PACRIMEAST CABLE SYSTEM
CONSTRUCTION AND MAINTENANCE AGREEMENT
Certified as a true and
accurate copy of the
PacRimEast Cable System
Construction and Maintenance
Agreement
J E Spencer
Secretary
OTC Limited
December 1990
PACRIMEAST CABLE SYSTEM
CONSTRUCTION AND MAINTENANCE AGREEMENT
TABLE OF CONTENTS
PARAGRAPH NO. HEADING PAGE NO.
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1. DEFINITIONS 2
2. CABLE SYSTEM SEGMENTS 5
3. PROCUREMENT GROUP 6
4. PROVISION AND CONSTRUCTION OF SEGMENT B 7
5. PROVISION OF SEGMENTS A AND C 8
6. OWNERSHIP OF SEGMENTS AND ADDITIONAL PROPERTY 8
7. MANAGEMENT COMMITTEE 9
8. DEFINITION OF SEGMENT B CAPITAL COSTS 11
9. ALLOCATION AND BILLING OF SEGMENT B CAPITAL COSTS 12
10. USE OF SEGMENT A 15
11. USE OF SEGMENT C 19
12. OBLIGATION TO CONNECT THE CABLE SYSTEM WITH 24
INLAND SYSTEMS
13. OBLIGATION TO PROVIDE TRANSITING FACILITIES 25
TO EXTEND CABLE SYSTEM CAPACITY
14. ALLOCATION AND USE OF CAPACITY 26
PARAGRAPH NO. HEADING PAGE NO.
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15. EXPANSION OF NOTIONAL CAPACITY 31
16. DECREASE OR INCREASE OF DESIGN CAPACITY 31
17. DUTIES AND RIGHTS AS TO OPERATION AND MAINTENANCE 32
OF SEGMENTS
18. OPERATING AND MAINTENANCE COSTS OF SEGMENT B - 35
ALLOCATION AND BILLING
19. SHARING OF CONTRACTUAL OBLIGATIONS AND LIABILITY 37
20. KEEPING AND INSPECTION OF BOOKS FOR SEGMENT B 38
21. GOVERNMENTAL APPROVALS 40
22. ASSIGNMENT OF RIGHTS AND OBLIGATIONS 40
23. DEFAULT 41
24. ADMISSION OF ADDITIONAL PARTIES 42
25. RATIFICATION OF PRIOR DECISIONS AND ACTIONS 43
26. RESOLUTION OF DISPUTES 43
27. RELATIONSHIP OF PARTIES TO EACH OTHER 44
28. PRIVILEGES FOR DOCUMENTS OR COMMUNICATIONS 44
29. PERIOD OF AGREEMENT AND REALISATION OF ASSETS 44
30. BILLS, PAYMENTS AND NOTICES 46
PACRIMEAST CABLE SYSTEM
CONSTRUCTION AND MAINTENANCE AGREEMENT
THIS AGREEMENT, made and entered into as of the 5th day of December 1990,
between and among the parties signatory hereto (hereinafter collectively called
"Parties" and individually called "Party"), which Parties are identified in
Schedule A attached hereto and made a part hereof, as it may be amended from
time to time in accordance with this Agreement,
WITNESSETH:
WHEREAS
A. Telecommunication services are being provided within the Pacific Region
and beyond by means of submarine cable, satellite and other facilities; and
B. The Parties propose to supplement such facilities by providing a high
capacity optical fibre submarine cable system linking New Zealand and Hawaii
to be known as the PacRimEast Cable System (hereinafter called the "Cable
System") which will be used to provide telecommunication services between and
among points in or reached via New Zealand and Hawaii; and
C. It is the intention of the Parties to each acquire an investment share
in the Cable System corresponding to at least the quantity of MAUOs required
to meet their respective needs for the use of the Cable System through the
year 2005; and
D. It is the intention of the Parties that the Cable System provide service
protection for other cable facilities in the Pacific region in which the
Parties have an interest; and
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E. An agreement entitled "The Initial Agreement To Cooperate In The
Provision of Digital Cables To Interconnect Australia And New Zealand With USA
And Japan" has been entered into between AT&T, KDD, OTC and TNI effective 28
September 1987 (hereinafter called the "Initial Agreement") under which
certain initial activities relating to provision of the Cable System, as
therein defined, have proceeded in advance of this Agreement; and
F. By a First Supplemental Agreement to the Initial Agreement effective
8 February 1988, a Second Supplemental Agreement to the Initial Agreement
effective 9 March 1988, a Third Supplemental Agreement to the Initial
Agreement effective 24 May 1988, a Fourth Supplemental Agreement to the
Initial Agreement effective 28 August 1988, a Fifth Supplemental Agreement to
the Initial Agreement effective 26 June 1989, a Sixth Supplemental Agreement
to the Initial Agreement effective 28 September 1989 and a Seventh
Supplemental Agreement to the Initial Agreement effective 4 December 1990, 32
additional parties were admitted as parties to the Initial Agreement; and
G. The Parties now desire to define the terms and conditions upon which the
Cable System will be provided, constructed, maintained and operated,
NOW, THEREFORE, the Parties, in consideration of the mutual covenants herein
expressed, covenant and agree with each other as follows:
1. DEFINITIONS
The following definitions shall apply to certain terms used in this
Agreement:
Annexes: Annexes shall be the annexes attached hereto and
made a part hereof.
Basic System Module: A Basic System Module of the Cable System shall
consist of a 139,264,000 bits per second digital
line section with interface in accordance with
CCITT Recommendation G.703 (Blue Book).
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Cable Landing Point: Cable Landing Point shall be the beach joint or,
if there is no beach joint, the mean high water
mark of ordinary spring tides.
Carrier Parties: Carrier Parties shall mean all of the Parties
other than Transpacific.
Common Reserve Capacity in excess of the Notional Capacity and
Capacity: being the difference between the Notional Capacity
and the Design Capacity.
Country: The word "country" as used in this Agreement shall
mean a country, territory or place, as
appropriate.
Date of The Date of Provisional Acceptance shall be the
Provisional date specified in the Certificate of Provisional
Acceptance: Acceptance issued in accordance with a Supply
Contract.
Design Capacity: The Design Capacity of the Cable System shall be
one (1) fibre pair providing four (4) Basic System
Modules, providing 7,560 MAUOs, or any increase or
decrease pursuant to Subparagraph 16(a).
Initial Parties: AT&T, KDD, OTC and TNI.
Management Management Committee refers to the PacRimEast
Committee: Cable System Management Committee to be
established under Paragraph 7.
Minimum Assignable A unit designated as the minimum practical unit of
Unit of Ownership: ownership, allowing the use of 73,684.656 bits per
(MAUO) second in each direction between System Interface
locations. The Minimum Assignable Unit of
Ownership (MAUO) in the Cable System shall consist
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of 64,000 usable bits per second and the
additional 9,684.656 bits per second required for
multiplexing each of the 1890 such MAUOs which
constitute a Basic System Module and is used for
purposes of ownership allocation. Such ownership
allocation shall be in terms of half interests in
MAUOs allocated to Parties in accordance with
Paragraph 14 and Schedule D.
Notional The capacity assigned to the Parties as shown
Capacity: in Schedule D.
Ready for Service: Ready for Service (RFS) refers to the date when
(RFS) the Parties agree to place the Cable System into
operation. For purposes of this Agreement, RFS
shall be on or before 31 March 1993, or such other
date as may be agreed upon by the Management
Committee.
Schedules: Schedules shall be the initial schedules attached
hereto and made a part hereof and any written
amendments thereto or any schedules substituted
therefor in accordance with the provisions of this
Agreement.
Supply Contract: Supply Contract refers to any contract entered
into pursuant to Subparagraph 4(a).
System Interface: The nominal 140 Megabits per-second digital
input/output ports on the digital distribution
frame (excluding the digital distribution frame
itself) where the Basic System Module connects
with other transmission facilities or equipment.
United States The United States Carrier Parties are AT&T,
Carrier Parties: HTC, MCII, OTI, TRT/FTC, US SPRINT and WORLDCOM.
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2. CABLE SYSTEM SEGMENTS
In accordance with the arrangements contained in this Agreement, the
Cable System shall be provided, constructed, maintained and operated
between New Zealand and Hawaii and, for the purposes of this Agreement,
shall be regarded as consisting of the following segments:
SEGMENT A: A cable station at Takapuna, New Zealand.
SEGMENT B: The whole of the submarine cable system provided between
and including the System Interfaces at the cable stations in New Zealand
and Hawaii, and shall also include:
(i) all transmission, power feeding and special test equipment
directly associated with the submersible plant;
(ii) the power equipment provided wholly for use with the
equipment listed in (i) above;
(iii) the transmission cable equipped with appropriate repeaters
and joint housings between the cable stations; and
(iv) the sea earth cable and electrode system and/or the land
earth system, or an appropriate share thereof, associated
with the Cable System power feeding equipment.
SEGMENT C: A cable station at Keawaula, Hawaii.
Segments A and C shall each consist of:
(i) an appropriate share of the land and buildings at the
specified locations for the cable landing and for the cable
route between a cable station and its respective Cable
Landing Point and an appropriate share of common services
and equipment at each of those locations together
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with equipment in each of those cable stations solely
associated with the Cable System, but which is not a part
of Segment B; and
(ii) multiplex equipment down to the primary level of 2 Mbit/s
associated solely and directly with assigned capacity in
the Cable System, wherever such multiplex equipment is
located.
In the event such multiplex equipment is located away from
the cable station, the cable station provider shall be
solely responsible for the entire cost of the provision
and maintenance of adequate connecting facilities between
the cable station and the location of the multiplex
equipment.
3. PROCUREMENT GROUP
(a) A Procurement Group shall be formed, comprised of the Initial
Parties. This Group shall act as trustees for the Parties and be solely
responsible for all actions as may be required to contract, on a joint
but not several basis, in shares as agreed between them, with the
supplier(s) to provide Segment B of the Cable System. The Procurement
Group shall assume the responsibilities and continue the activities of
the Initial Procurement Group established under the Initial Agreement in
respect of the Initial Procurement Group's work related to the Cable
System and shall undertake the on-going tasks of coordinating and
managing the overall project during construction.
(b) The Procurement Group's terms of reference are contained in
Annex 1.
(c) No decision of the Procurement Group shall override any provisions
of this Agreement or in any way diminish the rights granted to any of the
Parties under this Agreement.
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4. PROVISION AND CONSTRUCTION OF SEGMENT B
(a) The provision and construction of Segment B shall be through
contract(s) to be placed by the Procurement Group as trustees for each of
the Parties with supplier(s) (herein referred to as the "Supply
Contract(s)") designated by the Procurement Group itself. The placing of
the Supply Contract(s) by the Procurement Group shall be subject to
authorisation by the Management Committee.
(b) Each of the Procurement Group shall hold in trust for the Parties
in the separate percentages set forth in Schedule C all the rights,
benefits, privileges, claims, entitlements, commitments, convenants,
warranties, guarantees, indemnities, conditions, promises, agreements or
undertakings created by or arising out of or in connection with any
Supply Contract or made or given by any supplier to the Procurement Group
pursuant to any Supply Contract and any monies paid to the Procurement
Group pursuant to or arising out of or in connection with any Supply
Contract.
(c) Each of the Parties to this Agreement shall be entitled on request
to receive a copy of the Supply Contract(s), subject to the acceptance by
each such Party of any reasonable conditions of confidentiality imposed
by the Supply Contract(s).
(d) In the event that Segment B fails to meet the specifications
referenced in the Supply Contract(s) for its provision, fails to provide
the specified capacity, or is not engineered, provided, installed and
ready in sufficient time to meet the Date of Provisional Acceptance, or
if the supplier(s) is (are) otherwise in material breach of the relevant
Supply Contract(s), the Procurement Group shall take such actions as may
be necessary to exercise the rights and remedies available under the
terms and conditions of the Supply Contract(s). Such actions by the
Procurement Group shall be subject to any direction deemed necessary by
the Management Committee.
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(e) The members of the Procurement Group shall not be liable to any
other Party for any loss or damage sustained by reason of a supplier's
failure to perform in accordance with the terms and conditions of its
Supply Contract, or as a result of the Cable System not being ready for
provisional acceptance on or before the date specified in the Supply
Contract(s), or if the Cable System does not perform in accordance with
the technical specifications and other requirements of the Supply
Contract(s), or if the Cable System is not integrated or placed into
operation. The Parties recognise that the Procurement Group does not
guarantee or warrant (i) the performance of the Supply Contract(s) by the
supplier(s), (ii) the performance or reliability of Segment B of the
Cable System, or (iii) that the Cable System will be integrated or placed
into operation; and the Parties hereby agree that nothing in this
Agreement shall be construed as such a warranty or guarantee.
5. PROVISION OF SEGMENTS A AND C
(a) Segment A of the Cable System shall be provided and made available
by TNI for use in accordance with Paragraph 10.
(b) Segment C of the Cable System shall be provided and made available
by AT&T for use in accordance with Paragraph 11.
(c) TNI in respect of Segment A and AT&T in respect of Segment C shall
each make available to the other Parties any reasonable information
required by the Parties relating to the provision, construction or
installation of those Segments, subject to any reasonable conditions of
confidentiality imposed by the respective owners of those Segments.
6. OWNERSHIP OF SEGMENTS AND ADDITIONAL PROPERTY
(a) Segment A of the Cable System shall be owned by TNI.
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(b) Segment B of the Cable System shall be owned by the Parties in
common and undivided shares, in the proportions set forth in Schedule C.
Ownership of Segment B shall vest in the Parties upon ownership vesting
in the Procurement Group in accordance with the Supply Contract(s).
(c) Segment C of the Cable System shall be owned by AT&T.
(d) In this Agreement, references to any segment of the Cable System,
however expressed, shall be deemed to include, unless the context
otherwise requires, additional property incorporated therein by agreement
of the Parties. Each segment shall be regarded as including its related
spare and standby units and components including, but not limited to,
submersible repeaters, cable lengths and terminal equipment.
7. MANAGEMENT COMMITTEE
(a) The Parties shall form a PacRimEast Cable System Management
Committee (herein referred to as the "Management Committee"), which
shall consist of one representative of each of the Parties to this
Agreement. Except as otherwise provided in this Agreement (which
exception shall include decisions related to procurement which shall be
made by the Procurement Group in accordance with Paragraphs 3 and 4), the
Management Committee shall make all decisions necessary on behalf of the
Parties to effect the purposes of this Agreement.
(b) Two or more Parties may designate the same person to serve as
their representative at specific meetings of the Management Committee and
its subcommittees established pursuant to Subparagraph 7(e). OTC shall
provide a person to act as the Coordinator of the Management Committee.
The Management Committee will meet on the call of the Coordinator or
whenever requested by one or more Parties representing at least 5% of the
total voting interests specified in Schedule B. The Coordinator shall
give at least 30 days' advance notice, which shall include a draft
agenda, of each meeting to the Parties. In cases of
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emergency, such notice period may be reduced if Parties representing at
least 75% of the total voting interests so agree. Discussion documents
for each meeting should be made available to members 14 days before the
meeting, but the Management Committee may agree to discuss papers
distributed on less than 14 days' notice. For the conduct of its
meetings, the Management Committee shall elect a Chairman at each
meeting.
(c) All decisions made by the Management Committee shall be subject,
in the first place, to consultation among the designated representatives
of the Parties who shall make every reasonable effort to reach agreement
with respect to matters to be decided. However, in the event agreement
cannot be reached, with the exception of those matters to be determined
pursuant to Subparagraphs 14(q), 16(a) and 24(b), the decision will be
carried on the basis of a vote representing a simple majority of the
total voting interests of the Parties as specified in Schedule B,
provided such simple majority includes at least one Party from south of
the equator and two Parties from north of the equator. A member of the
Management Committee representing more than one Party shall separately
cast the votes to which each Party it represents is entitled.
(d) No decision of the Management Committee, or its subcommittees or
any other group established by the Management Committee shall override
any provisions of this Agreement.
(e) To aid the Management Committee in the performance of its duties,
the Management Committee may establish such subcommittees or groups as it
shall determine within its discretion, to provide assistance in the
performance of its responsibilities. The following subcommittees shall
initially be formed, and said subcommittees, under the direction of the
Management Committee, shall be responsible for their respective areas of
interest listed in Annex 2 and any other areas of interest designated by
the Management Committee:
(i) Operations and Maintenance Subcommittee (hereinafter called
"O&M Subcommittee"); and
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(ii) Financial and Administrative Subcommittee (hereinafter
called "F&A Subcommittee").
Subcommittees shall meet at least once annually after the date of this
Agreement and more frequently if necessary, until two years following the
RFS date and thereafter as may be appropriate. Meetings of a subcommittee
may be called to consider specific questions at the discretion of its
chairman, or whenever requested by one or more Parties representing at
least 5% of the voting interests specified in Schedule B. The respective
chairman of each subcommittee, or a designated representative of each
subcommittee, shall attend Management Committee meetings and meetings of
each other subcommittee in an advisory capacity as necessary. On or about
two years after RFS, the Management Committee shall determine whether any
of its subcommittees should remain in existence. If the Management
Committee determines that one or more of its subcommittees shall not
remain in existence, the responsibilities assigned to a subcommittee
whose existence has been terminated under this Subparagraph 7(e) shall
revert to the Management Committee.
8. DEFINITION OF SEGMENT B CAPITAL COSTS
(a) Capital costs, as used in this Agreement, refers to costs incurred
in engineering, providing, and constructing Segment B, or causing it to
be engineered, provided, and constructed, or to laying or causing to be
laid cables, repeaters and joint housing, or to installing or causing to
be installed cable system equipment, and shall include:
(i) appropriate costs, including financial charges attributable
to other Parties' shares of such costs, incurred in respect
of specific activities such as desk top surveys, marine
surveys and cable system development activities, in respect
of the Cable System, required to be undertaken prior to
entry into force of this Agreement;
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(ii) those costs payable to the supplier(s) under the Supply
Contract(s); and
(iii) those costs directly incurred by OTC, AT&T and TNI which
shall be fair and reasonable in amount and not included in
the Supply Contract(s), and which have been directly and
reasonably incurred for the purpose of, or to be properly
chargeable in respect of, such engineering, provision,
construction, installation and laying of Segment B,
including, but not limited to, the costs of engineering,
design, materials, manufacturing, procurement and
inspection, installation, removing (with appropriate
reduction for salvage), cable ship and other ship costs,
route survey, burying, testing associated with laying or
installation, customs duties, taxes (except income tax
imposed upon the income of a Party), financial charges
attributable to other Parties' shares of costs incurred,
supervision, billing activities, overheads and insurance or
a reasonable allowance in lieu of insurance if such Party
elects to carry a risk itself, being a risk which is
similar to one against which a supplier has insured or
against which insurance is usual or recognised or would
have been reasonable.
(b) Such costs shall exclude costs incurred by the Parties in
the holding of Management Committee meetings, Procurement Group
meetings and meetings of the subcommittees established pursuant to
Subparagraph 7(e) or the attendance by the Parties'
representatives at such meetings.
9. ALLOCATION AND BILLING OF SEGMENT B CAPITAL COSTS
(a) The total capital costs of engineering, providing, constructing
and installing Segment B, including any additional work or property
incorporated in Segment B subsequent to RFS by agreement of the Parties,
shall be borne by the Parties in the proportions set forth in
Schedule C.
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(b) OTC, AT&T and TNI shall promptly render bills to each of the other
Parties for such Parties' pro rata shares of costs payable under the
Supply Contract(s) and for costs directly incurred by OTC, AT&T and TNI
in accordance with Paragraph 8 and financial charges attributable to
other Parties' shares of such costs. Such bills shall be rendered by OTC,
AT&T and TNI not more frequently than once a month and in accordance with
Schedule C and shall contain a reasonable amount of detail to
substantiate them. On the basis of such bills, each Party shall pay to
OTC, AT&T and TNI or to such entity as OTC, AT&T and TNI may designate,
the amounts owed by the end of the calendar month following the calendar
month in which the bill was rendered. In the case of bills containing
costs billed on a preliminary billing basis, appropriate adjustments will
be made in subsequent bills promptly after the actual costs involved are
determined.
(c) As soon as practicable after RFS, the amount of each Party's share
of the costs of Segment B shall be computed by OTC, AT&T and TNI, as
appropriate, and they shall make appropriate adjustments and render any
necessary bills or arrange for any necessary refunds by way of final
settlement in order that each Party may bear its proper share of the
costs as provided in this Paragraph 9.
(d) If, subsequent to RFS, additional property or equipment is
incorporated in the Cable System by agreement of the Management
Committee, the costs thereof shall be borne by the Parties in the
proportions as set forth in Schedule C.
(e) For purposes of this Agreement, financial charges shall be
computed at as follows:
(i) For bills rendered by OTC and TNI, financial charges shall
be computed at a rate equal to the lowest publicly
announced prime overdraft rate in the currencies of
Australia and New Zealand by the following banks on the
fifteenth day of the month in which the costs were incurred
by the billing Parties:
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A. BILLS RENDERED BY OTC;
Westpac Banking Corporation, Sydney
B. BILLS RENDERED BY TNI;
Bank of New Zealand, Wellington
(ii) For bills rendered by AT&T, financial charges shall be
computed at a rate equal to the lowest publicly announced
prime rate or commercial lending rate, however described,
for 90-day loans in the currency of the United States of
America, as applicable, by the following banks on the
fifteenth day of the month in which the costs were incurred
by AT&T:
Citibank, N.A., New York City;
Chase Manhattan Bank N.A., New York City;
and Manufacturer's Hanover Trust Company, New York City
(f) Amounts billed and not paid when due shall accrue extended payment
charges from and including the day following the day on which payment was
due until paid. For purposes of this Agreement, paid shall mean that the
funds are available for immediate use by the recipient. For purposes of
this Agreement, extended payment charges shall be computed at rates equal
to 125 percent of the relevant rates for financial charges as defined in
Subparagraph 9(e) on the day following the day on which payment was due.
(g) In the event that applicable law does not allow the imposition of
financial charges or extended payment charges at the rates established in
accordance with Subparagraph 9(e) or 9(f) respectively, financial
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charges and extended payment charges shall be at the highest rates
permitted by applicable law, which in no event shall be higher than the
rates computed in accordance with Subparagraphs 9(e) and 9(f)
respectively.
(h) A bill shall be deemed to have been accepted by the Party to whom
it is rendered if that Party does not present a written objection before
the date when payment is due. If such objection is filed, all Parties
concerned shall make every reasonable effort to settle promptly the
dispute concerning the bill in question. If the objection is sustained
and the objecting Party has paid the disputed bill, the amount of
overpayment shall be refunded promptly to the objecting Party by the
Party by or for whom the bill was rendered, together with any financial
charges calculated thereon at the relevant rate determined in accordance
with Subparagraph 9(e) from and including the date of payment of the bill
to the date on which the refund is transmitted to the objecting Party. If
the objection is not sustained and the objecting Party has not paid the
disputed bill, said Party shall pay such bill promptly together with any
extended payment charges calculated thereon at the relevant rate
determined in accordance with Subparagraph 9(f) from and including the
day following the day on which payment of the bill was due until paid.
Nothing in this Subparagraph 9(h) shall relieve a Party from paying those
parts of a bill that are not in dispute.
(i) Credits for refunds of appropriate financial charges and bills for
extended payment charges will not be rendered if the amount of charges
involved is less than US$100 or its equivalent in the currency of
billing.
10. USE OF SEGMENT A
(a) Each Party which has no ownership interest in Segment A shall be
permitted to use Segment A, including any additions thereto, to the
extent required for the purpose of using the Cable System and carrying on
the related activities at that location in accordance with this
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Agreement. Such use will be deemed to commence from RFS or from the date
a Party first places any of its capacity into operation, whichever occurs
first, and shall continue for the duration of this Agreement.
(b) For the use of Segment A, the Parties shall pay TNI an amount
calculated by reference to the capital costs reasonably incurred in
providing Segment A and periodic charges based upon the costs of
maintenance, supervision and operation, in the proportions specified in
Schedule C. Where the use of Segment A or of certain equipment situated
therein, such as power supply or testing and maintenance equipment, is
shared by the Cable System and other communications systems terminating
at Segment A, the capital, operating, maintenance and supervision costs
of such shared cable station or equipment (not solely attributable to a
particular communications system or systems) will be allocated among the
systems involved in the proportions in which they use the shared
equipment or facility. For such purposes, use of a shared cable station
or of shared cable station equipment therein attributable to a particular
system shall be determined on the basis of the ratio of: (i) the
installed cost of the cable station equipment (excluding shared
equipment) associated with the particular cable system to (ii) the
installed cost of the cable station equipment (excluding shared
equipment) associated with all systems, including the Cable System,
which make use of the shared facility.
(c) Capital costs, as used in this Paragraph 10 with reference to the
provision of Segment A, including land, access roads, cable
rights-of-way, ducts and buildings located at Segment A, or causing it to
be provided and constructed, or to installing or causing to be installed
Segment A equipment, shall include all expenditures incurred which shall
be fair and reasonable in amount and either to have been directly and
reasonably incurred for the purpose of, or to be properly chargeable in
respect of, such provision, construction and installation, including, but
not limited to, the purchase costs of land, building costs, amounts
incurred for development, engineering, design, materials, manufacturing,
procurement and inspection, installation, removing (with appropriate
reduction for salvage), testing associated with
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installation, customs duties, taxes (except income tax imposed upon the
income of a Party), financial charges attributable to other Parties'
shares of costs, supervision, billing activities, overheads and insurance
or a reasonable allowance in lieu thereof. Losses against which insurance
was not provided, or for which an allowance in lieu thereof was not
provided, or for which an allowance in lieu thereof was not taken, shall
constitute capital costs. Operating and maintenance costs for Segment A,
as used in this Paragraph 10, shall include costs reasonably incurred in
operating and maintaining the facilities involved, including, but not
limited to, the cost of attendance, testing, adjustments, repairs and
replacements, customs duties, taxes (except income tax imposed upon the
income of a Party) paid in respect of such facilities, billing
activities, administrative costs, financial charges attributable to other
Parties' shares of costs, and costs and expenses reasonably incurred on
account of claims made by or against other persons in respect of such
facilities or any part thereof and damages or compensation payable by TNI
on account of such claims. Costs, expenses, damages, or compensation
payable to TNI on account of claims made against other persons shall be
shared by the Parties in the same proportions as they share the costs of
operating and maintaining Segment A.
(d) In the event that the cable station located at Segment A is not
available for the landing and termination of the Cable System for any
reason, TNI, with the agreement of the other Parties, shall take all
necessary measures to ensure that another suitable cable station will be
available for the Cable System for the duration of this Agreement on fair
and equitable terms.
(e) In the event of a sale or other disposition of Segment A or part
thereof prior to the termination of this Agreement, TNI shall share with
the other Parties any net proceeds, or costs, of such sale or disposition
received, or expended, by TNI, to the extent allocable to the Cable
System, in the proportions specified in Schedule C at the time of the
sale or disposition.
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(f) Subject to Subparagraph 10(e), nothing contained in this Agreement
shall be deemed to vest in any Party other than TNI, any salvage rights
in Segment A or any cable station substituted therefor.
(g) TNI shall keep and maintain such books, records, vouchers, and
accounts of all costs that are incurred in the design, engineering,
provision, construction and installation, as appropriate, of Segment A
for a period of three (3) years from RFS or the date the work is
completed, whichever is later.
(h) With respect to operating and maintenance costs of Segment A, such
books, records, vouchers and accounts of costs, as are relevant, shall be
kept and maintained by TNI for a period of three (3) years from the date
on which the corresponding bills to the Parties are rendered.
(i) In keeping and maintaining books, records, vouchers, and accounts
of costs pursuant to Subparagraphs 10(g) and 10(h), TNI shall afford the
other Parties the right to review or audit said books, records, vouchers,
and accounts of costs. In affording the right to review or audit, TNI
shall be permitted to recover, from the Party or Parties requesting the
review or audit, the entire cost reasonably incurred in complying with
the review or audit. Such right of review and audit pursuant to this
Subparagraph 10(i) shall only be exercisable through the F&A Subcommittee
in accordance with the F&A Subcommittee's audit procedures.
(j) After RFS the Management Committee shall arrange for a final audit
to be conducted by the F&A Subcommittee. The costs of such audit shall be
borne by the Parties in the proportions specified in Schedule C.
(k) In respect of bills rendered pursuant to this Paragraph 10, each
party shall pay TNI, in the currency in which the bill is rendered, the
amount owed by the end of the calendar month following the calendar month
in which the bill was rendered. In the case of bills containing costs
billed on a preliminary basis, appropriate adjustments will be made in
subsequent bills promptly after the actual costs involved are determined.
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(l) Amounts billed pursuant to this Paragraph 10 and not paid when due
shall accrue extended payment charges from and including the day
following the day on which payment was due until paid, said charges to be
computed and applied in accordance with Subparagraphs 9(f) and 9(g).
(m) The billing procedures specified in Subparagraphs 9(h) and 9(i)
shall be applicable to all bills rendered pursuant to this Paragraph 10.
11. USE OF SEGMENT C
(a) Each Party which has no ownership interest in Segment C is hereby
granted by AT&T an IRU interest in Segment C, including any additions
thereto, to the extent required for the purpose of using the Cable System
and carrying on the related activities at that location in accordance
with this Agreement. Such IRU interest will be deemed to commence from
RFS or from the date a Party first places any of its capacity into
operation, whichever occurs first, and shall continue for the duration of
this Agreement.
(b) For the IRU interest in Segment C, the Parties shall pay AT&T that
portion of the capital costs and of the operating and maintenance costs
of Segment C including additions thereto, allocable to the Cable System
on the basis of use. Where the use of Segment C or of certain equipment
situated therein, such as power supply or testing and maintenance
equipment, is shared by the Cable System and other communications systems
terminating at Segment C, the capital, operating, maintenance and
supervision costs of such shared cable station or equipment (not solely
attributable to a particular communications system or systems) will be
allocated among the systems involved in the proportions in which they use
the shared equipment or facility. For such purposes, use of a shared
cable station or of shared cable station equipment therein attributable
to a particular system shall be determined on the basis of the ratio of:
(i) the installed cost of the cable station equipment (excluding shared
equipment) associated with the particular cable system to (ii) the
installed cost of the cable station equipment (excluding shared
equipment) associated with all systems, including the Cable System, which
make use of the shared facility.
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(c) In the event that the cable station located at Segment C is not
available for the landing and termination of the Cable System for any
reason, AT&T, with the agreement of the other Parties, shall take all
necessary measures to ensure that another suitable cable station will be
available for the Cable System for the duration of this Agreement on
terms and conditions similar to those contained in this Agreement.
(d) Capital costs, as used in this Paragraph 11 with reference to the
provision of Segment C, including land, access roads, cable
rights-of-way, ducts and buildings located at Segment C, or causing
it to be provided and constructed, or to installing or causing to
be installed Segment C equipment, shall include all expenditures
incurred which shall be fair and reasonable in amount and either to
have been directly and reasonably incurred for the purpose of, or to
be properly chargeable in respect of, such provision, construction
and installation, including, but not limited to, the purchase costs
of land, building costs, amounts incurred for development,
engineering, design, materials, manufacturing, procurement and
inspection, installation, removing (with appropriate reduction for
salvage), testing associated with installation, customs duties, taxes
(except income tax imposed upon the income of a Party), financial
charges attributable to other Parties' shares of costs, supervision,
billing activities, overheads and insurance or a reasonable allowance
in lieu thereof. Losses against which insurance was not provided, or
for which an allowance in lieu thereof was not taken, shall
constitute capital costs. Operating and maintenance costs for Segment
C, as used in this Paragraph 11, shall include costs reasonably
incurred in operating and maintaining the facilities involved,
including, but not limited to, the cost of attendance, testing,
adjustments, repairs and replacements, customs duties, taxes (except
income tax imposed upon the income of a Party) paid in respect of
such facilities, billing activities, administrative costs, financial
charges attributable to other Parties' shares of costs, and costs and
expenses reasonably incurred on account of claims made by or against
other persons in respect of such facilities or any part thereof and
damages or compensation payable by AT&T on account of such claims.
Costs, expenses, damages, or compensation payable to AT&T on
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account of claims made against other persons shall be shared by the
Parties acquiring an IRU interest in Segment C in the same proportions as
they share the costs of operating and maintaining Segment C.
(e) The portion of the capital costs and operating and maintenance
costs of Segment C to be borne by the Parties acquiring an IRU interest
in Segment C pursuant to this Agreement shall be shared by them in the
proportions specified in Schedule C.
(f) Payments due under this Paragraph 11 shall be made in accordance
with the following settlement plan:
(i) AT&T shall determine the amount of the initial payment of
the net capital cost of Segment C (i.e., capital cost less
accrued depreciation determined in accordance with the
accounting practices of AT&T) which will be due from the
Parties acquiring an IRU interest in Segment C to the
parties to other communications systems terminating at
Segment C entitled to a share of such payments at the time
the IRU interests in Segment C commence pursuant to
Subparagraph 11(a).
(ii) At least sixty days before RFS, AT&T shall render bills to
the Parties acquiring an IRU interest in Segment C, on an
actual or preliminary billing basis, for their
proportionate shares of the amount referred to in
Subparagraph 11(f) (i). In the case of preliminary bills,
appropriate adjustments will be made as soon as practicable
after the actual costs are determined.
(iii) At least sixty days before RFS, AT&T shall render bills to
the Parties acquiring IRU interest in Segment C, on an
actual or preliminary billing basis, for their
proportionate shares of the capital cost of cable station
equipment (excluding equipment shared with other cable
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systems). In the case of preliminary bills, appropriate
adjustments will be made as soon as practicable after the
actual costs are determined.
(iv) The billed Parties shall pay such bills to AT&T
on or before the date on which the IRU interest in
Segment C granted to the Parties pursuant to
Subparagraph 11(a) becomes effective. As soon as
practicable after receiving such payment, AT&T shall
distribute said payments among the parties to the other
communications systems terminating at Segment C in the
proportions to which they are entitled.
(v) AT&T shall bill each of the Parties for, and each Party
shall pay its proportionate share of, (1) the portion of
any capital costs of Segment C allocable to this Agreement
incurred after the effective date of the grant to the
Parties of an IRU interest in Segment C, and (2) the
portion of the operating and maintenance costs of Segment C
allocable to this Agreement, commencing at the time such
IRU grant becomes effective.
(g) In the event of a sale or other disposition of Segment C or part
thereof prior to the termination of this Agreement, AT&T shall share with
the other Parties any net proceeds, or costs, of such sale or disposition
received, or expended, by AT&T, to the extent allocable to the Cable
System, in the proportions in which the Parties' interests in the subject
of the sale or disposition are determined at the time of the sale or
disposition.
(h) Subject to Subparagraph 11(g), nothing contained in this Agreement
shall be deemed to vest in any Party other than AT&T, any salvage rights
in Segment C or any cable station substituted therefor.
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(i) AT&T shall keep and maintain such books, records, vouchers and
accounts of all costs that are incurred in the design, engineering,
provision, construction and installation, as appropriate, of Segment C
for a period of three (3) years from RFS or the date the work is
completed, whichever is later.
(j) With respect to operating and maintenance costs of Segment C,
such, books, records, vouchers and accounts of costs, as are relevant,
shall be kept and maintained by AT&T for a period of three (3) years from
the date on which the corresponding bills to the Parties are rendered.
(k) In keeping and maintaining books, records, vouchers, and accounts
of costs pursuant to Subparagraphs 11(i) and 11(j), AT&T shall afford
the other Parties the right to review or audit said books, records,
vouchers, and accounts of costs. In affording the right to review or
audit, AT&T shall be permitted to recover, from the Party or Parties
requesting the review or audit, the entire cost reasonably incurred in
complying with the review or audit. Such right of review and audit
pursuant to this Subparagraph 11(k) shall only be exercisable through the
F&A Subcommittee in accordance with the F&A Subcommittee's audit
procedures.
(l) After RFS the Management Committee shall arrange for a final audit
to be conducted by the F&A Subcommittee. The costs of such audit shall
be borne by the Parties in the proportions specified in Schedule C.
(m) Amounts billed pursuant to this Paragraph 11 and not paid when due
shall accrue extended payment charges from and including the day
following the day on which payment was due until paid, said charges to be
computed and applied in accordance with Subparagraphs 9(f) and 9(g).
(n) The billing procedures specified in Subparagraphs 9(h) and 9(i)
shall be applicable to all bills rendered pursuant to this Paragraph 11.
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(o) Notwithstanding Subparagraph 11(a), a Party thereby granted an IRU
interest in Segment C may, prior to the commencement of that IRU
interest, elect to renounce its IRU interest entitlement and to instead
have use of Segment C for the duration of this Agreement on such terms
and conditions as are agreed upon between that Party and AT&T and in such
event the provisions of Subparagraphs 11(a)-(n) shall apply in relation
to such use except insofar as they may be modified by such agreements.
This Subparagraph 11(o) shall not operate to confer on a Party any
financial or other benefit of substance to which the Party would not
otherwise be entitled under this Agreement.
(p) Upon request, AT&T shall provide to the other United States
Carrier Parties hereto suitable space and connection with the Cable
System at Segment C for operating and technical control purposes relating
to capacity assigned, or to be assigned, to them in the Cable System.
AT&T may provide such space in a building separate from its cable station
but adjacent to its cable station and located on the land which forms a
part of Segment C. Such United States Carrier Parties shall have the
right to provide their own personnel and equipment in such space. Such
United States Carrier Parties shall reimburse AT&T for the reasonable
costs incurred by AT&T in providing such space and connection pursuant to
this Subparagraph 11(p), including, but not limited to, the costs of any
additional building that may reasonably be required.
12. OBLIGATION TO CONNECT THE CABLE SYSTEM WITH INLAND SYSTEMS
Each of the Parties, at its own expense, on or before the RFS date, shall
do, or cause to be done, all such acts and things as may be necessary
within its operating territory to provide and maintain throughout the
period of this Agreement suitable connection of capacity in, or of
capacity connected with capacity in, the Cable System with appropriate
inland communications facilities in its operating territory.
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13. OBLIGATION TO PROVIDE TRANSITING FACILITIES TO EXTEND CABLE SYSTEM
CAPACITY
Each of the Parties shall use its best endeavors to furnish and
maintain, or cause to be furnished and maintained, in efficient working
order, for Carrier Parties not from that Party's country, and for
telecommunications entities not from that Party's country that are not
Parties but which are permitted to use capacity in the Cable System, for
the duration of this Agreement, such transmission facilities in its
respective country as may be suitable and reasonably required for
extending capacity assigned to them for the purpose of handling
communications transiting its respective country subject to the following
conditions:
(i) the use of the facilities shall not cause interference to
other users of the facilities; and
(ii) the facilities shall be furnished and maintained on terms
and conditions which are no less favourable than those
granted to other telecommunications entities for facilities
of similar type, routing and quantity transiting the
location involved. Such terms and conditions shall not be
inconsistent with applicable governmental regulations in
the location in which the facilities are located.
No Party shall be required under this Agreement to furnish such
facilities in its country to other Carrier Parties or telecommunications
entities not Parties from its respective country. The provision of
facilities pursuant to this Paragraph 13 shall be the subject of separate
agreements acceptable to the affected parties.
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14. ALLOCATION AND USE OF CAPACITY
ASSIGNMENT OF NOTIONAL CAPACITY
(a) The Notional Capacity in Segment B shall be assigned to the
Parties in accordance with Schedule D. Such assignments represent the
intended capacity requirements of the Parties through at least the year
2005.
(b) Capacity jointly assigned to two Parties shall be considered as
consisting of two half interests in a MAUO, with each half interest
assigned to one of the two Parties involved. Such capacity is assigned
to the Parties for the provision of telecommunications services between
such Parties.
(c) Capacity wholly assigned to one Party shall be considered as
consisting of two half interests in a MAUO, with both half interests
assigned to one Party. Such capacity is assigned to the Party for
provision of telecommunications services between such Party and other
identified telecommunications entity(ies) not Party(ies) or between two
identified telecommunications entities not Parties.
ARRANGEMENT OF NOTIONAL CAPACITY
(d) Capacity of 30 or more MAUOs jointly assigned between any two
Parties or wholly assigned to a Party shall, if required by the Party or
Parties concerned, be Initially arranged so as to ensure complete
fascicles of 30, 90, 630 or 1890 MAUOs in the smallest number of such
fascicles possible. In addition, one or more Parties assigned in the
aggregate 30, or more than 30, MAUOs in the Cable System may, by
agreement with the Parties to whom such capacity is jointly assigned,
combine their MAUOs to avail themselves of the right afforded in this
Subparagraph 14(d) with respect to the initial arrangement of capacity.
- 27 -
(e) Capacity of 90 MAUOs, or multiples of 90 MAUOs, jointly assigned
between any two Parties or wholly assigned to a Party, or in combination
with one or more Parties as provided in Subparagraph 14(d), may be
operated, by agreement with such Parties, at a rate of 6,312,000 bits per
second with up to four component modules operating at 1,544,000 bits per
second each containing up to twenty-four 64,000 usable bits per second
channels. The resulting higher number of 64,000 usable bits per second
channels shall not constitute an increase in the Cable System capacity
for purposes of ownership and cost allocation.
(f) When on a partially used channel operating at 6,312,000 bits per
second, the placement of 1,544,000 bits per second component modules
conflicts with the placement of 2,048,000 bits per second component
modules, the latter shall take precedence.
(g) Subsequent to the initial arrangement of capacity as provided in
Subparagraph 14(d), capacity in the aggregate of 30, or more than 30,
MAUOs assigned to one or more Parties may be rearranged, if so requested
by such Parties, so far as reasonably possible, to ensure complete
fascicles of 30, 90, 630 or 1890 MAUOs in the smallest number of such
fascicles possible, provided:
(i) the agreement of the relevant cable station owner is
obtained, which agreement shall not be unreasonably
withheld;
(ii) the agreement of other Parties with assigned capacity that
would be affected by the proposed rearrangement is
obtained, which agreement shall not be unreasonably
withheld; and
(iii) all costs arising from the proposed rearrangement are
first paid by the Parties requesting it.
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DISPOSITION OF NOTIONAL CAPACITY
(h) Prior to RFS, a Party to whom capacity is wholly assigned, in
accordance with Subparagraph 14(c), may make half interests in such
capacity available to Parties or to additional Parties in such quantity
at least equal to a half interest in one MAUO on a transfer of ownership
basis provided that the additional Party(ies) is (are) the identified
telecommunications entity(ies) pursuant to Subparagraph 14(c). At any
time, a Party may make half interests in such wholly assigned capacity
available to the identified telecommunications entities pursuant to
Subparagraph 14(c) in such quantity at least equal to a half interest in
one MAUO on such basis, other than by transfer of ownership interest, as
they may agree.
(i) A Party may make interests in any of the capacity jointly assigned
to it pursuant to Subparagraph 14(b) available to other Parties or
telecommunications entities not Parties (hereinafter referred to as
"non-Parties") that are located within the same country as such Party, in
such quantity at least equal to a half interest in one MAUO and on such
basis as that Party and the other Party or non-Party concerned may agree
other than, in the case of any non-Party, by transfer of ownership
interest.
(j) A Party whose initial joint assignment of capacity with another
Party does not exceed 30 MAUOs may make its interests in any of the
capacity jointly assigned with the other Party available to non-Parties
for service with the other Party, in such quantity at least equal to a
half interest in one MAUO and on such basis, other than by transfer of
ownership interest, as that Party and the non-Parties concerned may
agree.
(k) Except as provided in Subparagraphs 14(h), 14(i) and 14(j), no
Party may make interests in any of the capacity assigned to it available
on any basis to other Parties or to non-Parties until the Notional
Capacity has been expanded to the Design Capacity, except with the
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agreement of all the Parties. After the Notional Capacity has been
expanded to the Design Capacity, any Party may make interests in any of
the capacity assigned to it available to other Parties or to non-Parties,
in such quantity at least equal to a half interest in one MAUO and on
such basis as that Party and the other Party or non-Party concerned may
agree other than, in the case of any non-Party, by transfer of ownership
interest and, in the case of transfer of ownership interest to another
Party, subject to the approval of the Management Committee.
(l) Where capacity is jointly assigned in accordance with Subparagraph
14(b), neither Party may make interests in such capacity available to
other Parties or to non-Parties without the consent of the other Party to
whom the capacity is jointly assigned, which consent will not be
unreasonably withheld.
(m) In the event of any transfers of ownership between Parties
pursuant to this Paragraph 14, payments will be made as may be agreed
between the affected Parties and Schedules B, C and D shall be modified
as appropriate.
OPTIMISATION OF NOTIONAL CAPACITY ASSIGNMENTS
(n) The communications capability of any capacity assigned in
Schedule D may be optimized by the Party or Parties to whom such capacity
is assigned by the use of equipment which will more efficiently use such
capacity; provided that the use of such equipment does not cause an
interruption of, or interference to, the use of any other capacity in the
Cable System or prevent the use of similar equipment by other Parties. A
Party to whom capacity is assigned shall permit the use of such equipment
by a telecommunications entity to which such Party has made available the
use of any such capacity, provided that such entity agrees that its use
of the equipment will satisfy the conditions set forth in this
Subparagraph 14(n). Such equipment, if used, shall not constitute a part
of the Cable System.
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ALLOCATION AND UTILISATION OF COMMON RESERVE CAPACITY
(o) The Common Reserve Capacity shall be held by the Parties in common
and undivided shares in the same proportion as their percentage interests
are set forth in Schedule C.
(p) A proportionate share of the Common Reserve Capacity up to the
equivalent capacity limit represented by its respective percentage
interests pursuant to Subparagraph 14(o) may be temporarily allocated to
a Party for utilization without charge for purposes of restoration of
telecommunications services provided by that Party. The utilization of
Common Reserve Capacity for purposes of restoration, other than as
specifically provided for in this Subparagraph 14(p), shall require the
concurrence specified in Subparagraph 14(q). This Subparagraph 14(p)
shall not be construed as assuring the availability of Common Reserve
Capacity for restoration nor shall it be construed as requiring the
provision of any additional facilities. Any additional costs shall be
borne by Party(ies) using the Common Reserve Capacity for restoration
pursuant to this Subparagraph 14(p). This Subparagraph 14(p) shall also
not be construed as precluding the Parties from agreeing to the
establishment of broad-based restoration arrangements using Common
Reserve Capacity.
(q) The Management Committee may authorise the temporary use of Common
Reserve Capacity for temporary or occasional purposes, including
restoration, if the concurrence of at least 75% of the total voting
interests of the Parties is obtained which must include the concurrence
of the owners of Segments A and C, in recognition of the potential
technical, financial and operational impact on cable station operations.
With such concurrence, the Management Committee may establish procedures
and the terms and conditions applicable, including payment of any
reasonable additional costs incurred by the owners of Segments A and C in
connection with such use of Common Reserve Capacity. Any procedures
determined by the Management Committee pursuant to this Subparagraph
14(q) may also include arrangements for the administration of the
utilization of the Common Reserve Capacity.
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(r) The Management Committee shall accord priority to increases in
Notional Capacity pursuant to Paragraph 15 over any utilisation of Common
Reserve Capacity pursuant to Subparagraphs 14(p) and 14(q).
15. EXPANSION OF NOTIONAL CAPACITY
The Management Committee may increase the Notional Capacity of the Cable
System at the request of any Party or for the admission of additional
Parties pursuant to Paragraph 24. In the event of an increase in the
Notional Capacity, financial adjustments will be made between and among
the Parties as necessary to adjust their contributions to the costs of
the Cable System based on an expanded Notional Capacity and
Schedules B, C and D shall be appropriately modified. The terms and
conditions, including pricing arrangements, for increasing the Notional
Capacity shall be determined by the Management Committee.
16. DECREASE OR INCREASE OF DESIGN CAPACITY
(a) If, subsequent to RFS, the Design Capacity of Segment B is
increased or decreased pursuant to agreement of the Parties to this
Agreement, or otherwise, the additional or reduced Design Capacity will
be added to or subtracted from the Common Reserve Capacity. The
Management Committee shall have authority to increase the Design Capacity
of the Cable System with the concurrence of at least 75% of the total
voting interests of the Parties which must include the concurrence of the
owners of Segments A and C, in recognition of the potential technical,
financial and operational impact on cable station operations.
(b) In the event that the capacity which Segment B is capable of
providing upon RFS, or such other date as the Parties may agree, is less
than the Notional Capacity, or in the event that the capacity which
Segment B is capable of providing during the term of this Agreement is
reduced below the Notional Capacity as a result of physical
- 32 -
deterioration, or for other reasons beyond the control of the Parties,
the capacity assigned to the Parties in accordance with Schedule D shall
be reduced in the proportions in which the capacity provided was assigned
to the Parties immediately preceding such decrease in capacity. The
assignment of fractional interests in capacity less than one MAUO
resulting from such reductions shall be determined by agreement of the
Parties. In the event of such a decrease of Design Capacity, payments
will be made between and among the Parties as necessary to adjust the
contribution to the capital costs of the Cable System theretofore made by
each Party to reflect any Party's revised assignment of capacity. Such
payments will be based on terms and conditions to be determined by the
Management Committee. In addition, appropriate adjustments will be made
in each Party's share of the capital costs and of the operating and
maintenance costs relating to Segment B thereafter incurred to reflect
that Party's revised assignment of capacity in the Cable System. In each
such case, Schedules B, C and D shall be appropriately modified.
17. DUTIES AND RIGHTS AS TO OPERATION AND MAINTENANCE OF SEGMENTS
(a) TNI shall be responsible for the operation and maintenance of
Segment A and that portion of Segment B between the System Interface at
the cable station in New Zealand and its respective Cable Landing Point.
TNI shall use all reasonable efforts to maintain Segment A and said
portion of Segment B or cause Segment A and said portion of Segment B to
be maintained, economically and in efficient working order.
(b) AT&T shall be responsible for the operation and maintenance of
Segment C and that portion of Segment B between the System Interface at
the cable station in Hawaii and its respective Cable Landing Point. AT&T
shall use all reasonable efforts to maintain Segment C and said portion
of Segment B or cause Segment C and said portion of Segment B to be
maintained, economically and in efficient working order.
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(c) TNI and AT&T shall be jointly responsible for the operation and
maintenance of Segment B except those portions of Segment B between the
appropriate System Interfaces at the cable stations in New Zealand and
Hawaii and their respective Cable Landing Points. Such joint
responsibility shall be apportioned between TNI and AT&T as those Parties
may mutually agree. TNI and AT&T, for the purposes of Paragraphs 17 and
18 called the "Maintenance Authorities", shall perform their
responsibilities in a manner consistent with applicable international
cable maintenance agreements and shall use all reasonable efforts to
maintain or cause to be maintained economically said portion of Segment B
of the Cable System in efficient working order and with an objective of
achieving effective and timely repairs when necessary. The Maintenance
Authorities shall have the right to deactivate Segment B, or any part
thereof, in order to perform their duties. Prior to such deactivation,
reasonable notice shall be given to, and coordination shall be made with,
the other Parties. To the extent possible, sixty days prior to initiating
action, the Maintenance Authority involved shall advise the other Parties
in writing of the timing, scope, and costs of significant planned
maintenance operations or arrangements; of significant changes to
existing operation and maintenance methods; and of contractual
arrangements for cable ships or other maintenance facilities or devices
that will have a significant impact on operation or maintenance costs.
Should one or more Parties representing at least five percent (5%) of the
total voting interests specified in Schedule B wish to review such a
contractual arrangement, operation or change prior to its occurrence,
such Party or Parties shall notify the appropriate Maintenance Authority
and the O&M Subcommittee Chairman in writing within thirty (30) days of
such advice. Upon such notification, the O&M Subcommittee shall initiate
action to convene an ad hoc meeting for such review.
(d) The responsibilities for the operation and maintenance of
Segment B shall be reviewed, and recommendations shall be made as
appropriate by the O&M Subcommittee at its discretion.
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(e) Each Party concerned shall give necessary information, relating to
the operation and maintenance of the equipment which that Party may have
designed or procured and which is used in the Cable System, to the
Maintenance Authority by whom that equipment, by reason of the provisions
of this Paragraph 17, is to be operated and maintained. Each Maintenance
Authority with responsibility for the maintenance of any segment of the
Cable System, in accordance with Subparagraphs 17(a), (b), (c) and (d),
shall have prompt access, necessary to the performance of its duties, to
all system maintenance information appropriate to those parts of the
Cable System not covered by its authority.
(f) Each Maintenance Authority shall be authorized to pursue claims in
its own name, on behalf of the Parties, in the event of any damage or
loss to the Cable System and may file appropriate lawsuits or other
proceedings on behalf of the Parties. Subject to obtaining the prior
concurrence of the Management Committee, a Maintenance Authority may
settle or compromise any claims and execute releases and settlement
agreements on behalf of the Parties as necessary to effect a settlement
or compromise.
(g) None of the Parties shall be liable to any other Party for any
loss or damage sustained by reason of any failure in, or breakdown of,
the facilities constituting the Cable System or any interruption of
service, whatsoever shall be the cause of such failure, breakdown, or
interruption, and however long it shall last, but, in the event of a
failure or breakdown of any such facilities, if the Maintenance Authority
responsible for maintaining and operating the facilities involved as
specified in Subparagraphs 17(a), (b), (c) and (d) fails to restore those
facilities to efficient working order and operation within a reasonable
time after having been called upon to do so by any other Party to whom
capacity is assigned by this Agreement, the Management Committee may, to
the extent that it is practical to do so, place, or cause to be placed,
such facilities in efficient working order and operation and charge the
Parties their proportionate shares of the costs reasonably incurred in
doing so.
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(h) Each Party, at its own expense, shall have the right to inspect
from time to time the operation and maintenance of any portion of the
Cable System and to obtain copies of the maintenance records. For this
purpose, each Maintenance Authority responsible for maintaining any
segment of the Cable System, as specified in Subparagraphs 17(a), (b),
(c) and (d), shall retain significant records, including recorder charts,
for a period of not less than five (5) years from the date of the record.
If these records are destroyed at the end of this period, a summary of
important items should be retained for the life of the Cable System. Such
right of inspection pursuant to this Subparagraph 17(h) shall be subject
to reasonable conditions of confidentiality.
18. OPERATING AND MAINTENANCE COSTS OF SEGMENT B - ALLOCATION AND BILLING
(a) The costs of operating and maintaining Segment B shall be shared
by the Parties in the proportions specified in Schedule C.
(b) The operating and maintenance costs to which Subparagraph 18(a)
refers are the costs reasonably incurred in operating and maintaining the
facilities involved, including, but not limited to, the cost of
attendance, testing, adjustments, storage of plant and equipment, repairs
(including repairs at sea) and replacements, cable ships (including an
appropriate share of standby costs) and maintenance and repair devices
that are or may hereafter become available (including an appropriate
share of standby costs), cable depots, reburial and the replacement of
plant, tools and test equipment, customs duties, taxes (except income tax
imposed upon the income of a Party) paid in respect of such facilities,
billing activities, financial charges attributable to other Parties'
shares of costs incurred by a Maintenance Authority, supervision,
overheads and costs and expenses reasonably incurred on account of claims
made by or against other persons in respect of such facilities or any
part thereof and damages or compensation payable by the Parties concerned
on account of such claims. Costs, expenses, damages, or compensation
payable to the Parties on account of claims
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made against other persons, shall be shared by the Parties in the
proportions specified in Schedule C.
(c) Subject to Paragraph 17, the Maintenance Authorities may authorise
the purchase and use of special tools and test equipment for use on board
cable ships which are required for the maintenance and repair of the Cable
System and also any spare terminal equipment considered necessary to
ensure that the facilities constituting the Cable System are returned to
efficient working order and operation as soon as possible following the
failure, breakdown or interruption of such facilities. The related costs
may include, but are not limited to, the costs, or an appropriate share
thereof, for the purchase, storage and maintenance of this equipment.
(d) Each Maintenance Authority shall render to the other Parties bills
for the expenditures and receipts herein referred to not more frequently
than monthly in accordance with procedures to be established by the
Management Committee. The Maintenance Authorities shall also from time to
time furnish such further details of such bills as the other Parties may
reasonably require. On the basis of such bills, each Party shall pay, in
the currency in which the bill is rendered, such amounts as may be owed
by the end of the calendar month following the calendar month in which
the bills are rendered.
(e) Amounts billed and not paid when due shall accrue extended payment
charges from and including the day following the day on which payment was
due until paid, said charges to be computed and applied in accordance
with Paragraph 9.
(f) The billing procedures specified in Subparagraphs 9(h) and 9(i)
shall be applicable to all bills rendered pursuant to this Paragraph 18.
- 37 -
19. SHARING OF CONTRACTUAL OBLIGATIONS AND LIABILITY
(a) Each Party shall indemnify and shall keep indemnified and hold
harmless the other Parties and each of their employees, servants, and
agents to the extent hereinafter agreed, from and against all claims,
demands, actions, suits, proceedings, writs, judgements, orders and
decrees brought, made or rendered against them or any of them and all
damages, losses and expenses suffered or incurred by them or any of them
howsoever arising out of or related to any aspect of providing,
constructing, laying or installing the Cable System or of its operation
and maintenance. This indemnity shall not, however, relieve the Initial
Parties of their obligations undertaken pursuant to Paragraphs 3 and 4
nor shall any Party be indemnified for intentional misconduct or reckless
acts or omissions.
(b) If a Party assumes obligations, commits moneys in the name or on
behalf of the other Parties pursuant to this Agreement or is obliged by
final judgement of a competent tribunal or under a settlement approved by
the Management Committee to discharge any claim in damages or other
liability, including costs or expenses associated therewith, to any
person or entity which is not a Party to this Agreement and resulting
from any aspect of providing, constructing, laying or installing the
Cable System or of its operation and maintenance, that Party shall be
entitled to reimbursement from the other Parties in the proportions set
forth in Schedule C (unless any such claim for reimbursement arises from
the intentional misconduct or reckless act or omission of the Party
seeking reimbursement).
(c) If a claim, demand, action, suit, proceeding, writ, judgement,
order or decree as referred to in Subparagraph 19(a) is brought, made or
rendered against a Party or any Party suffers or incurs any damages,
losses or expenses in respect thereof, that Party shall, as a condition
of reimbursement under Subparagraph 19(b), immediately notify all the
other Parties and give them the opportunity to advise and recommend
through the Management Committee on the means to defend or to settle
- 38 -
same and, to the extent permitted by the relevant jurisdiction, to be
joined in any proceedings relating thereto.
(d) Except as provided in Subparagraph 17(f), as a precondition to the
initiation of any legal proceedings by any Party or Parties on behalf of
and for the benefit of any other Party or Parties, the Party or Parties
planning to initiate such proceedings shall give notice, appropriate
under the circumstances, to all other Parties.
(e) The costs and benefits of any proceedings referred to in
Subparagraph 19(d) shall be shared between the Parties in the manner
described in Subparagraph 19(b).
20. KEEPING AND INSPECTION OF BOOKS FOR SEGMENT B
(a) For those portions of Segment B, if any, specified in the Supply
Contract(s) as cost incurred items, the Procurement Group shall ensure
that the Supply Contract(s) require(s) the supplier(s) to keep and
maintain such books, records, vouchers and accounts of all such costs
with respect to the engineering, provision and installation of those
items for a period of three (3) years from the Date of Provisional
Acceptance.
(b) For those portions of Segment B, if any, specified in the Supply
Contract(s) as fixed cost items subject to raw material adjustment, the
Procurement Group shall ensure that the Supply Contract(s) require(s) the
supplier(s) to keep and maintain such books, records, vouchers, and
accounts of all costs with respect to any raw material adjustments for a
period of three (3) years from the Date of Provisional Acceptance.
(c) For those portions of Segment B specified in the Supply
Contract(s) as fixed cost items, the Procurement Group shall ensure that
the Supply Contract(s) require(s) the supplier(s) to keep and maintain
records with respect to its (their) billing of those items for a period
of three (3) years from the Date of Provisional Acceptance.
- 39 -
(d) The Procurement Group shall ensure that the Supply Contract(s)
require(s) the supplier(s) to obtain from its (their) contractors and
subcontractors such supporting records, for other than the cost of fixed
cost items, as may be reasonably required by this Paragraph 20 and to
maintain such records for a period of three (3) years from the Date of
Provisional Acceptance.
(e) The Procurement Group shall ensure that the Supply Contract(s)
shall afford the Parties the right to review the books, records,
vouchers, and accounts required to be kept, maintained, and obtained
pursuant to Subparagraphs 20(a), 20(b), 20(c) and 20(d). Such right shall
only be exercisable through the F&A Subcommittee in accordance with the
F&A Subcommittee's audit procedures.
(f) With respect to additions to Segment B, comparable records to
those specified in Subparagraphs 20(a), 20(b), 20(c) and 20(d), as
appropriate, shall be maintained by the Party providing such addition for
a period of three (3) years from the installation date of such addition.
(g) OTC, AT&T and TNI shall each keep and maintain such books,
records, vouchers, and accounts of all costs that are incurred in the
engineering, provision, and installation of Segment B and not included in
the Supply Contract(s), as defined in Paragraph 8, which they incur
directly, for a period of three (3) years from RFS or the date the work
is completed, whichever is later.
(h) With respect to operating and maintenance costs of Segment B, such
books, records, vouchers, and accounts of costs, as are relevant, shall
be kept and maintained by TNI and AT&T for a period of three (3) years
from the date on which the corresponding bills to the Parties are
rendered.
(i) Any Party keeping and maintaining books, records, vouchers, and
accounts of costs pursuant to Subparagraphs 20(f), 20(g) and 20(h) shall
- 40 -
afford the Parties the right to review or audit said books, records,
vouchers, and accounts of costs. In affording the right to review or
audit, any such Party shall be permitted to recover, from the Party or
Parties requesting the review or audit, the entire cost reasonably
incurred in complying with the review or audit. Such right of review and
audit pursuant to this Subparagraph 20(i) shall only be exercisable
through the F&A Subcommittee in accordance with the F&A Subcommittee's
audit procedures.
(j) After RFS the Management Committee shall arrange for a final audit
to be conducted by the F&A Subcommittee. The costs of such audit shall be
borne by the Parties in proportion to their ownership interests shown in
Schedule C.
21. GOVERNMENTAL APPROVALS
The performance of this Agreement by the Parties is contingent upon the
obtaining and continuance of such governmental approvals, consents,
authorisations, licenses and permits as may be required or be deemed
necessary by the Parties and as may be satisfactory to them and the
Parties shall use all reasonable efforts to obtain and have continued in
effect such approvals, consents, authorisations, licenses and permits.
22. ASSIGNMENT OF RIGHTS AND OBLIGATIONS
Except as otherwise provided in Paragraphs 14, 15, 16, 23 and 24, during
the continuance of this Agreement no Party shall, without the consent of
the other Parties, sell, assign, transfer, or dispose of its rights or
obligations under this Agreement or of any interest in the Cable System
except to a successor or subsidiary of such Party or a corporation
controlling, or under the same control as, such Party, in which case
written notice shall be given in a timely manner by the Party making said
sale, assignment, transfer, or disposition, and provided that in
- 41 -
the case of any assignments of capacity in the Cable System to a
subsidiary pursuant to this Paragraph 22, the consent of the other Party
or Parties to whom the capacity is jointly assigned shall be obtained
pursuant to Subparagraph 14(l), which consent shall not be unreasonably
withheld.
23. DEFAULT
(a) If any Party fails to make any payment required by this Agreement
on the date when it is due and such default continues for a period of at
least two months after the date when payment is due, the billing Party
may notify the billed Party in writing of its intent to notify the
Management Committee of the status of the matter and to request the
reclamation of capacity, as provided for in this Paragraph 23, if full
payment is not received within four months of such notification to the
billed Party. If full payment is not received within such specified
period, the billing Party may notify the Management Committee of the
status of the matter and request that the Management Committee reclaim
the capacity in the Cable System assigned to the billed Party.
(b) The Management Committee shall have the option of reclaiming the
capacity assigned to a Party that is in default of this Agreement
pursuant to Subparagraph 23(a), if such default has existed for a period
of six (6) months. The Management Committee shall consider any
extenuating circumstances not within the specific control of the
defaulting Party and the interests of any Party or Parties that have
jointly assigned capacity with the defaulting Party in determining
whether or not to reclaim any or all of the capacity assigned to such
defaulting Party. The Management Committee shall determine arrangements
for disposition of any reclaimed capacity taking into account the
interests of the Party or Parties holding jointly assigned capacity with
the defaulting Party. Such of the remaining Parties as shall agree to
take the reclaimed capacity of a defaulting Party which is to be
reassigned shall make appropriate payments which shall then be
- 42 -
distributed to those remaining Parties entitled to the proceeds. The
remaining Parties shall not be obligated to make any payments or credits
for capital costs to the defaulting Party for the reclaimed capacity. All
rights of a defaulting Party under this Agreement shall terminate as of
the time the Management Committee reclaims all of the capacity previously
assigned to the defaulting Party; and concurrent with such reclamation of
capacity, the defaulting Party shall cease to be a Party to this
Agreement. This Agreement shall be appropriately amended to reflect the
default of a Party and the reallocation of interests pursuant to
arrangements determined by the Management Committee.
24. ADMISSION OF ADDITIONAL PARTIES
(a) The Management Committee shall be empowered on one or more
occasions prior to RFS to admit telecommunications entities not signatory
hereto as additional Parties. In being so admitted, an additional Party
shall acquire the same rights and obligations as the other Parties
subject to the following:
(i) the admission of additional Parties shall be on terms and
conditions to be determined by the Management Committee;
(ii) the additional Party accepts responsibility to pay its
proportionate share of any costs incurred under this
Agreement prior to its becoming a Party; and
(iii) the additional Party accepts and abides by the terms and
conditions of this Agreement and all decisions properly
taken under this Agreement prior to its becoming a Party.
(b) The Management Committee with the concurrence of at least 75% of
the total voting interests of the Parties may agree to admit
telecommunications entities not signatory hereto as additional Parties
after RFS subject to terms and conditions to be decided.
- 43 -
(c) Additional Parties shall be admitted by Supplementary Agreements
to this Agreement. The Initial Parties are hereby authorised to act as
representatives and agents of all Parties to execute such Supplementary
Agreements for the admission of additional Parties. Schedules A, B, C
and D shall be appropriately modified.
25. RATIFICATION OF PRIOR DECISIONS AND ACTIONS
Each Party to this Agreement does hereby, and each additional Party
admitted pursuant to Paragraph 24 shall thereby unconditionally ratify
and accept as binding on it, its successors, permitted assigns or
trustees all decisions and actions theretofore taken directly or
indirectly by any other Party or Parties or any committee or subcommittee
or group pursuant to this Agreement or the Initial Agreement.
26. RESOLUTION OF DISPUTES
(a) If a dispute should arise under this Agreement between or among
the Parties they shall make every reasonable effort to resolve such
dispute. However, in the event that they are unable to resolve such
dispute, the matter shall be referred to the Management Committee which
shall either resolve the matter or determine the method by which the
matter should be resolved. This procedure shall be the sole and exclusive
remedy for any dispute which may arise under this Agreement between or
among the Parties.
(b) The performance of this Agreement by the Parties shall continue
during the resolution of any dispute.
- 44 -
27. RELATIONSHIP OF PARTIES TO EACH OTHER
The relationship between or among the Parties shall not be that of
partners and nothing herein contained shall be deemed to constitute a
partnership between or among them, and the common enterprise among the
Parties shall be limited to the express provisions of this Agreement.
28. PRIVILEGES FOR DOCUMENTS OR COMMUNICATIONS
Each Party specifically reserves, and is granted by each of the other
Parties, in any action, arbitration or other proceeding between or among
the Parties or any of them in a country other than that Party's own
country, the right of privilege, in accordance with the laws of that
Party's own country, with respect to any documents or communications
which are material and pertinent to the subject matter of the action,
arbitration or proceeding in which privilege could be claimed or asserted
by that Party in accordance with those laws, and such privilege, whatever
may be its nature and whenever it be claimed or asserted, shall be
allowed to that Party as it would be allowed if the action, arbitration
or other proceeding had been brought in a court of, or before an
arbitrator in, the Party's own country.
29. PERIOD OF AGREEMENT AND REALISATION OF ASSETS
(a) This Agreement shall become effective on the day and year first
above written and shall continue in operation for at least an initial
period of twenty five (25) years following RFS and shall be terminable
thereafter by agreement of the Parties. However any Party may terminate
its participation in this Agreement at the end of the initial period or
any time thereafter by giving not less than one (1) year's prior notice
thereof, in writing, to the other Parties. Upon the effective date of
termination of participation of a Party, Schedules A, B, C and D shall be
appropriately modified. The remaining Parties shall assume the
- 45 -
capital, operating, and maintenance interests of the Party terminating
its participation in proportion to their interests assigned immediately
preceding such effective date of termination, except for the continuing
rights and obligations of the terminating Party as specified in
Subparagraphs 29(c) and (d). No credit for capital costs will be made to
a Party that terminates its participation in accordance with this
Subparagraph 29(a).
(b) The interests of a Party or Parties in Segment B of the Cable
System which come to an end by reason of the termination of its or their
participation in this Agreement or the termination of this Agreement
shall be deemed to continue for as long as is necessary for effecting the
purposes of Subparagraphs 29(c) and (d) and in the case of interests
which come to an end by reason of a Party or Parties terminating its or
their participation in this Agreement, Segment B shall accordingly
thereafter be held as respects such interests as at the first time any
Party terminates its participation in this Agreement, upon the
appropriate trusts by the Parties who are the owners thereof. Should the
doctrine of trusts not be recognised under the laws of the country,
territory or place where the property to which such interests relate is
located, then the Party or Parties who are the owners thereof shall
nevertheless be expressly bound to comply with the provisions of
Subparagraphs 29(c) and (d).
(c) Upon termination of this Agreement the Parties shall use their
best efforts to liquidate Segment B of the Cable System within a
reasonable time by sale or other disposition, but no sale or disposition
shall be effected except by agreement between or among the Parties who
have interests in the subject thereof at the time this Agreement is
terminated. In the event agreement cannot be reached, the decision will
be carried on the basis of a simple majority of the total voting
interests as specified in Schedule B. The costs or net proceeds of every
sale or other disposition shall be divided between or among the Parties
who have or were deemed to have interests in the subject thereof in the
proportions in which such Parties' ownership interests are
- 46 -
specified in Schedule C immediately preceding the first time any Party
terminates its participation in this Agreement or this Agreement is
terminated pursuant to Subparagraph 29(a), whichever occurs first. The
Parties shall execute such documents and take such action as may be
necessary to effect any sale or other disposition made pursuant to this
Paragraph 29.
(d) A Party's termination of its participation in this Agreement or
the termination of this Agreement pursuant to Subparagraph 29(a) shall
not relieve that Party or Parties from any liabilities, costs, damages or
obligations which may arise in connection with claims made by third
parties with respect to the Cable System, the facilities that comprise
the Cable System or any part or portion thereof, or which may arise in
relation to the Cable System due to any law, order or regulation made by
any government or supranational legal authority pursuant to any
international convention, treaty or agreement. Any such liabilities,
costs, damages or obligations incurred or benefits accruing in satisfying
such obligations shall be divided among the Parties in the proportions in
which such Parties' ownership interests are specified in Schedule C
immediately preceding the first time any Party terminates its
participation in this Agreement or this Agreement is terminated pursuant
to Subparagraph 29(a), whichever occurs first.
30. BILLS, PAYMENTS AND NOTICES
(a) OTC shall render bills due under this Agreement in Australian
dollars, and such bills shall be payable in Australian dollars to the
designated office of OTC. AT&T shall render bills due under this
Agreement in U.S. dollars, and such bills shall be payable in U.S.
dollars to the designated office of AT&T. TNI shall render bills due
under this Agreement in New Zealand dollars, and such bills shall be
payable in New Zealand dollars to the designated office of TNI. OTC, AT&T
and TNI may also render bills in the currencies specified in the Supply
Contract(s) for payment to the supplier(s), and such bills shall be
payable in the currency(ies) in which they are rendered.
- 47 -
(b) Unless otherwise designated by the Party concerned, bills
rendered, payments made and notices issued under this Agreement shall be
addressed to the respective Parties by registered airmail, dispatch of
which shall be advised by a telex or facsimile giving a summary of the
payments due, expenses concerned or notices issued.
(c) All amounts billed or payable under this Agreement shall be paid
in full without deduction of any taxes, duties or other withholdings.
31. WAIVER
The waiver by any Party of a breach of, or a default under, any of the
provisions of this Agreement, or the failure of any Party, on one or more
occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder shall not thereafter be
construed as a waiver of any subsequent breach or default of a similar
nature, or as a waiver of any such provision, right, or privilege
hereunder.
32. PARAGRAPH HEADINGS
The paragraph headings do not form part of this Agreement and shall not
have any effect on the interpretation thereof.
33. EXECUTION OF AGREEMENT AND AMENDMENTS
(a) This Agreement, any amendment thereof and any Supplementary
Agreement pursuant to Subparagraph 24(c) shall each be executed as one
original in the English language.
(b) OTC shall be the custodian of this Agreement and any such
amendment or Supplementary Agreement and shall accord access to them to a
Party upon reasonable notice. Each Party shall be provided with a
certified photocopy of this Agreement and any such amendment or
- 48 -
Supplementary Agreement and any revised Schedules. A notarised copy of
this Agreement and any such amendment or Supplementary Agreement shall be
provided to a Party upon request, and at the requesting Party's expense.
(c) Subject to Subparagraphs 24(c) and 33(d), this Agreement and any
of the provisions hereof may be altered or added to only by another
agreement in writing signed by a duly authorized person on behalf of each
and every Party to this Agreement.
(d) Subparagraph 33(c) shall not apply to any Schedule modified in
accordance with any other provision of this Agreement and any Schedule so
modified shall be deemed to be a part of this Agreement in substitution
for the immediately preceding version of that Schedule.
34. INTERPRETATION OF AGREEMENT
If any difference shall arise between or among the Parties or any of them
respecting the interpretation or effect of this Agreement or any part of
provision thereof or their rights and obligations thereunder, and by
reason thereof there shall arise the need to decide the question by what
municipal or national law this Agreement or such part or provision
thereof is governed, the following facts shall be excluded from
consideration, namely, that this Agreement was made in a particular
country and that it may appear by reason of its form, style, language or
otherwise to have been drawn preponderantly with reference to a
particular system of municipal or national law; the intention of the
Parties being that such facts shall be regarded by the Parties and in all
courts and tribunals wherever situated as irrelevant to the question
aforesaid and to the decision thereof.
- 49 -
35. SUCCESSORS BOUND
This Agreement shall be binding on the Parties, their successors and
permitted assigns.
TESTIMONIUM
IN WITNESS WHEREOF the Parties hereto have severally subscribed these
presents or caused them to be subscribed in their names and on their
behalf by their respective representatives thereunto duly authorised.
AMERICAN TELEPHONE AND TELEGRAPH COMPANY
BY: /s/ [ILLEGIBLE]
BORD TELECOM EIREANN
BY: /s/ [ILLEGIBLE]
BRITISH TELECOMMUNICATIONS PLC
BY: /s/ [ILLEGIBLE]
BUNDESMINISTERIUM FUR OFFENTLICHE WIRTSCHAFT UND VERKEHR,
GENERALDIREKTION FUR DIE POST- UND TELEGRAPHENVERWALTUNG
BY: /s/ [ILLEGIBLE]
- 50 -
DEUTSCHE BUNDESPOST TELEKOM
BY: /s/ [ILLEGIBLE]
ENTREPRISE DES POSTES, TELEPHONES ET TELEGRAPHES SUISSES
BY: /s/ [ILLEGIBLE]
FRANCE TELECOM
BY: /s/ [ILLEGIBLE]
GTE HAWAIIAN TELEPHONE COMPANY INCORPORATED
BY: /s/ [ILLEGIBLE]
HONG KONG TELECOM INTERNATIONAL LIMITED
BY: /s/ [ILLEGIBLE]
INTERNATIONAL DIGITAL COMMUNICATIONS INC.
BY: /s/ [ILLEGIBLE]
INTERNATIONAL TELECOM JAPAN INC.
BY: /s/ [ILLEGIBLE]
- 51 -
INTERNATIONAL TELECOMMUNICATION DEVELOPMENT CORPORATION
BY: /s/ [ILLEGIBLE]
ITALCABLE S.P.A.
BY: /s/ [ILLEGIBLE]
KOKUSAI DENSHIN DENWA CO., LTD.
BY: /s/ [ILLEGIBLE]
MCI INTERNATIONAL, INC.
BY: /s/ [ILLEGIBLE]
MERCURY COMMUNICATIONS LIMITED
BY: /s/ [ILLEGIBLE]
OTC LIMITED
BY: /s/ [ILLEGIBLE]
OVERSEAS TELECOMMUNICATIONS, INC.
BY: /s/ [ILLEGIBLE]
- 52 -
PHILIPPINE GLOBAL COMMUNICATIONS, INC.
BY: /s/ [ILLEGIBLE]
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY
BY: /s/ [ILLEGIBLE]
PTT TELECOM BV
BY: /s/ [ILLEGIBLE]
REGIE DES TELEGRAPHES ET DES TELEPHONES DE BELGIQUE
BY: /s/ [ILLEGIBLE]
SWEDISH TELECOM
BY: /s/ [ILLEGIBLE]
TELECOM NETWORKS AND INTERNATIONAL LTD.
BY: /s/ [ILLEGIBLE]
TELEGLOBE CANADA INC.
BY: /s/ [ILLEGIBLE]
- 53 -
TRANSPACIFIC COMMUNICATIONS, INCORPORATED
BY: /s/ [ILLEGIBLE]
TRT/FTC COMMUNICATIONS, INC.
BY: /s/ [ILLEGIBLE]
US SPRINT COMMUNICATIONS COMPANY LIMITED PARTNERSHIP
BY: /s/ [ILLEGIBLE]
WORLD COMMUNICATIONS INC.
BY: /s/ [ILLEGIBLE]
LIST OF OMITTED SCHEDULES
The following Schedules to the PacRimEast Cable System Construction
and Maintenance Agreement have been omitted from this Exhibit and shall be
furnished supplementally to the Commission upon request:
Schedule A - Parties to this Agreement
Schedule B - Voting Interests in the Cable System
Schedule C - Ownership Interests and Allocation of Capital Operating
and Maintenance Costs of Segment B and Proportions of
Capital, Operating and Maintenance Costs for Use of
Segments A and C
Schedule D - Assignment of Capacity in Segment B in Half Interest in
MAUOs
Annex 1 - Procurement Group Terms of Reference
Annex 2 - Terms of Reference of Subcommittees
The following Revised Schedules, effective January 31, 1996, to the
PacRimEast Cable System Construction and Maintenance Agreement have been omitted
from this Exhibit and shall be furnished supplementally to the Commission upon
request:
Schedule B - Voting Interests in the Cable System
Schedule C - Ownership Interests and Allocation of Capital Operating
and Maintenance Costs of Segment B and Proportions of
Capital, Operating and Maintenance Costs for Use of
Segments A and C
Schedule D - Assignment of Capacity in Segment B in Half Interest in
MAUOs
The following Revised Schedules, effective September 1, 1996, to the
PacRimEast Cable System Construction and Maintenance Agreement have been omitted
from this Exhibit and shall be furnished supplementally to the Commission upon
request:
Schedule B - Voting Interests in the Cable System
Schedule C - Ownership Interests and Allocation of Capital Operating
and Maintenance Costs of Segment B and Proportions of
Capital, Operating and Maintenance Costs for Use of
Segments A and C
Schedule D - Assignment of Capacity in Segment B in Half Interest in
MAUOs