EXHIBIT 10.20
EXECUTION COPY
CAPACITY RIGHT OF USE AGREEMENT
THIS AGREEMENT, dated as of the ______ day of _______________ 1999, is among
FLAG ATLANTIC LIMITED, a company organised under the laws of Bermuda and having
its principal office at The Emporium Building, 69 Front Street, 4th Floor,
Hamilton, Bermuda, FLAG ATLANTIC USA LIMITED, a company organised under the laws
of Delaware, USA and having its principal office at 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, XXX, (FLAG ATLANTIC LIMITED AND FLAG ATLANTIC USA
LIMITED being hereinafter jointly and severally referred to as "FA-1")
PSINETWORKS COMPANY, a corporation organised under the laws of Delaware, USA and
having its principal office at 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000 XXX,
PSINET TELECOM LIMITED, a company organised under the laws of England and having
its principal office at Brookmount Court, Unit A&B, Xxxxxxxx Xxxx, Xxxxxxxxx XX0
0XX, XX and PSINETWORKS SARL, a company organised under the laws of Switzerland
and having its principal office at Xxx Xxxxx - Xxxxxxxxxx 000, 0000 Xx Xxxxx -
xx - Xxxxx, Xxxxxxxxxxx (PSINETWORKS COMPANY, PSINET TELECOM LIMITED and
PSINETWORKS SARL being hereinafter jointly and severally referred to as
"Purchaser").
WITNESSETH:
WHEREAS, except as set out below, FLAG Atlantic Limited is constructing and will
directly and/or indirectly own, operate and maintain a fiberoptic cable system
to be known as FLAG Atlantic-1 (the "System") consisting of a subsea element
(the "Subsea Element") and two backhaul elements (the "Backhaul Elements"), the
System, Subsea Element and Backhaul Elements being more fully described in
Schedule 1; and
WHEREAS, FLAG Atlantic USA Limited is constructing and will own all that part of
the System that is within the territory (including the territorial waters) of
the United States of America; and
WHEREAS, the System is currently scheduled to go into service in stages with the
initial stage, as more particularly described in Schedule 1, ("Initial Stage")
currently scheduled to go into service on or about 31 March 2001 ("Scheduled
Initial RFS Date") and the final stage, as more particularly described in
Schedule 1 ("Final Stage"), currently scheduled to go into service on or about
30 June 2001 ("Scheduled Final RFS Date"); and
WHEREAS, Purchaser desires to acquire from FA-1, and FA-1 is willing to provide
to Purchaser the Rights (as defined below); and
WHEREAS, Purchaser has already made a payment to FA-1 of *** million of the
Purchase Price (as defined below); and
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WHEREAS, FA-1 and Purchaser (the "Parties") desire to define the terms and
conditions under which the Rights will be acquired by Purchaser.
NOW, THEREFORE, the Parties hereby agree as follows:
1. PURCHASE OF RIGHTS
1.1 Purchaser agrees to acquire, and FA-1 agrees to grant to Purchaser, for
*** (the "Purchase Price"), subject to the terms and conditions of this
Agreement: (i) an indefeasible and exclusive right of use ("IRU") in the
derivable capacity from one fibre pair (the "Capacity") on each Link (as
such term is described in Schedule 1) of the Subsea Element; (ii) the
exclusive right to use one dedicated fibre pair (the "Terrestrial Fibre
Pair") on each Link of the Backhaul Elements; and (iii) all such other
rights as are set out in Schedule 2 (together the "Rights").
1.2 FA-1 shall notify Purchaser of the actual date upon which the Initial
Stage of the System is able to carry commercial traffic ("Initial RFS
Date") and the actual date upon which the Final Stage of the System is
able to carry commercial traffic ("Final RFS Date").
1.3 Subject to Purchaser complying with clause 2.1, the Rights shall pass to
and vest in Purchaser as follows:
1.3.1 in the Capacity, from the Initial RFS Date (or, if later, the date
of payment by Purchaser of the penultimate instalment of the
Purchase Price in accordance with Schedule 3) for the Initial
Stage and from the Final RFS Date (or, if later, the date of
payment by Purchaser of the final instalment of the Purchase Price
in accordance with Schedule 3) for the Final Stage;
1.3.2 in the Terrestrial Fibre Pair and in each Facility (as such term
is described in Schedule 2), from the date that the Terrestrial
Fibre Pair is made available to FA-1 or the relevant Landing
Station, Terminal Point or amplifier/regenerator site is made
available to FA-1 for the installation of its equipment (in each
case being at least 60 days prior to the Initial RFS Date) but not
for commercial use until the Initial RFS Date (or, if later, the
date of payment by Purchaser of the penultimate instalment of the
Purchase Price in accordance with Schedule 3);
1.3.3 the Rights shall subsist until the System is decommissioned in
accordance with clause 7.
1.4 Within *** days after the Initial RFS Date, or, if later, within *** days
after payment by Purchaser of the penultimate instalment of the Purchase
Price in accordance with Schedule 3, FA-1 will activate the initial
bandwidth of the Capacity (40 gigabits per second, consisting of four
wavelengths of ten gigabits per second per wavelength) in each of Links
2, 5, and 6 in accordance with the terms of this Agreement.
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1.5 Within ten days after the Final RFS Date, or, if later, within ten days
after payment by Purchaser of the final instalment of the Purchase Price
in accordance with Schedule 3, FA-1 will activate the initial bandwidth
of the Capacity (40 gigabits per second, consisting of four wavelengths
of ten gigabits per second per wavelength) in Link 9 in accordance with
the terms of this Agreement.
1.6 Purchaser shall have no legal ownership or other rights in the System
itself (including its physical assets), in any proceeds from the
disposition of the System or in any other capacity therein, except as
specifically provided herein.
2. PAYMENTS
2.1 Having already paid to FA-1 *** of the Purchase Price for the Rights to
be acquired pursuant hereto, Purchaser shall pay the remaining *** of the
Purchase Price pursuant to the payment schedule set out in Schedule 3
("Payment Schedule").
2.2 Purchaser shall pay to FA-1 such amounts for the operation and
maintenance of the System as are set forth in, or determined pursuant to,
Schedule 5 ("O&M Payments").
2.3 FA-1 shall render to Purchaser invoices for amounts payable pursuant to
this Agreement. Invoices for the Purchase Price shall be rendered in
accordance with clause 2.1. Invoices for O&M Payments shall be rendered
pursuant to Schedule 5. All invoices shall be due and payable within 30
days after delivery to Purchaser.
2.4 Any amount payable pursuant to this Agreement which is not paid when due
shall accrue interest at the annual rate of *** above the U.S. Dollar
LIBOR for one month as quoted in THE WALL STREET JOURNAL on the first
business day of the month in which the payment is due. All such default
interest shall accrue from the day following the date payment of the
relevant amount was due until it is paid in full and shall accrue both
before and after judgement. Such interest shall be payable on demand.
2.5 All amounts payable by Purchaser pursuant hereto shall be paid in full in
U.S. dollars by wire transfer free and clear of all bank or transfer
charges to such account(s) as FA-1 may by notice to Purchaser designate
without reduction for any deduction or withholding for or on account of
any tax, duty or other charge of whatever nature imposed by any taxing
authority. If Purchaser is required by law to make any deduction or
withholding from any payment hereunder, Purchaser shall pay such
additional amount to FA-1 so that after such deduction or withholding the
net amount received by FA-1 will be not less than the amount FA-1 would
have received had such deduction or withholding not been required.
Purchaser shall make the required deduction or withholding, shall pay the
amount so deducted or withheld to the relevant governmental authority and
shall promptly provide FA-1 with evidence of such payment. ***
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2.6 In the case of payments of the Purchase Price, until the Initial RFS Date
there shall be such controls over the account(s) designated by FA-1
pursuant to clause 2.5 so as to ensure that payments of the Purchase
Price may only be used to make timely payments required to be made by
FA-1 in connection with the planning, design, construction and project
management of the System. Any interest arising from amounts held in the
account(s) shall accrue for the benefit of FA-1 ***.
2.7 Purchaser's obligation to pay the Purchase Price and other amounts shall
not be subject to any rights of set-off, counterclaim, deduction, defense
or other right which Purchaser may have against FA-1 or any other party.
3. TAXES
3.1 Save as the context requires or as otherwise stated herein all references
to payments made in this Agreement are references to such payments
exclusive of all sales and use taxes, gross turnover taxes, value added
taxes, or other similar turnover or sales based taxes, excise taxes,
duties, fees, charges, levies, surcharges to recover the cost of
universal service contributions, or similar liabilities (other than the
general income taxes of FA-1) imposed by any authority, government or
government agency in connection with or as a result of or in respect of
the supply for which the payment is or is deemed to be consideration
(collectively "taxes"). Where applicable such taxes shall be added to the
invoice and shall be paid to FA-1 at the same time as the relevant
invoice is settled in accordance with clause 2. In the event that
Purchaser provides FA-1 with a duly authorised exemption certificate,
exempting Purchaser from any such tax, FA-1 agrees to exempt Purchaser in
accordance with the applicable tax law, effective on the date the
exemption certificate is received by FA-1.
3.2 Purchaser shall be responsible for all rates and similar property based
taxes appropriately assessed and arising directly or indirectly from
Purchaser's interest in and exercise of the Rights.
4. DEFAULT AND TERMINATION
4.1 In the event that Purchaser shall have failed to pay any amount payable
by Purchaser pursuant hereto for more than *** days after its due date
***, then Purchaser shall not be entitled to activate any capacity within
the Subsea Element or the Terrestrial Fibre Pair not theretofore
activated or to effect any upgrade pursuant to clause 6 until Purchaser
has paid in full all amounts overdue together with applicable default
interest. If such failure continues for a further *** days, FA-1 shall be
entitled to refrain from performing any services for Purchaser required
by this Agreement and deny Purchaser the right of access to co-located
spaces (except for the purposes of maintaining its then existing services
to its customers) until Purchaser has paid in full all undisputed amounts
overdue together with applicable default interest. ***
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4.2 If the defaulted payment is for any portion of the Purchase Price and
such default continues for a further period of *** days after the initial
*** days of delay referred to in clause 4.1, FA-1 may, in its discretion,
either:
4.2.1 require Purchaser forthwith to pay the unpaid balance of the
Purchase Price; or
4.2.2 terminate this Agreement and relieve Purchaser of its obligation
to pay any portion of the Purchase Price which has not yet become
due and its right to acquire the Rights pursuant hereto.
Neither such termination of this Agreement nor the exercise by FA-1 of
such remedy shall relieve Purchaser of its obligation to pay amounts
already due hereunder plus default interest thereon.
4.3 Purchaser shall conduct all operations and use of the Capacity and the
Terrestrial Fibre Pair in a manner which does not interrupt, impair or
interfere with the operations of the System or the use thereof by FA-1 or
any other purchaser or user of optical fibres or capacity in the System.
If, after notification by FA-1, Purchaser does not take immediate
corrective action to comply with its obligations under this clause 4.3,
FA-1 may take reasonable action required to protect the System, including
but not limited to the interruption of Purchaser's use of the Capacity or
the Terrestrial Fibre Pair and installation of protective equipment.
Purchaser shall, within 15 days of receipt of an invoice, reimburse FA-1
for its total reasonable direct costs properly incurred *** for any
protective measures reasonably required by FA-1 to be installed on the
System resulting from the use of the Capacity or the Terrestrial Fibre
Pair in violation of this clause. In applying restrictions on use of the
System by FA-1's customers FA-1 shall act in an equal and
non-discriminatory manner.
4.4 Except as provided herein, Purchaser shall have no right to terminate or
cancel this Agreement or its obligation to purchase the Rights. If the
Initial RFS Date has not occurred within *** months after the Scheduled
Initial RFS Date Purchaser may by two months written notice terminate its
purchase of the Rights. Purchaser shall have no obligation to make any
further payments of the Purchase Price under this Agreement following
such termination and FA-1 shall within *** days of such termination
refund to Purchaser any portion of the Purchase Price already paid by
Purchaser to FA-1 which has not been used to make timely payments
required to be made by FA-1 in connection with the planning, design,
construction and project management of the System. In the event Purchaser
has not exercised this right of termination, FA-1 may notify Purchaser of
the revised expected Initial RFS Date. Purchaser shall have 30 days from
receipt of this notice to notify FA-1 that it wishes to terminate its
obligation to purchase the Rights or that it accepts the delay to the
revised expected Initial RFS Date (and failure by Purchaser to provide a
timely notice shall be deemed acceptance of the delay). If the Initial
RFS Date does not occur by the revised expected Initial RFS Date the
above procedure will be repeated until the earlier of the occurrence of
the Initial RFS Date and Purchaser's termination of its obligation to
purchase the Rights.
4.5 If Purchaser has exercised its right to terminate its obligation to
purchase the Rights and the Initial
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RFS Date actually occurs prior to the date *** months after the Scheduled
Initial RFS Date, Purchaser shall be entitled within six months from the
Initial RFS Date to notify FA-1 that it wishes to acquire capacity on the
System in the amount of the Purchase Price theretofore paid by Purchaser
and not refunded pursuant to clause 4.4, the amount of the capacity being
determined on the basis of the unit cost for the initial bandwidth that
Purchaser would have received under this Agreement but for such
termination. In such case, this Agreement shall be amended by the Parties
to reflect the different nature of the capacity being acquired and the
different rights and obligations of the Parties as a consequence thereof.
4.6 If the Initial RFS Date has not occurred within *** months after the
Scheduled Initial RFS Date, Purchaser may by 30 days notice terminate
this Agreement ***.
4.7 The foregoing shall be the limit of Purchaser's rights for delays to the
Initial RFS Date.
4.8 ***
5. OPERATION AND MAINTENANCE
5.1 FA-1 shall be responsible for the operation and maintenance of the System
including arranging for the repair of the System in the event of any
fault. Purchaser's responsibility with regard to operation and
maintenance of the System shall be to make the O&M Payments as and when
they become due pursuant to this Agreement and to notify FA-1 of each
fault related to the Terrestrial Fibre Pair/Capacity on becoming aware of
the same, locate the site of such fault, and in relation to the
Terrestrial Fibre Pair to shut down Purchaser's lasers within two hours
of receipt of instructions to enable FA-1 to safely repair the fault. If
Purchaser fails to shut down its lasers within the required time period,
FA-1 shall be entitled to remove the lasers from the Terrestrial Fibre
Pair in order to safely repair the Terrestrial Fibre Pair or the System
provided that FA-1 takes reasonable care in so doing.
5.2 ***
5.3 FA-1 shall promulgate procedures for the maintenance, use and operation
of the System according to standards generally accepted in the
telecommunications cable industry and shall provide Purchaser with a copy
thereof (in draft form at least 60 days prior to the Initial RFS Date).
FA-1 may from time to time amend such procedures and shall provide
Purchaser with a copy of each amendment prior to its effectiveness.
5.4 ***
5.5 Following the Initial RFS Date, FA-1 shall solicit views from
representative samplings of its customers on operation and maintenance of
the System through such means as FA-1 considers appropriate. Purchaser
may, of course, provide its views on an unsolicited basis. If Purchaser
believes the manner in which FA-1 is operating and maintaining the System
constitutes a breach
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of this Agreement, Purchaser shall notify FA-1 and the Parties shall
promptly meet to discuss Purchaser's concerns. If Purchaser is not
satisfied with the outcome of such meeting or, notwithstanding the
outcome, Purchaser believes that the manner in which FA-1 is operating
and maintaining the System after the meeting constitutes a breach of this
Agreement, Purchaser shall be entitled to require a meeting among FA-1,
Purchaser and other users of the System, at which meeting Purchaser may
voice its concerns. The Parties will in good faith consider
implementation of the recommendations emanating from such meeting.
5.6 For ease of contract performance, each Party shall designate a single
point of contact who shall manage and be responsible for such Party's
performance of its obligations under this Agreement. Such persons shall
be referred to as Project Managers. Each Party agrees that its Project
Manager's performance of his or her respective responsibilities under
this Agreement is integral to the overall performance of such Party's
obligations to the other. To the extent that a Project Manager of a Party
is not performing his or her obligations, the other Party may request a
new Project Manager be assigned to assume the prior Project Manager's
obligations, and any such request shall not be unreasonably denied.
6. SYSTEM ENHANCEMENTS AND UPGRADES
6.1 FA-1 reserves the right to upgrade the amount of the capacity of the
System and to make any enhancements to the System from time to time.
6.2 FA-1 will notify Purchaser of any planned upgrade of, or enhancement to,
the System. Such notice shall set forth the costs of such upgrade or
enhancement, based on its pricing agreement with or proposal from its
suppliers. If Purchaser wishes to participate in such upgrade or
enhancement for the purposes of upgrading or enhancing the Capacity it
shall notify FA-1 within 30 days of receiving notice from FA-1. If
Purchaser agrees to participate in the upgrade or enhancement, the
upgrade or enhancement will then be treated as FA-1 project managing the
upgrade or enhancement, pursuant to clause 6.4. If Purchaser elects not
to participate or fails to timely respond to the notice, FA-1 shall be
entitled to proceed with the upgrade or enhancement without participation
by Purchaser.
6.3 Purchaser shall be entitled at its own cost at any time to upgrade the
Capacity and/or the Terrestrial Fibre Pair provided that such upgrades
are carried out in consultation with FA-1 and at a time mutually agreed
by the Parties (which agreement will not be unreasonably withheld or
delayed). Purchaser shall pay to FA-1 a fee equal to the direct costs
incurred by FA-1 in connection with such upgrade (unless FA-1 is project
managing the upgrade pursuant to clause 6.4). Purchaser shall be liable
for any damage to any part of the System directly involved with any such
upgrade and Purchaser shall be liable for any damage to or interruption
of any other part of the System resulting in this case from the gross
negligence or wilful misconduct of Purchaser (or any person acting on
behalf of Purchaser) in connection with any such upgrade, except in
either case where such damage or interruption results from Purchaser
following FA-1's instructions. ***
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6.4 Purchaser may at any time request FA-1 to project manage any upgrade of
the Capacity provided that each upgrade shall be a minimum of 40 gigabits
per second on each Link being upgraded. Upon FA-1 receiving such request
FA-1 will, within 60 days, subject to receiving from Purchaser the
information required, submit to Purchaser a proposal for the upgrade
("Proposal"). The Proposal will identify third party costs and a
completion timeline for the upgrade. Purchaser will notify FA-1 within 30
days of receiving the Proposal as to whether it accepts or rejects the
Proposal. ***
6.5 All amplifiers, SLTEs, LTEs and transponders added as a part of any
upgrade by, or on behalf of, Purchaser in connection with the Subsea
Element shall be owned by FA-1. Purchaser shall transfer to FA-1 title to
upgraded equipment in consideration of FA-1 maintaining the upgraded
equipment and spares.
7. SYSTEM DECOMMISSIONING
The System shall be decommissioned at such time, no earlier than 15 years
and no later than 25 years from the Initial RFS Date, as either FA-1 or
the holders of three quarters of the then activated capacity on the
System determine that the System is technically obsolete or has reached
the end of its useful economic life. There shall be no compensation
payable to Purchaser whether Purchaser voted for or against
decommissioning. This provision is without prejudice to the rights of
FA-1 to decommission the System without any liability to Purchaser
whatsoever, in the event of a catastrophic failure of all or a portion of
the System, whether caused by natural hazard or major technical fault,
which makes it impossible to maintain the business efficacy of the
System, or if any governmental, municipal, institutional, or commercial
authority, license, permission authorisation, right, or concession
necessary for the business efficacy of the System is not granted, subject
to prohibitive conditions or is terminated with no reasonable prospect of
retrieval within a period of 12 months following the date of termination.
***
8. REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 PSINetworks Company, PSINet Telecom Limited and PSINetwork SARL each
represents, warrants and covenants to FA-1 as follows:
8.1.1 It is duly established and in good standing under the laws of the
jurisdiction of its corporation and has full power and authority
to enter into this Agreement.
8.1.2 This Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
8.1.3 It will use commercially reasonable efforts to obtain all
necessary consents, licenses, permits and other approvals, both
governmental and private, as may be necessary to permit Purchaser
to perform its obligations under this Agreement and to acquire and
use the Rights.
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8.1.4 It shall perform its obligations under this Agreement and use the
Rights in a manner consistent with applicable law, and shall not
use, or permit the Rights to be used, for any illegal purpose or
in any other unlawful manner.
8.2 FLAG Atlantic Limited and FLAG Atlantic USA Limited each represents,
warrants and covenants to Purchaser as follows:
8.2.1 It is duly established and in good standing under the laws of the
jurisdiction of its incorporation and has full power and authority
to enter into this Agreement.
8.2.2 This Agreement constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms.
8.2.3 It shall use commercially reasonable efforts to obtain all
necessary consents, licenses, permits and other approvals, both
governmental and private, as may be necessary to permit FA-1 to
perform its obligations under this Agreement and to complete the
construction of the System.
8.2.4 It shall perform its obligations under this Agreement in a manner
consistent with applicable law.
8.3 Except as provided above, FA-1 disclaims, and Purchaser waives, all
representations and warranties regarding the System and the Rights,
including any warranty of merchantability or fitness for a particular
use, and in particular, without limiting the foregoing FA-1 does not
warrant that the System or the Rights will be uninterrupted or error free
or that the System or the Rights will meet Purchaser's requirements for
the equipment to be deployed by Purchaser in connection with the System
or the Rights or services to be offered by Purchaser utilising this
equipment.
9. FORCE MAJEURE
No failure or omission by any Party to carry out or observe any of the
terms and conditions of this Agreement (other than any payment
obligation) shall give rise to any claim against such Party or be deemed
a breach of this Agreement if such failure or omission arises from an act
of God, an act of any government or any other circumstance commonly known
as "force majeure".
10. CONFIDENTIALITY
10.1 Other than in connection with an assignment permitted under clause 12 or
in connection with the enforcement of this Agreement or if disclosure is
required by applicable law, neither FA-1 nor Purchaser shall disclose
the terms of this Agreement to any third party without the prior written
consent of the other Party. Without limiting the generality of the
foregoing, neither FA-1 nor
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Purchaser shall issue any press release or otherwise publicise the
existence or the terms of this Agreement without the prior written
consent of the other Party.
10.2 For purposes of this clause 10.2 and clauses 10.3, 10.4 and 10.5,
Confidential Information shall include all information, of any nature,
provided by one Party to the other in connection with this Agreement
except for that information which the originating Party has expressly
identified as being non-confidential. The receiving Party shall keep in
confidence all Confidential Information and will not disclose such
information to any third party other than in accordance with this
Agreement. The receiving Party shall use no lesser degree of care than
would apply to its own confidential information.
10.3 The provisions of clause 10.2 do not apply to any Confidential
Information which:
10.3.1 enters into the public domain other than by reason of a breach of
this Agreement;
10.3.2 is known to the Party to which it is disclosed at the time of its
disclosure, other than as a result of a breach of any other
covenant of confidentiality;
10.3.3 is independently generated, developed or discovered at any time by
or for the Party to which it is disclosed;
10.3.4 is necessary for the purposes of permitting a Party to (1) perform
its obligations under this Agreement provided that any third party
which receives Confidential Information pursuant to this provision
has agreed to be bound by the restrictions contained in this
section in the same manner as if it were a party to this
Agreement, or (2) enforce its rights under this Agreement;
10.3.5 is required to be disclosed by law, regulation or stock exchange
rules.
10.4 Confidential Information shall only be used for the purposes for which it
was disclosed.
10.5 The obligations of confidentiality in this clause 10 shall continue for
five years following the termination of this Agreement. 10.6 FA-1 shall
ensure that the entities entitled to receive copies of notices pursuant
to clause 17 shall abide by clauses 10.1 to 10.5.
11. NO LICENCE
11.1 Nothing in this Agreement shall or shall be deemed to give rise to any
right of Purchaser to use any FA-1 Intellectual Property, provided that
Purchaser may require a license of FA-1 Intellectual Property in
connection with an acquisition pursuant to clause 7.
11.2 For the purposes of this clause "Intellectual Property" means any and all
patents, trade marks, rights in designs, copyrights, and topography
rights, (whether registered or not and any applications to register or
rights to apply for registration of any of the foregoing), rights in
inventions, know-how, trade secrets and other confidential information,
rights in databases and all
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other intellectual property rights of a similar or corresponding
character which may now or in the future subsist in any part of the
world, and "FA-1 Intellectual Property" means Intellectual Property owned
by or licensed to FA-1 together with the goodwill relating thereto.
12. ASSIGNMENT
12.1 This Agreement and all the provisions hereof shall be binding upon and
inure to the benefit of the Parties hereto and their respective
successors and permitted assigns; provided that, except for the
assignment of FA-1's rights (but not its obligations) under this
Agreement to one or more financial institutions and/or export credit
agencies as collateral security for financing provided to FA-1 or in
connection with a sale of receivables by FA-1 and the assignment by such
financial institutions (and their assignees) of the rights and
obligations under this Agreement to any other persons following exercise
of any rights or remedies on such collateral security, neither this
Agreement nor any of the rights, interest or obligations hereunder shall
be assigned or transferred by any of the Parties hereto without the prior
written consent of the other Parties, and any attempted assignment or
transfer in violation of this clause shall be void. However, Purchaser
may assign this agreement to any subsidiary or affiliate without prior
written consent of FA-1 and in the event there is a merger or transfer of
control of substantially all the assets of Purchaser, no prior approval
of assignment of this Agreement is required.
12.2 Notwithstanding clause 12.1, FLAG Atlantic Limited and FLAG Atlantic USA
Limited may allocate their rights and obligations under this Agreement
between themselves and their affiliates.
12.3 FLAG Atlantic Limited and FLAG Atlantic USA Limited may use
subcontractors or agents to fulfil their obligations hereunder.
13. ENTIRE AGREEMENT
This Agreement constitutes the whole agreement between the Parties and
supersedes any previous agreements, arrangements or understandings
between them relating to the subject matter hereof. Each of the Parties
acknowledges that it is not relying on any statements, warranties or
representations given or made by any of them relating to the subject
matter hereof, save as expressly set out in this Agreement.
14. VARIATION
No variation or amendment to this Agreement shall be effective unless in
writing signed by authorised representatives of each of the Parties.
15. WAIVER
15.1 Failure by a Party at any time to enforce any of the provisions of this
Agreement shall neither be construed as a waiver of any rights or
remedies hereunder nor in any way affect the validity of this
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Agreement or any part of it and no waiver of a breach of this Agreement
shall constitute a waiver of any subsequent breach.
15.2 Termination of this Agreement shall not operate as a waiver of any breach
by a Party of any of the provisions hereof and shall be without prejudice
to any rights or remedies of a Party which may arise as a consequence of
such breach or which may have accrued hereunder up to the date of such
termination.
15.3 No waiver of a breach of this Agreement shall be effective unless given
in writing.
16. INVALIDITY
16.1 Subject to clause 16.2 below if any provision of this Agreement is or
becomes (whether pursuant to any judgement or otherwise) invalid, illegal
or unenforceable in any respect under the law of any applicable
jurisdiction:
16.1.1 the validity, legality and enforceability under the law of that
jurisdiction of any other provision; and
16.1.2 the validity, legality and enforceability under the law of any
other jurisdiction of that or any other provision, shall not be
affected or impaired in any way thereby.
16.2 The Parties acknowledge that the consideration for the Rights set out in
clause 2 was agreed upon taking into account clauses 4, 7, 8, and 18 and
in the event any of these clauses is or becomes (whether pursuant to any
judgement or otherwise) invalid, illegal or unenforceable in any respect
under the law of any jurisdiction, the Parties agree to renegotiate in
good faith the amounts payable by Purchaser under clause 2.
17. NOTICE
17.1 Any notice, request, demand or other communication required or permitted
hereunder shall be sufficiently given if in writing in English and
delivered by hand or sent by prepaid registered or certified mail
(airmail if international), by facsimile or by prepaid international
courier service of international reputation addressed to the appropriate
Party at the following address or to such address as such Party may from
time to time designate:
If to Purchaser:
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
XXX
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Attention: VP Capacity Planning
With a copy to : General Counsel
Tel: x0-000-000-0000
Fax: x0-000-000-0000
If to FA-1:
FLAG Atlantic Limited
The Emporium Building
69 Front Xxxxxx
0xx Xxxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: FLAG Atlantic-1
Tel: x0-000-000-0000
Fax: x0-000-000-0000
With a copy to the following entity for so long as it is affiliated with
FA-1:
FLAG Telecom Limited
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxxxxx X0X 0XX
U.K.
Attention: General Counsel
Tel: x00-000-000-0000
Fax: x00-000-000-0000
With a copy to the following entity for so long as it is affiliated with
FA-1:
GTS Carrier Services
Xxxxxxxxxxxxxxxxx 0X
0000 Xxxxxxxxx
Xxxxxxx
Attention: General Counsel
Tel: x000-000-0000
Fax: x000-000-0000
17.2 The Parties acknowledges that all communications in connection with this
Agreement shall be between PSINetworks Company and FLAG Atlantic Limited.
For this purpose, FLAG Atlantic USA Limited hereby appoints FLAG Atlantic
Limited as its agent, and PSINet Telecom Limited
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and PSINetworks SARL each appoints PSINetworks Company as its agent, to
receive and send all communications in connection with this Agreement.
17.3 Any notice, request, demand or other communication given or made pursuant
to this clause shall be deemed to have been received (i) in the case of
hand delivery or courier, on the date of receipt as evidenced by a
receipt of delivery from the recipient, (ii) in the case of mail
delivery, on the date which is seven days after the mailing thereof and
(iii) in the case of transmission by facsimile, on the date of
transmission with confirmed answer back. Each such communication sent by
facsimile shall be promptly confirmed by notice in writing hand-delivered
or sent by courier, mail or air mail as provided herein, but failure to
send such a confirmation shall not affect the validity of such
communication.
18. LIABILITY
18.1 Except to the extent stated in clauses 2.6, 4.4, 4.6 and 4.8 and Schedule
5 , FA-1 shall not be liable to Purchaser for any loss or damage
sustained by reason of any delay in completion, failure or breakdown of
the facilities constituting the System or any interruption of service,
regardless of the cause of such delay in completion, failure or
breakdown, and regardless of how long it shall last.
18.2 Notwithstanding any other provision in this Agreement to the contrary,
neither Party shall be liable to the other Party for any indirect,
special, punitive or consequential damages (including, but not limited
to, any loss of profit or business or claim from any customer for loss of
services) arising out of this Agreement or from any breach of any of the
terms and conditions of this Agreement.
18.3 Any financier of the System, at its election, shall have a right to cure
any breach by FLAG Atlantic Limited (or, if applicable, an affiliate
thereof) under this Agreement, provided however, that such financier
shall not assume any liabilities of FLAG Atlantic Limited under this
Agreement.
18.4 Neither Party shall be liable to the other Party hereunder for
occurrences caused by the failure of the other Party or any of its
affiliates to duly perform its obligations hereunder or under any
agreement relating to any Facility.
18.5 ***
19. COUNTERPARTS
This Agreement may be executed in counterparts. Any single counterpart or
set of counterparts signed, in either case, by all the Parties hereto
shall constitute a full and original agreement for all purposes.
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20. WAIVER OF IMMUNITY
The Parties acknowledge that this Agreement is commercial in nature, and
the Parties expressly and irrevocably waive any claim or right which they
may have to immunity (whether sovereign immunity or otherwise) for
themselves or with respect to any of their assets in connection with an
arbitration, arbitral award or other proceedings to enforce this
Agreement, including, without limitation, immunity from service of
process, immunity of any of their assets from pre- or post-judgement
attachment or execution and immunity from the jurisdiction of any court
or arbitral tribunal.
21. GOVERNING LAW
This Agreement shall be construed in accordance with New York law,
without regard to the law of New York governing conflicts of law.
22. ***
***
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first set forth above.
FLAG ATLANTIC LIMITED
/s/ Xxxxx Xxxxx
BY ________________________
Name: Smaih Xxxxx
Title: Director
FLAG ATLANTIC USA LIMITED
/s/ Xxxxxx Xxxxxxxxxx
BY ________________________
Name: Xxxxxx Xxxxxxxxxx
Title: Authorised Signatory
PSINETWORKS COMPANY
/s/ Name of Signatory
BY ________________________
Name:
Title:
PSINET TELECOM LIMITED
/s/ Name of Signatory
BY ________________________
Name:
Title:
PSINETWORKS SARL
/s/ Name of Signatory
BY ________________________
Name:
Title:
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