EXHIBIT 4.30
AGREEMENT FOR TRANSFER OF PUT OBLIGATION AND GBM NOTE
THIS AGREEMENT dated for reference the 22nd day of April 2001
AMONG:
360FINANCE LTD.
("360finance")
AND:
WORLDWIDE FIBER HOLDINGS LTD.
("WFHL")
AND:
360NETWORKS INC.
("360")
WHEREAS:
A. 360 currently employs Xxxxxxx X. Xxxxxx ("GBM") as its Chief Executive
Officer. In connection with GBM's employment, GBM purchased from 360 62,000,000
shares of 360 (the "Purchased Shares") pursuant to a stock purchase agreement
(the "Stock Purchase Agreement") made as of December 22, 1999 by and between 360
(then called Worldwide Fiber Inc.) and GBM. To finance GBM's purchase of the
Purchased Shares, he delivered the GBM Note.
B. Pursuant to Section 8 of the Stock Purchase Agreement, GBM was granted the
Put (as defined in Section 8 of the Stock Purchase Agreement), whereby GBM has
the right to require 360 to purchase certain Purchased Shares at their fair
market value, as determined pursuant to the Stock Purchase Agreement. Prior to
any of the transactions contemplated hereby, GBM had informed 360 that he may be
compelled to exercise the Put to reduce the risk to him of his recourse
obligations under the GBM Note.
C. 360 does not currently have a right to set-off its obligations under the Put
against the GBM Note. Further, the Put is not currently delegable to WFHL under
present circumstances. If GBM were to exercise the Put, it could therefore
adversely affect 360's liquidity and capital resources, cause compliance issues
under 360's existing credit facilities, and be perceived adversely by the public
investment community. Accordingly, neither WFHL nor 360 believe it would be in
its best interests for GBM to exercise the Put.
D. 360
and WFHL wish to avoid the risks described in recital C and, to do so, they have
requested GBM's cooperation and agreement to facilitate a transaction whereby
WFHL would assume 360's obligation for GBM's put rights contained in the Stock
Purchase Agreement and
clarify and amend WFHL's put obligations to GBM in the form of the GBM Put (as
defined in the Master Agreement) provided in the Master Agreement dated April
20, 0000 (xxx "Xxxxxx Xxxxxxxxx") xxxxx XXXX, XXX and 360 and GBM would agree to
cancel his put rights against 360 and 360 would cause the GBM Note to be sold to
WFHL in exchange for a recourse promissory note made by WFHL in favour of
360finance in an amount equal to the principal and interest owing under the GBM
Note. GBM has agreed to release 360 from its obligations with respect to the Put
only in the event that XXXX, 000 xxx XXX enter into the Master Agreement,
whereby, among other things, WFHL clarifies its obligations in the form of the
GBM Put.
E. WFHL would not be willing to purchase the GBM Note unless GBM agrees to
increase the interest rate charged on the GBM Note by 0.1%, and would not be
willing to deliver the GBM Put unless GBM agrees to forbear his rights to
exercise the GBM Put for a period of up to 9 months on the terms and conditions
set forth in the Forbearance Agreement (as defined in the Master Agreement) and
GBM agrees to grant to WFHL certain set-off rights. GBM is willing to enter into
the Forbearance Agreement and increase the interest rate on his note, and
thereby facilitate the sale of the GBM Note to WFHL and 360's delegation of its
put obligations to WFHL, on the condition that the GBM Note be amended to, among
other things, make it non-recourse (except to the Shares(as defined in the
Master Agreement)) and to grant GBM certain set-off rights, and the further
condition that the parties execute this Agreement.
F. After giving effect to the transactions contemplated by this Agreement and
the documents referenced herein, GBM will be indebted to WFHL in the amount of
$77,500,000, plus accrued but unpaid interest, as evidenced by the Revised GBM
Note (as defined in the Master Agreement) issued in substitution for the GBM
Note.
G. In consideration of revisions which are incorporated in the Revised GBM Note
and the provision by WFHL of the GBM Put, GBM has agreed to pledge the Shares,
and deliver possession of certificates evidencing the Shares, to WFHL to be
dealt with as provided in the Master Agreement.
H. 360 shall retain the Repurchase Option (as defined in the Stock Purchase
Agreement) to repurchase some of GBM's Shares, which may be exercised pursuant
to the Stock Purchase Agreement.
I. The Transactions described in Recitals C through G are occurring concurrently
with the execution of this Agreement and each such transaction is dependent upon
a concurrent occurrence of the others.
J. 360finance has agreed to transfer the GBM Note to WFHL, and WFHL has agreed
to acquire the GBM Note, on the terms specified in this Agreement.
IN CONSIDERATION of the mutual agreements in this Agreement, which consideration
is acknowledged by the parties to be fully received and sufficient, and subject
to the terms and conditions specified in this Agreement, the parties agree as
follows:
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ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
In this Agreement, including the recitals and the schedules, the following words
and expressions have the following meanings unless the context otherwise
requires:
"Encumbrance" means, whether or not registered or registrable or recorded or
recordable, and regardless how created or arising, a mortgage, assignment of
book accounts, lien, encumbrance, charge, security interest, hypothec or pledge,
whether fixed or floating, an option or other right to acquire any interest in,
or any other encumbrance of whatsoever nature and kind or any agreement to
create, or right capable of becoming, any of the foregoing.
"GBM" has the meaning provided in the recitals.
"GBM Note" means that certain promissory note in the principal amount of
US$77,500,000 dated December 22, 1999 and issued by GBM to 360finance.
"Master Agreement" has the meaning provided in the recitals.
"Person" means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture or
other entity or a foreign state or political subdivision thereof or any agency
of such state or subdivision.
"Put" has the meaning specified in Section 8 of the Stock Purchase Agreement.
"Put Assignment and Assumption Agreement" means a Put Assignment and Assumption
Agreement dated as of December 22, 1999, between WFHL and 360.
"Shares" has the meaning provided in the Master Agreement.
"Stock Purchase Agreement" has the meaning provided in the recitals.
"WFHL Note" means a Promissory Note in the form attached as Schedule "B".
1.2 SCHEDULES
The following schedules are attached to and form part of this Agreement:
SCHEDULE TITLE
A Copy of GBM Note
B Copy of Stock Purchase Agreement
C Form of WFHL Note
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ARTICLE 2
TRANSFER OF GBM NOTE
2.1 PURCHASE AND SALE
Based on representations and warranties contained in this Agreement 360finance
agrees to sell, assign and transfer to WFHL and does hereby sell, assign and
transfer to WFHL, and WFHL agrees to purchase from 360finance and hereby accepts
the sale, assignment and transfer from 360finance of the GBM Note, without
recourse, effective on the date of this Agreement, free and clear of all
Encumbrances, for the purchase price set out in Section 2.2 and in accordance
with and subject to the terms and conditions set forth in this Agreement.
2.2 PURCHASE PRICE
The purchase price for the GBM Note is US$83,982,669.60. The purchase price
shall be satisfied by the delivery of the WFHL Note and related security
documents, delivered concurrently with the WFHL Note, by WFHL to 360finance
simultaneously with the execution of this Agreement.
2.3 SECURITY
The obligations of WFHL under the WFHL Note shall be secured inter alia by a
general security agreement by WFHL to 360finance and by a subordination
agreement dated for reference April 20, 2001, between 360finance and Ledcor Inc.
of WFHL's indebtedness to Ledcor Inc.
ARTICLE 3
ASSIGNMENT OF PUT
3.1 ASSIGNMENT
Based on the representations and warranties contained in this Agreement:
(a) 360 hereby agrees to assign and transfer to WFHL and does hereby assign
and transfer to WFHL, and WFHL agrees to accept such assignment and
transfer from 360 of, all of the obligations of 360 under the Put
absolutely from and effective as of the date of this Agreement. From
and since the date of this Agreement, WFHL is bound by and will observe
and perform the obligations of 360 under the Put as if WFHL has been
originally named as a party to the Stock Purchase Agreement. For
greater certainty: (a) unless otherwise agreed between 360finance and
WFHL from time to time or otherwise as contemplated under the Master
Agreement, WFHL shall be entitled and required to acquire all shares
sold by GBM pursuant to any exercise of the Put by GBM; and (b) except
for the Put, WFHL is not and will not be bound by any of the
obligations of 360 under the Stock Purchase Agreement.
(b) 360 and WFHL hereby agree that (i) the Put Assignment and Assumption
Agreement is hereby terminated as of the date hereof and is of no
further force or effect; and following and as a result of such
termination, (ii) WFHL has no obligation or liability to 360 with
respect to any provision of the Put Assignment and Assumption Agreement
or any other
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related agreement or instrument and 360 has no obligation or liability
to WFHL with respect to any provision of the Put Assignment and
Assumption Agreement or any other related agreement or instrument.
(c) 360, on its own behalf and on behalf of its predecessors, successors
and assigns, hereby releases, remises and forever discharges WFHL for
itself, and its predecessors, successors, assigns, employees, officers,
directors, agents, attorneys, shareholders and affiliates, from and
against any and all claims, crossclaims, third party claims,
counterclaims, contribution claims, debts, demands, actions, promises,
judgments, trespasses, executions, causes of action, suits, accounts,
covenants, sums of money, dues, reckonings, bonds, bills, lines,
attachments, trustee process, contracts, controversies, agreements,
promises, damages, and all other claims of every kind and nature in
law, equity, arbitration, or other forum, whether absolute or
contingent, direct or indirect, known or unknown, relating to, or
otherwise arising out of, in any manner, directly or indirectly, the
Put Assignment and Assumption Agreement or any other agreement or
instrument (other than this Agreement and the WFHL Note) entered into
in connection therewith or any transaction contemplated thereby.
(d) For greater certainty, WFHL hereby acknowledges that although its
consideration for the assumption of the obligations set out in this
section includes certain consideration provided by third parties
(including by virtue of the Forbearance Agreement and the Master
Agreement), its obligations under this Agreement are fully binding and
in no way subject to diminution only by virtue of any failure of the
consideration provided by any third party.
ARTICLE 4
OPTION TO ACQUIRE PUT UNVESTED SHARES
4.1 OPTION TO ACQUIRE PUT UNVESTED SHARES
If the Repurchase Option (as defined in the Stock Purchase Agreement) has not
then expired, then subject to compliance with the requirements of any stock
exchanges on which such securities are then listed and to compliance with
applicable laws, 360 shall have the option to acquire all or any of the Unvested
Shares from time to time acquired by WFHL pursuant to the GBM Put (as defined in
the Master Agreement) for a purchase price per Unvested Share equal to the
purchase price paid by WFHL to acquire such Unvested Share from GBM. The option
may be exercised with respect to an Unvested Share at any time during the 90 day
period (the "Option Period") following the later of (i) the closing of the
acquisition by WFHL of the Unvested Share pursuant to the GBM Put and (ii) the
receipt by 360 of notice in writing from WFHL providing reasonable details of
such acquisition, including the number of Unvested Shares acquired, the date of
acquisition and the purchase price per Unvested Share acquired. The option
contemplated hereby shall, with respect to any Unvested Share, terminate and be
of no further force and effect upon the expiry of the Option Period with respect
to that Unvested Share. The option shall be exercisable by notice in writing
given by 360 to WFHL before the expiry of the applicable Option Period. The
closing of the sale shall take place on the fifth business day following the
delivery of the notice exercising the option. At the closing, unless otherwise
agreed by 360 and WFHL, 360 shall deliver to WFHL a bank draft or certified
cheque in the
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amount of the aggregate purchase price for the Unvested Shares so acquired and
WFHL shall deliver to 360 share certificates in the name of 360 or its nominee,
and all such documents and instruments as may be necessary to effectively
transfer title to such shares to 360 or its nominee, free and clear of all
Encumbrances.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 WARRANTIES AND REPRESENTATIONS OF 360FINANCE
360finance warrants and represents to and covenants with WFHL, with the intent
that WFHL will rely thereon in entering into this Agreement and in concluding
the transactions contemplated in this Agreement, that, as of the date of this
Agreement:
(a) STATUS. 360finance is a corporation duly incorporated, validly existing
and in good corporate standing under the laws of the jurisdiction of
its incorporation, amalgamation or continuation with respect to all
filings required under any applicable legislation.
(b) AUTHORITY. 360finance has all necessary corporate capacity, power, and
authority to enter into this Agreement and to carry out the terms of
this Agreement.
(c) RESIDENCY. 360finance is not a non-resident of Canada within the
meaning of the INCOME TAX ACT (Canada).
(d) GBM NOTE. There is now due and owing under the GBM Note the principal
amount of US$82,305,000 (including capitalized interest to December 22,
2000) and accrued interest from December 22, 2000 to the date hereof in
the amount of US$1,677,669.60. On the transfer of the GBM Note, WFHL
will have good title to and possession of the GBM Note, free and clear
of all Encumbrances.
(e) LITIGATION, ETC. To the best of the knowledge of 360finance, there are
no actions, suits, proceedings, claims or investigations outstanding or
pending or threatened against or affecting 360finance or 360 that could
materially adversely affect the ability of 360finance or 360 to perform
any of its obligations under this Agreement, and the execution or
performance of this Agreement by 360finance or 360 will not give rise
to a right on the part of any governmental authority to take any action
that could materially adversely affect its ability to perform any of
its obligations under this Agreement.
(f) COMPLIANCE WITH CONSTATING DOCUMENTS, AGREEMENTS AND LAWS. The making
of this Agreement, the completion of the transactions contemplated by
this Agreement and the performance of and compliance with the terms of
this Agreement by 360finance does not and will not:
(i) conflict with or result in a breach of or violate any of the
terms, conditions, or provisions of the constating documents
of 360finance; or
(ii) conflict with or result in a breach of or violate any of the
terms, conditions or provisions of any law, judgment, order,
injunction, decree, regulation or ruling of
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any governmental authority, to which 360 or 360finance is
subject, or constitute or result in a breach of or a default
under any agreement, contract or commitment to which 360 or
360finance is a party or by which any of their respective
properties or assets are bound.
(G) VALID, BINDING AND ENFORCEABLE. This Agreement is a valid and binding
agreement and obligation, enforceable against 360finance in accordance
with its terms, subject to bankruptcy, insolvency, reorganization,
arrangement, winding-up, moratorium, and similar laws of general
application affecting the enforcement of creditors' rights generally,
and subject to general equitable principles, including the fact that
the availability of equitable remedies, such as injunctive relief or
specific performance, is in the discretion of the court.
(H) NO BROKER. 360finance has carried on all negotiations relating to this
Agreement and the transactions contemplated in this Agreement directly
and without intervention on its behalf of any other party in such
manner as to give rise to any valid claim against WFHL for a brokerage
commission, finder's fee or other like payment.
5.2 WARRANTIES AND REPRESENTATIONS OF WFHL
WFHL warrants and represents to and covenants with 360finance, with the intent
that 360finance will rely thereon in entering into this Agreement and in
concluding the transactions contemplated in this Agreement, that, as of the date
of this Agreement:
(a) CORPORATE STATUS. WFHL is a corporation duly incorporated, validly
existing and in good corporate standing under the laws of the
jurisdiction of its incorporation, amalgamation or continuation with
respect to all filings required under applicable legislation.
(b) AUTHORITY. WFHL has all necessary corporate capacity, power and
authority to enter into and to execute and deliver this Agreement and
the WFHL Note and to carry out the terms of this Agreement and the WFHL
Note.
(c) RESIDENCY. WFHL is not a non-resident of Canada within the meaning of
the INCOME TAX ACT (Canada).
(d) LITIGATION, ETC. To the best of the knowledge of WFHL, there are no
actions, suits, judgments, proceedings, claims or investigations
outstanding or pending or threatened against or affecting WFHL that
could materially adversely affect its ability to perform any of its
obligations under this Agreement or the WFHL Note, and the execution or
performance of this Agreement and the WFHL Note by WFHL will not give
rise to a right on the part of any governmental authority to take any
action that could materially adversely affect its ability to perform
any of its obligations under this Agreement or the WFHL Note.
(e) COMPLIANCE WITH CONSTATING DOCUMENTS, AGREEMENTS AND LAWS. The making
of this Agreement or the WFHL Note, the completion of the transactions
contemplated by this Agreement and the performance of and compliance
with the terms of this Agreement and the WFHL Note by WFHL does not and
will not:
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(i) conflict with or result in a breach of or violate any of the
terms, conditions, or provisions of the constating documents
of WFHL; or
(ii) conflict with or result in a breach of or violate any of the
terms, conditions or provisions of any law, judgment, order,
injunction, decree, regulation or ruling of any governmental
authority, to which WFHL is subject, or constitute or result
in a default under any agreement, contract or commitment to
which WFHL is a party or by which its properties or assets are
bound.
(f) VALID, BINDING AND ENFORCEABLE. Each of this Agreement and the WFHL
Note is a valid and binding agreement and obligation, enforceable
against WFHL in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, arrangement, winding-up, moratorium, and
similar laws of general application affecting the enforcement of
creditors' rights generally, and subject to general equitable
principles, including the fact that the availability of equitable
remedies, such as injunctive relief or specific performance, is in the
discretion of the court.
(g) NO BROKER. WFHL has carried on all negotiations relating to this
Agreement and the transactions contemplated in this Agreement directly
and without intervention on its behalf of any other party in such
manner as to give rise to any valid claim against 360finance for a
brokerage commission, finder's fee or other like payment.
5.3 WARRANTIES AND REPRESENTATIONS OF 360
360 warrants and represents to and covenants with WFHL, with the intent that
WFHL will rely thereon in entering into this Agreement and in concluding the
transactions contemplated in this Agreement, that, as of the date of this
Agreement:
(a) STATUS. 360 is a corporation duly incorporated, validly existing and in
good corporate standing under the laws of the jurisdiction of its
incorporation, amalgamation or continuation with respect to all filings
required under any applicable legislation.
(B) AUTHORITY. 360 has all necessary corporate capacity, power, and
authority to enter into this Agreement and to carry out the terms of
this Agreement.
(C) RESIDENCY. 360 is not a non-resident of Canada within the meaning of
the INCOME TAX ACT (Canada).
(D) PUT. The Put is in full force and effect, has not been amended, and the
Put has not been exercised by GBM. 360 is not entitled to require WFHL
to assume the Put at this time as a result of Section 6 of the Put
Assignment and Assumption Agreement.
(E) LITIGATION, ETC. To the best of the knowledge of 360, there are no
actions, suits, proceedings, claims or investigations outstanding or
pending or threatened against or affecting 360 or 360finance that could
materially adversely affect the ability of 360 or 360finance to perform
any of its obligations under this Agreement, and the execution or
performance of this Agreement by 360 will not give rise to a right on
the part of any
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governmental authority to take any action that could materially
adversely affect its ability to perform any of its obligations under
this Agreement.
(f) COMPLIANCE WITH CONSTATING DOCUMENTS, AGREEMENTS AND LAWS. The making
of this Agreement, the completion of the transactions contemplated by
this Agreement and the performance of and compliance with the terms of
this Agreement by 360 does not and will not:
(i) conflict with or result in a breach of or violate any of the
terms, conditions, or provisions of the constating documents
of 360; or
(ii) conflict with or result in a breach of or violate any of the
terms, conditions or provisions of any law, judgment, order,
injunction, decree, regulation or ruling of any governmental
authority, to which 360 or 360finance is subject, or
constitute or result in a breach of or a default under any
agreement, contract or commitment to which 360 or 360finance
is a party or by which any of their respective properties or
assets are bound.
(g) VALID, BINDING AND ENFORCEABLE. This Agreement is a valid and binding
agreement and obligation, enforceable against 360 in accordance with
its terms, subject to bankruptcy, insolvency, reorganization,
arrangement, winding-up, moratorium, and similar laws of general
application affecting the enforcement of creditors' rights generally,
and subject to general equitable principles, including the fact that
the availability of equitable remedies, such as injunctive relief or
specific performance, is in the discretion of the court.
(H) NO BROKER. 360 has carried on all negotiations relating to this
Agreement and the transactions contemplated in this Agreement directly
and without intervention on its behalf of any other party in such
manner as to give rise to any valid claim against WFHL for a brokerage
commission, finder's fee or other like payment.
(I) 360FINANCE. The representations and warranties of 360finance in Section
3.1 are true and correct in all respects.
5.4 INDEMNITY
360 and 360finance will jointly and severally indemnify and save harmless WFHL
from and against any and all losses, claims, damages, liabilities and expenses
incurred or suffered by WFHL by reason, resulting from or in connection with,
any failure of WFHL to have good title to the GBM Note, free and clear of all
Encumbrances. For the purposes of this Agreement, the existence of any
Encumbrance against, or defect in, the title acquired by WFHL in the GBM Note
shall be deemed to be a loss suffered by WFHL on the date of this Agreement.
5.5 SETOFF
Notwithstanding any other provision of this Agreement, WFHL shall have the right
(but not the obligation), at its sole discretion, to discharge amounts owed to
360finance under the WFHL Note, up to the full amount of principal and interest
outstanding from time to time under the WFHL Note, by setting off any amount
payable by 360 or 360finance to WFHL under Section
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5.4 against the indebtedness of WFHL under the WFHL Note and thereby reducing
the indebtedness of WFHL under the WFHL Note by the amount so set off.
ARTICLE 6
GENERAL
6.1 GOVERNING LAW AND ATTORNMENT
This Agreement will be governed by and construed in accordance with the
substantive laws of British Columbia and the federal laws of Canada applicable
in British Columbia, without regard to the conflict of law rules of British
Columbia. The parties irrevocably submit to and accept generally and
unconditionally the exclusive jurisdiction of the courts and appellate courts of
British Columbia with respect to any legal action or proceeding which may be
brought at any time relating in any way to this Agreement. Each of the parties
irrevocably waives any objection it may now or in the future have to the venue
of any such action or proceeding, and any claim it may now or in the future have
that any such action or proceeding has been brought in an inconvenient forum.
6.2 NO SETOFF
Subject to sections 5.4 and 5.5 the obligations and responsibilities of WFHL
pursuant to this Agreement and the WFHL Note, including the obligations to pay
all amounts owing under this Agreement and the WFHL Note, are absolute and
unconditional in all circumstances and WFHL will pay all such amounts without
deduction regardless of any claim in the nature of setoff, abatement,
compensation or any other deduction whatsoever which may be raised by WFHL.
6.3 TIME OF THE ESSENCE OF THE AGREEMENT
Unless otherwise specifically provided in this Agreement, time will be of the
essence of this Agreement and of the transactions contemplated by this
Agreement.
6.4 REMEDIES NOT EXCLUSIVE
Any remedies provided to the parties under this Agreement are cumulative and not
exclusive to each other, and any such remedy will not be deemed or construed to
affect any right which any of the parties is entitled to seek at law, in equity
or by statute.
6.5 NOTICES
Any notice, direction, request or other communication required or contemplated
by any provision of this Agreement will be given in writing and will be given by
delivering or faxing the same to the parties as follows:
(a) To 360finance at:
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360finance ltd.
Xxxxx 0000 - 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Secretary
Fax No.: (000) 000-0000
(b) To WFHL at:
Worldwide Fiber Holdings Ltd
Suite 1000 - 1066 West Hastings Street
Vancouver, B.C. V6E 3X1
Attention: Vice President, Finance
Fax No.: (000) 000-0000
(c) To 360 at:
360networks inc.
Xxxxx 0000 - 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Secretary
Fax No.: (000) 000-0000
Any such notice, direction, request or other communication will be deemed to
have been given or made on the date on which it was delivered or, in the case of
fax, on the next business day after receipt of transmission. Any party may
change its fax number or address for service from time to time by written notice
in accordance with this section.
6.6 ASSIGNMENT
This Agreement is not assignable by WFHL in whole or in part without the prior
written consent of 360finance and 360. Any attempt by WFHL to assign any of the
rights or to delegate any of the duties or obligations of this Agreement without
such prior written consent is void. This Agreement is not assignable by 360 or
360finance in whole or in part without the prior written consent of WFHL. Any
attempt by 360 or 360finance to assign any of the rights or to delegate any of
the duties or obligations of this Agreement without such prior written consent
is void.
6.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document. All of these counterparts
will for all purposes constitute one agreement, binding on the parties,
notwithstanding that all parties are not signatories to the same counterpart. A
fax transcribed copy or photocopy of this Agreement executed by a party in
counterpart or otherwise will constitute a properly executed, delivered and
binding agreement or counterpart of the executing party.
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6.8 WAIVER
No failure or delay on the part of any party in exercising any power or right
under this Agreement will operate as a waiver of such power or right. No single
or partial exercise of any right or power under this Agreement will preclude any
further or other exercise of such right or power. No modification or waiver of
any provision of this Agreement and no consent to any departure by any party
from any provision of this Agreement will be effective until the same is in
writing. Any such waiver or consent will be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on any party in any circumstances will entitle such party to any other or
further notice or demand in similar or other circumstances.
6.9 FURTHER ASSURANCES
Each of the parties will promptly execute and deliver to the other at the cost
of the other such further documents and assurances and take such further actions
as the other may from time to time request in order to more effectively carry
out the intent and purpose of this Agreement and to establish and protect the
rights, interests and remedies intended to be created in favour of the other.
6.10 ENTIRE AGREEMENT
This Agreement and any documents and agreements to be delivered pursuant to this
Agreement supersede all previous invitations, proposals, letters,
correspondence, negotiations, promises, agreements, covenants, conditions,
representations and warranties with respect to the subject matter of this
Agreement. There is no representation, warranty, collateral term or condition or
collateral agreement affecting this Agreement, other than as expressed in
writing in this Agreement.
6.11 AMENDMENTS
No change or modification of this Agreement will be valid unless it is in
writing and signed by each party to this Agreement.
6.12 INVALIDITY OF PARTICULAR PROVISION
If any provision of this Agreement or any part of any provision (in this section
called the "Offending Provision") is declared or becomes unenforceable, invalid
or illegal for any reason whatsoever including, without limiting the generality
of the foregoing, a decision by any competent courts, legislation, statutes,
bylaws or regulations or any other requirements having the force of law, then
the remainder of this Agreement will remain in full force and effect as if this
Agreement had been executed without the Offending Provision.
6.13 RELATIONSHIP
Nothing in this Agreement will make or be construed to make 360finance or 360
and WFHL partners or agents of each other or to create any other relationship by
which the acts of any party may bind the others or result in any liability to
the other.
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6.14 CURRENCY
Unless otherwise specified all sums of money expressed in this Agreement are in
the lawful money of Canada.
6.15 NUMBER AND GENDER
Unless the context of this Agreement otherwise requires, to the extent necessary
so that each clause will be given the most reasonable interpretation, the
singular number will include the plural and vice versa, the verb will be
construed as agreeing with the word so substituted, words importing the
masculine gender will include the feminine and neuter genders, words importing
persons will include firms and corporations and words importing firms and
corporations will include individuals.
6.16 HEADINGS AND CAPTIONS
The headings and captions of sections and paragraphs contained in this Agreement
are all inserted for convenience of reference only and are not to be considered
when interpreting this Agreement.
6.17 ACKNOWLEDGEMENT OF RECEIPT
Each of the parties acknowledges receiving an executed copy of this Agreement.
6.18 ENUREMENT
Subject to the restrictions on transfer contained in this Agreement, this
Agreement will enure to the benefit of and be binding on the parties and their
respective heirs, executors, administrators, successors and assigns.
6.19 RECOURSE
360 and 360finance shall have recourse under this Agreement, the WFHL Note and
the General Security Agreement to, and only to, that Collateral listed in
Schedule A to the general security agreement described in Section 2.3 (which
WFHL has represented and warranted are all of the assets of WFHL as at the date
of this Agreement) and Proceeds thereof and to any assets acquired by WFHL after
the date of this Agreement.
6.20 SURVIVAL
The terms and conditions of this Agreement will survive the closing of
transactions hereby contemplated.
[THE NEXT PAGE IS THE EXECUTION PAGE.]
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date first
above mentioned.
360FINANCE LTD. WORLDWIDE FIBER HOLDINGS LTD.
Per: Per:
Signed Signed
_____________________________________ _______________________________________
Signature Signature
_____________________________________ _______________________________________
Name Name
_____________________________________ _______________________________________
Title Title
360NETWORKS INC.
Per:
Signed
_____________________________________
Signature
_____________________________________
Name
_____________________________________
Title
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