EXHIBIT 10.6
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated by [*****]. A complete version of this
exhibit has been filed separately with the Securities and Exchange Commission.
ATLANTIC CROSSING/AC-1
SUBMARINE CABLE SYSTEM
INDEFEASIBLE RIGHT OF USE AGREEMENT
IN
INLAND CAPACITY
(United States)
THIS AGREEMENT (as amended, supplemented or otherwise modified from time to
time, this "Agreement"), made and entered into as of this 21 day of June, 1999,
by and among GT LANDING CORP. ("Grantor") and VIA NET WORKS EUROPE HOLDING B.V.,
a company organized and existing under the laws of The Netherlands (the
"Purchaser").
WITNESSETH:
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WHEREAS, the Purchaser and Atlantic Crossing Ltd. ("ACL") are parties to
the Capacity Purchase Agreement, dated as of June 21, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Capacity Purchase
Agreement"), to which this Agreement is attached;
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings given to them in the Capacity Purchase Agreement;
WHEREAS, subject to the terms and conditions set forth in the Capacity
Purchase Agreement, the Purchaser intends to acquire an IRU in the Purchased
Capacity which represents capacity on the System between the System Interface
points at the Cable Stations;
WHEREAS, Grantor has acquired rights to capacity in order to give the
Purchaser the option to extend the Purchased Capacity acquired on the System
beyond the Cable Station to a certain point(s) of interface in the city
specified on Schedule I hereto;
WHEREAS, the Purchaser desires to acquire rights with respect to the Inland
Capacity (as defined herein) set forth on Schedule I hereto on an indefeasible
right of use basis ("IRU") and such Inland Capacity represents capacity between
the System Interface point of the Cable Station and the point of interface in
the applicable city set forth on Schedule I hereto; and
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WHEREAS, the IRU in the Inland Capacity provided hereunder, together with
the IRU in the S and T Capacity provided under the Capacity Purchase Agreement,
convey to the Purchaser service between such S Capacity and the point of
interface at the applicable city set forth on Schedule I hereto;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants contained herein covenant and agree with each other as follows:
1. DEFINITIONS. Terms defined in the preamble and in the recitals hereto
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shall have their respective meanings when used herein and the following terms
shall have the following meanings:
"Backhaul Agreement" means any agreement between Grantor and a
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Backhaul Provider, pursuant to which Grantor acquires rights in Inland
Capacity.
"Backhaul Provider" means any entity providing Grantor rights to
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Inland Capacity.
"business day" means a day other than a Saturday, Sunday or other day
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on which commercial banks in New York City or Bermuda are authorized or
required by law to close.
"Cable Station" means the cable station described on Schedule I
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hereto.
"Dollars" or "$" means United States dollars.
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"Grantor's Account" means the bank account of Grantor maintained with
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Deutsche Bank AG, New York Branch, at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (account number 105330260016) or such other account as Grantor may
designate to the Purchaser in writing. Wire instructions for the above-
referenced account are as follows:
Account Name: Atlantic Crossing Ltd.
Account Number: 105330260016
Bank Name: Deutsche Bank AG, New York Branch
ABA No.: 026 003 780
Reference: Atlantic Crossing Attn: Xxxxx Xxxxxxxxx
"Initial Payment Date" means, with respect to the IRU granted in
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respect of any Inland Capacity set forth on Schedule I hereto, the date on
which the Purchaser pays Grantor, in immediately available Dollars, the
initial amount required to be paid by the Purchaser for such Inland Capacity
in accordance with Section 3(b) of this Agreement.
"Inland Capacity" means capacity on a fiber optic telecommunications
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system which connects the System Interface at the Cable Station to the Inland
Point of Interface.
"Inland Capacity Purchase Price" means, with respect to the IRU granted
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in respect
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of any Inland Capacity set forth on Schedule I hereto, the amount payable by
the Purchaser in respect of such Inland Capacity and set forth under the
heading "Purchase Price" on Schedule I hereto.
"Inland Point of Interface" means the point of interface in the
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applicable city set forth on Schedule I hereto.
"Minimum Capacity Unit" or "MCU" means the minimum capacity to be
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purchased by the Purchaser in the Inland Capacity. An STM-1 is designated as
the MCU for purposes of this Agreement.
"Payment Due Date" means, with respect to the IRU granted in respect
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of any Inland Capacity, the payment date as set forth in Schedule I hereto.
"RFS Date" means, with respect to any Inland Capacity, the date on
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which such Inland Capacity will be available for service and has achieved the
RFS Standard described in Attachment 2.
"Total Purchase Price" means the aggregate amount payable by the
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Purchaser for the IRU in the Inland Capacity and set forth on the bottom of
Schedule I to this Agreement opposite the phrase "Total Purchase Price."
2. IRU FOR INLAND CAPACITY. Effective on the Initial Payment Date, Grantor
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grants to the Purchaser, for the term of this Agreement, an IRU in the Inland
Capacity on the terms and conditions set forth herein. So long as no event has
occurred which entitles Grantor to suspend service under this Agreement, the
Purchaser shall be entitled to the quiet enjoyment and use of the rights granted
hereunder free from interference from the Grantor or any person claiming through
Grantor, such as Grantor's lenders.
3. PAYMENT FOR CAPACITY. (a) Financing. Grantor shall finance the Purchase
----------------------- ---------
Price for the Purchased Capacity in accordance with Schedule II of the Capacity
Purchase Agreement. Payments by Purchaser shall (i) be calculated to pay Grantor
interest calculated at the rate set out therein, (ii) be pre-payable, in whole
or in part, without penalty, and (iii) be secured by Grantor retaining a
security interest in the IRU until the Purchase Price is fully paid. Each of the
parties shall, at its expense, take all such actions and make all such filings
and recordings as are reasonably requested to establish, perfect and protect the
other party's interest in such IRU.
(b) Payment of Inland Capacity Purchase Price. In exchange for the IRU
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interest granted pursuant to this Agreement in any Inland Capacity, the
Purchaser shall, on or before each Payment Due Date, pay to the Grantor's
Account in immediately available Dollars, an amount equal to the Inland Capacity
Purchase Price; provided, however, the aggregate payments made by the Purchaser
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under paragraphs (a) and (b) of this Section 3 shall not exceed the Total
Purchase Price.
(c) Taxes. All payments made by the Purchaser under this Section 3 shall be
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made without any deduction or withholding for or on account of any tax, duty or
other charges of
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whatever nature imposed by any taxing or governmental authority in the
jurisdiction from which payment by the Purchaser originates or in any other
jurisdiction claiming the right to impose such tax, duty or charge due to the
location of any business or properties of the Purchaser (collectively "Taxes").
If the Purchaser is or was required by law to make any deduction or withholding
for or on account of any Taxes from any payment due hereunder to Grantor, then,
notwithstanding anything to the contrary contained in this Agreement, the gross
amount payable by the Purchaser to Grantor will be increased so that, after any
such deduction or withholding for Taxes, the net amount received by Grantor will
not be less than Grantor would have received had no such deduction or
withholding been required. If any taxing or government authority asserts that
the Purchaser should have made a deduction or withholding for on account of any
Taxes with respect to all or a portion of any payment made hereunder, the
Purchaser hereby agrees to indemnify the Grantor for such Taxes and hold the
Grantor harmless on an after-tax basis from and against any Taxes, interest or
penalties levied or asserted in connection therewith.
4. OPERATION AND MAINTENANCE OF INLAND CAPACITY.
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(a) Except as otherwise set forth in this Agreement, the Purchaser shall
not be required to make any additional payments for costs associated with
operating, maintaining and repairing the Inland Capacity in which an IRU has
been granted hereunder.
(b) Grantor shall use reasonable commercial efforts to cause the Inland
Capacity in which an IRU has been granted hereunder to be maintained in
efficient working order and in accordance with industry standards and, to the
extent applicable, the Maintenance Performance Standards set forth in Schedule
IV to the Capacity Purchase Agreement which Schedule IV is incorporated herein
by reference. Grantor represents that at all times it shall use commercially
reasonable efforts to require the applicable Backhaul Provider with which it has
contracted to provide routine, preventive and corrective maintenance for the
Inland Capacity in accordance with performance standards that at least meet
prudent industry standards. Grantor will use reasonable commercial efforts to
cause the Backhaul Provider with which it has contracted to perform its
obligations under the applicable Backhaul Agreement.
(c) Grantor will have sole responsibility for negotiating, executing and
administering contracts related to the acquisition of rights in any Inland
Capacity from Backhaul Providers.
(d) Should any condition exist in any Inland Capacity in which an IRU has
been granted hereunder that may impair the integrity of such Inland Capacity,
Grantor shall take reasonable actions to cause to be initiated maintenance on
such Inland Capacity and Grantor shall take reasonable actions to cause to be
initiated planned maintenance on such Inland Capacity in each case which may
include the deactivation of such Inland Capacity. Grantor shall, to the extent
reasonably practicable, advise the Purchaser in writing at least thirty (30)
days (or such shorter period as may be agreed) prior to the initiation of a
planned maintenance operation of the timing and scope of such planned
maintenance operation.
(e) In addition to fulfilling its obligations as set forth in Section 4(b),
in the event of disruption of service, Grantor shall use commercially reasonable
efforts to cause service to be
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restored as quickly as reasonably possible, and Grantor shall take such measures
as are reasonably necessary to obtain such objective.
5. INVOICES; DEFAULT INTEREST. (a) Invoices. Grantor or its authorized
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agent shall render invoices under this Agreement in Dollars, and the Purchaser
shall pay such amount in Dollars. The Purchaser shall make all payments by means
of a wire transfer to the Grantor's Account. Any payments required to be made
pursuant to this Agreement shall, save for the Initial Payment which shall be
made in accordance with the provisions of Section 3(b), be made on the later of
(i) the date when due or (ii) thirty (30) business days after an invoice is
received from Grantor by Purchaser. In the event the Purchaser has a dispute, in
respect of payment(s), and such dispute is of a reasonable, good faith,
commercial and uncapricious nature, the Purchaser shall be entitled to withhold
such payment(s) until the dispute is resolved. The Purchaser shall, however, be
obliged to use best efforts to assist in resolving such dispute referred to in
this Section 5(a).
(b) Any invoice rendered under this Agreement which is not paid when due,
shall accrue interest at the annual rate of six percent (6%) above the rate for
U.S. dollar LIBOR for one month as quoted in The Wall Street Journal on the
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first business day of the month in which such payment is due. Such interest
shall accrue from the day following the date payment was due until it is paid in
full. In the event that applicable law does not allow the imposition of "default
interest" at the rate established in accordance with this Section 5(b), such
"default interest" shall be at the highest rate permitted by applicable law. For
purposes of this Section, "paid" shall mean that funds are available for
immediate use by Grantor.
6. DEFAULT. (a) Subject to Section 5(a) hereof, if the Purchaser fails to
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make any payment required by this Agreement on the date that it is due or if the
Purchaser is otherwise in breach of this Agreement, and such payment default
continues unremedied for a period of at least five (5) days or such other breach
continues for a period of at least thirty (30) days, Grantor or its authorized
agent may notify the Purchaser in writing of such payment default or other
breach and if full payment is not received or such other breach is not fully
remedied within fifteen (15) days of such notification, Grantor (i) may suspend
all service provided to Purchaser hereunder (including suspending Purchaser's
right to use the Inland Capacity), until such payment default or other breach
has been cured (including payment of default interest, if any) and (ii) shall be
entitled to pursue any and all rights and legal and equitable remedies
(including its rights and remedies to enforce the Purchaser's obligations under
this Agreement).
(b) If the Grantor is in breach of this Agreement and such breach continues
for a period of at least thirty (30) days, the Purchaser may notify the Grantor
in writing of such breach and if such breach is not fully remedied within
fifteen (15) days of such notification, the Purchaser shall be entitled to
pursue any and all rights and legal and equitable remedies, including its rights
and remedies to enforce Grantor's obligations under this Agreement and further
including the right to terminate this Agreement and receive a pro-rata refund of
the Purchase Price based upon the remaining term. The Purchaser's right to
pursue any and all rights and legal and equitable remedies shall continue for so
long as such breach continues, provided, however, that a subsequent cure of any
such breach by Grantor shall not prejudice (i) any right or remedy properly
exercised by the Purchaser prior to the time such cure has been effected, or
(ii) the Purchaser's right to claim
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damages with respect to the period prior to the time such cure has been
effected.
7. USE OF CAPACITY. (a) The use of the Inland Capacity granted hereunder
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and any equipment associated therewith shall be such as not to interrupt,
interfere with, or impair service over any of the facilities comprising the
System or the Inland Capacity, or impair privacy of any communications over such
facilities, cause damage to plant or create hazards to employees, affiliates or
connecting companies of ACL, the Grantor, any Backhaul Provider or any other
user, owner or operator of the System or the Inland Capacity or the public. The
Purchaser shall bear the cost of any additional protective apparatus reasonably
required to be installed because of the use of such facilities by the Purchaser,
any lessees or permitted transferees of the Purchaser, or any customer or
customers of the Purchaser or of any such lessee or transferee, provided,
however, that this Section 7(a) shall only apply to the extent that such use is
outside the ordinarily anticipated use of such facilities. The Grantor will
cause all other purchasers of capacity in Inland Capacity provided hereunder to
undertake obligations comparable to those of the Purchaser set forth in this
Section, and the Purchaser shall cause all permitted users of the IRU in the
Inland Capacity granted hereunder to undertake comparable obligations.
(b) The IRU in the Inland Capacity granted hereunder shall be made
available to Grantor or the Backhaul Providers (or any of their subsidiaries or
agents), Iat such times agreeable to the Purchaser and Grantor or the Backhaul
Providers, as the case may be, to permit Grantor or the Backhaul Providers to
conduct such tests and adjustments as may be necessary for such capacity to be
maintained in efficient working order.
8. DURATION OF AGREEMENT. (a) This Agreement shall become effective on the
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day and year set forth in the preamble hereto and shall continue in operation
until the twenty-fifth (25th) anniversary of the RFS Date for the System (the
"Term").
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(b) The termination of this Agreement (whether under this Section or
otherwise) shall not relieve the Purchaser from any liabilities arising prior to
such termination.
9. APPROVALS; LICENSES. The performance of this Agreement by each party
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hereto is contingent upon the obtaining and the continuance of such approvals,
consents, governmental authorizations, licenses and permits as may be required
or reasonably deemed necessary by such party for performance by such party
hereunder and as may be satisfactory to it. The parties shall use reasonable
efforts to obtain and continue, and to have continued, such approvals, consents,
licenses and permits. No license under patents is granted by Grantor or shall be
implied or arise by estoppel in the Purchaser's favor with respect to any
apparatus, system or method used by the Purchaser in connection with the use of
the Inland Capacity granted to it hereunder.
10. DISCLAIMER. (a) Grantor has entered into Backhaul Agreements to obtain
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plant, equipment and services necessary to allow the Inland Capacity to be
placed into operation on the applicable scheduled RFS Date. UNLESS SPECIFICALLY
SET FORTH IN THIS AGREEMENT, ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.
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(b) The Purchaser has entered into the Capacity Purchase Agreement with ACL
in order to acquire an IRU in certain capacity on the System. The Purchaser
acknowledges and agrees that Grantor does not warrant or guarantee the
performance of the Capacity Purchase Agreement (or the Right of Use Agreement)
and shall have no liability with respect thereto.
11. LIMITATIONS OF LIABILITY. (a) Except as otherwise provided in this
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Agreement, in no event shall any party hereto be liable to the other for
consequential, incidental, indirect or special damages, including, but not
limited to, loss of revenue, loss of business opportunity or the costs
associated with the use of external restoration facilities, including, without
limitation, for any loss or damage sustained by reason of any failure in or
breakdown of any Inland Capacity or the facilities associated therewith, the
failure of any Backhaul Provider to perform the terms and conditions of any
Backhaul Agreement to which it is a party or for any interruption of service,
whatever the cause and however long it shall last.
(b) Grantor shall not be liable to the Purchaser for any loss or damage
which may be suffered by the Purchaser by reason of any circumstances beyond the
control of Grantor and having an adverse effect on the provision of any part of
the Inland Capacity in which the Purchaser is entitled to capacity or has any
other right or interest under this Agreement. Failure by a subcontractor of any
of the parties to comply with its contractual commitments to such party shall
not be deemed to be an event beyond the reasonable control of such party for the
purposes of this Section 11.
(c)(i) Grantor shall not be liable to the Purchaser for any loss or damage
which may be suffered by the Purchaser as a result of, related to, or in
connection with, the Purchaser's compliance or non-compliance with any
applicable state, federal, foreign governmental, international (foreign or
domestic) or other law related to the transfer of the IRU in, or the use of, the
Inland Capacity granted hereunder.
(ii) The Purchaser shall not be liable to Grantor for any loss or damage
which may be suffered by Grantor as a result of, related to, or in connection
with, Grantor's non-compliance with any applicable state, federal, foreign
governmental, international (foreign or domestic) or other law related to the
transfer by Grantor of the IRU to the Purchaser in, or Grantor's operation,
ownership or use of, the Inland Capacity.
12. EXPORT CONTROL. The parties hereto acknowledge that to the extent any
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products, software or technical information provided under this Agreement are or
may be subject to any applicable export laws and regulations, the parties hereto
agree that they will not use, distribute, transfer or transmit the products,
software or technical information (even if incorporated into other products)
except in compliance with such export laws and regulations (or licenses or
orders issued pursuant thereto). If requested by either party hereto the other
party agrees to sign all necessary export-related documents as may be required
to comply therewith.
13. REPRESENTATIONS; INDEMNITY. (a) Grantor hereby represents and warrants
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to Purchaser that (i) it is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization; (ii)
the execution, delivery and
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performance of this Agreement by Grantor has been duly authorized by all
necessary corporate action on the part of Grantor and this Agreement is a valid,
binding and enforceable obligation of Grantor enforceable in accordance with its
terms and (iii) the execution, delivery and performance of this Agreement by
Grantor does not violate, conflict with or constitute a breach of, the
organizational documents or any order, decree or judgment of any court, tribunal
or governmental authority binding on Grantor.
(b) Purchaser hereby represents and warrants to Grantor that (i) Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; (ii) the execution, delivery and
performance of this Agreement by Purchaser has been duly authorized by all
necessary corporate action on the part of Purchaser and this Agreement is a
valid, binding and enforceable obligation of Purchaser enforceable in accordance
with its terms; and (iii) the execution, delivery and performance of this
Agreement by Purchaser does not violate, conflict with or constitute a breach
of, the organizational documents or any order, decree or judgment of any court,
tribunal or governmental authority binding on Purchaser.
(c) Each party hereby represents and warrants to the other party that it
has obtained all approvals, consents, governmental authorizations, licenses and
permits as may be required to enter into this Agreement, and grant or acquire,
as the case may be, the IRU in the Inland Capacity and otherwise to perform its
obligations hereunder.
(d) The foregoing representations and warranties shall survive the
execution and delivery of this Agreement.
(e) Subject to Section 11, the Purchaser agrees to indemnify and hold
harmless Grantor and its officers, directors, employees, agents,
representatives, successors and assigns (each, an "indemnitee") from and against
any loss, damage, expense or cost arising out of or in connection with (i) any
breach or violation by the Purchaser of applicable law or governmental
regulation, and (ii) any claims of whatever nature by third parties with respect
to services provided by the Purchaser.
(f) Subject to Section 11, Grantor agrees to indemnify and hold harmless
the Purchaser and its officers, directors, employees, agents and representatives
from and against any loss, damage, expense or cost arising out of or in
connection with: (i) any breach or violation by Grantor of applicable law or
governmental regulation, and (ii) any claims of whatever nature by third parties
with respect to the services provided by Grantor.
14. RELATIONSHIP OF THE PARTIES. This Agreement shall not form a joint
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venture or partnership or similar business arrangement between the parties
hereto, and nothing contained herein shall be deemed to constitute a partnership
or joint venture or similar business arrangement.
15. NO THIRD PARTY BENEFICIARIES. This Agreement does not provide and is
--------------------------------
not intended to provide third parties (including, but not limited to, customers
of the Purchaser, any permitted transferee of the Inland Capacity acquired
hereunder or any other
9
permitted user of the Inland Capacity) with any remedy, claim, liability,
reimbursement, cause of action, or any other right, except for assignees
pursuant to an assignment which is permitted under Section 16 of this Agreement.
Furthermore, the Purchaser acknowledges that it is not a third party beneficiary
of any agreement entered into by Grantor including, but not limited to, the
Backhaul Agreements.
16. ASSIGNMENT.
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(a) This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto, the Subsidiary Grantors and
their respective successors and permitted assigns.
(b) The Grantor shall solely be responsible for complying with all of the terms
binding on the "Grantor" hereunder and shall not be permitted to assign,
transfer or otherwise dispose of any or all of its right, title or interest
hereunder or delegate any or all of its obligations hereunder to any person
or entity except that the Grantor and the Subsidiary Grantors shall be
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permitted to (i) effect a collateral assignment of their respective rights
hereunder to one or more lenders to Grantor or its affiliates and (ii)
assign, transfer or otherwise dispose of any or all of their rights
hereunder and under the Subsidiary IRU Agreement and delegate any or all of
their obligations hereunder and under the Subsidiary IRU Agreement to any
present or future affiliated company of the Grantor or to an entity
controlled by, under the same control as, or controlling, the Grantor. The
Grantor shall give the Purchaser notice of any such assignment, transfer or
other disposition or any such delegation.
(c) The Purchaser shall solely be responsible for complying with all of the
terms binding on the "Purchaser" hereunder and shall not be permitted to
assign, transfer or otherwise dispose of any or all of its right, title or
interest hereunder or under the Subsidiary IRU Agreement (except for
leases, licenses and transfers of the right to use Capacity to the extent
set forth in Section 16(d) below) or delegate any or all of its obligations
hereunder or under the Subsidiary IRU Agreement to any person or entity
except (i) a collateral assignment of its rights hereunder to one or more
lenders to the Purchaser or its affiliates, and (ii) to any present or
future affiliated company of the Purchaser or to an entity controlled by,
under the same control as, or controlling, the Purchaser; and (iii)
incident to the transfer of all or substantially all of its business or a
substantial portion of its business (which shall include, without
limitation, a transfer of assets); provided, however, that the Purchaser
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shall remain responsible for the performance of its obligations hereunder
to the extent the assignee fails to perform such obligations.
(d) (i) The Purchaser may enter into one or more agreements to lease or
license the right to use any Purchased Capacity, so long as all such leases
or licenses with any particular lessee or licensee (including all
affiliates thereof) involve in the aggregate less than one (1) MCU of
Purchased Capacity;
(ii) The Purchaser may transfer a right to use any Purchased Capacity to a
Carrier Party, so long as all such transfers to any particular transferee
(including all affiliates thereof) involve in the aggregate less than one
MCU of Purchased Capacity;
(iii) Purchaser may not enter into any arrangements to lease, license or
transfer a right to use an aggregate (in any combination of such
arrangements) of one or more
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MCUs of Purchased Capacity to any particular lessee, licensee or transferee
(including all affiliates thereof).
(iv) No lease, license or transfer permitted by this Section 16(d) shall
involve any delegation or other transfer of any of Purchaser's obligations
or liabilities hereunder. Each lessee, licensee and transferee of any right
to use Purchased Capacity shall derive all of its rights solely through the
Purchaser and such rights shall be enforceable solely against the
Purchaser. No such lessee, licensee or transferee shall become a third
party beneficiary of this Agreement or obtain any right, title or interest
in, to or under this Agreement or the Subsidiary IRU Agreement or the
ability to enforce any provision hereof or thereof nor shall any thereof
have any rights or claims against the Grantor for any reason whatsoever.
The rights of any lessee, licensee or transferee of a right to use any
Purchased Capacity shall be subject and subordinate to all the terms of
this Agreement (including the Grantor's right to suspend service in the
event of a default by Purchaser hereunder) and Purchaser shall remain
primarily liable hereunder for the performance of all the terms of this
Agreement to the same extent as if such lease, license or transfer had not
occurred. Any such lease, license or transfer agreement shall prohibit
further assignment, transfer or other disposition of Purchased Capacity
except in accordance with the terms of this Section 16.
(e) The Grantor will cause to be maintained a Customer Care Center to provide
service to the Purchaser and other users of the System. Only Carrier
Parties which have acquired and hold the right to use one or more whole
MCUs of Capacity shall be entitled to utilize the services of the Customer
Care Center. Every entity which has the right to use one or more MCUs of
Capacity shall promptly contact the Customer Care Center and provide all
such information reasonably requested by the Customer Care Center.
(f) Any assignment, transfer or other disposition by either Party which is in
violation of this Section shall be void and of no force and effect.
17. CONDITION TO PURCHASER'S OBLIGATIONS. The Purchaser's obligation to pay
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for an IRU with respect to any Inland Capacity connecting with any Purchased
Capacity on any Segment other than Segment S-1 (for which the RFS Date has
already occurred) shall terminate if the RFS Date for such Purchased Capacity
has not occurred by June 30, 1999. In any such event, the Purchaser may
terminate this Agreement in its entirety and receive a complete refund of all
amounts paid hereunder or the Purchaser may terminate this Agreement only with
respect to such Inland Capacity in which case Grantor shall refund all amounts
paid by the Purchaser, if any, with respect to such Inland Capacity as to which
Purchaser's obligation has terminated within thirty (30) days after the
applicable date.
18. NOTICES. Each notice, demand, certification or other communication
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given or made under this Agreement shall be in writing and shall be delivered by
hand or sent by registered mail or by facsimile transmission to the address of
the respective party as set forth below its
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signature hereto (or such other address as may be designated in writing to the
other party hereto in accordance with the terms of this Section). Any change to
the name, address and facsimile numbers may be made at any time by giving
fifteen (15) days prior written notice in accordance with this Section. Any such
notice, demand or other communication shall be deemed to have been received, if
delivered by hand, at the time of delivery or, if posted, at the expiration of
seven (7) days after the envelope containing the same shall have been deposited
in the post maintained for such purpose, postage prepaid, or, if sent by
facsimile, at the date of transmission if confirmed receipt is followed by
postal notice.
19. INCORPORATION BY REFERENCE. The provisions of Sections 12, 14, 15, 23,
------------------------------
24, 25 and 26 of the Capacity Purchase Agreement are hereby incorporated herein
by reference, mutatis mutandis, and shall be deemed a part of this Agreement as
if fully set forth herein.
20. PUBLICITY AND CONFIDENTIALITY. (a) The provisions of this Agreement and
---------------------------------
any non-public information, written or oral, with respect to this Agreement
("Confidential Information") will be kept confidential and shall not be
disclosed, in whole or in part, to any person other than affiliates, officers,
directors, employees, agents or representatives of a party (collectively,
"Representatives") who need to know such Confidential Information for the
purpose of negotiating, executing and implementing this Agreement. Each party
agrees to inform each of its Representatives of the non-public nature of the
Confidential Information and to direct such persons to treat such Confidential
Information in accordance with the terms of this Section 20. Nothing herein
shall prevent a party from disclosing Confidential Information (i) upon the
order of any court or administrative agency, (ii) upon the request or demand of,
or pursuant to any regulation of, any regulatory agency or authority, (iii) to
the extent reasonably required in connection with the exercise of any remedy
hereunder, (iv) to a party's legal counsel or independent auditors, (v) to
prospective lenders to the Grantor, and (vi) to any actual or proposed assignee,
transferee or lessee of all or part of its rights hereunder provided that such
actual or proposed assignee agrees in writing to be bound by the provisions of
this Section 20.
(b) The foregoing shall not restrict either party from publicly announcing
that it has entered into this Agreement with the parties hereto, but without
including any details contained in this Agreement.
13
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date first written above.
VIA NET WORKS EUROPE HOLDING B.V.
By: VIA XXX.XXXXX, INC., its
Managing Director
By: /s/ Xxxx Xxxxxx
-------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: VP & General Counsel
-----------------------
c/o VIA XXX.XXXXX, Inc.
000000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000 XXX
Attention: Xxxx X. Xxxxxx, Esq., V.P., General
Counsel and Secretary
Facsimile: 000-000-0000
GT LANDING CORP.
By: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
--------------------------
Title: Under a Power of Attorney
--------------------------
c/o Atlantic Crossing Ltd.
Wessex House
00 Xxxx Xxxxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: President
Facsimile: 000-000-0000
SCHEDULE I
*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.*****
DESCRIPTION OF INLAND CAPACITY
============================================================================================================
(a) (b) (c) (d) (e)
Date of Inland Capacity (set forth Number of Whole MCUs Price Per Whole (c) x (d)
Transaction Cable Station and Inland MCU Purchase Price
Point of Interface)
------------------------------------------------------------------------------------------------------------
Brookhaven, NY One (1) [*****] [*****]
to (See Note 1) (See Note 1)
00 Xxxxxx Xxxxxx
Xxx Xxxx Xxxx
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
============================================================================================================
Total Purchase Price [*****]
Payment Received May 28 [*****]
Net Purchase Price Due [*****]
Purchase Price To Be Financed [*****]
Note 1 : Subject to Section 2(a) hereof.
*****Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the the omitted portions.*****
VIA Net Works
INSTALLMENT PAYMENTS
US BACKHAUL
Price per MCU [*****]
Payment Due Date September 30, 1999
Payment Terms
-------------
Date Payment
---- -------
Payment received May 28, 1999 [*****]
Deposit upon signing [*****]
September 30, 1999 [*****]
December 31, 1999 [*****]
March 31, 2000 [*****]
June 30, 2000 [*****]
September 30, 2000 [*****]
December 31, 2000 [*****]
March 31, 2001 [*****]
June 30, 2001 [*****]
September 30, 2001 [*****]
December 31, 2001 [*****]
March 31, 2002 [*****]
June 30, 2002 [*****]
Total [*****]
VIA Net Works
By:
-----------------
Name:
Date:
ATTACHMENT II
RFS STANDARD
RFS Standard means for any Inland Capacity that (a) the fiber optic
telecommunications system carrying such capacity has the ability to carry
commercial traffic between the System Interface at the Cable Station to the
Inland Point of Interface meeting performance criteria of ITU-T G.826 and has
protection switching capability and (b) the interface to the System shall be
STM-1 (optical interface) as specified in ITU Recommendation G.957 and 1+1
protected or equivalent.
