EXHIBIT 10.9
DATED 15 APRIL 1999
TELEMONDE INTERNATIONAL BANDWIDTH LIMITED
and
COMMUNICATIONS COLLATERAL LIMITED
---------------------------------
TRANSMISSION CAPACITY AGREEMENT
---------------------------------
STD(151)
Gouldens
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TRANSMISSION CAPACITY AGREEMENT
THIS AGREEMENT is made the 15th day of April 1999
BETWEEN:
(1) TELEMONDE INTERNATIONAL BANDWIDTH LIMITED, whose registered office is at
Lake Building, 1st Floor, ▇▇▇▇▇▇▇'▇ ▇▇▇ 1, PO Box 3152, Road Town, Tortola,
British Virgin Islands ("Telemonde").
(2) COMMUNICATIONS COLLATERAL LIMITED, whose registered office is at ▇▇ ▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("CCL")
WHEREAS:
(A) Telemonde has an interest in international telecommunications facilities on
the Gemini network acquired from MCI WorldCom pursuant to the MCI WorldCom
Agreement.
(B) CCL wishes to acquire from Telemonde transmission capacity over such
facilities between the Sites, as defined herein.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 The words and phrases used in this Agreement shall, unless otherwise
expressly provided, have the meaning ascribed to them below:
"Act" means the Telecommunications ▇▇▇ ▇▇▇▇ (as amended or substituted from
time to time);
"Agreement" means this Agreement together with the Schedule hereto;
"Annual Charge" means, in relation to the Unit of Capacity, the amount
specified in Schedule 1 and payable to Telemonde in accordance with Clause
4, and "Annual Charges" shall be construed accordingly;
"Associated Company" means in relation to a party, any subsidiary or
holding company of such party and any subsidiary of such holding company
(as such terms are defined in sections 736 and 736A Companies Act 1985);
"Business Days" means any days excluding Saturdays and Sundays on which
commercial banks are open for business in the country where the relevant
notice is to be delivered or where the relevant activity is to be
performed;
"Cable Lifetime" means the lifetime of the Gemini fibre optic submarine and
terrestrial cable system as set forth in the C&MA;
"Capacity" means the point to point transmission capacity provided between the
Sites and termed the first Unit as such term is defined in the MCI WorldCom
Agreement;
"C&MA" means the construction, operation and maintenance agreement for the
Gemini fibre optic submarine and terrestrial cable system, as amended from time
to time by Gemini Submarine Cable System Limited in accordance with the terms
thereof;
"CCL Equipment" means any equipment owned or used by CCL that is installed at a
Site and which is used by CCL to access the Capacity;
"Charges" means, together, the Purchase Price and the Annual Charges;
"Confidential Information" means all confidential information (whether written,
oral or in electronic format) designated as such by the disclosing party,
together with all such other information which relates to the operations,
business affairs, customers, services, products, developments, plans,
intentions, trade secrets, know-how and personnel of the disclosing party which
may reasonably be regarded as the confidential information of the disclosing
party;
"Emergency Works" has the meaning ascribed thereto in the Act;
"Fault" means a material defect, fault or impairment in the Capacity duly
notified to MCI WorldCom in accordance with Schedule 2 of the MCI WorldCom
Agreement;
"Force Majeure" means any event beyond a party's reasonable control affecting
the performance by that party of its obligations hereunder including (to the
extent that such events are beyond the affected party's reasonable control), but
not limited to, acts of God, insurrection or civil disorder, malicious damage,
accident, breakdown, war or military operations, national or local emergency,
acts or omissions of Government, regulatory or highway authority, industrial
disputes of any kind, fibre cuts, fire, flood, lightning, explosion, subsidence,
inclement weather and acts or omissions of persons or bodies (other than a CCL
Customer) beyond the reasonable control of the affected party;
"IRU" means the "indefeasible right of use" in the Unit of Capacity for the
Cable Lifetime;
"LIBOR Rate" means the arithmetic mean of the offered rates of leading banks for
London Interbank deposits expressed as a rate per annum, for deposits in US
Dollars for six months as displayed on the LIBOR page of the Reuters Monitor
Money Rate service at or about 11:00 a.m. on the date on which the LIBOR Rate is
to be determined;
"MCI WorldCom" means both of MCI WorldCom Global Networks U.S. Inc and MCI
WorldCom Global Networks Limited;
"MCI WorldCom Agreement" means the agreement dated 31 March 1999 made between
(1) MCI WorldCom Global Networks U.S. Inc (2) MCI WorldCom Global Networks
Limited (3) Telemonde
"MCI WorldCom Network" means the Service Equipment and any other infrastructure
used by MCI WorldCom to provide the Capacity to Telemonde;
"Operations and Maintenance Procedures" means those procedures set out in
Schedule 2 of the MCI WorldCom Agreement;
"Purchase Price" means the amount specified in Schedule 1 and payable to
Telemonde for the Capacity in accordance with Clause 4;
"Ready Date" means the date from which the Capacity is made available by
MCI WorldCom to Telemonde for use;
"Scheduled Maintenance" means the planned works to be conducted by or on
behalf of MCI WorldCom in order to maintain or repair the Capacity as
notified to Telemonde and CCL;
"Service Equipment" means the multiplex or other equipment provided by MCI
WorldCom and/or Telemonde installed at a Site to enable CCL to receive the
Capacity;
"Site" means each of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ and Telehouse, London
"Unit" means, in relation to the Capacity, a transmission channel
comprising a VC-4 container interfaced at STM-1 level.
1.2 References in this Agreement to "Telemonde" and "CCL" shall include their
respective employees, agents, successors (whether by operation of law or
otherwise) and permitted assigns.
1.3 The headings are included in this Agreement for ease of reference only and
shall not affect the interpretation or construction of this Agreement.
1.4 References in this Agreement to Clauses and Schedules shall be deemed to be
references to the clauses of and schedules to this Agreement.
2. PROVISION OF CAPACITY
2.1 With effect from the date of signature of this Agreement and throughout the
term of this Agreement, Telemonde shall, subject to CCL complying with its
obligations and undertakings under this Agreement, reserve the Capacity
exclusively for CCL.
2.2 In consideration for the obligations and undertakings of CCL set out in
this Agreement and with effect from the Ready Date Telemonde shall grant
CCL an IRU in the Capacity between the specified Sites and shall make such
Capacity available to Telemonde from the Ready Date for the term of this
Agreement. Telemonde shall deliver the Activation Request Form (as defined
in the MCI WorldCom Agreement) to MCI WorldCom on or by the date of this
Agreement requesting that the Capacity be activated.
2.3 In the event that the Ready Date does not occur within a period of twelve
weeks following the date of this Agreement CCL shall be entitled to notify
Telemonde in writing, such notice to take effect immediately on receipt,
that it no longer requires delivery of the Unit of Capacity, in which case
Telemonde shall following the date of service of such notice refund to
Telemonde the Purchase Price already paid by it in relation to the Unit of
Capacity and, save in respect of any liability arising up to the date of
such notice, neither party shall have any further obligations in relation
to the provision of the Unit of Capacity.
2.4 CCL acknowledges that Telemonde may from time to time revise or vary
any aspect of the Capacity save that the Capacity shall
notwithstanding such variation remain compliant with the terms of this
Agreement.
3. OPERATIONS AND MAINTENANCE PROCEDURES
3.1 The parties shall comply with the Operations and Maintenance
Procedures in respect of the performance of Scheduled Maintenance and
Emergency Works and the reporting and rectification of Faults.
4. PAYMENT
4.1 In consideration for the obligations and undertakings of Telemonde set
out in this Agreement, CCL shall pay the Charges in accordance with
the provisions of this Clause 4.
4.2 Telemonde shall be entitled to invoice CCL for the Annual Charges on
or after the date of signature hereof, provided that Telemonde will be
responsible for the Annual Charges for the period from the date of
this Agreement to 31 December 1999.
4.3 Telemonde shall be entitled to invoice CCL for the Annual Charges
annually in advance on or about 1 January of each year. Liability for
payment of the Annual Charge due in respect of the Unit of Capacity
shall commence on signature hereof. The Annual Charges for the partial
year commencing on the date hereof shall be pro-rated.
4.4 CCL shall pay or shall procure payment to Telemonde of US$ 6,500,000
immediately following execution hereof into a bank account designated
by Telemonde. CCL acknowledges that the obligation to pay this amount
in accordance with this Clause 4.4 is a material obligation for the
purposes of Clause 8.3.
4.5 CCL shall make payment for all Charges or other amounts duly invoiced
to it in accordance with this Clause 4 (other than the sum set out in
Clause 4.4) within thirty (30) days of the date of delivery to it of
an invoice.
4.6 CCL acknowledges that the Charges are exclusive of VAT (or such other
similar taxes as may be levied from time to time) which shall be
invoiced to and payable by CCL in accordance with this Clause 4 where
applicable.
4.7 Telemonde shall be entitled to charge and receive interest on any sums
which are overdue at the rate of 3% above the LIBOR Rate until the
date of payment in full, whether before or after any judgment. Such
interest shall be calculated and shall accrue on a daily basis.
5. USE OF CAPACITY
5.1 CCL shall grant or shall procure the grant to Telemonde of such rights
of access and shall provide to Telemonde such facilities and
information as Telemonde may reasonably require to enable it to
perform its obligations and exercise its rights under this Agreement.
5.2 CCL acknowledges that, where the provision by Telemonde of the
Capacity shall require the modification of any equipment of CCL,
Telemonde shall not be liable for the performance of any works
entailed in effecting such modification and such works shall be the
sole responsibility of and shall be performed at the sole expense CCL.
5.3 CCL warrants and undertakes that it shall, and where a Site is a third
party site (other than an MCI WorldCom site), shall procure that the
third party shall:
5.3.1 house the Service Equipment in accordance with MCI Worldcom's
reasonable instructions as may be given from time to time;
5.3.2. not move, modify, relocate or in any way interfere with the Service
Equipment;
5.3.3. not cause the Service Equipment to be repaired, serviced or
otherwise attended to otherwise than by an authorised representative
of MCI WorldCom;
5.3.4 not let, sell or transfer any Service Equipment nor create or allow any
mortgage, charge, lien, pledge or other encumbrance or security interest
whatsoever to be placed on the Service Equipment;
5.3.5 not use the Service Equipment except in accordance with such
reasonable instructions as Telemonde may from time to time give;
5.3.6 permit MCI WorldCom to inspect or test the Service Equipment at all
reasonable times;
5.3.7 upon termination of this Agreement, permit MCI WorldCom access to
each Site to facilitate the removal of the Service Equipment;
5.3.8 not, through its use of any CCL Equipment or otherwise, cause any
interruption of, or interference to, the MCI WorldCom Network,
prevent the use of similar equipment by other owners, operators or
users of the MCI WorldCom Network, impair privacy of any
communications over the MCI WorldCom Network or cause damage to any
plant or equipment or create hazards to any user, owner or operator
of the MCI WorldCom Network.
6. WARRANTIES AND UNDERTAKINGS
6.1 Telemonde represents to, warrants and covenants with CCL as follows:
6.1.1 Telemonde is duly organised and validly existing under the laws of
its State or jurisdiction of organisation, and has the requisite
power and authority to execute this Agreement and to perform its
obligations hereunder;
6.1.2 This Agreement constitutes a valid and binding obligation of
Telemonde, enforceable against Telemonde in accordance with its
terms;
6.1.3 Telemonde has obtained, and shall use commercially reasonable
efforts to maintain in good standing, all such consents, approvals,
licences, permits and other approvals, both governmental and
private, as may be necessary (as at the date of performance) to
permit Telemonde to perform its obligations under this Agreement;
and
6.1.4 Telemonde shall perform its obligations under this Agreement in a manner
consistent with applicable law.
6.1.5 Telemonde shall perform in a timely manner its obligations under the MCI
WorldCom Agreement.
6.2 Save as expressly provided herein, no warranties, conditions,
representations or agreements are expressed or implied by Telemonde in
relation to the Capacity. Notwithstanding anything to the contrary in
this Agreement, Telemonde does not warrant or represent that the
Capacity will be fault-free and any implied warranties and conditions
of any nature are hereby expressly excluded.
6.3 CCL represents to, warrants and covenants with Telemonde as follows:
6.3.1 CCL is a limited liability company, duly organised and validly
existing under the laws of its State or jurisdiction of
organisation, is qualified to do business in all jurisdictions
(domestic and foreign) in which such qualification is required by
applicable law, and has the requisite authority to execute this
Agreement and to perform its obligations hereunder;
6.3.2 This Agreement constitutes a valid and binding obligation of CCL,
enforceable against CCL in accordance with its terms;
6.3.3 There are no pending and, to CCL's knowledge, no threatened claims,
actions, suits, audits, investigations or proceedings by or against
CCL which could have an adverse effect on CCL's ability to perform
its obligations under this Agreement;
6.3.4 CCL has obtained, and shall use commercially reasonable efforts to
maintain in good standing, and shall ensure that all third parties
with whom it has entered into an agreement for the purchase or use
of part or all of the Capacity have so obtained and so maintain,
all such consents, approvals, licenses, permits and other
approvals, both governmental and private, as may be necessary (as
at the date of performance) to permit CCL to perform its
obligations under this Agreement and to permit CCL and such third
parties to acquire and use the Capacity;
6.3.5 CCL shall not create or permit to exist, any liens, encumbrances or
charges to be placed upon the Capacity or CCL's rights under this
Agreement other than liens, encumbrances or charges of financial
institutions or others against CCL's assets generally in connection
with financing arrangements by CCL;
6.3.6 CCL shall perform its obligations under this Agreement and use the
Capacity in a manner consistent with applicable law, and shall not
use the Capacity, or permit the Capacity to be used, for any
illegal purpose or in any other unlawful manner; and
6.3.7 CCL shall use the Capacity and shall cause all other persons using
the Capacity to use such Capacity in such a manner so as not to
cause any interruption of, or interference to, the MCI WorldCom
Network or the use of any other capacity on the MCI WorldCom
Network.
6.4 Telemonde undertakes to CCL in the following terms:
6.4.1 the Capacity is free of any lien in favour of any third party;
6.4.2 to notify CCL immediately upon the receipt by Telemonde of a
notice from MCI WorldCom served pursuant to the terms of sub-
clause 9.2.1 and/or 9.3 of the MCI WorldCom Agreement.
6.4.3 to pay any and all sums received from CCL in relation to the
Annual Charge to MCI WorldCom within 5 Business Days of receipt
thereof.
7. LIABILITY
7.1 Subject to Clause 7.3 and save in respect of any amounts due and owing in
accordance with Clause 4 and save in respect of any liability arising out
of a party's wilful default, but notwithstanding anything else in this
Agreement, each party's liability to the other in contract, tort
(including negligence or breach of statutory duty) or otherwise arising
in connection with this Agreement shall be limited to:
7.1.1 one million pounds ((Pounds)1,000,000) per event or series of
connected events; and
7.1.2 two million pounds ((Pounds)2,000,000) in any twelve (12) month
period.
7.2 Subject to Clause 7.3 but notwithstanding anything else in this
Agreement, neither party shall in any event be liable to the other in
contract, tort (including negligence or breach of statutory duty) or
otherwise for indirect or consequential losses under or arising in
connection with this Agreement including, but not limited to, loss of
business, revenues, anticipated savings or profit.
7.3 Nothing in this Agreement shall be deemed to limit either party's
liability in respect of death or personal injury caused by or arising
from that party's negligence or of fraud.
7.4 Should any limitation or provision contained in this Clause 7 be held to
be invalid under any applicable statute or rule of law, it shall to
that extent be deemed omitted.
8. TERM, TERMINATION AND SUSPENSION
8.1 This Agreement shall come into effect on the date hereof and shall,
subject to earlier termination in accordance with this Clause 8 or Clause
9.5, continue in effect for the Cable Lifetime.
8.2 Either party may terminate this Agreement by service on the other party of
notice in writing, having effect forthwith, if the other party shall
become insolvent or have an administrator, receiver or administrative
receiver appointed over a substantial part of its assets or go into
liquidation (whether compulsory or voluntary) otherwise than for the
purposes of amalgamation or reconstruction or be subject to an order for
dissolution by a court of competent jurisdiction or shall make any
compromise or arrangement with its creditors or make an application a
court of competent jurisdiction for protection from creditors or have any
form of execution or distress levied upon, or an encumbrancer take
possession of or sell, a substantial part of its assets or cease to carry
on business, or if, an equivalent event occurs in relation to that party
in any jurisdiction, PROVIDED THAT, if CCL has paid the Purchase Price to
Telemonde in full in respect of the Unit of Capacity in accordance with
this Agreement and Telemonde is the terminating party under this Clause
8.2, then:
8.2.1 Telemonde shall give CCL seven (7) days' notice in writing of
termination under this Clause 8.2;
8.2.2 CCL shall be entitled to assign and transfer its rights and
obligations under this Agreement in respect of the Unit of
Capacity to a customer, provided that during such notice period:
(a) CCL gives Telemonde written notice of such assignment;
and
(b) such customer enters into an agreement with Telemonde
to Telemonde's reasonable satisfaction whereby such customer
agrees to be bound by the terms of this Agreement; and
8.2.3 the rights of each customer to the Unit of Capacity validly
assigned by CCL to that customer in accordance with Clause 8.2.2
shall be unaffected by and survive termination of this Agreement.
8.3 Either party may terminate this Agreement by service on the other party of
not less than thirty (30) days' notice in writing specifying a material
breach by the other party of a material obligation and requiring that the
breach is remedied, such notice only taking effect where that breach is
not remedied during such period.
8.4 In the event that Telemonde has not received payment in full of the
Annual Charge in respect of the Unit of Capacity on the applicable due
date, Telemonde shall be entitled to suspend service across the Unit of
Capacity on giving seven (7) Business Days' notice in writing to CCL.
Telemonde shall restore service across the Unit of Capacity only on
receipt by Telemonde of payment by CCL of that Annual Charge, together
with a restoration fee of 25% of such Annual Charge. In the event that
the overdue Annual Charge and restoration fee are not paid on or by 1
January of the year following the date of this notice of suspension of
service, Telemonde shall be entitled to revoke the IRU and lease
granted in respect of the Unit of Capacity, with immediate effect.
Telemonde acknowledges that it has no revocation rights in respect of
the Capacity other than as set out in this Clause 8.4.
8.5 Clauses 6, 7, this Clause 8.5 and Clauses 10, 12 and 20 shall continue
in full force and effect notwithstanding termination of this Agreement.
8.6 Termination of this Agreement shall not operate as a waiver of any
breach by a party of any of the provisions hereof and shall be without
prejudice to any rightful remedies of either party which may arise as
a consequence of such breach or which may have accrued hereunder up to
the date of such termination.
9. FORCE MAJEURE
9.1 Subject to compliance with Clauses 9.2, 9.3 and 9.4, any delay or
failure to perform an obligation under this Agreement by a party (the
"affected party") shall not constitute a breach of this Agreement to
the extent that it is caused by an event of Force Majeure.
9.2 The affected party shall promptly notify the other party in writing of
the estimated extent and duration of the affected party's inability to
perform its obligations.
9.3 Upon the cessation of the event of Force Majeure, the affected party
shall promptly notify the other party in writing of such cessation.
9.4 The affected party shall use all reasonable endeavours to mitigate the
effect of each event of Force Majeure.
9.5 If, following three months from the date of notification under Clause
9.2, the event of Force Majeure persists, the unaffected party may
forthwith terminate this Agreement by service of notice in writing on
the affected party.
10. CONFIDENTIALITY
10.1 Subject to Clauses 10.2 and 10.3, in respect of Confidential
Information, each party shall:
10.1.1 use such Confidential Information only for the purposes of
this Agreement;
10.1.2 disclose such Confidential Information to a third party only
with the prior written consent of the other party or in
accordance with Clause 10.3; and
10.1.3 ensure that any third party to whom Confidential Information
is disclosed under Clause 10.1.2 or 10.3 executes a
confidentiality undertaking on the terms of this Clause 10.
10.2 The provisions of Clause 10.1 shall not apply to any Confidential
Information which:
10.2.1 is in or comes into the public domain other than by default of
the recipient party;
10.2.2 is or has already been independently generated by the recipient
party;
10.2.3 is in the possession of or is known by the recipient party prior to its
receipt from the disclosing party; or
10.2.4 is properly disclosed pursuant to and in accordance with a relevant
statutory or regulatory obligation or (with the prior consent of either
party, such consent not to be unreasonably withheld) to obtain or
maintain any listing on a stock exchange.
10.3 Either party may disclose the Confidential Information provided to it to
any Associated Company and to its professional advisors if and to the
extent that such disclosure is required in the performance of its
obligations hereunder.
11. ASSIGNMENT AND SUBCONTRACTING
11.1 Subject to Clause 8.2, this Agreement is personal to the parties hereto
and neither party shall, without the prior consent in writing of the
other (such consent not to be unreasonably withheld or delayed), assign,
charge or otherwise deal with the whole or any part of this Agreement or
its rights or obligations hereunder other than to or in favour of any
Associated Company of such party.
11.2 In the event of an assignment under clause 11.1, the assignor shall
ensure that:
11.2.1 not less than fourteen (14) days' prior notice in writing of such
assignment is given to the other party;
11.2.2 the assignee shall enter into an agreement with the other party whereby
the assignee shall agree to be bound by the terms of this Agreement and,
if required by the other party, the assignor shall guarantee the
performance of this Agreement by the assignee; and
11.2.3 in case of an assignment to an Associated Company, the assignor
shall procure that all parts, rights and obligations of this
Agreement that have been assigned are immediately reassigned to
the assignor if that assignee ceases to be an Associated Company.
11.2.4 it notifies the assignee that this Agreement is the subject of an
assignment by way of security by Telemonde in favour of MCI
WorldCom.
11.3 Either party may delegate the performance of its obligations hereunder to
any Associated Company. Such party shall, notwithstanding such
delegation, remain liable to the other party for the acts and omissions
of such Associated Company as if they were its own acts and omissions.
11.4 Telemonde agrees that CCL shall be entitled to grant rights to the Unit
of Capacity to a third party end user, provided that Telemonde receives
the benefit of the representations, warranties and covenants in Clause
6.3 from the end user in relation to itself.
Any grant of rights to the Unit of Capacity other than in accordance with
this Clause 11.4 shall be of no effect. Notwithstanding any grant by CCL
of the Capacity to a third party, CCL shall remain liable for the
performance of its obligations hereunder.
11.5 In the event that CCL grants rights to the Unit of Capacity pursuant to
Clause 11.4. for the purposes of administering the network operation
centre of the Gemini cable network (the "NOC"), CCL shall notify Telemonde
of such grant and shall provide Telemonde with the following information:
(a) the name and address of the Customer; (b) the interest in the Capacity
transferred; (c) the name, address, telephone number, facsimile number and
e-mail address of the person (including appropriate escalation parties and
procedures) authorised on behalf of the Customer to interact with the NOC
and (if different) the contact name, address, telephone number and fax
number of the Customer's local network operations centre or equivalent;
(d) a certification by CCL that, notwithstanding such grant, CCL shall be
fully liable for the performance of all its obligations under this
Agreement; and (e) any other information as Telemonde may reasonably
request.
12. PUBLICITY
Neither party shall without the prior approval in writing of the other
(such approval not to be unreasonably withheld) directly or indirectly
make any release or statement to the press, radio, television or other
media in any way connected with this Agreement.
13. SEVERABILITY
13.1 The invalidity or unenforceability for any reason of any part of this
Agreement shall not prejudice or affect the validity or enforceability of
the remainder of this Agreement.
13.2 If further lawful performance of this Agreement or any part of it shall be
made impossible by the final judgement or final order of any court of
competent jurisdiction, commission or government agency or similar
authority having jurisdiction over either party, the parties shall
forthwith use their reasonable endeavours to agree amendments to this
Agreement so as to comply with such judgement or order.
14. VARIATION
No variation, modification or addition to or deletion of any provision of
this Agreement shall be effective unless agreed in writing by a duly
authorised representative of CCL and of Telemonde.
15. PARTNERSHIP
Nothing herein shall be deemed to constitute a partnership or joint
venture between the parties or to constitute one party the agent of the
other for any purpose whatsoever.
16. WAIVER
Failure by either party at any time to enforce any of the provisions of
this Agreement shall neither be construed as a waiver of any rights or
remedies hereunder nor in any way affect the validity of this Agreement or
any part of it. No waiver shall be
effective unless given in writing and no waiver of a breach of this
Agreement shall constitute a waiver of any antecedent or subsequent
breach. No single or partial exercise of a right or remedy provided by
this Agreement or by law prevents further exercise of the right or remedy
or the exercise of another right or remedy.
17. NOTICES
17.1 Any notice required or authorised by this Agreement shall be in writing
sent by prepaid registered post or facsimile transmission (immediately
confirmed by post) and shall be deemed to have been received forty-eight
(48) hours after such posting or transmission. Any such notices shall be
addressed as follows:
To CCL:
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Communications Collateral Limited, ▇▇ ▇▇▇ ▇▇▇, The Tropical Isle Building,
Road Town, Tortola, BVI
TEL: ▇▇▇ ▇▇▇ ▇▇▇▇
FAX: ▇▇▇ ▇▇▇ ▇▇▇▇
Copy to:- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TEL: ▇▇▇ ▇▇▇ ▇▇▇▇
FAX: ▇▇▇ ▇▇▇ ▇▇▇▇
To Telemonde:
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telemonde Investments Limited, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
FAX: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
17.2 Either party may amend its address and facsimile number specified in
Clause 17.1 by notice to the other party.
18. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties
relating to the Capacity and supersedes all previous agreements,
understandings or commitments between the parties or representations or
warranties made by either party whether oral or written with respect to
the Capacity. Each party warrants to the other that it has not relied on
any such agreement, understanding, commitment, representation or warranty
(whether oral or in writing) in entering into this Agreement.
19. NO EXCLUSIVE REMEDY
Except where this Agreement expressly provides otherwise, the rights and
remedies contained in this Agreement are cumulative and not exclusive of
rights or remedies provided by law.
20. GOVERNING LAW
20.1 This Agreement shall be governed and construed in accordance with
English law.
20.2 The parties hereby submit to the non-exclusive jurisdiction of the
English courts.
21. COUNTERPARTS
This Agreement may be executed in counterparts and shall, if signed by an
authorised signatory of each of the parties hereto, be deemed to have been
duly executed.
SCHEDULE I
Charges
Annual Charge: The Annual Charges shall be US$ 350,000 per annum.
Purchase Price: The Purchase Price shall be US$ 6,500,000 such sum shall be
inclusive of the Annual Charge for the year to 31 December
1999.
AS WITNESS the hands of the duly authorised representatives of the parties at
the date first above written
for and on behalf of )
COMMUNICATIONS COLLATERAL LIMITED )
________________________________________
for and on behalf of )
TELEMONDE INTERNATIONAL BANDWIDTH LIMITED )
/s/ ▇. ▇▇▇▇▇▇▇
DATED 15TH APRIL 1999
(1) TELEMONDE INVESTMENTS LIMITED
and
(2) COMMUNICATIONS COLLATERAL LIMITED
---------------------------------------
CAPACITY OPTION AGREEMENT
in relation to an IRU in Capacity on the Gemini System
---------------------------------------
STD(147) 12.04.99
STD(147) 12.04.99
THIS AGREEMENT is made on 15th April 1999
BETWEEN:
(1) TELEMONDE INVESTMENTS LIMITED (a company registered in the British Virgin
Islands under Company No 270776) whose registered office is at Cragmuir
▇▇▇▇▇▇▇▇, Road Town, Tortola, BVI ("Telemonde")
(2) COMMUNICATIONS COLLATERAL LIMITED (a company registered in the British
Virgin Islands) whose registered office is at ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Capacity Buyer")
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 In this agreement, unless the context requires otherwise:
"Capacity Agreement" means the Capacity Agreement of even date hereto made
between (1) TIBL and (2) the Capacity Buyer in the agreed form;
"Completion" means the performance by Telemonde and the Capacity Buyer of
the obligations assumed by them respectively under clauses 3.2, 3.3 and
3.4;
"Encumbrance" means any charge, lien, pledge, mortgage, lien, equity,
third party right, option, right of pre-emption or any other encumbrance,
priority or security interest whatsoever (whether now known about or not);
"Exercise Date" means the date of service of an Option Notice;
"First Option Period" means the period commencing on the date hereof and
expiring 120 days later;
"Options" means the options exercisable or exercised pursuant to clause
2.2 or 2.3;
"Option Notice" means a notice of exercise of the Option;
"Option Price" means the sum of US$6,500,000 (six million five hundred
thousand US dollars);
"Prescribed Rate" means a rate equal to 10 per cent per annum;
"Second Option Period" means the period commencing on the day following
the expiry of the First Option Period and expiring on the date on which
the Capacity
Buyer leases sells or charges or otherwise encumbers the Capacity or
enters into any agreement to do any of the foregoing;
"TIBL" means Telemonde International Bandwidth Limited;
"Transfer Terms" means on the terms that the Capacity shall be sold and
purchased free from any Encumbrance and that the consideration for the
Capacity shall be the Option Price.
1.2 In this agreement, unless the context requires otherwise:
1.2.1 words and phrases defined in the Capacity Agreement shall have the
same meaning;
1.2.2 reference to a clause or sub-clause is to a clause or sub-clause of
this agreement.
1.3 The headings in this agreement are for ease of reference only and shall
not affect its construction or interpretation.
2. PUT AND CALL OPTION
-------------------
2.1 In consideration of the undertakings and agreements contained in this
agreement, Telemonde and the Capacity Buyer have agreed to grant each
other the Options.
2.2 The Capacity Buyer hereby grants Telemonde the right, exercisable at any
time during the First Option Period by service of an Option Notice on the
Capacity Buyer, to require the Capacity Buyer to sell the Capacity to
Telemonde on the Transfer Terms.
2.3 Telemonde hereby grants to the Capacity Buyer the right, exercisable
(i) at any time during the Second Option Period; or
(ii) following the occurrence and during the continuance of an Event
of Default under the Facility Agreement of even date herewith
between (1) Telemonde and (2) the Capacity Buyer or of a
default under the Capacity Agreement or the Letter Agreement
of even date hereto made between (1) Rhone Financial Indemnity
Re Limited and (2) the Capacity Buyer; or
(iii) at any time following the withdrawal of the Capacity from TIBL
by MCI WorldCom; or
(iv) in circumstances where CCL serves a valid notice on TIBL in
accordance with the provisions of clause 2.3 of the Capacity
Agreement
by service of an Option Notice on Telemonde, to require Telemonde to purchase
from the Capacity Buyer the Capacity on the Transfer Terms.
2.4 An Option shall be exercisable only in respect of all (and not some only)
of the Capacity. On the exercise of an Option, the Capacity Buyer will
become bound to sell and the Telemonde will become bound to purchase the
Capacity on the Transfer Terms.
2.5 An Option Notice, once given, may not be withdrawn, except with the
written consent of the recipient.
2.6 The Option in Clause 2.2 shall lapse if not exercised during the First
Option Period.
2.7 If an Option is exercised, then the remaining provisions of this clause 2
and clauses 3 and 4 will apply.
3. COMPLETION
3.1 Completion of the sale and purchase of the Capacity shall take place at
the usual place of business from time to time of Telemonde (or at such
other place as may be agreed) at 12 noon on the fourteenth day after the
Exercise Date, provided that, if such day is not a business day, then
Completion shall take place at 12 noon on the first business day after
that.
3.2 On Completion, Telemonde shall procure that the Capacity Agreement is
rescinded so as to ensure that CCL has no further obligations thereunder
(save in respect of any antecedent breach of the terms thereof).
3.3 On Completion, the Capacity Buyer shall do such things and execute such
documents as shall be necessary or as Telemonde may reasonably request to
give effect to the sale of the Capacity on the Transfer Terms.
3.4 Subject to the Capacity Buyer complying with its obligations under
clauses 3.2 and 3.3, Telemonde shall, on Completion, pay the Option Price
to the Capacity Buyer together with a sum representing interest
calculated on a daily basis at the Prescribed Rate upon the Option Price
for the First Option Period plus the number of days it takes for
Completion in cleared funds for value that day.
3.5 If any of the provisions of clauses 3.2 or 3.3 are not complied with on
the date fixed for Completion, the party not in default may (without
prejudice to his other rights and remedies):
3.5.1 defer Completion to a date not more than 28 days after such date
(and so that the provisions of this clause 3.5 shall apply to
Completion as so deferred);
3.5.2 proceed to Completion so far as practicable (without prejudice to
his rights under this agreement).
4. UNDERTAKINGS
------------
4.1 Telemonde undertakes to the Capacity Buyer that it will not prior to
Completion and except in the ordinary course of business incur any
borrowings in addition to those entered into at the date hereof.
4.2 The Capacity Buyer undertakes that it will not during the First Option
Period or following the exercise of its Option sell or lease the Capacity
to any third party or charge or otherwise encumber the Capacity.
5. DURATION OF OBLIGATIONS
-----------------------
5.1 The Capacity Buyer shall cease to be a party to this agreement on the
completion of the sale of the Capacity to Telemonde.
6. NOTICES
-------
Any notice required or permitted to be given under this agreement shall,
be in writing and shall where the recipient is a corporation or company be
sent to its registered office from time to time. Any such notice shall be
delivered personally or sent in a pre-paid letter by the recorded delivery
service or by facsimile to the facsimile number of the other party as
notified from time to time and shall be deemed to have been served if by
personal delivery, when delivered (if delivered before 5.00pm on Monday to
Friday (bank holidays excepted), failing which it shall be deemed to be
served at 9.00am on the next business day) and if by recorded delivery, 48
hours after posting and if by facsimile 9.00am on the business day
following its despatch (such despatch to be proved by the production of a
facsimile acknowledgement).
7. GENERAL
-------
7.1 This agreement may not be assigned in whole or in part but is binding upon
and shall enure for the benefit of the parties' personal representatives
and other successors.
7.2 This agreement supersedes any previous agreement relating to the subject
matter of this agreement between the parties in relation to the matters
dealt with and represents (together with any documents referred to in this
agreement) the entire agreement between the parties in relation to such
matters, and no variation shall be effective unless made in writing.
7.3 This agreement shall be governed by and construed in accordance with
English law and the parties hereby submit to the exclusive jurisdiction of
the English courts.
7.4 The failure by any of the parties at any time to require performance by
any other party or to claim a breach of any term of this agreement shall
not be deemed to be a waiver of any right under this agreement.
7.5 In the event that any party does not receive on the due date any sum due
under this agreement, the party in default shall pay to the other party on
demand interest on such sum from and including the due date therefor to the date
of actual payment (as well after as before judgment) at the rate of 12.5 per
cent. per annum
IN WITNESS of which the parties have executed this agreement as follows:
SIGNED by M. B. ▇▇▇▇▇▇▇ )
for and on )
behalf of TELEMONDE )
INVESTMENTS LIMITED )
in the presence of: ) /s/ ▇. ▇▇▇▇▇▇▇▇
SIGNED by )
for and on behalf of )
COMMUNICATIONS )
COLLATERAL LIMITED ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
in the presence of: ) Attorney in Fact
