Project Development & Construction

EXECUTION COPY



PROJECT DEVELOPMENT



CONSTRUCTION CONTRACT



ALCATEL SUBMARINE NETWORKS



ALCATEL SUBMARINE NETWORKS, INC.



MID-ATLANTIC CROSSING LTD.



_____________________________________



DATED AS OF JUNE 2, 1998



_____________________________________

TABLE OF CONTENTS



GENERAL TERMS AND CONDITIONS



Article PAGE

- ------- ----

1 Provision of System............................................... 1



2 Documents Forming the Entire Contract............................. 2



3 Definitions....................................................... 2



4 Contract Price.................................................... 13



5 Terms of Payment by Purchaser..................................... 17



6 Contract Variations............................................... 20



6A Optional Upgrades................................................. 20



6B *................................................................. 24



7 Responsibilities for Permits; Compliance with Laws................ 24



8 Route Survey...................................................... 26



9 Acceptance........................................................ 27



10 Warranty.......................................................... 31



11 Contractor Support................................................ 35



12 Purchaser's Obligations........................................... 35



13 Termination for Default........................................... 36



14 Termination for Convenience....................................... 38



15 Suspension........................................................ 40



16 Title and Risk of Loss............................................ 41



17 Force Majeure..................................................... 41



18 Intellectual Property............................................. 42



19 Infringement...................................................... 47





* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN

APPLICATION FOR CONFIDENTIAL TREATMENT.



Article PAGE

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20 Safeguarding of Information and Technology....................... 48



21 Export Control................................................... 49



22 Liquidated Damages............................................... 50



23 Limitation of Liability/Indemnification.......................... 50



24 Counterparts..................................................... 51



25 Design and Performance Responsibility............................ 52



26 Product Changes.................................................. 52



27 Risk and Insurance............................................... 52



28 Plant and Work Rules............................................. 55



29 Right of Access.................................................. 56



30 Quality Assurance................................................ 57



31 Documentation.................................................... 57



32 Training......................................................... 57



33 Settlement of Disputes/Arbitration............................... 57



34 Applicable Law................................................... 59



35 Notices.......................................................... 60



36 Publicity and Confidentiality.................................... 61



37 Assignment; Subcontractors....................................... 61



38 Relationship of the Parties...................................... 63



39 Successors Bound................................................. 63



40 Article Captions................................................. 63



41 Severability..................................................... 63



42 * ............................................................... 63



43 Survival of Obligations.......................................... 64





* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN

APPLICATION FOR CONFIDENTIAL TREATMENT.





Article PAGE

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44 Non-Waiver....................................................... 64



45 Language......................................................... 64



46 Entire Agreement................................................. 64





Exhibit A Form of * Exhibit B Form of Consent and Agreement Exhibit C-1 Form of Opinion for Contractor Exhibit C-2 Form of Opinion for Guarantor Exhibit D Form of Payment Escrow Agreement Exhibit E Form of Supplement No. 1 Exhibit F Form of Contractor's Invoice Certificate Exhibit G Examples of Contractor Permits Exhibit H Examples of Owner Permits Exhibit I Subcontractors Exhibit J Optional L ong Lead Items





* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN

APPLICATION FOR CONFIDENTIAL TREATMENT.





PROJECT DEVELOPMENT AND

CONSTRUCTION CONTRACT



This Project Development and Construction Contract ("Contract") is made as of this 2nd day of June, 1998 between (i) ALCATEL SUBMARINE NETWORKS (together with its permitted successors and assigns, "ASN"), a societe anonyme

--- organized and existing under the laws of France, and having its principal office in Paris, France, and ALCATEL SUBMARINE NETWORKS, INC. (together with its permitted successors and assigns, "ASNI"), a corporation organize d and existing

---- under the laws of the State of Delaware, United States, and having its principal office in Portland, Oregon, United States (ASN and ASNI are hereinafter collective ly referred to as "Contractor" and are jointly and severally liable

---------- for all obligations and liabilities of Contractor hereunder as more fully set forth in Article 42 hereof) and ( ii) MID-ATLANTIC CROSSING LTD., a corporation organized and existing under the laws of Bermuda, and having its principal office in Hamilton, Bermuda (hereinafter "Purchaser").

---------



WHEREAS, Purch aser desires to establish a fiber optic submarine cable system, to be known as the Mid-Atlantic Crossing Submarine Cable System (hereinafter, and as more fully defined herein, the "System"), which will be used to provide service between and among the Unit ed States mainland, Bermuda and St. Croix; and



WHEREAS, subject to the provisions of Article 6B hereof, the System will consist of the following Segments:



Segment 1: From Brookhaven, New York to Hollywood, Florida;



Segment 2: From Hollywood, Florida to St. Croix;



Segment 3: From St. Croix to Bermuda.



WHEREAS, Contractor is in the business of designing, constructing, installing, supplying, delivering and manufacturing fiber optic su bmarine cable systems and is familiar with the general business of the fiber optic submarine cable system industry;



WHEREAS, Purchaser seeks to purchase and own the System and wishes to engage Contractor to perform the Work and Upgrade Work; and



WHEREAS, Contractor is willing to perform the Work and Upgrade Work on a turn-key, fixed-price basis in accordance with and subject to the terms hereof.



NOW THEREFORE, IT HAS BEEN AGREED AS FOLLOWS



ARTICLE 1 PROVISION OF SYSTEM - ------------------------------



In consideration of the Contract Price and the Upgrade Prices, the Contractor agrees to undertake the Work and the Upgrade Work and to provide the Purchaser with the System meeting the System Performance Requirement s on or before the Scheduled RFS Date



and the System Upgrades meeting the requirements of Article 6A, all in accordance with the terms hereof.



ARTICLE 2 DOCUMENTS FORMING THE ENTIRE CONTRACT - ------------------------------------------------



This Contract consists of these commercial Terms and Conditions and the following documents (in the form of attachments, including appendices, attached hereto), which shall be read and construed as part of the Contract:



. Provisioning Schedule, Appendix 1, Upgrade Provisioning Schedule,

Appendix 1A

. Billing Schedule, Appendix 2, Upgrade Billing Schedule, Appendix 2A

. Plan of Work, Appendix 3, Upgrade Plan of Work, Appendix 3A

. Invoice Format, Appendix 4

. Technical Volume (includes Route Information), Appendix 5



In the event of any inconsistency between the Terms and Conditions and the above listed documents, the Terms and Conditions shall prevail. The Appendices listed above have no order of precedence.



ARTICLE 3 DEFINITIONS - ----------------------



Definitions are as described in the specific Articles. Except as otherwise defined the following definitions shall apply throughout the Contract:



AAA has the meaning set forth in Sub-Article 33(B).



ACCEPTANCE TESTING means (i) with respect to a Segment or the System,

the tests described in the System Commissioning and Acceptance section of

the Technical Volume or developed pursuant to such section by mutual

agreement of the Parties (with 15 days prior notice to the Independent

Engineer) and designed to verify that such Segment or the System meets the

applicable Performance Requirements and (ii) with respect to any System

Upgrade, the tests described in the System Commissioning and Acceptance

section of the Technical Volume or developed pursuant to such section by

mutual agreement of the Parties (with 15 days prior notice to the

Independent Engineer) and designed to verify that the System Upgrade meets

the applicable Performance Requirements.



ACCESS RIGHTS means all ownership, easement, wayleaves and/or other

property rights, from both private and governmental entities, both on land

and below the surface of the water (including, without limitation,

agreements to use conduits and ducts, install manholes and to lease space

in cable stations) necessary to access, use and occupy cable stations and

the sites for cable stations (including, without limitation, to land and

install the submarine cable and related equipment and to bring such cable

from the ocean to the cable stations) in order for the Purchaser to own,

operate and maintain the System.



ACTUAL KNOWLEDGE means the actual knowledge of any executives with

management responsibility for the Contract.



ASSIGNMENT has the meaning set forth in Sub-Article 37(A).



BANK ESCROW AGENT means Citibank, N.A., in its capacity as escrow

agent under the Payment Escrow Agreement, and its successors in such



BANKRUPTCY EVENT means an event specified in Sub-Article 13(A)(3) or

13(A)(4) with Contractor as the "other Party".



BASE SYSTEM means the two fiber pair submarine cable system consisting

of Segments 1, 2 and 3, as described in the second WHEREAS clause of this

Agreement, (at a per fiber pair capacity of 10 Gb/s at the Date of

Commercial Acceptance or the Date of Provisional Acceptance, as the case

may be, of the System, with each fiber pair upgradeable to 80 Gb/s per

fiber pair at the Date of Provisional Acceptance) as more fully described

in the System Description section of the Technical Volume.



BILLING MILESTONES means the billing milestones set forth in Appendix



BILLING SCHEDULE means a billing schedule attached hereto as Appendix



BUS-1 means the fiber optic cable system known as "BUS-1" connecting

Bermuda and Tuckerton, New Jersey.



CABLE STATION AND BEACH ACCESS RIGHTS means, with respect to each of

the cable stations in the System (i) a right to use space in such cable

station sufficient for the Supplies to be installed therein; (ii) the right

of access to such space so that the Contractor may install such Supplies;

(iii) duct space or other right so that Contractor may install the cable

from the beach manhole to such cable station; (iv) access to the beach

manhole(s); and (v) except with respect to the Bermuda cable station, the

right to use any directionally drilled conduit space seaward from the beach

manhole so that the Contractor may install the cable from the sea to such

beach manhole without undertaking directional drilling or other separate

shore-end marine operations.



CERTIFICATE OF COMMERCIAL ACCEPTANCE means a certificate issued by

Purchaser in accordance with Sub-Article 9(D) to Contractor certifying that

a Segment, the System or a System Upgrade is Ready for Commercial



CERTIFICATE OF FINAL ACCEPTANCE means a certificate issued by

Purchaser in accordance with Sub-Article 9(E) to Contractor certifying that

the System or a System Upgrade is Ready for Final Acceptance.



CERTIFICATE OF PROVISIONAL ACCEPTANCE means a certificate issued by

Purchaser in accordance with Sub-Article 9(C) to Contractor certifying that

a Segment, the System or a System Upgrade is Ready for Provisional





CIF means cost, insurance and freight, as defined in Incoterms.



COMMISSIONING REPORT has the meaning set forth in the System

Commissioning and Acceptance section of the Technical Volume.



CONFIDENTIAL INFORMATION has the meaning set forth in Sub-Article

36(B).



CONSENT means a Consent and Agreement to be entered into among

Contractor, Purchaser and the financing parties described in Sub-Article

37(C) and substantially in the form of Exhibit B hereto, with such changes

therein as made pursuant to Sub-Article 37(C) hereto.



CONTRACT means this agreement, specifically consisting of the

documents described in Article 2, and shall be deemed to include any

amendments thereto or Contract Variations pursuant to Article 6 (Contract

Variations).



CONTRACT PRICE means the Initial Contract Price, plus any variations

pursuant to Article 6 (Contract Variations), Article 6B (Optional Systems;

BUS-1 Option) or Article 8 (Route Survey), Taxes as set forth in Sub-

Article 4(B) and other adjustments to the Contract Price provided for in

this Contract.



CONTRACT TAXES has the meaning set forth in Sub-Article 4(B)(1).



CONTRACT VARIATION has the meaning set forth in Sub-Article 6(A).



CONTRACTOR means the entities that have collectively executed this

Contract as the Contractor, jointly and severally, and that will be

responsible for the performance of the Work (and if applicable, Upgrade

Work) under this Contract and shall include their permitted successors

and/or assigns.



CONTRACTOR PERMITS means all Permits that the Contractor needs to

conduct its business and all Permits which the Contractor must acquire in

order to carry out its operations to perform the work. Exhibit G hereto

contains a list of sample Contractor Permits; provided that such list is

not meant to be complete or exclusive.



DATE OF COMMERCIAL ACCEPTANCE, PROVISIONAL ACCEPTANCE OR FINAL

ACCEPTANCE means the date that Purchaser receives a Commissioning Report or

an Upgrade Commissioning Report, as the case may be, demonstrating that a

Segment or the System or a System Upgrade, as the case may be, is Ready for

Commercial Acceptance, Ready for Provisional Acceptance or Ready for Final

Acceptance in accordance with Article 9 (Acceptance).



DEFAULT means an Event of Default or any event, condition or

occurrence which with the giving of notice or passage of time or both would

be an Event of Default.



DELIVERABLE SOFTWARE has the meaning set forth in Sub-Article 18(C).



DELIVERABLE SOFTWARE ESCROW has the meaning set forth in Sub-Article

18(H).



DELIVERABLE TECHNICAL MATERIAL has the meaning set forth in Sub-

Article 18(B).



DISPUTE ACCOUNT means the Dispute Account to be created under the

Payment Escrow Agreement.



EVENT OF DEFAULT has the meaning set forth in Sub-Article 13(A).



EXCLUDED TAX means:



(i) any franchise, excess profits, net worth, capital or capital

gains Tax, as well as any Tax on doing business or imposed on net or gross

income or receipts (including minimum and alternative minimum Taxes

measured by any items of Tax preference), but in each case excluding Taxes

that are or are in the nature of sales, use, excise, license, stamp,

rental, ad valorem, value added or property Taxes (other than property

taxes on property owned by the Contractor and not intended to be

incorporated into the System);



(ii) any Taxes imposed by a jurisdiction other than one in which (a)

the Contractor is or is treated as engaged in activities contemplated by or

in fulfillment of the Contract or (b) the Purchaser or its affiliates has a

nexus to such jurisdiction and the Tax imposed is attributable to that

nexus;



(iii) Taxes imposed on the Contractor as a result of Contractor's

gross negligence or willful misconduct; and



(iv) any import duty, other import related charges, sales or use

tax, VAT or property tax imposed by the United States or any political

subdivision thereof or Taxing authority therein in respect of Supplies

brought into the United States for testing, modification or other similar

purposes prior to being installed or used outside the United States.



FINAL COMMISSIONING REPORT has the meaning set forth in the System

Commissioning and Acceptance section of the Technical Volume.



FINAL SURVEY REPORT means the final survey report described in the

Route Survey, Cable Loading and Marine Operations section of the Technical



FORCE MAJEURE has the meaning set forth in Sub-Article 17(A).



*





* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN

APPLICATION FOR CONFIDENTIAL TREATMENT.



*



INCOTERMS means the International Chamber of Commerce, Guide to

Incoterms (1990).



INDEPENDENT ENGINEER means Conexart Technologies, Inc. or a similarly

qualified successor in the capacity as the engineer to the financing

sources specified in Sub-Article 37(C) who has agreed to be bound by the

confidentiality provisions of this Contract and who is not affiliated with

a competitor of Contractor.



INFORMATION has the meaning set forth in Sub-Article 20(A).



INITIAL CONTRACT PRICE has the meaning set forth in Sub-Article

4(A)(1).



INITIAL UPGRADE PRICE has the meaning set forth in Sub-Article

4(A)(2).



INTELLECTUAL PROPERTY has the meaning set forth in Sub-Article 18(A).



LANDING LICENSES means, in the United States, a License to Land and

Operate a Submarine Cable System pursuant to the Submarine Cable Landing

Act, 47 U.S.C. 34-39 and, in Bermuda, the comparable license which is

required under Bermuda law.



LAWS means any laws, ordinances, regulations, rules, orders,

proclamations, requirements of governmental authorities or treaties.



MANUFACTURING MATERIALS has the meaning set forth in Sub-Article

13(B).



NEXUS TAX means any Tax imposed by way of withholding in respect of or

in lieu of an Excluded Tax, but only to the extent such Tax would not have

been imposed but for the nexus (other than as a consequence of the

activities of the Contractor) of the Purchaser or its affiliate to the

jurisdiction imposing the Tax.



NON-SHIP COSTS has the meaning set forth in Sub-Article 10(A)(2).



NOTICE OF TERMINATION has the meaning set forth in Sub-Article 14(A).



OPTION PERIOD has the meaning set forth in Sub-Article 6A(B).



OPTIONAL LONG LEAD ITEMS means those items of the Supplies, set forth

in Exhibit J, that would be used in the Optional System but not the Base

System and which the Contractor must irrevocably commit to pay for in order

to maintain the Scheduled RFS Date if Purchaser shall elect the Optional

System on or prior to the Optional System Date.





* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN

APPLICATION FOR CONFIDENTIAL TREATMENT.



OPTIONAL LONG LEAD ITEMS PRICE means the amount up to * of which * is

payable on the date which is three business days after this Contract is

executed and delivered by all Parties and * is payable on June 30, 1998,

unless prior to such date Purchaser shall notify Contractor that it will

not elect the Optional System.



OPTIONAL ROUTE SURVEY means a marine route survey of the portion of

the Optional System from St. Croix to Brookhaven, New York. ...