
the Landing Party Signatory shall notify the Founding Signatory.
10.14. In the event of disruption of service due to Force Majeure
pursuant to Paragraph 29 or other emergency, the Founding Signatory and
the appropriate Landing Party Signatories shall cooperate in restoring
service as quickly as possible and such Signatories shall, to the
extent that it is practicable to do so, take such measures as are
necessary to attain that objective.
10.15. If the Founding Signatory fails to repair those facilities for
the maintenance of which it is responsible under Paragraph 10.3, within
a reasonable time after being called upon to do so by a Landing Party
Signatory, the Landing Party Signatory may, to the extent that it is
practicable to do so, perform the necessary duties and responsibilities
of the Founding Signatory and charge the Founding Signatory the costs
reasonably incurred in doing so.
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10.16. If a Landing Party Signatory fails to repair those facilities
for the maintenance of which it is responsible under Paragraphs 10.6,
10.7 and 10.8, within a reasonable time after being called upon to do
so by the Founding Signatory, the Founding Signatory may, to the extent
that it is practicable to do so, perform the necessary duties and
responsibilities of the Landing Party Signatory, and charge the
relevant Landing Party Signatory the costs reasonably incurred in doing
so.
10.17. Notwithstanding the foregoing, no Signatory shall be liable to
any other Signatory for any loss or damage sustained by reason of any
failure in or breakdown of the facilities constituting the FLAG Cable
System or any interruption of service, regardless of the cause of such
failure, breakdown or interruption, and regardless of how long it shall
last.
10.18. The Founding Signatory may pursue claims arising before the RFPA
Date in the event of any damage or loss to the Submarine System, and
may file appropriate law suits or other proceedings. The Founding
Signatory may settle claims for its own account arising before the RFPA
Date and execute any releases and settlement agreements necessary to
effect a settlement. In the case of claims arising on or subsequent to
the RFPA Date, the Founding Signatory shall be authorized to pursue
such claims in its own name, on behalf of the Signatories, in the event
of any damage or loss to the Submarine System, provided however that
the Founding Signatory shall give suitable written notification to the
Signatories when such claim arises. Subject to obtaining the prior
concurrence of the MC, the Founding Signatory may settle any such
post-RFPA claims and execute any releases and settlement agreements on
behalf of the Signatories as
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necessary to effect a settlement. The proceeds of a settlement or
judgment, less the reasonable costs incurred by the Founding Signatory
to effect such settlement or judgment, shall be shared by the
Signatories in the percentages specified in Schedule F for the Segment
S of the FLAG Cable System involved.
10.19. The Founding Signatory may defend against any claims arising
before the RFPA Date asserted by a third party involving the Submarine
System. The Founding Signatory may settle such claims arising before
the RFPA Date and execute any releases and settlement agreements as
necessary to effect a settlement. In the case of claims arising on or
subsequent to the RFPA Date brought against the Signatories, the
Founding Signatory shall be authorized to defend against such claims on
behalf of the Signatories, provided however that the Founding Signatory
shall give suitable written notification to the Signatories when such a
claim arises. Subject to obtaining the prior concurrence of the MC, the
Founding Signatory may settle any such post-RFPA Date claims and
execute any releases and settlement agreements on behalf of the
Signatories as necessary to effect a settlement. The cost of any
judgment or other remedy or settlement resulting from any such
post-RFPA Date claim, plus the reasonable costs incurred by the
Founding Signatory to effect such judgment or settlement, shall be
shared by the Signatories in the percentages specified in Schedule F
for the Segment S of the FLAG Cable System involved.
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10.20. Notwithstanding Paragraph 10.19, where a claim is brought in
respect of a sacrificed anchor and/or loss of, or damage to fishing
gear, the Founding Signatory may, in its sole discretion, settle each
individual claim for an amount no greater than twenty-five thousand
U.S. dollars ($25,000) for each incident, and the cost of such
settlement shall be allocated in accordance with Paragraph 10.19.
10.21. Notwithstanding Paragraphs 10.18, 10.19 and 10.20, when a claim
on behalf of or against the Signatories arises on or subsequent to the
RFPA Date in the Country, including the territorial waters, of a
Landing Party Signatory, as a result of damage or loss to or alleged to
be caused by the Submarine System, the Landing Party Signatory in whose
Country the claim arises shall be authorized to pursue or defend
against such claim in its own name, on behalf of the Signatories,
provided, however, that such Landing Party Signatory shall give
suitable written notification to the Signatories when such a claim
arises. The relevant Landing Party Signatory shall coordinate its
handling of the claim with the Founding Signatory. Subject to obtaining
the prior concurrence of the MC, the relevant Landing Party Signatory
may settle any such post- RFPA claims and execute any releases and
settlement agreements on behalf of the Signatories as necessary to
effect a settlement. The proceeds or costs of a settlement or judgment,
together with the reasonable costs incurred by the relevant Landing
Party Signatory to effect such settlement or judgment, shall be shared
by the Signatories in the percentages specified in Schedule F for the
Segment S of the FLAG Cable System involved.
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11. RESPONSIBILITY FOR OPERATION AND MAINTENANCE COSTS
11.1. The cost of standby maintenance of Segments S, X-1 and X-2,
including, but not limited to, the maintenance of Segments S, X-1 and
X-2, the FNOC, the procurement of cable ship services covering, inter
alia, ship depreciation, ship retrofit, crew, insurance (except
insurance at sea), in-port expenses, the storage of submersible plant,
remotely operated vehicles and other devices when included in the wet
maintenance zone agreement standby charges, shall be recovered by the
Founding Signatory through fixed charges payable by the Signatories and
other holders of Assignable Capacity, in accordance with Schedules H-1
through H-55 and. J, adjusted to reflect inflation.
11.2. The cost of running charges, which shall be limited to recovery
of the direct incremental costs incurred in connection with a repair
operation involving Segment S or Segment X-1 or Segment X-2, including,
but not limited to, the cost of fuel, at sea insurance, additional crew
at sea, crew overtime, victualling, telecommunications, mobilization
and de-mobilization expenses, consumables, replenished equipment, and
remotely operated vehicles, to the extent not included in the wet
maintenance agreement standby charges, shall be apportioned among
Signatories (excluding the Founding Signatory) and other holders of
Assignable Capacity on the affected Segment S, or Segment X-1 or
Segment X-2 in accordance with Schedule F. Notwithstanding the
foregoing:
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(i) the Founding Signatory shall be responsible for the
proportionate share of running charges attributable
to a repair operation involving Segment X-1 or
Segment X-2 or a Segment S occurring during the term
of a lease of the Founding Signatory's Assignable
Capacity in Segment X-1 or Segment X- 2 or such
Segment S; and
(ii) the Founding Signatory shall be responsible for the
payment of three percent (3%) of the running charges,
if any, incurred in connection with repair operations
in each of the two maintenance regions of the FLAG
Cable System, commencing with the second repair
operation in a given maintenance region in each
one-year period commencing on the RFPA Date.
11.3. The Founding Signatory shall reimburse each of the Landing Party
Signatories for costs reasonably incurred in carrying out their
respective responsibilities under Paragraph 10.6, with the exception of
one-third the operation and maintenance costs of the digital cross
connect system equipment, as described in Paragraph 2.4 (iv), which
one-third shall be borne by the respective Landing Party Signatories.
The amount to be reimbursed shall be determined by multiplying the
total cost incurred by a Landing Party Signatory in operating and
maintaining FLAG Cable System equipment located in the Country of the
relevant Landing Party Signatory by the ratio of (i) the installed cost
of that portion of the Submarine System between the Cable Landing Point
and the FLAG Interface Point located in the Country of the respective
Landing Party Signatory, less one-third of the
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capital costs of the digital cross connect system equipment as
described in Paragraph 2.4 (iv), to (ii) the sum of the installed cost
of the relevant Segment T and the cost defined in Paragraph 11.3. (i).
11.4. The Founding Signatory shall pay to ARENTO and CAT such charges
for carrying out of their respective responsibilities under Paragraph
10.8 as may be agreed between the Founding Signatory and ARENTO or CAT,
as the case may be.
11.5. Accounts for operation and maintenance costs for Segment S and
Segments X-1 and X-2 shall be rendered not more frequently than monthly
in accordance with procedures to be established by the Founding
Signatory. On the basis of such accounts, each Signatory shall pay such
amounts as may be owed by the end of the calendar month following the
calendar month in which the accounts are rendered.
11.6. Accounts between the Founding Signatory and the other Signatories
not paid when due will accrue additional costs for extended payment
from the day following the date payment of such account was due until
it is paid, said additional costs to accrue at an annual rate of three
(3) percentage points greater than LIBOR.
11.7. An account shall be deemed to have been accepted by the Signatory
to whom it is rendered if that Signatory does not present a written
objection on or before the date when payment is due. If such objection
is made, the Signatories shall make every reasonable effort to settle
the dispute concerning the account in question promptly. If they are
unable to do so, the matter shall be referred to the MC (or any
appropriate subcommittee
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designated by it) for decision. If the objection is sustained and the
billed Signatory has paid the disputed account, the agreed upon
overpayment shall be refunded to the objecting Signatory by the billing
Signatory promptly together with any extended payment charges
calculated thereon at a rate determined in accordance with Paragraph
11.6 from the date of payment of the account to the date on which the
refund is transmitted to the objecting Signatory. If the objection is
not sustained and the billed Signatory has not paid the disputed
account, said Signatory shall pay such account promptly together with
any extended payment charges calculated thereon at a rate determined in
accordance with Paragraph 11.6 from the date on which payment of the
account was due until paid.
11.8. Credits for refunds of financial charges and bills for extended
payment charges shall not be rendered if the amount of the charges is
less than one hundred (100) U.S. dollars (or the equivalent in the
relevant currency of payment) for credits or bills rendered by the
billing Signatories. In the case of bills containing costs billed on a
preliminary billing basis, appropriate adjustments will be made in
subsequent bills promptly after the actual costs involved are
determined.
12. BOOKS, RECORDS AND VOUCHERS
12.1. The Founding Signatory shall retain records relevant to running
charges assessed pursuant to Paragraph 11.2 for a period of not less
than five (5) years from the date of the record. Each Signatory against
whom such running charges are assessed shall have a right to inspect
such records from time to time with reasonable notice and at its own
expense.
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12.2. The Landing Party Signatories shall retain records relevant to
the performance of their obligations regarding operation and
maintenance pursuant to Paragraphs 10.6, 10.7 and 10.8 for a period of
not less than five (5) years from the date of the record. Signatories
owning Assignable Capacity in the relevant Segments of the FLAG Cable
System operated and maintained pursuant to Paragraphs 10.6, 10.7 and
10.8 and the Founding Signatory shall have the right to inspect such
records from time to time -with reasonable notice and at their own
expense.
12.3. The Founding Signatory shall ensure that the Supply Contract
requires the supplier to maintain during the lifetime of the FLAG Cable
System all drawings and documents held by the supplier at final system
acceptance and to allow the Founding Signatory reasonable access to
such documents.
13. ASSIGNMENT AND USE OF CAPACITY
13.1. The Assignable Capacity owned by each Signatory is described in
Schedule D. Assignable Capacity shall be purchased and sold or
otherwise disposed of (including by way of the grant of IRU) only by
way of half or whole interests in MIUs and in accordance with this
Paragraph 13.
13.2. Either before or after the RFPA Date, the Founding Signatory may
convey interests in its Assignable Capacity as shown in Schedule D to
other Signatories and/or other International Telecommunications
Entities by sale of ownership, grant of IRU, lease, rental or such
other basis as may be agreed between the Founding Signatory and the
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acquiring party. International Telecommunications Entities acquiring
OWNERSHIP INTERESTS shall become Signatories pursuant to Paragraph
30.3. The Founding Signatory shall not make Assignable or Latent
Capacity available directly to the public or to any International
Telecommunications Entity that is not authorized under the laws and
regulations of the Country of the Landing Party Signatory where such
Capacity terminates, and shall not make Assignable Capacity available
to an Affiliate of the Founding Signatory except at a price that
reflects fair market value.
13.3. A Signatory (other than the Founding Signatory) shall not,
without the consent of the Founding Signatory, transfer to other
Signatories and/or other International Telecommunications Entities,
Assignable Capacity between two given FLAG Interface Points, unless all
of the Design Capacity between the same FLAG Interface Points has been
transferred by the Founding Signatory to other Signatories or
International Telecommunications Entities, except as provided for in
Paragraphs 13.4, 13.5 and 13.6. In a case where transfer is authorized
under this Paragraph, the transfer shall be on such basis, other than
an ownership basis, as the parties concerned may agree.
13.4. A Signatory shall be entitled to assign, transfer or dispose of
its Assignable Capacity to an Affiliate of such Signatory, subject to
any applicable laws and regulations (including laws and regulations
relating to Registered Private Operating Agency status). A Signatory
exercising its rights under this Paragraph 13.4 shall give written
notice to the Founding Signatory in a timely manner of such assignment,
transfer or disposition, and shall guarantee by a written instrument
reasonably satisfactory in form and substance to
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the Founding Signatory, all of the obligations hereunder assigned,
transferred or disposed of to such Affiliate.
13.5. A Signatory shall be entitled to transfer its Assignable Capacity
assigned to that Signatory to another Signatory or international
Telecommunications Entity located in the Country of that Signatory. A
Signatory exercising its rights under this Paragraph 13.5 shall give
written notice to the Founding Signatory in a timely manner of such
transfer.
13.6. Assignable Capacity in any Segment of the FLAG Cable System that
is wholly assigned to one Signatory or International Telecommunications
Entity shall be considered as consisting of two half-interests in a
MIU. A Signatory or International Telecommunications Entity to which
such Capacity is assigned may make available to other Signatories or
international Telecommunications Entities a half- interest in such
wholly assigned MIUS.
13.7. Assignable Capacity that is jointly assigned may not be
transferred without the consent of each Signatory or International
Telecommunications Entity to whom such Capacity is jointly assigned.
13.8. Any Signatory and any other International Telecommunications
Entity in the Country of a Landing Party Signatory may not acquire
Assignable Capacity that does not access the FLAG Cable System in the
Country of such Landing Party Signatory or other International
Telecommunication Entity without the consent of the Founding Signatory,
which consent shall not be unreasonably withheld. The Assignable
Capacity to which a
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Signatory is entitled shall be made available, and may be terminated,
only at those points prescribed in Schedules H-1 through H-55.
13.9. The Assignable Capacity of the FLAG Cable System shall be subject
to the provisions as set forth hereunder.
13.9.1 On the effective date of this Agreement, the Founding
Signatory, on the one hand, and the other Signatories, on the
other hand, shall each have assigned to them fifty percent
(50%) of Assignable Capacity, and such percentages shall
thereafter be adjusted as follows:
(i) On or before the RFPA Date, as the Founding Signatory
conveys interests in its Assignable Capacity by sale
of ownership pursuant to Paragraph 13.2, there shall
be transferred from the Latent Capacity to the
Founding Signatory's holdings in Assignable Capacity
a number of MIUs required to maintain the Founding
Signatory's fifty percent (50%) share of Assignable
Capacity.
(ii) After the RFPA Date, as the Founding Signatory
conveys interests in its Assignable Capacity by sale
of ownership pursuant to Paragraph 13.2, such
interests shall be deducted from the Founding
Signatory's then-current holdings in Assignable
Capacity.
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(iii) After the RFPA Date, if and whenever as a result of
such conveyances the Founding Signatory's holdings in
Assignable Capacity fall below twenty percent (20%)
of the Assignable Capacity then owned in the
aggregate by all Signatories including the Founding
Signatory, at the election of the Founding Signatory
there shall be transferred from the Latent Capacity
to the Founding Signatory's holdings in Assignable
Capacity such additional MIUs (if available) as are
necessary to retain the Founding Signatory's holdings
in Assignable Capacity at twenty percent (20%) of the
Assignable Capacity then assigned in the aggregate to
all Signatories.
(iv) After the RFPA Date, if the Founding Signatory's
holdings in Assignable Capacity exceed such twenty
percent (20%) of the aggregate capacity due to the
grant of IRU or lease, the Founding Signatory's
voting interest shall be deemed to be twenty percent
(20%).
13.9.2 Notwithstanding the foregoing, the Founding Signatory
shall remain fully responsible for the payment of running
charges related to leased capacity, as provided in Paragraph
11-20(i).
13.9.3. the Founding Signatory shall provide timely written
notice to the MC of any increase in Assignable Capacity due to
a withdrawal from Latent Capacity. Whenever Assignable
Capacity is so increased, the Schedules shall be appropriately
modified to reflect such increase.
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13.10. In order to ensure that Assignable Capacity is utilized in an
efficient and effective manner, the MC, or its nominated subcommittee,
shall assist the FLAG Network Administrator in coordinating the
allocation of Assigriable Capacity that has been conveyed pursuant to
Paragraph 13.2.
14. Obligation to Provide Transiting and Other
FACILITIES TO EXTEND FLAG CABLE SYSTEM CAPACITY
14.1. Except as provided in this Paragraph, each of the Signatories
shall use all reasonable efforts to furnish and maintain or cause to be
furnished and maintained in efficient working order for (i) the
Signatories, and (ii) other International Telecommunications Entities
acquiring Assignable Capacity, for the duration of this Agreement, such
facilities in its respective Country as may be reasonably required for
extending Assignable Capacity in the FLAG Cable System assigned to
Signatories and other International Telecommunications Entities for the
purpose of handling communications transiting its respective Country.
No Signatory shall be required under this Agreement to furnish such
facilities in its Country to Signatories and other International
Telecommunications Entities of its own Country. Notwithstanding the
foregoing, each Landing Party 8ignatory shall provide suitable
interconnection arrangements to Signatories and other International
Telecommunications Entities of its own Country. The provision of such
facilities and interconnection arrangements shall be the subject of
separate agreements.
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14.2. The facilities provided pursuant to Paragraph 14.1 shall be
furnished and maintained on terms and conditions which shall be no less
favorable to the users of the FLAG Cable System than those granted to
other International Telecommunications Entities for transmission
facilities of similar type and quality transiting the location
involved. Such terms and conditions shall be consistent with applicable
governmental regulations in the location in which the facilities are
located.
14.3. The obligations to provide facilities under this Paragraph 14
shall not necessarily require the provision of intrinsically digital
facilities, nor the provision of facilities which are Bit Sequence
Independent at rates other than 2,048 and 155,520 Kbps, or at such
other rates as may be mutually agreed with the Landing Parties
concerned.
15. OBLIGATION TO CONNECT THE FLAG CABLE SYSTEM WITH INLAND SYSTEMS
15.1. Each of the Signatories at its own expense, on or before the RFPA
Date shall do, or cause to be done, all such acts and things as may be
necessary within its operating territory to provide suitable connection
of the FLAG Cable System with its appropriate inland telecommunications
system in its operating territory.
16. RELATIONSHIP OF THE SIGNATORIES
16.1. This Agreement shall not be construed so as to create a
partnership or joint venture among or between the Signatories, and no
Signatory shall have authority or power to act unilaterally as agent
for any other Signatory. Each Signatory shall be individually
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responsible for payment of any income or other taxes which may be
imposed on any of the proceeds, income or revenue that such Signatory
may derive from the FLAG Cable System.
16.2 Each of the Signatories may obtain policies of insurance to cover
its respective interest in the FLAG Cable System, and any such insured
Signatory may pursue and settle claims arising under such policies of
insurance in its sole discretion and for its own benefit.
17. DURATION OF THE AGREEMENT
17.1. This Agreement shall become effective on the day and year first
above written and, subject to the provisions of Paragraph 23, shall
continue in operation until terminated by the MC not less than
twenty-five (25) years from the RFPA Date. However, any Signatory may
terminate its participation in this Agreement at the end of twenty-five
(25) years from the RFPA Date or any time thereafter by giving at least
one year prior notice in writing to the MC.
17.2. Subject to alternative arrangements being agreed by the MC, upon
the effective date of the termination of participation by a Signatory,
the Schedules of this Agreement shall be appropriately modified.
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18. OBTAINING LICENSES
18.1. The performance of this Agreement by the Signatories is
contingent upon the continuance of all Licenses. If a License obtained
by one or more Signatories is rescinded, the MC may decide to make any
appropriate changes in the FLAG Cable System configuration, or, in the
alternative, to terminate this Agreement pursuant to Paragraph 23.1.
18.2. Each Landing Party Signatory represents and warrants to each
other Signatory that it has obtained or shall obtain all Licenses as
may be required in its Country for the construction, operation and
maintenance of the FLAG Cable System, and that it will for the duration
of this Agreement maintain all such Licenses in full force and effect
and will obtain or grant and maintain all such additional Licenses as
may at any time hereafter be required in its Country for the
construction, operation and maintenance of the FLAG Cable System.
18.3. The costs incurred in obtaining and maintaining all Licenses
required in connection with the construction, operation and maintenance
of the Segment T located in the territory of a Landing Party
Signatory's Country shall be the responsibility of the relevant Landing
Party Signatory.
18.4. The costs incurred in obtaining and maintaining survey and
installation permits, cable and pipeline crossing agreements and all
Licenses required in connection with the construction, operation and
maintenance of the submersible portion of the Submarine System shall be
the responsibility of the Founding Signatory.
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18.5. All Signatories will cooperate with each other in obtaining and
maintaining in force all Licenses and other permits required pursuant
to this Agreement.
19. CURRENCY AND PLACE OF PAYMENT
19.1. All amounts due under this Agreement shall be payable (i) to the
Founding Signatory from any other Signatory in U.S. dollars and at the
designated office of the Founding Signatory; (ii) to a Landing Party
Signatory from the Founding Signatory in the currency of the Country of
the Landing Party Signatory and at the designated office of the Landing
Party Signatory; and (iii) to a Landing Party Signatory from another
Signatory (other than the Founding Signatory) as specified in Paragraph
8.7.5.
20. ASSIGNMENT AND TRANSFER
20.1. Except as otherwise provided in Paragraph 13, during the
continuance of this Agreement, no Signatory shall without the consent
of the other Signatories (which consent shall not be unreasonably
withheld) sell, assign, transfer, or dispose of its rights or
obligations under this Agreement or of any interest in the FLAG Cable
System except:
(i) in the case of a Signatory other than the Founding
Signatory, to a successor or Affiliate of such
Signatory, in which case written notice shall be
given to the other Signatories in a timely manner by
the Signatory making said sale, assignment, transfer
or disposition, and
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(ii) in the case of the Founding Signatory, upon written
notice to the other Signatories in a timely manner:
(a) to a successor of the Founding Signatory,
(b) to an Affiliate having adequate financial
resources.
20.2 Notwithstanding Paragraph 20.1, the Founding Signatory may
transfer to a Landing Party Signatory, pursuant to an agreement between
the Founding Signatory and such Landing Party Signatory, all or a
portion of its ownership of Segment S within the territory of the
Country of such Landing Party Signatory, provided, however, that such
transfer shall in no way limit the rights and obligations of
Signatories and of other International Telecommunications Entities to
whom Assignable Capacity in Segment S has been or is conveyed.
21. SUCCESSORS AND ASSIGNS
21.1. This Agreement shall be binding upon the respective successors
and permitted assigns of each Signatory.
22. DEFAULT
22.1. In the event that the Founding Signatory fails to fulfill its
obligations under this Agreement by defaulting on its obligations to
pay the Supplier for the provision and installation of the Submarine
System or Segment X-1 or Segment X-2 or to pay to have
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the Submarine System or Segment X-1 or Segment X-2 maintained, the
Founding Signatory, at the request of one or more Landing Party
Signatories, shall enter into negotiations with such Landing Party
Signatories to determine whether there exists a mutually acceptable
basis upon which such Landing Party Signatories would assume all of the
rights and obligations of the Founding Signatory with respect to the
FLAG Cable System.
23. TERMINATION OF AGREEMENT
23.1. This Agreement may be terminated by the unanimous consent of the
Founding Signatory and the Landing Party Signatories.
23.2 In the event that this Agreement is terminated on or after the
RFPA Date, the net assets of the Submarine System as they then exist
will be disposed of and any proceeds or costs divided among the
Signatories in proportion to each Signatory's share of the Design
Capacity as set forth in Schedule D.
23.3. The terms of this Agreement shall continue to bind the
Signatories for such time and to such extent as may be necessary to
give effect to their respective rights and obligations under this
Paragraph 23.
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24. ARBITRATION
24.1. Unless settled by mutual agreement, any dispute or difference
whatsoever that might arise from the performance or as to the meaning
of this Agreement or as to any matter or items of whatsoever nature
howsoever arising out of or in connection with this Agreement shall be
submitted to arbitration in accordance with and subject to the Rules of
Arbitration and Conciliation of the International Chamber of Commerce
and finally settled by three arbitrators appointed in accordance with
such rules, unless the parties to the arbitration agree upon a single
arbitrator under such rules. The place of arbitration shall be The
Hague, The Netherlands, and the language of the arbitration shall be
English. Any decision or award of the arbitral tribunal shall be final
and binding upon the parties to the arbitration proceeding. 'The costs
of such arbitration shall be borne in equal proportions by the parties
to the arbitration, provided that each party shall bear the cost of its
own legal counsel.
24.2 If any disputes or differences hereunder concern or involve more
than two Signatories to this Agreement, the arbitration may proceed as
a multi-party arbitration under the appropriate rules and guidelines of
the International Chamber of Commerce. Any Signatory may intervene in
any arbitration involving two or more Signatories and any Signatory
that is a respondent in an arbitration under this Agreement may join
any other Signatory in such arbitration.
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25. GOVERNING LAW
25.1. This Agreement shall be construed and governed in accordance with
the substantive laws in force in the State of New York, United States
of America, without regard to the law of New York governing conflicts
of law.
25.2. The Signatories shall comply with all applicable laws of all
nations having jurisdiction over the activities performed under or
contemplated by this Agreement.
25.3. If any provision of this Agreement is found by a regulatory or
judicial 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.
Notwithstanding the foregoing, the Signatories shall thereupon
negotiate in good faith in order to agree upon the terms of a mutually
satisfactory provision to be substituted for the provision found to be
void or unenforceable.
26. WAIVER OF IMMUNITY
26.1. The Signatories hereto acknowledge that this Agreement is
commercial in nature, and each Signatory expressly and irrevocably
waives any claim or right which it may have to immunity (whether
sovereign immunity or otherwise) for itself or with respect to any of
its assets in connection with an arbitration, arbitral award or other
proceeding to enforce this Agreement, including, without limitation,
immunity from service of process,
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immunity of any of its assets from pre- or post-judgment attachment or
execution and immunity from the jurisdiction of any court or arbitral
tribunal.
27. NOTICES
27.1. Any notice or other communication given or made under this
Agreement shall be in writing and shall be delivered by hand or
transmitted by pre-paid first-class recorded-delivery post (by airmail,
if overseas) or by facsimile. The address of each Signatory shall be
its principal place of business as identified in Schedule A to this
Agreement or such other address as has been previously notified to the
other Signatories.
27.2. A notice or other communication shall be deemed to have been duly
delivered:
27.2.1. if delivered by hand at the time of delivery;
27.2.2. if posted, at the expiration of seven (7) days after
the envelope containing the same shall have been deposited in
the post maintained for such purpose, postage prepaid;
27.2.3. if sent by facsimile, at the date of transmission if
receipt is followed by postal notice in accordance with
Paragraph 27.2.2.
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28. WAIVER
28.1. The waiver by any Signatory of a breach or default of any
provision of this Agreement or the failure of any Signatory on one or
more occasions to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder shall not thereafter be
construed as a waiver of any subsequent breach or default of a similar
nature or as a general waiver of any such provision, right or privilege
hereunder.
29. FORCE MAJEURE
29.1. A Signatory shall not be liable to any other Signatory for any
loss or damage which may be suffered by that other Signatory by reason
of any circumstances beyond the control of such first-mentioned
Signatory and having a material adverse effect on the provision of any
part of the FLAG Cable System in which such other Signatory is entitled
to Assignable Capacity or has any other right or interest under this
Agreement, including without limitation, any act of God, war, riot,
fishing activity, fish bite, anchor damage, environmental conditions
including, without limitations, severe weather conditions, or any
order, act, fault, omission, sanction or request of any government,
government authority or other public telecommunications authority,
other than that of such first-mentioned Signatory.
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30. AMENDMENTS AND ADDITIONS
30.1. Except as otherwise provided in this Paragraph 30, this Agreement
and any of its provisions may be amended or added to only by amendatory
agreement in writing signed by an authorized representative on behalf
of each Signatory.
30.2. Only one original of any amendatory agreement shall be executed.
The Founding Signatory shall retain such executed original amendatory
agreement and shall promptly distribute certified copies thereof to all
other Signatories. Such certified copies shall be used in lieu of the
executed original amendatory agreement in any arbitration, forum or
proceeding.
30.3. (i) This Agreement may be amended to allow for the
participation by additional Non-Landing Party
Signatories or for Signatories to increase their
Assignable Capacity by amendatory agreements executed
solely by the Founding Signatory and such additional
Non-Landing Party Signatories or such Signatories
acquiring additional Assignable Capacity. In such
case, the Schedules shall be appropriately amended.
(ii) This Agreement and all Schedules hereto may be
amended to provide for the participation of the Saudi
Arabian Telecommunication Ministry of Posts,
Telegraphs & Telephones ("MOPT") as a Landing Party
Signatory owning a Segment T located in Jeddah, Saudi
Arabia and served via a Branching Unit, by an
amendatory agreement executed solely by the Founding
Signatory and the MOPT, provided that
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participation by the MOPT shall not cause the RFPA
Date to be delayed. Such amendatory agreement shall
provide that the MOPT shall have the same rights and
obligations as the existing Landing Party
Signatories.
(iii) This Agreement and all Schedules hereto may be
amended to provide for the participation of PT
(PERSERO) Indosat as a Landing Party Signatory owning
a Segment T to be located in Medan, Indonesia, served
via a fiber optic cable from Penang, Malaysia, or to
another landing point in Indonesia served via a
Branching Unit located on the FLAG Cable System
between Thailand and Hong Kong, by an amendatory
agreement executed solely by the Founding Signatory
and PT (PERSERO) Indosat, provided that participation
by PT (PERSERO) Indosat shall not cause the RFPA Date
to be deiayed. Such amendatory agreement shall
provide that PT (PERSERO) Indosat shall have the same
rights and obligations as the Landing Party
Signatories and shall participate in all
Subcommittees, including the Procurement
Subcommittee.
30.4. Schedules K and L of this Agreement may be amended, as
appropriate, to reflect transactions occurring pursuant to Paragraph 8.
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30.5. The Founding Signatory shall promptly distribute to all other
Signatories certified copies of all amendatory agreements and
amendments to the Schedules thereto made pursuant to Paragraphs 30.3
and 30.4.
31. EXECUTON OF AGREEMENT
31.1. This Agreement is executed in one (1) original in the English
language by all Signatories. The Founding Signatory shall retain such
original and shall promptly distribute certified copies thereof to all
other Signatories. Such certified copies shall be used in lieu of the
executed original Agreement in any arbitration, forum or proceeding.
31.2. This agreement shall not come into force and effect unless and
until it has been executed by the Arab Republic of Egypt National
Telecommunications Organization ("ARENTO") and Videsh ▇▇▇▇▇▇▇ ▇▇▇▇▇
Limited ("VSNL"). In the event that such execution does not occur by
March 31, 1995, this Agreement shall be null and void and no Signatory
shall have any liability to any other Signatory with respect to the
provisions set forth herein. In the event that this Agreement comes
into force and effect, this Paragraph 31.2 shall be considered as
automatically removed from the text of this Agreement.
32. MEMORANDUM OF UNDERSTANDING SUPERSEDED
32.1. This Agreement shall supersede in its entirety the Memorandum of
Understanding dated as of July 19, 1993 entered ihto by and among the
Founding Signatory and the following Signatories: Arab Republic of
Egypt National Telecommunications
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Organization; The Communications Authority of Thailand; Emirates
Telecommunications Corporation; the Government of Gibraltar; Hong Kong
Telecom International Limited; International Digital Communications
Inc.; IRITEL S.p.A. (the predecessor corporation to TELECOM ITALIA
S.p.A.; Korea Telecom; Mercury Communications Limited; PT (PERSERO)
Indonesia Satellite Corporation; SPT Telecom, a.s.; Telef6nica de
Espana S.A.; Telekom Malaysia Berhad; and Videsh ▇▇▇▇▇▇▇ ▇▇▇▇▇ Limited.
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AS WITNESS the hands of the duly authorized -representatives of the Signatories
hereto the day and year first above written:
For FLAG Limited
/s/ Name of Signatory
---------------------
For Arab Republic of Egypt National Telecommunications Organization
/s/ Name of Signatory 27/12/94
-----------------------------------
For The Communications Authority of Thailand
/s/ Name of Signatory
---------------------
For Emirates Telecommunications Corporation
/s/ Name of Signatory
---------------------
For Hong Kong Telecom International Limited
/s/ Name of Signatory
---------------------
For International Digital Communications Inc.
/s/ Name of Signatory
---------------------
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For BAHRAIN TELECOMMUNICATIONS COMPANY BSC
/s/ Name of Signatory
---------------------
For Belgacom
/s/ Name of Signatory
---------------------
For Cellular Communications Network (MALAYSIA) SDN, BHD
/s/ Name of Signatory
---------------------
/s/ Name of Signatory
---------------------
For Deutsche Bundepost Telekom
/s/ Name of Signatory
---------------------
For Eastern Telecommunications Philippines, Incorporated
/s/ Name of Signatory
---------------------
For General Directorate of Turkish PTT
/s/ Name of Signatory
---------------------
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For Gibraltar NYNEX Communications United
/s/ Name of Signatory
---------------------
For Korea Telecon
/s/ Name of Signatory
---------------------
For Mercury Communications Limited
/s/ Name of Signatory
---------------------
For TELECOM ITALIA S.p.A.
/s/ Name of Signatory
---------------------
For Telefonica de Espana S.A.
/s/ Name of Signatory
---------------------
For Telekom Malaysia Berhad
/s/ Name of Signatory
---------------------
For Videsh ▇▇▇▇▇▇▇ ▇▇▇▇▇ Limited
/s/ Name of Signatory
---------------------
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For AT&T Corp.
/s/ Name of Signatory
---------------------
For Hungarian Telecommunications Company Ltd.
/s/ Name of Signatory
---------------------
/s/ Name of Signatory
---------------------
For International Telecom Japan Inc.
/s/ Name of Signatory
---------------------
For International Telecommunication Development Corporation
/s/ Name of Signatory
---------------------
For Kokusai Denshin Denwa Co., Ltd.
/s/ Name of Signatory
---------------------
For Office Des Telephones
/s/ Name of Signatory
---------------------
For OPTUS Networks Pty Limited
/s/ Name of Signatory
---------------------
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For Pacific Gateway Exchange
/s/ Name of Signatory
---------------------
For Philippine Long Distance Telephone Company
/s/ Name of Signatory
---------------------
For Polish Telecom
/s/ Name of Signatory
---------------------
For PT SATELIT PALAPA INDONESIA
/s/ Name of Signatory
---------------------
For PTT Telecom BV
/s/ Name of Signatory
---------------------
For ROSTELECOM Joint Stock Company
/s/ Name of Signatory
---------------------
For Singapore Telecommunications Limited
---------------------
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For Sprint Communications Company L.P.
/s/ Name of Signatory
---------------------
For Swiss Telecom PTT
/s/ Name of Signatory
---------------------
For Telecom Denmark A/S
/s/ Name of Signatory
---------------------
For Teleglobe Canada Inc.
/s/ Name of Signatory
---------------------
For Telkom SA Limited
---------------------
For Telemalta Corporation
/s/ Name of Signatory
---------------------
For Televerket A/S (Norwegian Telecom Ltd.)
/s/ Name of Signatory
---------------------
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For Telia AB
/s/ Name of Signatory
---------------------
For Transoceanic Communications, Incorporated
/s/ Name of Signatory
---------------------
For Ukrainian Enterprise of Long-distance International and
Telecommunications and TV
/s/ Name of Signatory
---------------------
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