3662

NEW ZEALAND GAZETTE

No. 175

17. ASSIGNMENT

17.1 Subject to Clause 17.5, the Service Operator may not assign this Agreement or its rights or obligations under this Agreement except with the prior written consent in writing of the Principal ROC which consent shall not be unreasonably withheld, but shall only become effective if:

17.1.1 the Service Operator is not at the time of applying for such consent or thereafter in default in the due and punctual observance or performance of the covenants and agreements on the Service Operator’s part contained or implied in this Agreement; and

17.1.2 the Service Operator proves to the satisfaction of the Principal ROC that the incoming assignee is of sound financial standing and has the ability to perform the obligations of the Service Operator under this Agreement, and is a Network Operator and/or registered as a registered operator under the Telecommunications (International Services) Regulations 1989; and

17.1.3 the Service Operator pays to each Telecom ROC all costs incurred by each respective Telecom ROC (whether or not the proposed assignment proceeds to completion) including each respective Telecom ROC’s reasonable administrative and other expenses and legal costs of and incidental to:

17.1.3.1 the giving of consent; and

17.1.3.2 the assignment; and

17.1.4 the Service Operator procures the execution by the incoming assignee of a covenant with each Telecom ROC that the incoming assignee will at all times during the continuance of the term of this Agreement duly pay the charges payable pursuant to this Agreement at the times and in the manner mentioned in this Agreement and observe and perform all the covenants, conditions and agreements contained or implied in this Agreement on the part of the Service Operator to be observed and performed but without thereby releasing the Service Operator from the Service Operator’s obligations to pay the charges or any other amounts payable contained or implied in this Agreement, and such covenant to contain a like covenant in the event of any subsequent transfer or assignment; and

17.1.5 in circumstances where the Principal ROC so requests, the Service Operator procures the execution by any holding company of the incoming assignee of a guarantee of the performance of the incoming assignee’s obligations under the covenant with each Telecom ROC referred to in Clause 17.1.4; and

17.1.6 the Service Operator and the incoming assignee comply with the Principal ROC’s requirements in relation to the documentation of the intended assignment or transfer.

17.2 Any change or re-arrangement in the beneficial ownership of the principal shareholding of the Service Operator or its holding company (if any) or any alteration in the Memorandum and Articles of Association thereof having the effect of altering the effective control of the Service Operator or its holding company (if any) shall be deemed a proposed assignment of this Agreement. For the purposes of this Clause 17.2 and in relation to the Service Operator (but not any assignee of the Service Operator) “effective control” of the Service Operator shall be deemed to have been altered when any one shareholder in the Service Operator obtains 50% or more of the voting shares in the Service Operator except where the Service Operator is a public company listed on the Stock Exchange Number One Board.

17.3 Each Telecom ROC may without notice to or consent of the Service Operator assign this Agreement or any part of its benefits or obligations under this Agreement to any other member of the Telecom Group but as between the Service Operator and the Telecom ROC any such assignment shall not prevent the Telecom ROC exercising any right or claiming any benefit, protection or indemnity under this Agreement.

17.4 Any attempt at assigning this Agreement other than as authorised hereunder shall be null and void. Subject to the above restrictions on assignment, this Agreement shall ensure to the benefit of and be binding upon successors and assigns of the parties to this Agreement.

17.5 Notwithstanding anything in this Clause 17, the Service Operator may allow any person the use of the Service Operator’s Network Service.

18. COMMENCEMENT AND TERMINATION

18.1 Subject to the other provisions of this Clause 18 and Clause 25, all rights, duties and obligations under this Agreement shall have effect and shall for all purposes be deemed to have had effect from and including the date of commencement of this Agreement which is []. This Agreement shall continue for a period to and including 31 December 1995 (“the initial term”) and shall be automatically renewed for an equal period of 1 year at the end of the initial term (and at the end of each subsequent 1 year period) unless the Principal ROC or the Service Operator gives notice to the other not less than 6 months prior to the expiration of the initial term (or a subsequent 1 year period as the case may be) that it does not wish to renew this Agreement. If the Principal ROC or the Service Operator gives notice to the other that it does not wish to renew this Agreement, then each shall at the request of the other, negotiate in good faith with the other to agree a new interconnection agreement to cover the period commencing on the expiry of this Agreement on terms and conditions which are satisfactory to the parties.

18.2 This Agreement may be terminated forthwith by the Principal ROC in the event that:

18.2.1 any amounts which a Telecom ROC has invoiced to the Service Operator under this Agreement (other than amounts in respect of which the Service Operator has given notice of a Manifest Error in accordance with Clause 6.6) remain unpaid 1 month after the Due Date of the relevant invoice; or

18.2.2 any amounts which are payable by the Service Operator to a Telecom ROC under Clauses 6.6.1 or 6.7 remain unpaid 1 month after the date of resolution of the dispute; or

18.2.3 the Service Operator neglects or fails to perform and observe any of the material covenants conditions or agreements contained in this Agreement which on the part of the Service Operator are or ought to be performed and such default