EXHIBIT 10.6
ATLANTIC CROSSING/AC-1
SUBMARINE CABLE SYSTEM
CAPACITY PURCHASE AGREEMENT
THIS AGREEMENT (as amended, supplemented or otherwise modified from time
to time, this "Agreement"), made and entered into this 10th day of June, 1998,
between ATLANTIC CROSSING LTD., a company organized and existing under the laws
of Bermuda and having its principal office in Bermuda (the "Grantor"), and
TELEMONDE BANDWIDTH (BERMUDA) LTD, a company in the process of incorporation
under the laws of Bermuda and whose registered office shall be at ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ (▇▇▇ "Purchaser").
W I T N E S S E T H:
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WHEREAS, the Grantor, (formerly known as Global Telesystems Ltd.), its
subsidiaries, SSI Atlantic Crossing LLC and AT&T Submarine Systems, Inc., now
known as Tyco Submarine Systems Ltd. (together with its successors and assigns,
"TSSL") have entered into the Project Development and Construction Contract,
dated March 18, 1997 (as amended, supplemented or otherwise modified from time
to time, the "Supply Contract"), pursuant to which TSSL has agreed to design,
manufacture, construct, install and deliver a fiber optic cable system
connecting (a) the United States to the United Kingdom, (b) the United Kingdom
to the Netherlands, (c) the Netherlands to Germany and (d) Germany to the United
States (the "System");
WHEREAS, the Grantor, its subsidiaries, SSI Atlantic Crossing LLC and TSSL
have also entered into the Operations, Administration and Maintenance Agreement,
dated as of March 25, 1997 (as amended, supplemented or otherwise modified from
time to time, the "OA&M Agreement"), pursuant to which TSSL has agreed, in
accordance with the terms thereof, to operate, administer and maintain the
System;
WHEREAS, the Purchaser desires to acquire rights with respect to the
Purchased Capacity (as defined herein) on an indefeasible right of use basis
("IRU") and such Purchased Capacity represents capacity on the System between
the System Interface (as defined herein) of the applicable cable stations;
WHEREAS, the Purchased Capacity is comprised of: (a) S Capacity (as defined
herein), which will be conveyed by the Grantor to the Purchaser pursuant to this
Agreement; and (b) to the extent necessary to allow the Purchaser to use its IRU
in the applicable S Capacity, T Capacity (as defined herein), which will be
conveyed by subsidiaries of the Grantor to the Purchaser pursuant to the
Indefeasible Right of Use Agreement, attached hereto as Annex A; and
WHEREAS, in order to obtain inland connection services in the United States
and the United Kingdom for the purpose of extending the Purchased Capacity
inland to a location in New York City and London (the "Inland Capacity"), the
Purchaser has the option of entering into separate agreements (the "Inland
Capacity Agreements") with subsidiaries or affiliates of the
Grantor located in the United States and the United Kingdom (the "Inland
Affiliates");
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants contained herein, covenant and agree with each other as follows:
1. DEFINITIONS. Terms defined in the preamble, in the recitals and Annex B
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hereto shall have their respective meanings when used herein and the
following terms shall have the following meanings:
"Access Connection" as defined in Annex B to this Agreement.
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"Adjusted Pro Rata Share" as defined in Annex B to this Agreement.
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"Advisory Committee" as defined in Paragraph 5 of Annex B to this
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Agreement.
"Business Day" means a day other than a Saturday, Sunday or other day on
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which commercial banks in New York City or Bermuda are authorized or
required to close.
"Dollars" or "S" means United States dollars.
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"European Segment" means Segment ▇-▇▇, ▇-▇▇ and/or S-3c.
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"Force Majeure" means any event or circumstance or combination of events
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or circumstances that is beyond the reasonable control of the party
sought to be held liable, including, but not limited to: delay in
obtaining or failure to obtain any permit or governmental
authorization; acts of God or of the public enemy; acts or failure to
act of any governmental authority; war or warlike operations; civil war
or commotion, mobilizations or military call-up and acts of similar
nature, revolution, rebellions, sabotage, and insurrections or riots;
drought, fires, floods, lightning, epidemics, quarantine restrictions;
strikes, and other labor actions; freight embargoes; unworkable
weather; trawler or anchor damage; damage caused by other marine
activity such as fishing, marine research and marine development;
failure or shortage of power supplies and general unavailability of any
raw materials or components; acts of omissions of transporters or the
acts or failure to act of the Purchaser (in the case Grantor is sought
to be held liable), of Grantor (if the Purchaser is sought to be held
liable), or of other respective representatives or agents thereof.
"Grantor's Account" means the bank account of the Grantor maintained
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with Deutsche Bank AG, New York Branch, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (account number 10-533026-0016) or such other
account as the Grantor may designate to the Purchaser in writing. Wire
instructions for the above referenced account are as follows:
Account Name: Atlantic Crossing Ltd.
Account Number: ▇▇-▇▇▇▇▇▇-▇▇▇▇
Bank Name: Deutsche Bank AG, New York Branch
ABA No.: ▇▇▇-▇▇▇-▇▇▇
Reference: Atlantic Crossing Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
"Initial Committed Capacity" means the Purchased Capacity described in
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Section 2(b) hereof.
"Maintenance Costs" as defined in Section 4(a) of this Agreement.
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"Minimum Capacity Unit" or "MCU" means the minimum capacity to be
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purchased by the Purchaser in the System. A STM-1 is designated as the
MCU for purposes of this Agreement.
"Operator" means TSSL and its successors and assigns as operator under
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the OA&M Agreement or any successor operator of the System appointed by
Grantor.
"Payment Date" means, with respect to the IRU granted in respect of any
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Purchased Capacity, the date on which the Purchaser pays the Grantor
(for the benefit of the Grantor and the benefit of the Subsidiary
Grantors), in immediately available Dollars, the amount required to be
paid by the Purchaser for such Purchased Capacity in accordance with
Section 3(b) of this Agreement.
"Payment Due Date" shall have the meaning set forth in Schedule III to
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this Agreement.
"Presale Purchaser" means any purchaser who acquires an IRU in capacity
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on a Transatlantic Segment from the Grantor which was contracted for
prior to the earlier of (x) the RFS Date for the entire System and (y)
November 30, 1998.
"Purchased Capacity" means the S Capacity set forth on Schedule I
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hereto, together with to the extent necessary to allow the Purchaser to
use its IRU in the applicable S Capacity, the applicable T Capacity.
"Purchase Price" means, with respect to the IRU granted in respect of
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any Purchased Capacity, the amount payable by the Purchaser to the
Grantor (for the benefit of the Grantor and the benefit of the
Subsidiary Grantors) in respect of such Purchased Capacity and set
forth under the heading "Purchase Price" on Schedule I to this
Agreement.
"Residual Capacity" means the Segment S-1 Residual Capacity, the Segment
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S-2 Residual Capacity, the Segment S-3a Residual Capacity, the Segment
S-3b Residual Capacity, the Segment S-3c Residual Capacity and the
Segment S-4
Residual Capacity.
"RES Date" means, with respect to any Segment, the date on which such
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Segment will be available for service, which shall be the date on which
the Grantor certifies that (i) such Segment has achieved the standard
described in Attachment 4 to Annex B hereto, (ii) such Segment has been
accepted by Grantor as ready for commercial service under the Supply
Contract and (iii) the independent engineer engaged by Grantor's senior
lenders has concurred with such acceptance. The RFS Date for Segment S-
1 (and the related T Segments) was May 22, 1998. The anticipated RFS
Date for Segment S-2 is November 30, 1998. The anticipated RFS Date for
Segment S-3a, Segment S-3b, Segment S-3c, Segment S-4 and the entire
System is February 22, 1999. The foregoing dates are merely estimates
as of the date hereof and shall not be deemed to be representations,
covenants or conditions to obligations, provided that the Grantor shall
notify the Purchaser in writing as soon as reasonably practicable if in
its good faith judgment the Grantor determines that a Segment will not
be available for service on the anticipated RFS Date.
"Right of Use Agreement" means the Indefeasible Right of Use Agreement,
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dated as of the date hereof, made by GT Landing Corp., GT U.K. Ltd.,
Global Telesystems GmbH and GT Netherlands B.V. in favor of purchasers
of capacity on the System (including the Purchaser) and attached as
Annex A to this Agreement, as such agreement may be amended,
supplemented or otherwise modified from time to time in accordance with
Paragraph 9 thereof.
"S Capacity" means capacity on the System available on any S
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Segment.
"S Segments" the collective reference to Segment ▇-▇, ▇-▇ and S-3a,
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S-3b, S-3c and S-4, as necessary.
"Segment S-1" as defined in Annex B to this Agreement.
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"Segment S-1 Residual Capacity" as defined in Annex B to this Agreement.
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"Segment S-2" as defined in Annex B to this Agreement.
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"Segment S-2 Residual Capacity" as defined in Annex B to this
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Agreement.
"Segment S-3a" as defined in Annex B to this Agreement.
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"Segment S-3a Residual Capacity" as defined in Annex B to this
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Agreement.
"Segment S-3b" as defined in Annex B to this Agreement.
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"Segment S-3b Residual Capacity" as defined in Annex B to this
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Agreement.
"Segment S-3c" as defined in Annex B to this Agreement.
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"Segment S-3c Residual Capacity" as defined in Annex B to this
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Agreement.
"Segment S-4" as defined in Annex B to this Agreement.
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"Segment S-4 Residual Capacity" as defined in Annex B to this Agreement.
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"Segment T-1" as defined in Annex B to this Agreement.
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"Segment T-2" as defined in Annex B to this Agreement
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"Segment T-3" as defined in Annex B to this Agreement
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"Segment T-4" as defined in Annex B to this Agreement
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"Segments" the collective reference to the S Segments and the T
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Segments.
"Stub Period" as defined in Section 4(a) hereof.
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"Subsidiary Grantors" the collective reference to GT Landing Corp., GT
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U.K. Ltd., Global Telesystems GmbII and GT Netherlands B.V. each a
wholly-owned subsidiary of the Grantor.
"Supplier" means TSSL and its successors and assigns as contractor under
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the Supply Contract or any successor contractor of the System appointed
by Grantor.
"T Capacity" means capacity on the System available on any T Segment.
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"T Segments" the collective reference to Segment T-1, T-2, T-3 and T-4.
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"Transatlantic Segment" means Segment ▇-▇, ▇-▇ or S-4.
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"Total Purchase Price" means the aggregate amount payable by the
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Purchaser to the Grantor (for the benefit of the Grantor and the benefit
of the Subsidiary Grantors) for the IRU of the Purchased Capacity as set
forth on the bottom of Schedule 1 to this Agreement opposite the phrase
"Total Purchase Price".
2. IRU FOR PURCHASED CAPACITY.
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(a) Purchase and Grant of IRU. The Purchaser hereby irrevocably agrees to
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purchase, for the Purchase Price and on the Payment Due Dates set forth
in Schedule III to this Agreement, an aggregate of sixteen (16) MCUs on
Segment S-1, (the "Initial Committed Capacity"). Effective on the
Payment Date, the Grantor, together with
the applicable Subsidiary Grantors pursuant to the Right of Use
Agreement, grants to the Purchaser, for the term of this Agreement, an
IRU in the Purchased Capacity for which payment has been made in
accordance with Schedule III to this Agreement. Each purchase and grant
of the IRU in the Purchased Capacity takes place in Bermuda.
(b) Annex B. Certain rights and obligations with respect to the IRU of the
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Purchased Capacity are described in Annex B hereto, which is
incorporated herein by reference.
(c) Residual Capacity. If the Purchaser is a Presale Purchaser, then,
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effective on the date which is 12-1/2 years after the RFS Date for the
entire System, the Grantor, together with the applicable Subsidiary
Grantors pursuant to the Right of Use Agreement, grants to the
Purchaser, at no additional charge and for the term of this Agreement,
an IRU in (i) the Purchaser's Adjusted Pro Rata Share of the Segment S-1
Residual Capacity, (ii) the Purchaser's Adjusted Pro Rata Share of the
Segment S-2 Residual Capacity, (iii) the Purchaser's Adjusted Pro Rata
Share of the Segment S-3a Residual Capacity, (iv) the Purchaser's
Adjusted Pro Rata Share of Segment S-3b Residual Capacity, (v) the
Purchaser's Adjusted Pro Rata Share of Segment S-3c Residual Capacity
and (vi) the Purchaser's Adjusted Pro Rata Share of Segment S-4 Residual
Capacity. The Grantor shall promptly notify the Purchaser of the amount
of capacity in which the Purchaser obtained an IRU pursuant to this
Section 2(c). If the Purchaser acquires an IRU in any Residual Capacity,
the terms contained herein binding on the Purchaser with respect to
Purchased Capacity shall be binding on the Purchaser with respect to
such Residual Capacity. The Purchaser's Adjusted Pro Rata Share in any S
Segment shall be allocated in half MCUs, and the Grantor shall be
permitted to round down to the nearest whole MCU.
(d) Presale Upgrade Rights. In addition, if the Grantor and the Subsidiary
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Grantors determine to increase the Initial Design Capacity of the System
after the date which 12-1/2 years after the RFS Date for the entire
System, the Grantor shall deliver to the Purchaser (only if the
Purchaser is a Presale Purchaser) notice of the proposed increase. If
the Purchaser is a Presale Purchaser, the Purchaser will have the right
to receive a portion of such increased capacity, on terms to be provided
at that time.
(e) Additional Purchases. The Purchaser will have the right to elect to
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purchase additional MCUs of Purchased Capacity on Segment S-1 (the
"Optional Purchased Capacity") at any time, so long as and only to the
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extent that at such time uncommitted capacity remains available in the
Segment S-1. The purchase price for the Optional Purchased Capacity
shall be the lesser of (i) $4,000,000 per MCU and (ii) the lowest
prevailing AC-1 list price per MCU on Segment S-1. The purchase price
for the Optional Purchased Capacity, in respect of an election on or
before the RFS Date for Segment S-1 ("Pre RFS Election"), shall be due
and payable on the RFS Date for Segment S-1, or, in respect of an
election after the RFS Date for Segment S-1 ("Post RFS Election"),
immediately as set out below in this Section 2(c). The Purchaser may
elect to exercise such right by (1) delivering written notice to
Grantor, which notice shall set forth the number of MCUs to which such
election shall apply and (2) either, in respect of a Pre RFS Election,
making an initial payment to the Grantor's Account of 10% of the
applicable purchase price of such Optional Purchased Capacity in order
to increase the "Initial Payment" pursuant to Section 3(a) below, or in
respect of a Post RFS Election, immediately paying to the Grantor's
Account the applicable purchase price of such Optional Purchased
Capacity. Upon receipt of such written election notice and payment, to
the extent that such Optional Purchased Capacity remains uncommitted at
that time, the Purchaser shall be irrevocably obligated to purchase such
additional MCU(s) of Purchased Capacity on Segment S-1 on the RFS Date,
in respect of Pre RFS Election, or immediately in respect of a Post RFS
Election, as applicable. The 10% initial payment to be made pursuant to
this Section 2(c) in respect of a Pre RFS Election, if and when paid to
Grantor, shall be non-refundable (except as provided in Section 21 of
this Agreement) and shall be credited toward the payment of the purchase
price pursuant to this Section 2(c). Payment of the purchase price in
respect of a Post RFS Election made under this Section 2(f) shall be
non-refundable. A revised Schedule I will be prepared with respect to
such Optional Purchased Capacity.
(f) Option for Segments S-3a and S-3c. The Grantor hereby grants to the
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Purchaser the option to purchase Purchased Capacity on Segment S-3a or
Segment S-3c (the "Optional European Capacity") at any time, so long as
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and only to the extent that at such time uncommitted capacity remains
available in the subject Segment. The purchase price for such MCUs of
Purchased Capacity on Segment S-3a or Segment S-3c shall be as follows:
(i) if the Purchaser purchases such MCUs on a "matched" basis (the total
number of MCUs of Purchased Capacity on Segment S-3a and/or Segment S-
3c matches or is less than the number of MCUs of Purchased Capacity on
Segment S-1 Purchaser has committed to purchase hereunder), then the
Purchaser shall pay $500,000 per MCU or (ii) if the Purchaser
purchases such MCUs on an "unmatched" basis (the total number of MCUs of
Purchased Capacity on Segment S-3a and/or Segment S-3c exceeds the
number of MCUs of Purchased Capacity on Segment S-1 Purchaser has
committed to purchase hereunder), then the Purchaser shall pay
$1,000,000 per unmatched MCU. The purchase price per MCU of such
Optional European Capacity, in respect of an election on or before the
RFS Date for the relevant European Segment ("Pre RFS Election"), shall
be due and payable on the RFS Date for such European Segment, or, in
respect of an election after the RFS Date for such European Segment
("Post RFS Election"), immediately as set forth below in this Section
2(f). The Purchaser may elect to exercise such right by (1) delivering a
written election notice to Grantor, which notice shall set forth the
number of MCUs and the Segment(s) to which such election shall apply and
(2) either, in respect of a Pre RFS Election, making an initial payment
to the
Grantor's Account of $50,000 for each MCU to be purchased on a "matched"
basis and $100,000 for each MCU to be purchased on an "unmatched" basis
under this Section 2(f) in order to increase the Initial Payment
pursuant to Section 3(a) below, or, in respect of a Post RFS Election,
immediately paying to the Grantor's Account the applicable purchase
price of such Optional European Capacity. Upon receipt of such written
election notice and payment, to the extent that such Optional European
Capacity remains uncommitted at that time, the Purchaser shall be
irrevocably obligated to purchase the elected number of MCU(s) on
Segment S-3a and/or Segment S-3c on the RFS Date for such Segment(s), in
respect of a Pre RFS Election, or immediately in respect of a Post RFS
Election, as applicable. The $50,000 or $100,000 initial payment(s) to
be made pursuant to this Section 2(f) in respect of a Pre RFS Election,
upon payment to Grantor, shall be non-refundable (except as provided in
Section 21 of this Agreement) and shall be credited toward the payment
of the purchase price pursuant to this Section 2(f). Payment of the
purchase price in respect of a Post RFS Election made under this Section
2(f) shall be non-refundable. A revised Schedule I will be prepared with
respect to such Optional European Capacity.
(g) Inland Capacity. The Grantor, on behalf of the Inland Affiliates hereby
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grants to the Purchaser the option of entering into Inland Capacity
Agreements at any time, so long as and only to the extent that at such
time uncommitted capacity remains available, to purchase inland
connection services in the United States between the cable station in
Brookhaven, New York, United States and ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ("US Backhaul") and to purchase inland connection services in the
United Kingdom between the cable station in Whitesands, United Kingdom
and London, United Kingdom ("UK Backhaul"). If the Purchaser exercises
such option, then the Purchaser and the Inland Affiliates shall
negotiate and enter into Inland Capacity Agreements, in form and
substance reasonably satisfactory to the Inland Affiliates and the
Purchaser. The purchase price per MCU of capacity on US Backhaul shall
be $750,000. The purchase price per MCU of capacity on UK Backhaul shall
be $2,250,000.
(h) Notification of Remaining Capacity. After the RFS Date for the entire
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System Grantor will set aside eight (8) MCUs on Segment S-1 which shall
be available for purchase by the Purchaser, so long as and only to the
extent that at such time uncommitted capacity remains available. Grantor
shall promptly notify the Purchaser in writing, after the RFS Date for
the entire System, if it anticipates capacity constraints on the System
("Capacity Constraint Notice"). A capacity constraint shall be deemed to
exist when the Grantor reasonably believes, based on pending purchases
of capacity, that there are thirty-two (32) or fewer MCUs of capacity
remaining unsold on Segment S-1. The Purchaser shall have the option to
purchase the eight (8) MCUs by delivering to Grantor, by or upon a date
which is sixty (60) days after receipt of the Capacity Constraint
Notice, a notice of Purchaser's election to purchase additional
capacity, which notice shall set forth the number of MCUs to be
purchased and payment therefor. The purchase price
for the additional capacity to be purchased pursuant to this Section
2(h) shall be the lesser of (i) $4,000,000 per MCU and (ii) the lowest
prevailing AC-1 list price per MCU on Segment S-1. Upon delivery of such
election notice and payment therefor, the Purchaser shall be irrevocably
obligated to purchase such additional capacity for such purchase price.
A revised Schedule I will be prepared with respect to such additional
capacity.
3. PAYMENT FOR CAPACITY.
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(a) Initial Payment. Upon the execution and delivery of this Agreement, the
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Purchaser shall make an initial payment to the Grantor's Account (for
the benefit of the Grantor and the benefit of the Subsidiary Grantors),
in immediately available Dollars, in an amount equal to 15% of the Total
Purchase Price (the "Initial Payment"). The Initial Payment in respect
of the Initial Committed Capacity shall be $9,720,000. The Initial
Payment shall be non-refundable (except as provided in Section 21 of
this Agreement) and shall be credited toward the payment of the Total
Purchase Price. The Initial Payment in respect of the Initial Committed
Capacity shall be credited toward the payment of the Total Purchase
Price due on 1 July 1998.
(b) Payment of Purchase Price. In exchange for the IRU interest granted
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pursuant to this Agreement and the Right of Use Agreement in any
Purchased Capacity, the Purchaser shall, on or before the Payment Due
Date, pay to the Grantor's Account (for the benefit of the Grantor and
the benefit of the Subsidiary Grantors), in immediately available
Dollars, an amount equal to the Purchase Price; provided, however, the
aggregate payments made by the Purchaser under paragraphs (a) and (b) of
this Section 3 shall not exceed the Total Purchase Price. Each payment
made under this Section 3(b) shall be non-refundable.
(c) Additional Service Payment. The Purchaser shall be required to make, at
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the request of the Grantor, additional payments in respect of the right
of use granted under this Agreement, or the Right of Use Agreement, for
access connection rearrangement requested by the Purchaser as set forth
in Schedule II to this Agreement and such other reasonable costs in
respect of additional services or equipment to be provided hereunder or
in connection herewith.
(d) Taxes. All payments made by the Purchaser under this Section 3 shall be
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made without any deduction or withholding for or on account of any tax,
duty or other charges of whatever nature imposed by any taxing or
governmental authority (collectively "Taxes"). If the Purchaser is or
was required by law to make any deduction or withholding from any
payment due hereunder to the Grantor (for the benefit of the Grantor and
the benefit of the Subsidiary Grantors), then, notwithstanding anything
to the contrary contained in this Agreement, the gross amount payable by
the Purchaser to the Grantor (for the benefit of the Grantor and
the benefit of the Subsidiary Grantors) will be increased so that, after
any such deduction or withholding for Taxes, the net amount received by
the Grantor (for the benefit of the Grantor and the benefit of the
Subsidiary Grantors) will not be less than the Grantor (for the benefit
of the Grantor and the benefit of the Subsidiary Grantors) would have
received had no such deduction or withholding been required.
4. OPERATION AND MAINTENANCE OF SYSTEM.
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(a) Maintenance Payments. The Purchaser shall pay to the Grantor (for the
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benefit of the Grantor and the benefit of the Subsidiary Grantors), in
immediately available Dollars, amounts ("Maintenance Costs") which are
based on its allocated share of the costs for operating, maintaining and
repairing the System in accordance with Paragraph 8 of Annex B. For the
avoidance of doubt, MCUs of Initial Committed Capacity in respect of
which the Purchaser has not been granted the IRU (payment has not been
made) will not be included when calculating the Maintenance Costs per
STM-1 and the Purchaser's allocable share of the Maintenance Costs.
Maintenance Costs shall be payable quarterly in advance on each January
1, April 1, July 1 and October 1, commencing with the first January 1
after the applicable RFS Date, except that on the applicable RFS Date
the Purchaser shall make a proportional payment for the period (the
"Stub Period") from the applicable RFS Date to the first such January 1
quarterly payment date. Each payment made by the Purchaser under this
Section shall be subject to the provisions of Section 2(d) of this
Agreement and shall be non-refundable.
(b) Maintenance. (i) The Grantor shall use all commercially reasonable
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efforts to cause the System to be operated and maintained in efficient
working order and in accordance with the Performance Requirements set
forth in Annex C. The Grantor represents that the OA&M Agreement is in
full force and effect and that it requires and at all times shall
require TSSL to provide routine, preventive and corrective maintenance
for the System in accordance with performance standards that at least
meet prudent industry standards. Grantor will use all commercially
reasonable efforts to cause TSSL to perform its obligations under the
OA&M Agreement and the Supply Contract.
(ii) The Grantor together with the Subsidiary Grantors will have sole
responsibility for negotiating, executing and administering
contracts and all other aspects related to the construction,
operation, maintenance and repair of the System.
(iii) Should any condition exist in any Segment that may impair the
integrity of the System, the Grantor shall initiate and coordinate
planned maintenance (or shall cause such action to occur), on such
relevant Segment which may include the deactivation of such
Segment. The Grantor shall, to the extent
reasonably practicable, advise the Purchaser in writing at least
sixty (60) days (or such shorter period as may be necessary;
provided that, if such period is less than five (5) days, such
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shorter period as may be agreed), prior to initiating a planned
maintenance operation, of the timing, scope and costs of such
planned maintenance operation.
(iv) In the event of disruption of service due to Force Majeure or other
emergency, or for any other reason including for the avoidance of
doubt any negligent, reckless or wilful act on the part of the
Grantor, Subsidiary Grantor or TSSL, the Grantor shall cause
service to be restored as quickly as possible, and the Grantor
shall promptly take such measures as are reasonably necessary to
obtain such objective.
5. INVOICES; DEFAULT INTEREST.
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(a) Invoices. The Grantor (and/or the Subsidiary Grantors) or its authorized
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agent (which may include the Operator), shall render invoices under this
Agreement in Dollars, and the Purchaser shall pay such amount in
Dollars. The Purchaser shall make all payments by means of a wire
transfer to Grantor's Account (for the benefit of the Grantor and the
Subsidiary Grantors). Any payments required to be made pursuant to this
Agreement shall, save for the Initial Payment which shall be made in
accordance with the provisions of Section 3(a), be made on the later of
(i) the date when due or (ii) five (5) business days after an invoice is
received from Grantor by Purchaser.
(b) Default Interest. Any invoice rendered under this Agreement which is not
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paid when due, shall accrue interest at the annual rate of three percent
(3%) above the rate for U.S. dollar LIBOR for one month as quoted in The
---
Wall Street Journal on the first business day of the month in which such
-------------------
payment is due. Such interest shall accrue from the day following the
date payment was due until it is paid in full. In the event that
applicable law does not allow the imposition of "default interest" at
the rate established in accordance with this Section 5(b), such "default
interest" shall be at the highest rate permitted by applicable law. For
purposes of this Section, "paid" shall mean that funds are available for
immediate use by the Grantor.
6. DEFAULT.
-------
(a) If the Purchaser fails to make any payment required by this Agreement on
the date that it is due, or if the Purchaser is otherwise in breach of
this Agreement, and such payment default continues unremedied for a
period of at least five (5) days or such other breach continues for a
period of at least thirty (30) days, the Grantor, or its authorized
agent, may notify the Purchaser in writing of such payment default or
other breach and if full payment is not received or such other breach is
not fully
remedied within fifteen (15) days of such notification, the Grantor:
(i) may suspend all service provided to Purchaser hereunder and under
the Right of Use Agreement (including suspending Purchaser's right to
use the Purchased Capacity), until such payment default or other breach
has been cured (including payment of default interest, if any) and (ii)
shall be entitled to pursue any and all rights and legal and equitable
remedies (including its rights and remedies to enforce the Purchaser's
obligations under this Agreement); provided, however, if such breach
results in an interruption or significant interference with the ability
of other purchasers of IRU's in the System to make use of the capacity
of the System they have purchased, the Grantor may take the actions
specified in clauses (i) and (ii) with three (3) days after giving
Purchaser written notice of such breach (and specifying that such breach
has caused or is causing such interruption or interference) if such
breach continues unremedied.
(b) If the Grantor is in breach of this Agreement and such breach continues
for a period of at least thirty (30) days, the Purchaser may notify the
Grantor in writing of such breach and if such breach is not fully
remedied within fifteen (15) days of such notification, the Purchaser
shall, for so long as such breach continues, be entitled to pursue any
and all rights and legal and equitable remedies, including its rights
and remedies to enforce Grantor's obligations under this Agreement;
provided, however, if such breach results in an interruption or
significant interference with the ability of the Purchaser to make use
of the Purchased Capacity that Purchaser has placed into service (it
being understood that scheduled and emergency maintenance or restoration
procedures shall not be deemed a breach of this Agreement), the
Purchaser may pursue any and all rights and legal and equitable
remedies, including its rights and remedies to enforce Grantor's
obligations under this Agreement, in accordance with the dispute
resolution provisions of this Agreement, within three (3) days after
giving Grantor written notice of such breach (and specifying that such
breach has caused or is causing such interruption or interference) if
such breach continues unremedied.
7. USE OF CAPACITY.
---------------
(a) The operation of the Purchased Capacity and any equipment associated
therewith shall be such as not to interrupt, interfere with, or impair
service over any of the facilities comprising the System, or impair
privacy of any communications over such facilities, cause damage to
plant or create hazards to employees, affiliates or connecting companies
of the Grantor, any Subsidiary Grantor, the Purchaser, or any other
user, owner or operator of the System or the public. The Purchaser shall
bear the cost of any additional protective apparatus reasonably required
to be installed because of the use of such facilities by the Purchaser,
any lessees or permitted transferees of the Purchaser, or any customer
or customers of the Purchaser or of any such lessee or transferee. The
Grantor will use all reasonable efforts to cause all other purchasers of
capacity in the System to undertake
obligations substantially in the same form as those of the Purchaser set
forth in this Section, and the Purchaser shall cause all permitted users
of the IRU in the Purchased Capacity to undertake comparable
obligations.
(b) The Purchased Capacity granted to the Purchaser shall be made available
to the Grantor (or its subsidiaries, its agents or the Operator), at
such times agreeable to the Purchaser and the Grantor, to permit the
Grantor and the Subsidiary Grantors to conduct such tests and
adjustments as may be necessary for such capacity to be maintained in
efficient working order.
8. DURATION OF AGREEMENT.
---------------------
(a) This Agreement shall become effective on the day and year set forth in
the preamble hereto and shall continue in operation until the twenty-
fifth (25th) anniversary of the RFS Date for the System.
(b) The termination of this Agreement (whether under this Section or
otherwise) shall not affect the rights and liabilities of the parties
hereto arising prior to such termination.
(c) Upon the termination of this Agreement, so long as Purchaser is not in
default hereunder, the Purchaser may elect to extend its rights in the
System, for so long as the System exists or has not been retired, by
giving written notice to Grantor and paying to Grantor one (1) Dollar.
Such election to extend shall not affect or delay the termination of the
Grantor's obligations under this Agreement. Upon such election to extend
and payment, the Purchaser, together with all other purchasers of
capacity on the System that also elect to so extend, shall become the
sole owners of the System. The ownership interests of the Purchaser and
such other purchasers shall be in proportion to the amount of capacity
covered by IRU's previously granted to the Purchaser and such other
purchasers. The Grantor shall execute and deliver such documentation as
may be reasonably required to effect such transfer of ownership. Without
limitation to the generality of the foregoing provisions, Grantor shall
have no obligation to operate or maintain the System during such
extension.
(d) The parties hereto shall discuss with each other and the other
purchasers of capacity on the System establishing a procedure for the
early retirement of the System if such retirement appears to be
commercially appropriate.
9. APPROVALS; LICENSES.
-------------------
The performance of this Agreement by each party hereto is contingent upon
the obtaining and continuance of such approvals, consents, governmental
authorizations, licenses and permits as may be required or reasonably deemed
necessary by such party for performance by such party hereunder and as may
be satisfactory to it. The parties shall use (and in the case of the
Grantor, shall cause the Subsidiary Grantors to use) reasonable efforts to
obtain and continue, and to have continued, such approvals, consents,
licenses and permits. In the event that any regulatory or governmental
authority directs either party to terminate this Agreement or if in any
relevant jurisdiction any necessary license is likely to be revoked or
expire and not immediately be replaced the parties shall (with time being of
the essence) forthwith negotiate in good faith any necessary amendments to
this Agreement or as to what other action is necessary to avoid termination
of this Agreement. No license under patents is granted by the Grantor or any
of the Subsidiary Grantors or shall be implied or arise by estoppel in the
Purchaser's favor with respect to any apparatus, system or method used by
the Purchaser in connection with the use of the capacity granted to it
hereunder or under the Right of Use Agreement.
10. DISCLAIMER.
----------
(a) The Grantor and the Subsidiary Grantors have entered into the Supply
Contract to obtain plant, equipment and services necessary to allow the
Purchased Capacity to be placed into operation on the applicable
scheduled RFS Date. Neither the Grantor, any Subsidiary Grantor or any
of their respective affiliates warrants or guarantees that the RFS Date
for any Segment or the System will occur and the Grantor, the Subsidiary
Grantors and their respective affiliates will otherwise have no
obligation under this Agreement or the Right of Use Agreement or
otherwise unless and until the applicable RFS Date occurs. THE PURCHASER
ACKNOWLEDGES AND AGREES THAT THE GRANTOR AND THE SUBSIDIARY GRANTORS ARE
NOT LIABLE FOR THE SUPPLIER'S FAILURE TO PERFORM. UNLESS SPECIFICALLY
SET FORTH IN THIS AGREEMENT, ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.
(b) In order to make it more convenient for the Purchaser to connect the
Purchased Capacity to inland networks, the Grantor and the Subsidiary
Grantors have permitted certain Inland Carriers to collocate at the
cable stations located at each T Segment. Neither the Grantor, any
Subsidiary Grantor or any of their respective affiliates warrants or
guarantees any agreement between the Purchaser and any Inland Carrier
and neither the Grantor, any Subsidiary Grantor or any of their
respective affiliates shall have any liability to the Purchaser for any
failure of any Inland Carrier to perform the terms and conditions of any
such agreement
11. LIMITATIONS OF LIABILITY.
------------------------
(a) Except as otherwise provided in this Agreement or in the Right of Use
Agreement, in no event shall the Purchaser, the Grantor or any
Subsidiary Grantor be liable to the other for consequential, incidental,
indirect or special damages, including, but not limited to, loss of
revenue, loss of business opportunity, or the costs associated with the
use of external restoration facilities, including, without limitation,
for any loss or damages sustained by reason of any failure in or
breakdown of the System or the facilities associated with the System,
the failure of any Inland Carrier to perform the terms and conditions of
any agreement to which it and the Purchaser are parties or for any
interruption of service, whatever the cause and however long it shall
last.
(b) Neither the Grantor nor any Subsidiary Grantor shall be liable to the
Purchaser for any loss or damage which may be suffered by the Purchaser
by reason of any circumstances beyond the control of the Grantor and the
Subsidiary Grantors and having an adverse effect on the provision of
any part of the System in which the Purchaser is entitled to capacity or
has any other right or interest under this Agreement or under the Right
of Use Agreement.
(c) (i) Neither the Grantor nor any Subsidiary Grantor shall be liable to
the Purchaser for any loss or damage which may be suffered by the
Purchaser as a result of, related to, or in connection with, the
Purchaser's compliance or non-compliance with any applicable state,
federal, foreign governmental, international (foreign or domestic) or
other law related to the transfer of the IRU in, or the use of, the
Purchased Capacity.
(ii) The Purchaser shall not be liable to the Grantor or any Subsidiary
Grantor for any loss or damage which may be suffered by Grantor as a
result of, related to, or in connection with, Grantor's non-compliance
with any applicable state, federal, foreign governmental, international
(foreign or domestic) or other law related to the transfer by Grantor of
the IRU to the Purchaser in, or Grantor's operation, ownership or use
of, the System.
12. SETTLEMENT OF DISPUTES.
----------------------
(a) The parties hereto shall endeavor to settle amicably by mutual
discussions any disputes, differences, or claims whatsoever related to
this Agreement.
(b) Failing such amicable settlement, any controversy, claim or dispute
arising under or relating to this Agreement, including the existence,
validity, interpretation, performance, termination or breach thereof,
shall finally be settled by arbitration in accordance with the
International Arbitration Rules of the American Arbitration Association
("AAA"). There shall be three (3) arbitrators, the first of which shall
be appointed by the claimant in its notice of arbitration, the second of
which shall
be appointed by the respondent within thirty (30) days of the
appointment of the first arbitrator and the third of which shall be
jointly appointed by the party-appointed arbitrators within thirty (30)
days thereafter. The language of the Arbitration shall be English. The
Arbitrator will not have authority to award punitive damages to either
party. Each party shall bear its own expenses, but the parties shall
share equally the expenses of the Arbitration Tribunal and the AAA.
This Agreement shall be enforceable, and any arbitration award shall be
final, and judgment thereon may be entered in any court of competent
jurisdiction. The arbitration shall be held in New York, New York, USA.
13. INCREASE OF INITIAL DESIGN CAPACITY.
-----------------------------------
The Grantor and the Subsidiary Grantors shall have authority to increase, at
their own cost and expense, the Initial Design Capacity of the System.
14. GOVERNING LAW.
-------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA.
15. WAIVER OF IMMUNITY.
------------------
The parties hereto acknowledge that this Agreement is commercial in nature,
and each party hereto expressly and irrevocably waives any claim or right
which it may have to immunity (whether sovereign immunity, act of state 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,
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.
16. EXPORT CONTROL.
--------------
The parties hereto acknowledge that to the extent any products, software or
technical information provided under this Agreement or the Right of Use
Agreement are or may be subject to any applicable export laws and
regulations, the parties hereto agree that they will not use, distribute,
transfer or transmit the products, software or technical information (even
if incorporated into other products) except in compliance with such export
laws and regulations (or licenses or orders issued pursuant thereto). If
requested by either party hereto the other party agrees to sign all
necessary export-related documents as may be required to comply therewith.
17. REPRESENTATIONS; INDEMNITY.
--------------------------
(a) The Grantor hereby represents and warrants to Purchaser that (i) Grantor
is a company duly organized and validly existing under the laws of
Bermuda; (ii) the execution, delivery and performance of this Agreement
by Grantor has been duly authorized by all necessary corporate action on
the part of Grantor and this Agreement is a valid, binding and
enforceable obligation of Grantor enforceable in accordance with its
terms and (iii) the execution, delivery and performance of this
Agreement by Grantor does not violate, conflict with or constitute a
breach of, the organizational documents or any order, decree or judgment
of any court, tribunal or governmental authority binding on Grantor.
(b) Purchaser hereby represents and warrants to Grantor that (i) Purchaser
is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization; (ii) the execution,
delivery and performance of this Agreement by Purchaser has been duly
authorized by all necessary corporate action on the part of Purchaser
and this Agreement is a valid, binding and enforceable obligation of
Purchaser enforceable in accordance with its terms; and (iii) the
execution, delivery and performance of this Agreement by Purchaser does
not violate, conflict with or constitute a breach of, the
organizational documents or any order, decree or judgment of any court,
tribunal or governmental authority binding on Purchaser.
(c) Each Party hereby represents and warrants to the other party that it has
obtained all approvals, consents, governmental authorizations, licenses
and permits as may be required to enter into this Agreement, and grant
or require, as the case may be, the IRU in the Purchased Capacity.
(d) The foregoing representations and warranties shall survive the execution
and delivery of this Agreement.
(e) Subject to Section 11, the Purchaser agrees to indemnify and hold
harmless the Grantor and the Subsidiary Grantors and their respective
officers, directors, employees, agents and representatives from and
against any loss, damage, expense or cost arising out of or in
connection with: (i) any breach or violation by the Purchaser of
applicable law or governmental regulation and (ii) any claims of
whatever nature by third parties with respect to the services provided
by the Purchaser.
(f) Subject to Section 11, the Grantor agrees to indemnify and hold harmless
the Purchaser and its officers, directors, employees, agents and
representatives from and against any loss, damage, expense or cost
arising out of or in connection with (i) any breach or violation by the
Grantor or any Subsidiary Grantor of applicable law or governmental
regulation, and (ii) any claims of whatever nature by third parties with
respect to the services provided by the Grantor or any Subsidiary
Grantor.
(g) The Grantor hereby represents and warrants that it shall perform its
obligations under this Agreement and shall provide the Purchased
Capacity in accordance with the terms of this Agreement.
(h) The Purchaser hereby represents and warrants that it shall perform its
obligations under this Agreement and shall cause the Subsidiary Grantors
to perform their obligations under the Right of Use Agreement in
accordance with the terms thereof.
(i) The Grantor hereby represents and warrants that it shall use all
commercially reasonable efforts to ensure that the operation,
administration and maintenance of the System as set out in Paragraph 8
of Annex B to this Agreement are provided with all reasonable skill and
care in accordance with recognized standards of a competent provider of
maintenance services in a manner consistent with applicable law.
(j) The Grantor or the Subsidiary Grantors shall not use or knowingly permit
the System to be used by any other purchaser for any illegal purpose or
any unlawful manner; and
(k) The Grantor shall indemnify and hold the Purchaser harmless in respect
of all and any losses and damages, costs and expenses (including
reasonable legal costs and expenses) arising out of any claims or
proceedings (whether successful or not) against the Purchaser regarding
patents copyright or any other intellectual property rights provided
under this Agreement or the Right Of Use Agreement which are owned by
any third party resulting from Purchaser's use of the Purchased Capacity
in accordance with the terms of this Agreement and the Right of Use
Agreement. In the event that the use by the Purchaser of the Purchased
Capacity in accordance with the terms of this Agreement and the Right of
Use Agreement shall infringe the patents, copyrights or other
intellectual property rights provided under this Agreement or the Right
of Use Agreement which are owned by any third party, the Grantor shall
obtain or procure by whatever means it shall deem appropriate at its own
cost and expense the right for the Purchaser to use the Purchased
Capacity in accordance with the terms of this Agreement and the Right of
Use Agreement.
18. RELATIONSHIP OF THE PARTIES.
---------------------------
This Agreement shall not form a joint venture or partnership or similar
business arrangement between the parties hereto and the Subsidiary Grantors,
and nothing contained herein or in the Right of Use Agreement shall be
deemed to constitute a partnership or joint venture or similar business
arrangement.
19. NO THIRD PARTY BENEFICIARIES.
----------------------------
This Agreement does not provide and is not intended to provide third parties
(including, but not limited to, customers of the Purchaser, any permitted
transferee of the Purchased Capacity or any other permitted user of the
Purchased Capacity) with any remedy, claim, liability, reimbursement, cause
of action, or any other right, except for the Subsidiary Grantors.
Furthermore, the Purchaser acknowledges that, except as set forth in the
Right of Use Agreement, it is not a third party beneficiary of any agreement
entered into by the Grantor or the Subsidiary Grantors including, but not
limited to, the Supply Contract and the OA&M Agreement.
20. ASSIGNMENT.
----------
(a) This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto, the Subsidiary Grantors
and their respective successors and permitted assigns; provided that,
--------
except for the collateral assignment of the Grantor's and/or any
Subsidiary Grantor's and/or the Purchaser's rights under this Agreement
to one or more of the Grantor's lenders, or the Purchaser's lenders and
except as provided in paragraphs (b) and (c) of this Section, neither
this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned, transferred or otherwise disposed of or delegated by
either party hereto without the prior written consent of the other
party.
(b) The Grantor and the Subsidiary Grantors shall be permitted to assign,
transfer or otherwise dispose of any or all of their rights hereunder
and under the Right of Use Agreement and delegate any or all of their
obligations hereunder and under the Right of Use Agreement to any
present or future affiliated company of the Grantor or to an entity
controlled by, under the same control as, or controlling, the Grantor.
The Grantor shall give the Purchaser notice of any such assignment,
transfer or other disposition or any such delegation.
(c) The Purchaser shall solely be responsible for complying with all of the
terms binding on the "Purchaser" hereunder and shall not be permitted to
assign, transfer or otherwise dispose of any or all of its rights
hereunder or under the Right of Use Agreement or delegate any or all of
its obligations hereunder or under the Right of Use Agreement to any
person or entity except the Purchaser may transfer its rights (but not
------
its obligations) to use any Purchased Capacity to a Carrier Party,
subject to paragraph (d) of this Section, in accordance with Paragraph 6
of Annex B to this Agreement, provided that simultaneously with
--------
transferring such rights to such Carrier Party, such Carrier Party
executes a document acknowledging:
(i) that it has acquired from the Purchaser rights to use Purchased
Capacity which were conveyed to the Purchaser under or in connection
with a capacity purchase agreement with the Grantor (the "CPA);
(ii) that the Purchaser has an ongoing obligation under the CPA to make
certain payments to the Grantor (including, without limitation, in
respect of operation, administration and maintenance expenses) and
otherwise comply with the terms thereof, and that the failure of
the Purchaser to make any such payments when due or the occurrence
of any other breach by the Purchaser of the terms of the CPA could
result in the suspension of the Purchaser's right to the Purchased
Capacity in accordance with the terms of the CPA; and
(iii) that such Carrier Party is not a third party beneficiary of the
CPA or the Right of Use Agreement.
(d) The Purchaser may only transfer to a single assignee, whether pursuant
to one or more transfers, its rights (but not its obligations) to use in
the aggregate one (1) or more MCUs of Purchased Capacity on terms and
conditions which are mutually agreed between the Grantor and the
Purchaser.
Any transfer by the Purchaser of its obligations or its rights to use any
Purchased Capacity which is in violation of this Section shall be void and
of no force and effect.
21. CONDITION TO PURCHASER'S OBLIGATIONS.
------------------------------------
The Purchaser's obligation to pay for an IRU (i) with respect to any
Purchased Capacity on Segment S-1 shall terminate if the RFS Date for the
Purchased Capacity on Segment S-1 has not occurred by October 15, 1998 or
(ii) with respect to any other Purchased Capacity shall terminate if the RFS
Date for such Purchased Capacity has not occurred by June 30, 1999. In any
such event, the Grantor shall refund all amounts of Purchase Price paid by
the Purchaser with respect to such Purchased Capacity as to which
Purchaser's obligation has terminated within thirty (30) days after the
applicable date.
22. NOTICES.
-------
Each notice, demand, certification or other communication given or made
under this Agreement shall be in writing and shall be delivered by hand or
sent by registered mail or by facsimile transmission to the address of the
respective party as shown below (or such other address as may be designated
in writing to the other party hereto in accordance with the terms of this
Section):
If to the Purchaser: Telemonde Bandwidth (Bermuda) Ltd.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Attn: Company Secretary
Fax No.:
With a copy to: Telemonde Ltd
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Company Secretary
Fax No. 011 44 171 493 3524
If to the Grantor: Atlantic Crossing Ltd.
Wessex House
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Attn: President
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Any change to the name, address and facsimile numbers may be made at any
time by giving fifteen (15) days prior written notice in accordance with
this Section. Any such notice, demand or other communication shall be deemed
to have been received, if delivered by hand, at the time of delivery or, 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, or, if sent by facsimile, at the date of transmission if
confirmed receipt is followed by postal notice.
23. SEVERABILITY.
------------
If any provision of this Agreement is found by an arbitral, judicial or
regulatory authority having jurisdiction to be void or unenforceable, such
provision shall be deemed to be deleted from this Agreement and the
remaining provisions shall continue in full force and effect.
24. HEADINGS.
--------
The Section headings of this Agreement are for convenience of reference only
and are not intended to restrict, affect or influence the interpretation or
construction of provisions of such Section.
25. COUNTERPARTS.
------------
This Agreement may be executed in counterparts, each of which when executed
and delivered shall be deemed an original. Such counterparts shall together
(as well as separately) constitute one and the same instrument.
26. ENTIRE AGREEMENT.
----------------
This Agreement together with the Schedules, Annexes and Attachments hereto
supersedes all prior or written understandings between the parties hereto
and constitutes the entire agreement with respect to the subject matter
herein. This Agreement shall not be modified or amended except by a writing
signed by authorized representatives of the parties hereto.
27. PUBLICITY AND CONFIDENTIALITY.
-----------------------------
(a) The provisions of this Agreement and any non-public information, written
or oral, with respect to this Agreement ("Confidential Information")
will be kept confidential and shall not be disclosed, in whole or in
part, to any person other than affiliates, officers, directors,
employees, agents, professional advisors, financial institutions and
lenders or representatives of a party (collectively, "Representatives")
who need to know such Confidential Information for the purpose of
negotiating, executing and implementing this Agreement. Each party
agrees to inform each of its Representatives of the non-public nature of
the Confidential Information and to direct such persons to treat such
Confidential Information in accordance with the terms of this Section
27. Nothing herein shall prevent a party from disclosing Confidential
Information (i) upon the order of any court or administrative agency,
(ii) upon the request or demand of, or pursuant to any regulation of,
any regulatory agency or authority, (iii) to the extent reasonably
required in connection with the exercise of any remedy hereunder
provided that the parties shall co-operate in relation to the disclosure
--------
of the Confidential Information in such circumstance, (iv) to a party's
legal counsel or independent auditors, (v) to prospective lenders to the
Grantor, and (vi) to any actual or proposed assignee, transferee or
lessee of all or part of its rights hereunder provided that such actual
or proposed assignee agrees in writing to be bound by the provisions of
this Section 27.
(b) The foregoing shall not restrict either party from publicly announcing
that it has entered into this Agreement with the parties hereto, but
without including any details contained in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date first written above.
ATLANTIC CROSSING LTD.
By: /s/ K. ▇▇▇▇▇▇ Shutter
--------------------------
Name: K. ▇▇▇▇▇▇ Shutter
Title: President
TELEMONDE BANDWIDTH
(BERMUDA) LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director