Dated this 24 day of March 2007 SWITCH PURCHASE AGREEMENT BETWEEN Vistula Ltd. AND Validus Capital Ltd.
Dated
this 24 day of March 2007
BETWEEN
Vistula
Ltd.
AND
Validus
Capital Ltd.
This
Agreement is made on the 24th
day of
March 2007 between:
Vistula
Limited (“VISTULA”) whose registered office is at 0-00 Xxxxxxx Xxxxxx, Xxxxxx
X0X 0XX
and
Validus
Capital Limited ("VALIDUS"), whose is registered office is at 00 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxxx, X000XX, collectively referred to as "the
Parties.”
WHEREAS:
| A |
VISTULA
wishes to sell its Lucent Excel EXS-2000 switch and asscociated
peripherals located in Telehouse DFM40 (the “Switch”) to VALIDUS.
|
| B |
VALIDUS
wishes to buy the Switch and to keep the switch in its current co-location
site, which is currently XXX00 Xxxxxxxxx Xxxx, Xxxxxx X00 0XX under
an
agreement with Telehouse (“the Telehouse Agreement”) between Telehouse and
VISTULA.
|
| C |
The
parties have agreed that VALIDUS shall purchase the Switch in
consideration for which VALIDUS shall pay the purchase price sums direct
to Telehouse pursuant to the Telehouse
Agreement.
|
IT
IS HEREBY AGREED AS FOLLOWS:
| 1. |
SALE
AND PURCHASE
|
| 1.1 |
VISTULA
agrees to sell to VALIDUS with full title the Switch which is situated
in
Telehouse as is more particularly described in Schedule 1 and VALIDUS
agrees to buy the Switch free of all encumbrances, in consideration
for
the following:
|
| 1.1.1 |
VALIDUS
shall arrange the novation of the Telehouse Agreement to VALIDUS or
another company within the VALIDUS Group and will cover all payments
to
Telehouse pursuant to the Telehouse Agreement for the remainder of
the
term.
|
| 1.1.2 |
The
novation of the Telehouse Agreement to take effect from January
1st
2007.
|
| 2. |
CONDITIONS
|
| 2.1 |
VISTULA
warrants and confirms that at the date hereof, there are no liens,
retrictions and encumbrances on the Switch and it has full title and
ownership of the Switch.
|
| 2.2 |
VISTULA
warrants and confirms that there are no sums owing by it to Telehouse
in
relation to the Telehouse Agreement. Or if any sums are outstanding
that
these will be met in full by VISTULA in a timescale so as to avoid
any
action, legal or otherwise by Telehouse.
|
| 2.3 |
VALIDUS
will provide VISTULA with 12 switch ports at no charge for a period
of
three (3) years from the Commencement
Date.
|
| 2.4 |
Any
existing commercial relationships with Carriers already connected to
the
Switch will remain with VISTULA and VISTULA will remain liable for
any
sums owing by it to any Carriers for traffic passed through the Switch.
The novation of the commercial relationship with any Carriers from
VISTULA
to VALIDUS will be dealt with outside of this
Agreement.
|
| 2.5 |
It
is noted that the Switch is being sold on an “as-is” basis with no
warranties as to fitness for purpose, or quality. Following the
acqusition, all responsibility to third parties for example in repect
of
software licences, shall be the responsbility of
VALIDUS.
|
| 2.6 |
VALIDUS
and VISTULA will afford each other full access to the switch in order
to
access information and conduct itheir respective businesses. The parties
will afford each other the usual courtesies over downtime, maintenance
and
switch restarts, such that neither party’s business unduly
suffers.
|
| 2.7 |
VISTULA
will provide VALIDUS with an unrestricted licence to use its Victory
billing platform and to amend the source and to generally further develop
the system.
|
| 3. |
PROVISION
OF INFORMATION AND
CONFIDENTIALITY
|
| 3.1 |
Subject
to sub-Clause 3.2, each Party undertakes to the other that it will
treat
as confidential, and will use its reasonable endeavours to procure
that
its directors, employees, professional advisers and agents will treat
as
confidential, the terms and conditions of this Agreement as well as
all
data, summaries, rates, reports or information of all kinds and all
other
confidential information whether of a technical or business nature
or
otherwise relating in any manner to the business or affairs of the
other
Party which it may receive in connection with this Agreement, and will
not
(and will use its reasonable endeavours to procure that its directors,
employees, professional advisers and agents will not) disclose such
information to any third party except with the written permission of
the
other Party or use such information other than strictly for the purposes
of this Agreement.
|
| 3.2 |
The
provisions of sub-Clause 3.1 shall not apply to information held by
a
Party which is in the public domain, already known to the other party
or
information that must be disclosed to a competent court or
regulator.
|
| 3.3 |
The
Parties agree that the terms of this Agreement are confidential and
shall
be subject to the confidentiality provisions of this Clause 3.
|
| 4. |
INDEMNIFICATION
|
Both
Parties will at all times keep the other party fully and effectively indemnified
against any liability, claim, loss, damage or expense which either Party, its
employees, agents, subcontractors or other clients may suffer due to the
negligence or breach of contract of the other Party, its employees, agents
or
subcontractors.
| 5. |
ASSIGNMENT
|
Either
Party may at any time assign all or part of its rights and obligations under
this Agreement with the written consent of the other party.
| 6. |
NO
WAIVER
|
The
failure to exercise or delay in exercising a right or remedy under this
Agreement shall not constitute a waiver of the right or remedy or a waiver
of
any other right or remedy and no single or partial exercise of any right or
remedy under this Agreement shall prevent any further exercise of the right
or
remedy or the exercise of any other right or remedy in respect of the same
or
any other breach.
| 7. |
NOTICES
|
All
notices, consents, waivers or other communications given hereunder shall be
in
writing, shall be delivered by hand, by registered or recorded post (return
receipt requested) or sent by fax. Notice given by hand, registered or recorded
post (return receipt requested) shall be deemed to have been received at the
time of actual delivery. Notice given by facsimile shall be deemed to have
been
received when transmitted provided that the sender shall have received a
transmission report indicating that all pages of the notice have been
transmitted with the correct facsimile number, provided that if the transmission
of such facsimile does not occur on a Business Day within Business Hours the
notice shall be deemed received on the next following Business Day. For these
purposes “Business Day” shall mean any day other than a Saturday, Sunday or
public holiday in England and “Business Hours” shall mean 9.00 a.m. to 5.30 p.m.
in a Business Day.
| 8. |
NO
PARTNERSHIP
|
Nothing
in this Agreement shall be construed as creating a partnership or joint venture
between the Parties or as constituting either Party as the agent of the other
Party for any purpose whatsoever and neither Party shall have the authority
or
power to bind the other Party or to contract in the name of or create a
liability against the other Party in any way or for any purpose.
| 9. |
SEVERABILITY
|
If
any
one or more of the provisions of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions of the Agreement shall not in any way be affected or impaired and
thus shall be valid and enforceable to the fullest extent permitted by
law.
| 10. |
GOVERNING
LAW
|
This
Agreement shall be construed in accordance with, and governed in all respects
by, English law and the Parties submit to the exclusive jurisdiction of the
English courts in respect of all legal proceedings which may arise in any way
whatsoever out of this Agreement.
| 11. |
THIRD
PARTIES
|
Nothing
contained in this Agreement or in any instrument or document executed by any
Party in connection with the Services is intended to be enforceable pursuant
to
the Contracts (Rights of Third Parties) Xxx 0000.
| 12. |
ENTIRE
AGREEMENT
|
This
Agreement, together with all schedules and annexes incorporated herein
specifically by reference, represents the entire agreement and understanding
between the Parties in relation to the subject matter hereof and supersedes
all
other agreements and representations made by either Party, whether oral or
written. This Agreement may only be modified if such modification is in writing
and signed by a duly authorised representative of each Party.
Accepted
for and on behalf of Vistula
Limited
| Signed: /s/ Xxxx Xxxxxx | Dated 13 April 2007. | ||
| Name: Xxxx Xxxxxx | |||
| Position: Director |
Accepted
for and on behalf of Validus
Capital Limited
| Signed: /s/ Xxxxxx Xxxxxx | Dated: 13 April 2007. | ||
| Name: | |||
| Position: Director |
SCHEDULE
1
The
Switch
VISTULA’s
Excel switch located at: XXX 00 Xxxxxx X00 xx Xxxxxxxxx, Xxxxxxxxx Xxxxxx,
Xxxxxx.
VISTULA
equipment in Telehouse:
Excel
Switch Nodes with serial numbers: 086730, 086675, 086829, 086880, 086517 &
05695
Sun
Netra
workstations with serial numbers: WIP803610 & WIP146019
Cisco
AS5300’s with serial numbers: SCA041802CU & FOX0535FORB
Dell
Poweredge 16005C and 2450
GN
Nettest Lite 3000 with serial number: 834719001
