Exhibt 10.1


 


AGREEMENT BETWEEN


 


THE GOVERNMENT OF


 


THE CO-OPERATIVE REPUBLIC OF
GUYANA


 


AND


 


ATLANTIC TELE-NETWORK, INC.


 


for


 


The sale to Atlantic Tele-Network, Inc. of eighty percent of the
shares in the Guyana Telephone and Telegraph Company proposed to be
incorporated by the said Government to take over the business and the assets
and liabilities of the Guyana Telecommunications Corporation.


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  THE TRANSACTION

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  REPRESENTATIONS AND WARRANTIES
  BY THE GOVERNMENT

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Organization of GTC

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Formation of GT&T

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Non-existence of Legal
  Impediments

  	
  2

  
	
   

  	
   

  	
   

  
	
  2.4

  	
  Authority, Permits and
  Licences

  	
  2

  
	
   

  	
   

  	
   

  
	
  2.5

  	
  Financial Statements

  	
  2

  
	
   

  	
   

  	
   

  
	
  2.6

  	
  External Communications
  Settlements

  	
  2

  
	
   

  	
   

  	
   

  
	
  2.7

  	
  Interest in
  Transactions

  	
  3

  
	
   

  	
   

  	
   

  
	
  2.8

  	
  Taxes

  	
  3

  
	
   

  	
   

  	
   

  
	
  2.9

  	
  Corporate and Business
  Records

  	
  3

  
	
   

  	
   

  	
   

  
	
  2.10

  	
  Litigation

  	
  3

  
	
   

  	
   

  	
   

  
	
  2.11

  	
  Changes in Financial
  Condition

  	
  3

  
	
   

  	
   

  	
   

  
	
  2.12

  	
  Absence of Certain
  Changes or Events

  	
  3

  
	
   

  	
   

  	
   

  
	
  2.13

  	
  No Breach

  	
  6

  
	
   

  	
   

  	
   

  
	
  2.14

  	
  Authority

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  REPRESENTATION AND WARRANTIES OF
  ATN

  	
  6

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Corporate Structure of
  ATN

  	
  6

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Corporate Power and
  Action

  	
  7

  
	
   

  	
   

  	
   

  
	
  3.3

  	
  Investment Interest

  	
  7

  
	
   

  	
   

  	
   

  
	
  3.4

  	
  Capability

  	
  7

  
	
   

  	
   

  	
   

  
	
  3.5

  	
  Bankruptcy

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  CONSIDERATION

  	
  7

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Purchase Price of Shares

  	
  7

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  Additional Payments

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  COVENANTS BY ATN

  	
  8

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Expansion and Service
  Improvement Plan

  	
  8

  
	
   

  	
   

  	
   

  
	
  5.2

  	
  Maintaining and
  Upgrading Quality of Services

  	
  9

  
	
   

  	
   

  	
   

  
	
  5.3

  	
  Public Interest
  Services

  	
  10

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  5.4

  	
  Releasing the
  Government from the Liabilities of GTC and GT&T

  	
  10

  
	
   

  	
   

  	
   

  
	
  5.5

  	
  Taxes

  	
  10

  
	
   

  	
   

  	
   

  
	
  5.6

  	
  Employment

  	
  10

  
	
   

  	
   

  	
   

  
	
  5.7

  	
  Training and Career
  Development

  	
  10

  
	
   

  	
   

  	
   

  
	
  5.8

  	
  Welfare Plans

  	
  10

  
	
   

  	
   

  	
   

  
	
  5.9

  	
  Rate Continuity

  	
  11

  
	
   

  	
   

  	
   

  
	
  5.10

  	
  Switch to Switch Access

  	
  11

  
	
   

  	
   

  	
   

  
	
  5.11

  	
  Privacy of
  Communications

  	
  12

  
	
   

  	
   

  	
   

  
	
  5.12

  	
  Assignment of Shares of
  ATN in GT&T

  	
  12

  
	
   

  	
   

  	
   

  
	
  5.13

  	
  Rights of the
  Government as Minority Shareholder in GT&T

  	
  12

  
	
   

  	
   

  	
   

  
	
  5.14

  	
  Insurance

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  COVENANTS BY THE GOVERNMENT

  	
  13

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Licence

  	
  13

  
	
   

  	
   

  	
   

  
	
  6.2

  	
  Terms of Licences

  	
  14

  
	
   

  	
   

  	
   

  
	
  6.3

  	
  Cellular Radio
  Telephone Licence

  	
  14

  
	
   

  	
   

  	
   

  
	
  6.4

  	
  Cancellation of Licence

  	
  14

  
	
   

  	
   

  	
   

  
	
  6.5

  	
  Failure to Achieve
  Agreed Levels of Quality or Expansion

  	
  14

  
	
   

  	
   

  	
   

  
	
  6.6

  	
  No Condonation of
  Breach

  	
  15

  
	
   

  	
   

  	
   

  
	
  6.7

  	
  Establishment of Regulatory
  Body

  	
  15

  
	
   

  	
   

  	
   

  
	
  6.8

  	
  Subscriber Rates

  	
  15

  
	
   

  	
   

  	
   

  
	
  6.9

  	
  Rates of Return

  	
  15

  
	
   

  	
   

  	
   

  
	
  6.10

  	
  Management Services

  	
  16

  
	
   

  	
   

  	
   

  
	
  6.11

  	
  Capital Dedicated to
  Telecommunications Business of GT&T

  	
  16

  
	
   

  	
   

  	
   

  
	
  6.12

  	
  Foreign Exchange
  Controls

  	
  16

  
	
   

  	
   

  	
   

  
	
  6.13

  	
  Duties and Taxes

  	
  17

  
	
   

  	
   

  	
   

  
	
  6.14

  	
  Foreign Nationals

  	
  17

  
	
   

  	
   

  	
   

  
	
  6.15

  	
  Conduct of Business
  before Closing

  	
  17

  
	
   

  	
   

  	
   

  
	
  6.16

  	
  Accounts Receivable

  	
  18

  
	
   

  	
   

  	
   

  
	
  6.17

  	
  Right of Way

  	
  18

  
	
   

  	
   

  	
   

  
	
  6.18

  	
  Banking

  	
  19

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  6.19

  	
  Overseas Private
  Investment Corporation (OPIC)

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  COVENANTS BY THE GOVERNMENT AND
  ATN

  	
  19

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  GT&T Stock

  	
  19

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  Shareholding in
  GT&T

  	
  19

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Directors

  	
  20

  
	
   

  	
   

  	
   

  
	
  7.4

  	
  Board Meetings

  	
  20

  
	
   

  	
   

  	
   

  
	
  7.5

  	
  Obligations to Provide
  Universal Service

  	
  20

  
	
   

  	
   

  	
   

  
	
  7.6

  	
  Access to GTC’s
  Business Records

  	
  20

  
	
   

  	
   

  	
   

  
	
  7.7

  	
  Confidentiality of
  Information

  	
  20

  
	
   

  	
   

  	
   

  
	
  7.8

  	
  Best Efforts Regarding
  Compliance with Agreement

  	
  21

  
	
   

  	
   

  	
   

  
	
  7.9

  	
  Settlement of Accounts
  with Foreign Telecommunications Administrations

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  DUE DILIGENCE

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  CLOSING

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  CONDITIONS PRECEDENT TO
  OBLIGATION OF ATN

  	
  22

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Accuracy of
  Representations and Warranties

  	
  22

  
	
   

  	
   

  	
   

  
	
  10.2

  	
  Performance of
  Agreements

  	
  22

  
	
   

  	
   

  	
   

  
	
  10.3

  	
  Certificate

  	
  22

  
	
   

  	
   

  	
   

  
	
  10.4

  	
  Opinion of Counsel for
  the Government

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  CONDITIONS PRECEDENT TO
  OBLIGATION OF THE GOVERNMENT

  	
  23

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  Accuracy of
  Representations and Warranties

  	
  23

  
	
   

  	
   

  	
   

  
	
  11.2

  	
  Performance of
  Agreements

  	
  23

  
	
   

  	
   

  	
   

  
	
  11.3

  	
  Certificate

  	
  23

  
	
   

  	
   

  	
   

  
	
  11.4

  	
  Opinion of Counsel for
  ATN

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  RENEWAL OF LICENCES

  	
  24

  
	
   

  	
   

  	
   

  
	
  12.1

  	
  Notices and
  Applications for Renewal of Licences

  	
  24

  
	
   

  	
   

  	
   

  
	
  12.2

  	
  Renewal of Exclusive
  Licence After Expiry of Term

  	
  24

  
	
   

  	
   

  	
   

  
	
  12.3

  	
  Sale of Assets of
  GT&T on Non-renewal or Termination of Licence

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  FORCE MAJEURE

  	
  25

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  Definition

  	
  25

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  13.2

  	
  Liability in the Event
  of Force Majeure

  	
  25

  
	
   

  	
   

  	
   

  
	
  13.3

  	
  Notice for Force
  Majeure

  	
  25

  
	
   

  	
   

  	
   

  
	
  13.4

  	
  Extension of Time for
  Force Majeure

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
  INDEMNIFICATION

  	
  26

  
	
   

  	
   

  	
   

  
	
  14.1

  	
  Indemnification by
  Government

  	
  26

  
	
   

  	
   

  	
   

  
	
  14.2

  	
  Indemnification by ATN

  	
  26

  
	
   

  	
   

  	
   

  
	
  14.3

  	
  Making of Claims

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 15.

  	
  SURVIVAL OF AGREEMENT TERMS

  	
  27

  
	
   

  	
   

  	
   

  
	
  15.1

  	
  Representations and
  Warranties

  	
  27

  
	
   

  	
   

  	
   

  
	
  15.2

  	
  Covenants and Certain
  Other Provisions

  	
  27

  
	
   

  	
   

  	
   

  
	
  15.3

  	
  Other Provisions

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 16.

  	
  GOVERNING LAW; WAIVER OF
  SOVEREIGN IMMUNITY; SUBMISSION TO JURISDICTION

  	
  27

  
	
   

  	
   

  	
   

  
	
  16.1

  	
  Governing Law

  	
  27

  
	
   

  	
   

  	
   

  
	
  16.2

  	
  Waiver of Sovereign
  Immunity

  	
  27

  
	
   

  	
   

  	
   

  
	
  16.3

  	
  Submission to
  Jurisdiction

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 17.

  	
  WAIVERS

  	
  28

  
	
   

  	
   

  	
   

  
	
  17.1

  	
  Extension of Time and
  Waivers

  	
  28

  
	
   

  	
   

  	
   

  
	
  17.2

  	
  Waiver of Breach Not to
  Extend to Subsequent Breach

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 18.

  	
  EFFECT OF HEADINGS

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 19.

  	
  NOTICES

  	
  29

  



 


iv

















 


AGREEMENT made
on the 18th day of June, 1990 by and between the Government of the
Co-operative Republic of Guyana (hereinafter referred to as “the Government”)
represented by the Honourable W.H.L. Parris, C.C.H., M.P., Deputy Prime
Minster, Planning and Development of the First Part and the Atlantic Tele-network, Inc.,
a private limited company duly incorporated in the United States of America,
whose principal office is situated in 48A Kronprinosens Gade, Thomas, U.S.
Virgin Islands (hereinafter referred to as “ATN”), represented by Mr. Jeffrey J.
Prosser, the Chairman thereof, of the Second Part.


 


SECTION 1. THE TRANSACTION


 


Subject to the
representations, warranties and covenants by the Government and ATN herein
contained and the other terms and conditions specified herein, including, but
not limited to, the payment to the Government by ATN of the sum of money
specified as consideration in SECTION 4, the Government hereby agrees to
transfer to ATN, and ATN agrees to purchase from the Government, shares
representing eighty percent (80%) of the issued share capital of the Guyana
Telephone and Telegraph Company (hereinafter referred to as GT&T), a
private limited company which shall be incorporated by the Government and shall
take over the business and the assets and liabilities including a maximum of
seven million two hundred thousand dollars (US$7.2 million) of foreign currency
liabilities of the Guyana Telecommunication Corporation (hereinafter referred
to as GTC), a public corporation wholly owned by the Government. The credit of
ten million, five hundred thousand United States Dollars (US$10.5 million)
extended by Northern Telecoms to GTC shall not be a liability of Government or
GTC under this agreement.


 


SECTION 2. REPRESENTATIONS
AND WARRANTIES BY THE GOVERNMENT


 


The Government
represents and warrants to ATN or its nominee that:


 


2.1                                 Organization
of GTC. GTC is a public corporation, wholly owned by the Government and
established by the Guyana Telecommunication Corporation Order (No. 11 of
1967) made under section 46 of the Public Corporations Act, Chapter 19:05
of the Laws of Guyana, and continued under the Public Corporations Act 1988
(Act No. 21 of 1988).


 


2.2                                 Formation
of GT&T. The Government shall incorporate GT&T as a private limited
company to provide, subject to the laws of Guyana and such International


 

















 


Telecommunication Conventions and any regulations made thereunder as
are for the time being in force in Guyana, internal and external
telecommunication services and to promote the economic development of the
telecommunication services in accordance with, as far as practicable, standard
practice recognized internationally and with public demand. In addition,
Government shall dissolve GTC and transfer to GT&T all the assets, save and
except such assets relating to those regulatory functions now vested in GTC as
set out in Annexure “A”, and liabilities including a maximum of seven million
two hundred thousand dollars (US$7.2 million) of foreign currency liabilities
of GTC under sections 9 and 11 of the Public Corporations Act 1988 (Act No. 21
of 1988).


 


2.3                                 Non-existence
of Legal Impediments. There are no legal impediments that restrict, negate
or impair the right of the Government to dissolve GTC, and to transfer its
assets and liabilities to GT&T, under sections 9 and 11 of the Public
Corporations Act 1988 (Act No. 21 of 1988), or to transfer any of the
shares in GT&T held by the Government, or any other person on behalf of the
Government, to ATN.


 


2.4                                 Authority,
Permits and Licences. No person other than GTC at present has any
Government authority, permit or licence in Guyana to legally carry on, conduct
or participate in any of the businesses, or provide any of the services,
specific in Section 6.1, except those expressly excluded by Section 6.3.


 


2.5                                 Financial
Statements. The audited financial statements of GTC for the year 1989 and
the interim financial statements for the quarter ending 31st March,
1990 are at Annexure “B”. Subject to the observations in the Audit Report, they
are correct and complete and fairly present the financial position of GTC as of
31st December 1989 and as of 31st March, 1990 (the
dates of the Balance Sheet and the interim quarterly statements respectively),
the results of its operations for the year ended 31st December 1989
and the quarter ended 31st March, 1990 and the assets and
liabilities of GTC on those dates.


 


2.6                                 External
Communications Settlements. At Annexure “C” is the most recent settlement
for a twelve month period and at Annexure “D” is GTC’s best estimate of the
anticipated settlement for the most recent twelve month period not finally
determined, of revenues from international data and voice telecommunication
services of GTC. Annexures “B”


 


2

















 


and “C” set forth complete and accurate information regarding gross and
net settlements with each country or company constituting more than two and
one-half percent (2 1⁄2%) of GTC’s volume of business expressed in revenue,
for international data and voice telecommunications.


 


2.7                                 Interest
in Transactions. Save as is normal as between a corporate body operating a
telecommunications system and its subscribers and employees, no officer or
director of GTC or Government official has, in his personal capacity, any
direct or indirect interest in, or it’s a party to, any lease, licence,
contract, agreement or other obligation of GTC or is the holder, beneficial
owner, or the obligor of any note or other evidence of indebtedness of GTC.


 


2.8                                 Taxes.
GTC has filed all returns relating to taxes and duties required to be filed by
it under the laws of Guyana and paid the taxes and duties payable thereunder. The
vesting of the assets and liabilities of GTC in GT&T will not attract any
claim or assessment for additional taxes of any kind being asserted by the
Government.


 


2.9                                 Corporate
and Business Records. The corporate and business records of GTC are true
and accurate in all material respects. These records will be transferred to GT&T.


 


2.10                           Litigation.
There are no material claims, actions, suits, proceedings, judgment or orders,
pending or threatened against GTC.


 


2.11                           Changes
in Financial Condition. Since 31st December 1989, the date
of the last Balance Sheet, there has not been any material change in the
financial condition, assets, business or operations of GTC other than changes
in the ordinary and normal course of business, none of which has had a material
adverse effect on such financial condition, assets, business or operations.


 


2.12                           Absence
of Certain Changes or Events.


 


	
  (a)

  	
   

  	
  Since 31st December 1989, the date
  of the last Balance Sheet, GTC has not, except in the ordinary and normal
  course of its business, and consistent with good business practices:

  



 


3

















 


	
   

  	
   

  	
  (i)

  	
  Incurred any obligation or liability, fixed or
  contingent, other than those under contracts, agreements and leases entered
  into in the ordinary and normal course of business;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii)

  	
  Discharged or satisfied any lien or encumbrance or
  paid any obligation or liability, whether fixed or contingent;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii)

  	
  Mortgaged, pledged or subjected to lien, charge,
  security, interest or to any other encumbrance any of its asses or
  properties;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iv)

  	
  Transferred, leased or otherwise disposed of any of
  its assets or properties, or acquired any assets or properties, other than
  for a fair consideration;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (v)

  	
  Cancelled or compromised any debt or claim;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (vi)

  	
  Waived or released any rights of material value;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (vii)

  	
  Transferred or granted any material rights under any
  concessions, leases, licences, agreements, inventions, trade names, trade
  marks, service marks, copyrights, registrations or licences thereof or
  applications therefor, or with respect to any know-how or other proprietary
  or trade rights;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (viii)

  	
  Made any increase in the compensation payable or to
  become payable by it to any of its employees, except for increases made in
  accordance with its established compensation policies applied on a basis
  consistent with previous practice, or increases made in connection with any
  Collective Bargaining Agreement;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ix)

  	
  Paid or provided for any bonus, stock option, profit
  sharing, pension, retirement or other similar payment or arrangement for or
  on behalf of its employees other than in the normal administration of its
  existing incentive, welfare, pension or retirement plans or 

  



 


4

















 


	
   

  	
   

  	
   

  	
  arrangements, or in connection with any Collective
  Bargaining Agreement;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (x)

  	
  Entered into any transaction of any nature with any
  of its officers or members;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (xi)

  	
  Entered into any transaction, contract or commitment
  with the Government or any Government agency or authority or any other party
  which by reason of its size, nature or otherwise is not in the ordinary
  course of its business;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (xii)

  	
  Undertaken any material borrowing, whether under
  existing or new borrowing arrangements, and entered into any material loan
  agreements except the credit referred to in Section 2.11; or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (xiii)

  	
  Terminated, discontinued, closed or disposed of any
  facility or business operation.

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Since 31st March, 1990 (the date of the
  last quarterly statement), GTC has not:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (i)

  	
  Entered into any employment arrangement or other
  contract or arrangement with respect to the performance of personal services
  which either (a) is not terminable without liability by it on thirty
  (30) days notice or less or (b) involves an annual rate of compensation
  in excess of G$84,000;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii)

  	
  Made any loan to any of its officers, members or
  employees, or to any party other than in the ordinary course of business;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii)

  	
  Suffered any material casualty loss or damage,
  whether or not such loss or damage shall have been covered by insurance,
  which materially affects its ability to conduct its business;

  



 


5

















 


	
   

  	
   

  	
  (iv)

  	
  Issued, sold or otherwise disposed of any evidence
  of indebtedness or other securities;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (v)

  	
  Granted or made any options, rights, commitments or
  any other agreements of any character obligating it to issue any evidence of
  indebtedness or other securities, or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (vi)

  	
  Acquired any equity interest in any other
  corporation, partnership, joint venture or other business association.

  



 


2.13                           No
Breach. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not:


 


	
  (a)

  	
   

  	
  constitute a violation of any law of Guyana;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  constitute a breach of, default under or result in
  the acceleration of, any obligation of GTC of any kind or character; and

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  violate or conflict with any other restriction of
  any kind or character to which GTC is subject.

  



 


2.14                           Authority.
The Government has taken all action required by law or otherwise required to
authorize the execution and delivery of this Agreement, and this Agreement is a
valid and binding Agreement of the Government in accordance with its terms. The
undersigned party executing this Agreement on behalf of the Government has been
duly authorized to execute this Agreement.


 


SECTION 3. REPRESENTATION
AND WARRANTIES OF ATN


 


ATN represents
and warrants to the Government that:


 


3.1                                 Corporate
Structure of ATN. ATN is a private limited company duly established and
incorporated, validly existing and in good standing under the laws in operation
in the United States Virgin Islands.


 


6

















 


3.2                                 Corporate
Power and Action. ATN has corporate power to execute and deliver this
Agreement and has taken all action required by law, its Certificate of
Incorporation, its by-laws and otherwise to authorize such execution and
delivery, and this Agreement is a valid and binding agreement of ATN in
accordance with its terms.


 


3.3                                 Investment
Interest. ATN is acquiring the shares of GT&T for its own account for
investment and not with a view to the sale or distribution of the whole or part of
it to any other person.


 


3.4                                 Capability.
ATN has the requisite human resources and capital and ability to raise
financing to perform all of its obligations and undertakings required by
this Agreement.


 


3.5                                 Bankruptcy.
ATN is not bankrupt, has not been and is not subject to any insolvency
proceedings, nor has it filed for nor is it in any other way involved in any
proceedings for re-organization of the Company or in any similar proceedings
which would affect ATN’s capacity to assume the obligations under this
Agreement or its ability to perform its obligations hereunder.


 


SECTION 4. CONSIDERATION


 


4.1                                 Purchase
Price of Shares. In consideration for the transfer to ATN of the shares in GT&T
representing eighty percent (80%) of its issued share capital and in
consideration of the vesting in ATN of 80% of its total assets and equity, ATN shall
pay to the Government a sum of United States Dollars sixteen million, five
hundred thousand only (U.S. $16,500,000).


 


4.2                                 Additional
Payments. In addition to the sum of United States dollars sixteen million,
five hundred thousand (U.S. $16,500,000), referred to in paragraph 4.1, the
following sums shall be paid by ATN to the Government:


 


(a)                                  An
amount equivalent to twenty (20) per cent of the Liability Decrease. Liability
Decrease means the difference between $7.2 million, the amount of GTC’s foreign
currency liabilities for which GT&T assumes responsibility, and the
settlement sum, the amount necessary to settle these foreign exchange liabilities.


 


7

















 


(b)                                 Amounts
equivalent to any sums made available by way of credit extended to the
Government by any foreign Government or by any corporate body, agency or other
person outside Guyana for the use and benefit of GTC or GT&T, if extended
before Closing, or of GT&T, if extended after Closing, shall be paid to the
Government in immediately available cash in United States dollars by ATN, if
the credit was extended before Closing, or by GT&T if the credit was
extended after Closing provided always that GT&T opts to make use of the
credit so extended. All rights, title and interest in all equipment purchased
with the credit so made available shall be transferred to GTC or to GT&T,
if the purchase is before Closing, or to GT&T, if the purchase is after
Closing, free and clear of all liens. The sums referred to in this paragraph
aggregate to United States dollars ten million only (US$10,000,000) or the date
of this Agreement. The Government of Guyana shall release GTC and GT&T of
all liability in respect of any credits referred to in this paragraph; and


 


(c)                                  If
as a result of the participation of the Government as an owner of equity in GT&T,
interest rates and loan terms are provided by lenders for the benefit and use
of GT &T, at rates and upon terms more favourable than those that
would be available commercially, GT&T will pay to the Government a
commitment fee in United States dollars of two percent (2%) of the gross
principal amount of such loan. The commitment fee shall be paid when ATN or GT &T
becomes entitled to draw the principal of such loan.


 


SECTION 5. COVENANTS BY ATN


 


ATN covenants
and undertakes that after 80% of the equity in GT&T is acquired by it
pursuant to this Agreement, GT&T will comply with the covenants mentioned
hereafter and ATN covenants and undertakes to secure such compliance.


 


5.1                                 Expansion
and Service Improvement Plan. ATN shall prepare and implement through GT&T
a comprehensive Expansion and Service Improvement Plan (an outline of which


 


8

















 


is set out in Annexure “E”) designed to provide national and
international service of the highest quality and most general availability. The
plan will be prepared and finalized in consultation with the Government before
Closing. The plan will include, but not limited to, provision for the
following:


 


(a)                                  connection
of at least 20,000 additional subscriber lines to the existing number of lines
estimated at 21,000, within three years of the date of Closing;


 


(b)                                 within
twenty-four (24) months, achievement of contractually guaranteed quality of
service performance as determined by measurement of service indexes recognized
in the industry in accordance with Annexure “E”;


 


(c)                                  within
three (3) years, in accordance with the Schedule shown in Annexure “E”,
complete a high density backbone microwave (1800 channels) between Lethem and
Georgetown, Georgetown and Crabwood Creek, and establish other facilities
permitting telephone or radio telephone service along the entire coast from
Crabwood Creek to Suddie, and in the interior at:


 


(i)                                     Mahdia;


 


(ii)                                  Issano;


 


(iii)                               Kurupung;


 


(iv)                              Kamarang,
Enachu and Imbaimadai; and


 


(v)                                 Aishalton,
Dadanawa and Wichabai; and


 


(d)                                 within
three years, also extend the backbone microwave to include the Northwest areas;
Port Kaituma, Matthews Ridge, and Mabaruma.


 


5.2                                 Maintaining
and Upgrading Quality of Services. ATN shall cause GT&T to keep its
equipment and services maintained continuously in keeping with international
standards. In


 


9

















 


addition ATN shall cause GT&T to introduce in a timely fashion
current technological advances (wherever practical, applicable and relevant) to
ensure that a high quality of service is always maintained to international
standards.


 


5.3                                 Public
Interest Services. ATN shall cause GT&T to provide full public interest
services, including, but not limited to, inland telegraph services, public call
box telephone services, public emergency telephone services and free telephone
directories.


 


5.4                                 Releasing
the Government from the Liabilities of GTC and GT&T. ATN and GT&T
will take all measures to release the Government from every liability,
including up to a maximum of seven million two hundred thousand dollars (US$7.2
million) of foreign currency liabilities, incurred by GTC and GT&T before
Closing, except any debt the favourable terms of which are conditioned on
continuing a guarantee given by the Government, in which case, however, ATN and
GT&T will indemnify and hold harmless the Government for such debt.


 


5.5                                 Taxes.
Of the taxes and duties payable by GT&T under the laws of Guyana, ATN
covenants and undertakes to cause GT&T to pay in foreign currency taxes
attributable to its net income from international telecommunication services,
to the extent such earnings are realized in foreign currency.


 


5.6                                 Employment.
All the employees of GTC or GT&T employed by it immediately before Closing
are guaranteed continued employment with GT&T, on terms which are not less
favourable to each of such employees than the terms of employment enjoyed
immediately before Closing, for a minimum period of eighteen months after
Closing, subject only to GT&T’s right to dismiss or discharge any employee
for cause.


 


5.7                                 Training
and Career Development. ATN shall cause GT&T to formulate and implement
programmes for the training or retraining of its employees so as to meet its
needs and to make the best use of the employees and to develop their career.


 


5.8                                 Welfare
Plans. All employees of GT&T will be provided with health insurance and
shall have the benefit of retirement plans (which may be funded or
unfunded) established by GT&T. For the purposes of the retirement plans,
all the years of the service of the employees with GTC shall be given credit to
determine vesting and participation rights. However, nothing


 


10

















 


in this Agreement shall be deemed to obligate ATN or GT&T to assume
unfunded retirement plan liability which accrued while the employees were
employed by GTC unless such liability is reflected as a liability on the
Balance Sheet and books of accounts of GTC and then only to the extent of such
liability recorded on the books of account of GTC.


 


5.9                                 Rate
Continuity. GT&T will not increase subscriber rates in operation on the
date of this Agreement for a period of three years after Closing, except, and
then only to the extent to which it becomes justified, on the occurrence of the
following events:


 


(a)                                  in
the event of a substantial increase in the average for a period of six months
of the highest rate at which United States dollar is lawfully sold in Guyana,
over the highest rate at which United States dollar is lawfully sold in Guyana
during the month immediately before Closing;


 


(b)                                 in
the event of a change in long distance charges payable to foreign
correspondents;


 


(c)                                  if
costs to provide service to interior areas specified in the Expansion and
Service Improvement Plan referred to in paragraph 1 of this Section are
proved to be substantially higher than as stated in that Plan; or


 


(d)                                 in
the event of any natural disaster or other act of God leading to extensive
destruction of plant and equipment, provided that GT&T has taken out and
maintained full insurance coverage of property, plant, equipment and business
interruption in accordance with Section 5.14 hereunder and the sums paid
by the insurer are not sufficient to meet the expenses of restoring the
services provided by GT&T or to compensate GT&T for its lost revenue
due to business interruption affected by the natural disaster or other act of
God.


 


5.10                           Switch
to Switch Access. In the case of cellular radio telephone service, in
respect of which GT&T will be granted only a non-exclusive licence, ATN
covenants and undertakes that it will cause GT&T to provide switch to
switch access, at reasonable rates, for any other company or person, providing
cellular radio telephone service, which has the necessary


 


11

















 


licence and permit therefor issued by the Government. ATN also
covenants and undertakes to cause GT&T to provide switch to switch access,
at reasonable rates, to terminal and customer premises equipment, including
telefax and telex equipment acquired by any person otherwise than from ATN, GT&T
or any agency specified by ATN or GT&T.


 


5.11                           Privacy
of Communications. ATN covenants and undertakes that it will, subject to
the laws of Guyana, cause GT&T to secure fully that the privacy and
confidentiality of communications through the services provided by GT&T are
not impinged.


 


5.12                           Assignment
of Shares of ATN in GT&T. ATN covenants and undertakes that the whole
or part of the equity holding of ATN in GT&T will not be assigned by
it to any person without the prior permission of the Government and if ATN
intends to assign the said equity holding, it shall first make an offer to sell
the same to the Government whereupon the Government may buy the same at a
price agreed to between the Government and ATN and in the absence of agreement
at a price determined by arbitration under the International Centre for the
Settlement of Investment Disputes (ICSID).


 


5.13                           Rights
of the Government as Minority Shareholder in GT&T. ATN covenants and
undertakes to fully recognize the rights and interests of the Government as the
holder of minority share capital in GT&T, and in particular:


 


(a)                                  to
recognize the right of the Government to choose such number of members of the
Board of Directors of GT&T proportionate to its share holding, but in no
case less than one; and


 


(b)                                 to
provide the Government, at its request as minority shareholder, full and
complete information and access to records, relating to the business and
operations of GT&T, financial administrative, technical and otherwise,
including but not limited to, the extent and condition of its business, the
rates charged for telecommunication services, income and expenditure and
financial position.


 


12

















 


5.14                           Insurance.
ATN covenants and undertakes that it shall acquire and maintain such insurance
on property, plants and equipment and for business interruption as would be
reasonable for a prudent business to maintain, bearing in mind, the practice in
the Industry.


 


SECTION 6. COVENANTS BY THE
GOVERNMENT


 


The Government Covenants and undertakes as
follows:


 


6.1                                 Licence.
The Government will grant, subject to the provisions of this Agreement, to GT&T
licences under the Post and Telegraph Act, Cap. 47:01, of the Laws of Guyana,
or any legislation enacted to replace it, to carry on, operations to provide
the following services:


 


(a)                                  Public
telephone, radio telephone (except private radio telephone systems which do not
interconnect with GT&T network) and pay station telephone services,
national and international voice and data transmission;


 


(b)                                 Sale
of advertising in any directories of telephone subscribers;


 


(c)                                  Switched
or non-switched private line service supported by facilities constructed over
public right of way;


 


(d)                                 Terminal
and customer premises equipment;


 


(e)                                  Telefax,
telex and telegraph service and telefax network service, excluding the
following operations:


 


(i)                                     sale
of telefax or teleprinter machines;


 


(ii)                                  maintenance
of telefax or teleprinter equipment; and


 


(iii)                               operation
of any facility for the sending and receiving of telefax copies or teleprinter
messages; and


 


(f)                                    Cellular
radio telephone service.


 


13

















 


If any such licences have
not been given to GT&T before Closing it will be given immediately after
Closing. A licence referred to in this paragraph will be subject to the other
paragraphs of this Section.


 


Notwithstanding the
licence granted pursuant to Section 6.1(d) for terminal and customer
premises equipment, ATN covenants and agrees that GT&T will allow customers
on an individual basis to install such equipment purchased by the customer and
imported for the customer’s own use and to connect such equipment to GT&T’s
lines. To ensure compatibility of such equipment GT&T shall provide
customers, on request, with GT&T’s specifications regarding such equipment.
The customer shall be responsible for the maintenance of such equipment.


 


6.2                                 Terms
of Licences. The licence granted to GT&T in respect of the service
referred to in subparagraphs (a), (b) and (c) of Section 6.1
will be an exclusive licence for a period of twenty years and shall be
renewable at the option of GT&T for a further period of twenty years. During
the period of the exclusive licence, no other company, nor the Government,
shall provide any services to which the licence relates. The licence granted to
GT&T with respect to the services referred to in sub-paragraphs (d) and
(e) of Section 6.1 shall be exclusive for a period of ten years, and
shall be renewable at the option of GT&T on a non-exclusive basis.


 


6.3                                 Cellular
Radio Telephone Licence. The Government shall grant to GT&T a
non-exclusive licence to provide cellular radio telephone service anywhere
within the country. The licence shall be for a period of twenty years and shall
be renewable at the option of GT&T for a further period of twenty years.


 


6.4                                 Cancellation
of Licence. The Government shall have the power, which may be
exercised by any authorized person or authority on behalf of the Government, to
cancel any licence or licences granted to GT&T for providing the services
referred to in Section 6.1 if GT&T contravenes any of the material
terms of the licence, or the material provisions of this Agreement, or the
material provisions of the Post and Telegraph Act (Cap 47:01) or any law
enacted to replace it.


 


14

















 


6.5                                 Failure
to Achieve Agreed Levels of Quality or Expansion. Without prejudice to the
provisions of Section 6.4, if GT&T fails to achieve the levels of
quality or service, or the completion of any of the phases of the Expansion and
Service Improvement Plan covenanted for and undertaken by ATN under this
Agreement within the time allowed therefor, the Government shall have the
power, exercised through the Regulatory Body referred to at Section 6.7
below, to examine the breach and the circumstances relating to it and to decide
on an appropriate penalty, if any.


 


6.6                                 No
Condonation of Breach. The Regulatory Body may at the request of the
Government, or GT&T or ATN allow GT&T or ATN time or opportunity to
rectify any breach of the provisions of this Agreement or to achieve agreed
levels of quality of service or for the completion of any of the phases of the
Expansion and Service Improvement Plan, notwithstanding the failure to achieve
or complete the same within the agreed time. Such action by the Government or
the Regulatory Body, shall not be deemed to be a condonation of the breach or
failure.


 


6.7                                 Establishment
of Regulatory Body. The Government covenants and undertakes to establish an
independent statutory authority (hereinafter referred to as the “Authority”) to
regulate the operations of companies or other persons engaged in providing
telecommunication services and operating in Guyana and with a view to securing
compliance with the relevant laws of Guyana and to protecting the interests of
persons making use of such services (hereinafter referred to as subscribers).


 


6.8                                 Subscriber
Rates. Without prejudice to the generality of the foregoing, the Authority
will be empowered to determine questions as to the reasonableness of the rates
charged or to be charged by GT&T for services rendered by it and the
decisions of the Authority will be binding on GT&T.


 


6.9                                 Rates
of Return. In determining the rates to be charged the subscribers, the
Authority shall take into account:


 


15

















 


(a)                                  in
regard to the rates to be charged from subscribers during the first period of
three years from Closing the covenant and undertaking of ATN in Section 5.9;


 


(b)                                 subject
to sub-paragraph (a), GT&T shall be entitled to a minimum rate of return of
15% on capital dedicated to public use. The revenue requirement shall be
calculated on a rate of return methodology to be mutually agreed to by
Government and ATN prior to the establishment of a Regulatory Body or any other
agency charged with the responsibility of regulating the rate of return for GT&T.
Unless and until such mutual agreement is reached between the Government and
ATN, the revenue requirement shall be calculated on the basis of GT&T’s
entire property, plant and equipment pursuant to a rate of return methodology
consistent with the practices and procedures of the United States of America
Federal Communication Commission.


 


6.10                           Management
Services. Where GT&T has engaged ATN or any of its subsidiaries to
render any management services, GT&T shall pay fees in foreign currency in
such amounts as the Board of Directors of GT&T shall approve and the
repatriation of such fees to the United States of America shall not be subject
to currency restrictions, withholding taxes, or any other taxation by the
Government.


 


6.11                           Capital
Dedicated to Telecommunications Business of GT&T. In this Agreement the
expression “capital dedicated to telecommunications business of GT&T” means
the capital assets of GT&T.


 


6.12                           Foreign
Exchange Controls. The Government covenants and undertakes to permit GT&T,
without any restrictions, to make payments in foreign currency to:


 


(a)                                  international
correspondents;


 


(b)                                 creditors
of GT&T of debt denominated in foreign currency;


 


16

















 


(c)                                  suppliers
of imported supplies of equipment, materials or services used and needed in GT&T’s
operations;


 


(d)                                 ATN
by way of dividends declared on shareholdings or other sums due from GT&T. The
repatriation of dividends to ATN shall not be subject to withholding taxes.


 


The repatriation of
dividends to ATN and the payment of interest on debt denominated in foreign
currency shall not be subject to withholding taxes. For the above purposes GT&T
shall be permitted by the Government to retain outside of Guyana sufficient
sums from foreign currency earned or collected by it from its international
telecommunication operations.


 


6.13                           Duties
and Taxes. After Closing, GT&T shall be subject to the same tax, duty
and exemption regime as applied to GTC or GT&T prior to Closing. This
regime is described in Annexure “F”.


 


6.14                           Foreign
Nationals. The Government covenants and undertakes to grant necessary visas
and work permits to enable GT&T to employ foreign nationals eligible for
such visas and work permits under the laws of Guyana (including the granting of
visas to their family members) in posts required for carrying on its activities
as mentioned in this Agreement and for which suitably qualified Guyanese are
not available and to enable foreign nationals to serve as directors of GT&T.
This paragraph shall apply whether such visas and work permits are permanent or
temporary in nature.


 


6.15                           Conduct
of Business before Closing. The Government covenants and undertakes that at
all times after the date of this Agreement and including the Closing date, the
Government will use its best efforts to cause GTC, and GT&T when it is
established to take over the assets and liabilities of GTC, to comply with the
following, except where the Government and ATN agree otherwise:


 


(a)                                  GTC
and GT&T shall conduct their business in the usual, regular and ordinary
course, and in keeping with present business practices, and, to the extent
consistent with such operations, use their best efforts to preserve the present
business organization intact, and shall do nothing (otherwise than


 


17

















 


in the ordinary
course of the management of the business, including suspension or dismissal of
an officer or employee for cause) which shall have the effect of depriving them
of the services of their present officers and employees or to adversely affect
present relationships with persons having business dealings with GTC or GT&T;


 


(b)                                 GTC
or GT&T shall maintain to the best of their ability all the assets and
properties at present owned by GTC, and which are reasonably necessary for its
business, in customary repair, order and condition;


 


(c)                                  GTC
and GT&T shall maintain the books, accounts and other records GTC has been
maintaining in the past in connection with its business, in the usual, regular
and ordinary manner, on a basis at least consistent with prior years, and
endeavour to comply with all the laws applicable to GTC or GT&T, as the
case may be, and to perform without default all the obligations of
GTC or GT&T; and


 


(d)                                 excepting
any expenditure incurred or advances on equipment purchases under the contract
already entered into by GTC with Northern Telecoms Corporation, without the
prior consent in writing of ATN no individual capital expenditure or advance on
equipment purchase in excess of G$100,000 (one hundred thousand Guyana dollars
only) will be incurred by GTC or GT&T.


 


6.16                           Accounts
Receivable. At or prior to Closing the Government shall pay to GT&T all
amounts which are due from the Government to GTC and GT&T.


 


6.17                           Right
of Way. GT&T shall be allowed the gratuitous use of the streets, public
roads, rivers and waters of Guyana required to be used by it for the purposes
of placing telephone poles and cables, for the purpose of providing service to
subscribers. The said right of GT&T shall be subject to the restrictions
and provisions of the Post and Telegraph Act (Cap. 47:01) of the Laws of
Guyana, or any legislation enacted to replace it.


 


18

















 


6.18                           Banking.
GT&T shall be permitted to retain net revenues from international
telecommunication operations in one or more banks located outside Guyana. However,
nothing in this Agreement is intended to release ATN, it nominee or GT&T of
their respective obligations under this Agreement or the laws of Guyana
regarding foreign currency derived from net settlements of international calls.


 


6.19                           Overseas
Private Investment Corporation (OPIC). The Government shall support any
application by ATN and/or GT&T to the Overseas Private Investment
Corporation (OPIC) for investment insurance coverage in connection with ATN’s
obligations under this Agreement.


 


SECTION 7. COVENANTS BY THE
GOVERNMENT AND ATN


 


The Government
and ATN agree that:


 


7.1                                 GT&T
Stock. GT&T shall have one class of stock which should consist of
common stock. Each share of common stock shall have equal voting rights and the
same rights to share in dividends. No shareholder in GT&T shall have the
right to acquire authorized but unissued shares of GT&T common stock unless
those shares are being offered to all shareholders upon terms that allow each
shareholder to maintain their proportionate interest and ownership of GT&T.


 


7.2                                 Shareholding
in GT&T. ATN and the Government shall at all times after Closing hold GT&T
shares in the following proportions:


 


	
  ATN

  	
  Eighty
  percent (80%)

  
	
   

  	
   

  
	
  The
  Government or its nominee

  	
  Twenty
  percent (20%)

  



 


Should it become
necessary to increase the share capital of GT&T and should both parties
hereto agree to the increase, the share capital of GT&T may be
increased by the amount agreed upon by both Parties and the new shares shall be
allotted to ATN and the Government in the proportion set out above unless
otherwise agreed to by them.


 


19

















 


7.3                                 Directors.
GT&T shall have not less than six, but not more than twelve, directors. After
Closing, the Government shall have the right to nominate twenty percent (20%)
of the directors of GT&T, and ATN shall have the right to nominate the
remainder (viz 80%) of the directors. There shall always be at least one
director of GT&T who is a nominee of the holder of minority shares.


 


7.4                                 Board
Meetings. All decisions in respect of important matters pertaining to GT&T
and its business shall be discussed and decided at the meetings of the Board of
Directors. There shall be at least one meeting of the Board of Directors each
month.


 


7.5                                 Obligations
to Provide Universal Service. GT&T shall have the obligation to provide
universal service. This means that the business and development plans of GT&T
will be designed to provide as many residents of Guyana as possible with the
benefit of telephone service.


 


7.6                                 Access
to GTC’s Business Records. From the date of the execution of this Agreement
until Closing, the Government and its authorized agents, on the one hand, and
ATN and its attorneys, accountants, engineers, and its other agents and
representatives, on the other hand, as are reasonably required to review the
corporate books and business records of GTC, shall be allowed access to the
corporate and business records of GTC. To this end, the Government shall
designate certain employees of GTC to facilitate the Government’s and ATN’s
review of the corporate books and business records of GTC. All information
requested by ATN and the Government and available to GTC or GT&T pertaining
to GTC’s and GT&T’s operations will be made available provided that such
request is made after reasonable notice and the examination of the records
takes place during normal business hours. The Government and ATN will be
entitled to make photostatic copies or otherwise duplicate copies of GTC’s and GT&T’s
corporate records and books of account. After closing, both the Government and
ATN shall have equal access to the corporate books and business records of GT&T.


 


7.7                                 Confidentiality
of Information. Except for the purpose of carrying out the operations of GT&T
or complying with the provisions of any law, information referred to in Section 5.13(b) or
Section 7.6 shall be maintained in strict confidence and shall not be
published or publicly made available without the written consent of the
shareholders of GT&T.


 


20

















 


7.8                                 Best
Efforts Regarding Compliance with Agreement. Government and ATN covenants
to use their best efforts to cause all the obligations imposed upon them by
this Agreement to be duly complied with and to cause all conditions precedent
to such obligations to be satisfied.


 


7.9                                 Settlement
of Accounts with Foreign Telecommunications Administration. ATN or GT&T
may negotiate with foreign telecommunications administrations for
reconciling or settling the net amounts due from those administrations to GTC
of GT&T in respect of any period prior to Closing and if as a result of
such reconciling or settling more amounts than mentioned in the financial
statements and Annexures “C” and “D” are found due from those administrations
to GTC or GT&T in respect of the said period, eighty-five (85) percent of
that amount shall be paid by ATN to the Government and fifteen (15) percent may be
retained by ATN.


 


SECTION 8. DUE DILIGENCE


 


For a period
of sixty (60) days from the date of the execution of this Agreement, ATN’s
accountants, attorneys, engineers, and other agents and representatives, as are
required, shall have a right to examine (as ATN deems relevant) the books of
accounts and supporting records and other corporate books and records, and
physical assets of GTC and GT&T. This examination shall take place during
normal business hours. The Government represents and warrants its co-operation
and the co-operation of the officers and employees of GTC and GT&T before
Closing regarding the aforementioned examinations. ATN shall maintain all
information obtained by it under this paragraph in strict confidence. The
information shall not be published or publicly made available without the
written consent of the Government.


 


SECTION 9. CLOSING


 


Completion of
the matters referred to in SECTION 1 and 2.2 and the payment of the amount
mentioned in Section 4.1 shall be effected no sooner than thirty days, and
not later than forty-five days after the completion of the due diligence
provided for in Section 8 of this Agreement. The Closing shall be held at
Georgetown, Guyana, on a date mutually agreed to by the Government, GT&T
and ATN.


 


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SECTION 10.                                             CONDITIONS
PRECEDENT TO OBLIGATION OF ATN


 


The obligation
of ATN to purchase eighty percent (80%) of the shares in GT&T pursuant to
this Agreement is subject to the satisfaction at or before Closing of all the
following conditions:


 


10.1                           Accuracy
of Representations and Warranties. The representations and warranties of
the Government contained in this Agreement shall be true in every material
respect on and as of the Closing Date, with the same effect as though such
representations and warranties had been made on and as of such date, except to
the extent attributable to actions consented to in writing by ATN.


 


10.2                           Performance
of Agreements. The Government shall have performed all obligations and
agreements required to be performed by it and complied with all covenants and
other terms and conditions required to be complied with by it, hereunder, on or
prior to the Closing Date.


 


10.3                           Certificate.
The Government shall have furnished ATN with a certificate dated the Closing
Date, to the effect that the Government has fulfilled the conditions specified
in paragraphs 1 and 2 of this Section.


 


10.4                           Opinion
of Counsel for the Government. ATN shall have received a favourable legal
opinion of counsel for the Government, dated as of the Closing Date, in the form and
substance reasonably satisfactory to ATN and its counsel, to the effect that:


 


(a)                                  The
Government has full right, power and authority to enter into this Agreement;


 


(b)                                 The
Government has full right, power and authority to sell, assign, transfer and
deliver the shares and assets of GT&T held by it;


 


(c)                                  This
Agreement and the instruments of assignment and transfer and delivery of shares
of GT&T required hereunder, have been duly executed and delivered by the
Government and constitute a legal valid and binding obligation of the
Government;


 


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(d)                                 Any
legislation enacted by the Government to give effect to this Agreement shall be
consistent with the Governments’ obligations as set forth in this Agreement;


 


(e)                                  The
covenants by the Government in SECTION 6 and the covenants by the
Government and ATN in SECTION 7 of this Agreement will survive Closing and
will remain a binding legal commitment throughout the initial term of the licences
referred to in Section 6.1 and the term of any renewal thereof;


 


(f)                                    GT&T
has been granted all the necessary licences and permits and has all the requisite
authorizations necessary to provide national and international
telecommunications services pursuant to all the terms, conditions and
obligations of the Parties to this Agreement.


 


Such opinion shall also
include such other matters incidental to the transactions contemplated hereby
as ATN or its counsel may reasonably request.


 


SECTION 11.                                             CONDITIONS
PRECEDENT TO OBLIGATION OF THE GOVERNMENT


 


The obligation
of the Government to sell to ATN eighty percent (80%) of the shares in GT&T
pursuant to this Agreement is subject to the satisfaction at or before Closing
of all the following conditions:


 


11.1                           Accuracy
of Representations and Warranties. The representations and warranties of
ATN contained in this Agreement shall be true in every material respect on and
as of the Closing Date with the same effect as though such representations and
warranties had been made on and as of such date, except to the extent
attributable to actions consented to in writing by the Government.


 


11.2                           Performance
of Agreements. ATN shall have performed all obligations and agreements
required to be performed by it and complied with all covenants and other terms
and conditions required to be complied with by it, hereunder, on or prior to
the Closing Date.


 


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11.3                           Certificate.
ATN shall have furnished the Government with a certificate dated the Closing
Date to the effect that ATN has fulfilled the conditions specified in
paragraphs 1 and 2 of this Section.


 


11.4                           Opinion
of Counsel for ATN. The Government shall have received a favourable legal
opinion of counsel to ATN, dated as of the Closing Date, inform and
substance reasonably satisfactory to the Government and its counsel, to the
effect that:


 


(a)                                  ATN
is a corporation duly organized, validly existing and in good standing under
the laws of the United States Virgin Islands;


 


(b)                                 ATN
has the full right, power and authority to enter into this Agreement to
purchase the shares of GT&T to be sold to it hereunder;


 


(c)                                  This
Agreement has been duly executed and delivered by ATN and constitutes a legal,
valid and binding obligation of ATN;


 


(d)                                 The
covenants by ATN in SECTION 5 and the covenants by the Government and ATN
in SECTION 7 of this Agreement shall survive Closing and shall remain a
binding legal commitment throughout the initial term of the licences referred
to in Section 6.1 and the term of any renewal thereof.


 


Such opinion shall also
include such other matters incidental to the transaction contemplated hereby as
the Government or the counsel of the Government may reasonably request.


 


SECTION 12.                                             RENEWAL
OF LICENCES


 


12.1                           Notices
and Applications for Renewal of Licences. Notice of intention to seek
renewal any licence granted to GT&T shall be given by GT&T one year
before the expiry of the term of the licence and the application for renewal of
any such licence shall be made in accordance with the law applicable thereto.


 


12.2                           Renewal
of Exclusive Licence After Expiry of Term. After the expiry of the initial
term of any exclusive licence granted to GT&T in respect of the services
mentioned in


 


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Section 6.1(a), (b) and (c)  and referred to in Section 6.2,
the Government shall renew the licence on an exclusive basis in accordance with
applicable laws of Guyana and the terms of this Agreement. Further, after the
expiry of the initial term of any exclusive licence granted to GT&T in
respect of the services mentioned in Section 6.1(d) and (e) and
referred to in Section 6.2, the Government shall renew the licence on a
non-exclusive basis in accordance with the laws of Guyana and the terms of this
Agreement.


 


12.3                           Sale
of Assets of GT&T on Non-renewal or Termination of Licence. If on
account of the non-renewal of any licence granted to GT&T for carrying on
any of the activities referred to in Section 6.1 GT&T has to close its
operations, the Government shall be entitled to purchase the shares of ATN in GT&T
or the assets of GT&T, on such terms as may be agreed between ATN and
the Government or, on failure to reach such agreement, as determined by
arbitration conducted by ICSID.


 


SECTION 13.                                             FORCE
MAJEURE


 


13.1                           Definition.
For the purpose of this Agreement, “force majeure” shall mean any event
which could not have reasonably been foreseen, is beyond the reasonable control
of the Party claiming to be affected by such event, has not been brought about
at the instance of such Party and has caused non-performance or delay. Force
Majeure may include but is not limited to such events as insurrection, war
or other armed conflict, floods, earthquakes and other natural disasters.


 


13.2                           Liability
in the Event of Force Majeure. No Party shall be held liable or deemed to
be in default under this Agreement for any failure to perform obligations
and duties hereunder if such failure has resulted directly or indirectly from
force majeure, provided that that Party had taken all precautions to minimize
the consequences of the force majeure.


 


13.3                           Notice
for Force Majeure. In the event of force majeure, the Party so claiming
shall notify the other Party in writing of the circumstances and the Parties
shall meet forthwith to determine the action to be taken.


 


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13.4                           Extension
of Time for Force Majeure. Any period during which the event of force
majeure continues shall be added to the time allowed for any Party to perform any
act or undertake any obligation.


 


SECTION 14.                                             INDEMNIFICATION


 


14.1                           Indemnification
by Government. The Government agrees to indemnify and hold ATN and GT&T,
or any one of them, and their respective directors, officers, employees and
agents, harmless from and against all judgments, damages, losses, claims,
liens, penalties, obligations, liabilities, settlements and expenses, including
reasonable attorney’s fees, arising out of:


 


(a)                                  any
breach of any warranty or covenant or any inaccurate or erroneous
representations of the Government contained herein, in any Annexure attached
hereto or in any certificate, agreement or other instrument duly executed and
delivered by the Government pursuant to this Agreement; and


 


(b)                                 any
failure of the Government to perform or comply with any provision,
obligation or duty contained in this Agreement and required to be performed or
complied with by the Government.


 


14.2                           Indemnification
by ATN. ATN agrees to indemnify and hold the Government and its officers,
employees and agents harmless from and against all judgments, damages, losses,
claims, liens, penalties, obligations, liabilities, settlements and expenses,
including reasonable attorney’s fees, arising out of:


 


(a)                                  any
breach of any warranty or covenant or any inaccurate or erroneous
representations of ATN contained herein, in any Annexure attached hereto or in
any certificate, agreement or other instrument duly executed and delivered by
ATN pursuant to this Agreement; and


 


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(b)                                 any
failure of ATN or GT&T to perform or comply with any provision,
obligation or duty contained in this Agreement and required to be performed or
complied with by ATN or GT&T or both.


 


14.3                           Making
of Claims. All claims for indemnification under this Agreement shall be
made within the time specified in SECTION 15 hereof. All claims for
indemnification shall be made in writing.


 


SECTION 15.                                             SURVIVAL
OF AGREEMENT TERMS


 


15.1                           Representations
and Warranties. The representations and warranties which are included
herein or in any Annexure attached hereto, certificate, agreement or other
instrument duly executed and delivered pursuant to this Agreement, and the
indemnities which are provided for herein to the extent that they relate to the
said representations and warranties, shall survive the Closing.


 


15.2                           Covenants
and Certain Other Provisions. Any covenant or other provision of this
Agreement which by its nature and content is applicable to the operation of GT&T
and ATN, or any one of them, shall be effective and survive Closing, and shall
be binding on the Parties for a period equal to the initial term of the
licence, or any renewals thereof, granted in respect of such operations plus
two (2) years.


 


15.3                           Other
Provisions . Any provision of this Agreement not included in paragraphs 1
and 2 of this Section shall survive Closing, and shall be binding on the
Parties, for a three (3) year period after Closing.


 


SECTION 16.                                             GOVERNING
LAW; WAIVER OF SOVEREIGN IMMUNITY; SUBMISSION TO JURISDICTION


 


16.1                           Governing
Law. This Agreement shall be construed under and in accordance with the
laws of Guyana.


 


16.2                           Waiver
of Sovereign Immunity. The Government agrees to waive any defence of
sovereign immunity and consents to suit, if necessary, to resolve disputes
concerning the interpretation of this Agreement.


 


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16.3                           Submission
to Jurisdiction. For the purpose of resolving disputes regarding this
Agreement, or arising therefrom, the Government, ATN and GT&T shall submit
themselves to the jurisdiction of the courts of Guyana. Without prejudice to
the above, and any other provision of this Agreement, the Parties may agree
in writing to resolve any dispute between them regarding this Agreement, or
arising therefrom, by arbitration conducted by ICSID and when they so agree the
dispute shall be referred to ICSID.


 


SECTION 17.                                             WAIVERS


 


17.1                           Extension
of Time and Waivers. Any Party to whom any obligations is due under this
Agreement may be written notice to the Party from whom performance of the
obligation is due:


 


(a)                                  extend
the time for the performance of any of the obligations or the taking of other
action under this Agreement;


 


(b)                                 waive
inaccuracies in the representations and warranties of the other contained in
this Agreement, in any Annexure hereto, or in any certificate issued hereunder;


 


(c)                                  waive
compliance with any of the covenants or conditions contained in this Agreement;
or


 


(d)                                 waive
or modify performance of any of the obligations under this Agreement.


 


Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including, but
without any limitation, any investigation by or on behalf of any Party, shall
be deemed to constitute a waiver, by the Party taking such action, or
compliance with, or performance of, any representations, warranties, covenants,
conditions or obligations contained in or under this Agreement.


 


17.2                           Waiver
of Breach Not to Extend to Subsequent Breach. Any waiver by a Party of a
breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach.


 


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SECTION 18.                                             EFFECT
OF HEADINGS


 


The headings
of the various Sections and paragraphs herein are inserted merely as a matter
of convenience and for reference and any such heading shall not be construed as
in any manner defining, limiting or describing the scope or intent of the
particular Section or paragraph to which it refers, or as affecting the
meaning or construction of the language in the body thereof.


 


SECTION 19.                                             NOTICES


 


All notices
which are required or may be given pursuant to this Agreement shall be in
writing and shall be sufficient in all respects if delivered in person or
mailed by registered, certified or express mail, postage prepaid, as follows:


 


To the
Government:


 


The Minister
for the time being assigned responsibility for telecommunications, at the
address of his office in Georgetown, Guyana;


 


To ATN:


 


Atlantic
Tele-Network Inc.

P.O. Box 6100

St. Thomas

U.S. Virgin Islands  00801

Attention:  Jeffrey J. Prosser


 


To GT&T:


 


When
incorporated, at the address of its registered office,


 


or at such other address
as any of the above parties shall have designated by notice in writing to the
other parties.


 


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IN WITNESS
WHEREOF, the Government of the Co-operative Republic of Guyana, and Atlantic
Tele-Network, Inc. have each caused this Agreement to be executed on its
behalf by its officer or representative thereunto duly authorized, all as of
the day and year first above written.


 


	
  ATLANTIC TELE-NETWORK INC

  	
  GOVERNMENT OF THE COOPERATIVE

  REPUBLIC OF GUYANA

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
  /s/ Jeffrey
  J. Proser

  	
   

  	
  By

  	
    /s/ W.A.H.L. Parris

  	
   

  
	
  Jeffrey J. Prosser

  	
  W.A.H.L. Parris

  
	
  Chairman

  	
  Deputy Prime Minster Planning and Development

  
						



 


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