COOPERATION AGREEMENT
concluded between
(1) BKV Trafficom Hirkozlesi Szolgaltato Kft (registered office: Xxxxx xx 00,
0000 Xxxxxxxx, Xxxxxxx), represented by Xxxxxx Xxxxxxxx, Managing
Director, hereinafter: "Trafficom"
and
(2) UTG Magyar Kommunikacios Kft (registered office: Xxx Xxxxxx x. 0 XX/0,
0000 Xxxxxxxx, Xxxxxxx), represented by Xxxxx X Xxxxx, Managing Director,
hereinafter: "UTG"
on the date indicated below pursuant to the following terms and conditions.
1 The Agreement
1.1 In accordance with the provisions of the present Agreement ,
Trafficom shall allow UTG the use of the fibre optic cable network
owned by Budapesti Kozlekedesi Reszvenytarsasag (hereinafter: "BKV
Rt") and managed by Trafficom (hereinafter the "Network").
1.2 A map, valid at the time of signing the present Agreement, of the
Network is attached to the present Agreement as Schedule No 1.
Trafficom undertakes to send an updated map of the Network to UTG on
a quarterly basis which contains all developments and modifications
to the Network since the issuance of the previous map.
2 Providing traffic services through the Network by UTG
2.1 UTG is entitled to provide, through its access to the Network,
traffic services to third persons ("Customers").
2.2 Traffic services include services for:
- public-purpose data transmission,
- public-purpose fax transmission,
- own-circuit and special-circuit voice transmission and
- public-purpose Internet.
2.3 The provision of traffic services to Customers will be accomplished
by UTG and Customers entering into customer contracts. UTG is
entitled to enter into these costumer contracts without obtaining
any declaration or consent of Trafficom, apart from the technical
conciliation obligation set forth in clause 3.1 below.
2.4 UTG and Trafficom undertake to enter into separate contracts with
each other for the lease of lines and connected services on the
basis of each customer contract concluded by UTG and any Customer,
in accordance with the Standard Contract for Lease of Lines and
Connected Services contained in Schedule No 2 of the present
Agreement. The Contracts for Lease of Lines and Connected Services
shall be finalized and concluded by UTG and Trafficom in each case
by filling the gaps indicated with "| |" in the Standard Contract
and making the amendments as necessary in the given situation.
2.5 UTG and Trafficom undertake to cooperate with each other and act in
good faith during the negotiations for the finalization of the
Standard Contracts for Lease of Lines and Connected Services.
2.6 Within the framework set forth in clause 2.2 of the present
Agreement, UTG may use the Network for its own purposes.
2.7 If the laws in force in the Republic of Hungary ever allow that UTG
provide other services on the Network of Trafficom in addition to
those set out in clause 2.2 of the present Agreement, without any
licence or on the basis of an appropriate licence, a specific
agreement between UTG and Trafficom shall be necessary.
2.8 UTG shall comply with all effective and relevant laws of the
Republic of Hungary while providing traffic services.
3 Technical Conciliation
3.1 UTG and Trafficom undertake to hold technical conciliation meetings
as necessary, but at least quarterly, regarding the technical
possibilities of the traffic services provided by UTG on the
Network. At these technical conciliation meetings UTG shall inform
Trafficom about the expectable development of its clientele and
Trafficom shall inform UTG of the technical possibilities of the
Network and of the developments to be made on the
Network.
4 Consideration
4.1 Under the present Agreement no separate consideration is due to
Trafficom for the services provided. Instead, the consideration will
be included in the consideration to be paid by UTG to Trafficom as
stipulated in the Contracts for the Lease of Lines and Connected
Services to be concluded between UTG and Trafficom in accordance
with clause 2.4 of the present Agreement.
5 The right of Trafficom to dispose of the Network
5.1 Trafficom warrants that it has all authorizations required for the
conclusion of the present Agreement.
5.2 By signing the present Agreement, BKV Rt acknowledges the provisions
of the present Agreement and expressly gives its consent to hereto.
6 Term of the Agreement
6.1 The term of the present Agreement shall commence on the date when it
is signed by the representatives of UTG and Trafficom and is also
signed by the representative of BKV Rt according to clause 5.2.
6.2 The term of the present Agreement shall be a definite period of 10
years.
6.3 The present Agreement shall not terminate at the time of the expiry
of the period set out in clause 4.1, but shall automatically be
transformed into an agreement concluded for an indefinite period of
time which may be terminated by either of the parties by 12 month
ordinary notice (hereinafter: "Ordinary Notice"). The Parties may
exercise their right of termination by Ordinary Notice from the
beginning of the tenth year of the term of the present Agreement at
the earliest.
7 Confidentiality
7.1 UTG and Trafficom undertake to keep all information obtained
regarding each other, the business activities of each other and each
other's customers, as well as connected enterprises, their
activities and business partners, strictly confidential and will
require the same from their employees.
8 Miscellaneous
8.1 The parties agree that they will attempt to settle amicably all
disputes arising out of or in connection with the present Agreement.
If settlement fails, they stipulate the exclusive competence of the
permanent Arbitration Court organized within the Hungarian Chamber
of Commerce and Industry (Budapest) with the provision that the
Arbitration Court shall proceed pursuant to its own procedural
rules.
8.2 An amendment to the present Agreement shall be made only by the
express written agreement of UTG and Trafficom to the present
Agreement. An amendment to the present Agreement does not require
the consent of BKV Rt.
8.3 The present Agreement shall be governed by Hungarian law.
8.4 The present Agreement shall be signed in Hungarian, in 5 copies.
8.5 The Schedules of the present Agreement form an integral part hereof.
Schedules:
Schedule No 1: the map of the Network
Schedule No 2: the Standard Contract for the Lease of Lines and Connected
Services to be concluded
/s/ Xxxxxx Xxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxx, Managing Director
on behalf of BKV Trafficom Hirkozlesi
Szolgaltato Kft
/s/ Xxxxx X Xxxxx
--------------------------------------
Xxxxx X Xxxxx, Managing Director
on behalf of UTG Magyar
Kommunikacios Kft
Budapest, 6 August 1997 Budapest, 6 August 1997
--------------------------------------
Name:
Position:
on behalf of Budapesti Kozlekedesi Rt
Budapest, _______ August 1997
Schedule No 2 of the Cooperation Agreement
STANDARD CONTRACT FOR THE LEASE OF LINES AND
CONNECTED SERVICES
concluded between
(1) BKV Trafficom Hirkozlesi Szolgaltato Kft (registered office: Xxxxx xx 00,
0000 Xxxxxxxx, Xxxxxxx), as lessor and service provider, represented by
Xxxxxx Xxxxxxxx, Managing Director, hereinafter: "Trafficom"
and
(2) UTG Magyar Kommunikacios Kft (registered office: Xxx Xxxxxx x. 0. XX/0,
0000 Xxxxxxxx, Xxxxxxx) as lessee and principal, represented by Xxxxx X
Xxxxx, Managing Director, hereinafter: "UTG"
on the date indicated below pursuant to the following terms and conditions.
1 Subject of the present Contract
1.1 The object of the present Contract is a telecommunications link
through a 2,048 Mbit/s leased line between the following two access
points, on a coax interface:
[ ]
and
BKV Trafficom Xxxxxxxxxx Xxxxxxxxxxx Xxx, Xxxxx xx 00, Xxxxxxxx,
Xxxxxxx.
1.2 The above section (hereinafter: the "Leased Line") is a part of the
telecommunications network owned by Budapesti Kozlekedesi
Reszvenytarsasag (hereinafter: "BKV Rt") and managed by BKV
Trafficom Hirkozlesi Szolgaltato Kft.
1.3 Trafficom undertakes to establish the telecommunications link
between the access points defined in clause 1.1 above within 90 days
of the signing of the present Contract.
2 The lease
2.1 Trafficom leases to UTG and UTG leases from Trafficom the Leased
Line for the purpose of
- public purpose data transmission,
- public purpose facsimile transmission,
- own purpose and special purpose voice transmission and
- public purpose Internet services.
2.2 The two drivers necessary for the telecommunications link to be
established on the Leased Line are provided by Trafficom. Trafficom
will install the drivers at the access points, one of the drivers at
[ ] and the other one at Orczy ut 34. These drivers are also the
subject of the present Contract.
2.3 The term of the lease commences when the telecommunications link to
be established on the Leased Line is established by the deadline set
forth in clause 1.3 of the present Contract and continues until the
Contract is terminated in accordance with the provisions in clauses
9.1, 9.3 and 9.4 hereof (hereinafter: the "Term of the Lease").
3 Services connected to the lease
3.1 In order to secure the operation of the telecommunications link
established on the Leased Line in accordance with the purposes set
forth in clause 2.1, Trafficom undertakes, during the Term of the
Lease, to provide for the supervision of the telecommunications
link, the maintenance of the Leased Line and the avoidance of
malfunctions as set out in the present Contract.
3.2 During the Term of the Lease, Trafficom will observe the function of
the Leased Line and will maintain a 24 hour inspection service on
every day of the year.
3.3 In the case of any malfunction of the Leased Line, Trafficom will
commence the repair of the malfunction within 30 minutes of noticing
the malfunction. Trafficom undertakes to repair any malfunctions in
a manner such that the telecommunications link established on the
Leased Line will not be interrupted for more than 10 hours and the
operative index of the telecommunications link will not be below 99%
on a yearly basis.
4 Obligations of UTG
4.1 UTG shall pay HUF [ ] (i.e., [ ] Hungarian Forints) + VAT as a one
time connection fee (hereinafter "Connection Fee") to Trafficom.
4.2 Before the establishment of the telecommunications link within the
period set forth in clause 1.3, UTG shall pay the Connection Fee to
UTG on the basis of the invoice issued by Trafficom.
4.3 For the Term of the Lease UTG shall pay to Trafficom a monthly lease
fee in the amount of HUF [ ] (i.e., [ ] Hungarian Forints) + VAT
(hereinafter "Monthly Lease Fee").
4.4 The Monthly Lease Fee also includes the lease fee for the drivers
defined in clause 2.2 and the consideration for all services
provided by Trafficom in connection with the lease.
4.5 Trafficom shall send to UTG an invoice for the Monthly Lease Fee
quarterly, at least 15 days before the end of the quarter, the
amount of which shall be transferred by UTG to Trafficom within 15
days of the end of the relevant quarter.
4.6 If UTG is in default of its payment obligations defined in the
present Agreement, it shall pay late interest at a rate equal to 20%
per year to Trafficom.
4.7 If UTG does not perform its payment obligations defined in the
present Agreement, Trafficom is obliged to give an additional period
of at least 15 days in a notice to pay. If UTG does not perform its
payment obligations during the additional period, Trafficom has the
right to terminate the present Agreement by extraordinary notice
with immediate effect.
4.8 UTG may not transfer to any third person its right to use the Leased
Line arising from the lease defined in the present Contract.
However, this provision does not affect the right of UTG to provide
traffic services to third parties arising form the Cooperation
Agreement concluded between UTG and Trafficom.
5 Suspension of the telecommunications link
5.1 For any period of suspension of the telecommunications link, UTG is
exempt from its obligation to pay the proportionate part of the
Monthly Lease Fee.
5.2 If the suspension of the telecommunications link is due to the
maintenance, renovation, replacement or renewal of the network,
Trafficom is obliged to inform UTG of the anticipated start date and
the anticipated length of the suspension and to obtain the consent
of UTG to these two matters at the latest 14 days before the
commencement of the suspension. The telecommunications link may be
suspended for the reasons set out in this clause only once per year.
5.3 Suspension of the telecommunications link as set out in clause 5.2
shall not be considered an interruption to the telecommunications
link when calculating the operative index as set out in clause 3.3.
6 Force majeure
6.1 The parties agree that the following events shall be considered as a
force majeure in the context of the present contract: war, sabotage,
terrorism, natural catastrophe, strike, measures taken on the basis
of the Act on State Defense and damage caused by third persons.
6.2 If the above force majeure events hinder Trafficom in fulfilling its
obligations defined in the present Contract, Trafficom is exempt
from such obligations.
7 Defective performance
7.1 If Trafficom breaches the present Contract, Trafficom is liable for
any loss in the value of the assets of UTG.
7.2 If Trafficom breaches the present Contract, Trafficom is not liable
for damages in the form of lost profits incurred by UTG.
7.3 Trafficom is exempt from liability for breach of contract if it can
prove that in order to avoid its breach of contract it has acted as
it is generally expected in the given situation.
8 Penalty
8.1 Trafficom shall pay a penalty in the case of its late performance,
performance not complying with the technical requirements
(hereinafter: "Faulty Performance"), and in the case of its
non-performance.
8.2 If Trafficom is late in establishing the telecommunications link the
penalty shall amount to double the amount of the Monthly Lease Fee
for the period of delay, but maximum 12 times the Monthly Lease Fee.
8.3 In the case of Faulty Performance, Trafficom shall pay to UTG a
penalty of double the Monthly Lease Fee for the period of the Faulty
Performance (from the beginning of the non-compliance with the
technical requirements until the reestablishment of the appropriate
state), in proportion to the decrease of the performance level of
the telecommunications link.
8.4 If the telecommunications link is interrupted for more than 10
hours, the penalty payable by Trafficom shall be equal to 1 times
the Monthly Lease Fee calculated from the time when the link is
interrupted and payable thereafter for every 24 hour period or part
thereof up to a maximum of 12 times the Monthly Lease Fee.
8.5 If Trafficom is obliged to a pay penalty hereunder, it shall pay
such penalty to UTG based on an invoice received from UTG within 15
days of the event giving rise to the obligation to pay the penalty.
If Trafficom is in defaulf of its obligation to pay a penalty, it
shall pay late interest at a rate equal to 20% per year.
8.6 If Trafficom fails to comply with its obligation to pay a penalty,
UTG is entitled to set off its claim for penalty against any amount
owed by UTG to Trafficom either on the basis of the present Contract
or any other legal relationship with Trafficom.
9 Terms of the present Agreement
9.1 The term of the present Contract shall commence on the date of its
signing and shall continue for a definite period of 10 years.
9.2 During the defined term, the parties may not terminate the present
Contract except as set out in clause 9.5.
9.3 The present Contract shall not terminate at the time of the expiry
of the period defined in clause 9.1 but shall automatically be
transformed into a contract concluded for an indefinite period of
time.
9.4 The parties may terminate the present Contract with 12 months
ordinary notice. The parties may exercise their right of termination
by ordinary notice from the beginning of the tenth year of the Term
of the Lease, at the earliest.
9.5 Before the expiry of the term defined under clause 9.1, the Parties
may terminate the present Agreement by an extraordinary notice of 6
months, if
- one of the principal obligations of a party under the present
Agreement becomes impossible owing to a binding decision of
any authority or court of justice,
- the other party does not perform any principal obligation
arising from the present Agreement. The non-performance of
UTG's payment obligations shall not be governed by this clause
but by clause 4.7.
9.6 At the time of termination of the present Contract, all payment
obligations arising from the present Contract become due.
10 Miscellaneous
10.1 Once in a year UTG and Trafficom agree that they will amend the
amount of the Monthly Lease Fee only by mutual agreement. However,
the Monthly Lease Fee may not be increased by more than the
industrial price index published by the Central Statistical Office.
10.2 Trafficom warrants that is has all necessary authorizations and all
regulatory licences which are necessary for the conclusion of the
present Contract.
10.3 The parties agree that they will attempt to settle amicably all
disputes arising out of or in connection with the present Contract.
If settlement fails, they stipulate the exclusive competence of the
permanent Arbitration Court organized within the Hungarian Chamber
of Commerce and Industry (Budapest) with the provision that
the Arbitration Court shall proceed pursuant to its own procedural
rules.
10.4 Any amendment to the present Contract may be made only with the
express written consent of the Parties to the Contract.
10.5 The present Contract shall be governed by Hungarian law.
10.6 The present Contract will be signed in Hungarian, in 5 copies.
Budapest, [ ] [ ] 1997
------------------------------------------
Xxxxxx Xxxxxxxx, Managing Director
on behalf of BKV Trafficom Hirkozlesi
Szolgaltato Kft
------------------------------------------
Xxxxx X Xxxxx, Managing Director
on behalf of UTG Magyar Kommunikacios Kft
