EXHIBIT 99.3
EXECUTION COPY
DATED AS OF 3RD APRIL 2001
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FLAG TELECOM GLOBAL NETWORKS LIMITED
AND
FLAG TELECOM IRELAND NETWORK LIMITED
AND
VERIZON GLOBAL SOLUTIONS HOLDINGS II LTD.
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RE-SALE AND PURCHASE AGREEMENT
(DARK FIBRE AND CO-LOCATION FACILITIES)
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RE-SALE AND PURCHASE AGREEMENT
THIS AGREEMENT (the "AGREEMENT") is entered into as of 3rd April , 2001
BETWEEN:
(1) FLAG TELECOM GLOBAL NETWORKS LIMITED ("FTGNL"), a company organised
under the laws of Bermuda with its registered office at Xxxxx Xxxxx,
00 Xxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx; and
FLAG TELECOM IRELAND NETWORK LIMITED ("FTINL"), a company limited by
shares organized under the laws of Ireland with its registered office
located at 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx,
(FTGNL and FTINL and its Affiliates referred to together as "FLAG");
and
(2) VERIZON GLOBAL SOLUTIONS HOLDINGS II LTD., a company organized under
the laws of Bermuda with its registered office located at 00 Xxxxx
Xxxxxx, Xxxxxxxx XX 12, Bermuda, acting on behalf of one or more of
its Affiliates to be nominated hereunder.
WHEREAS:
A. Pursuant to the KPNQ Agreement, KPNQ agreed to grant and FLAG agreed
to acquire an IRU in relation to Dark Fibre and a licence in relation
to Collocation Facilities (both as therein defined) for a term of 20
years with effect from 28 February 2001, subject to Clause 2.1 of the
KPNQ Agreement.
B. VGSL wishes to develop a European backbone network and to secure
collocation space. To this end VGSL wishes to secure, by IRU, a
portion of the Dark Fibre and a licence in relation to a portion of
the Collocation Facilities to be acquired by FLAG under the KPNQ
Agreement.
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C. Clause 15.2 of the KPNQ Agreement permits FLAG to resell, assign,
lease, transfer or otherwise dispose of any of its rights, title or
interest thereunder, but not its obligations, to any third party.
D. FLAG intends to exercise its rights under Clause 15.2 of the KPNQ
Agreement for the benefit of VGSL by the re-sale of certain portions
of the Dark Fibre and Collocation Facilities and an assignment of the
rights relating thereto so as to give VGSL the same or equal rights to
those which FLAG acquired from KPNQ and to enable VGSL to deal
directly with KPNQ.
In consideration of the premises recited above and of the mutual promises and
undertakings set forth in this Agreement, and intending to be legally bound, the
Parties hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, the following words and phrases shall have the
following meanings ascribed to them unless the context otherwise
requires:
"ADDITIONAL ASSETS" Has the meaning given to it in
Section 4.3;
"AFFILIATE" Means any subsidiary or holding company
of a Party or any other subsidiary of a
holding company of a Party (and the
terms "subsidiary" and "holding company"
have the meanings ascribed to them in
sections 736, 736A and 736B of the
Companies Xxx 0000, save that in each
case such definition shall include
foreign-registered companies);
"BUSINESS DAY" Means any day other than a Saturday, a
Sunday or a day on which banks in the
City of London are generally closed for
inter-bank business;
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"EURO" Means the single currency of
participating states of the European
Communities adopted in accordance with
the legislation of the European Union;
"INITIAL ASSETS" Has the meaning given to it in
Section 4.3;
"IRU" Means an indefeasible right of use;
"KPNQ" Means KPNQwest Services UK Limited, a
company registered in England with
registered number 3522705, whose
registered office is at 00 Xxx Xxxxx,
Xxxxxx XX0X 0XX;
"KPNQ AGREEMENT" Means the Dark Fibre IRU and Collocation
Facilities Agreement dated as of 28
February, 2001 and made between (1) KPNQ
and (2) FLAG, a true and complete copy
of which is attached at Exhibit 2;
"POWER COSTS" Means those power costs payable in
relation to the Resold Assets as set
forth in Clause 6.2 and Clause 3 of
Schedule 8 to the KPNQ Agreement;
"RACK SPACE COSTS" Means a non-recurring fee of USD[*] per
Rack Space (as defined by the KPNQ
Agreement) plus an annual fee of USD[*]
per Rack Space thereafter payable in
relation to the Resold Assets under
Clause 6.2 of the KPNQ Agreement;
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* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions.
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"RESOLD ASSETS" Means the Dark Fibre and Collocation
Facilities agreed to be re-sold by FLAG
to VGSL pursuant to this Agreement as
more particularly described in Section 4
and Exhibit 1;
"SIDE LETTER" Means the letter of even date from KPNQ
to VGSL in the form attached as
Exhibit 4;
"TAXES" Means any tax, duty or other charges of
whatever nature imposed by any taxing or
government authority including, without
limitation, VAT;
"TRI-PARTITE AGREEMENT" Means the Tripartite Agreement to be
entered into on the date hereof (in the
form attached at Exhibit 3) between (1)
FLAG, (2) KPNQ and (3) VGSL;
"USD" or "US$" Means the lawful currency for the time
being of the United States of America;
"VGSL" Means one or more Affiliates of Verizon
Global Solutions Holdings II Ltd., that
shall be nominated by such company in
respect to the rights and obligations
hereunder;
"VAT" or "VALUE Means value added tax as provided for in
ADDED TAX" the Value Added Tax Xxx 0000 and any
other tax of a similar fiscal nature
whether imposed in the United Kingdom
(instead of or in addition to value
added tax) or elsewhere.
1.2 In this Agreement, unless the context requires otherwise:
(a) any reference to a "PARTY" or "THE PARTIES" is to a party or
the parties (as the
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case may be) to this Agreement;
(b) any reference to "THIS AGREEMENT" includes the Exhibits,
which form part of this Agreement for all purposes; and
FTNIL AND FTGNL SHALL BE JOINTLY AND SEVERALLY LIABLE TO VGSL IN RESPECT OF
THEIR UNDERTAKINGS IN THIS AGREEMENT, AND THE ACTION OR SIGNATURE OR EITHER
SHALL BE DEEMED THE ACTION OR SIGNATURE OF BOTH.
2. WARRANTIES
2.1 Each of the Parties represents and warrants to the other that:
(a) it is a corporation duly organised, validly existing and in
good standing under the laws of its country or state of
incorporation as appropriate;
(b) it has the full right and authority to enter into, execute,
deliver and perform its obligations under this Agreement and
that this Agreement constitutes a legal, valid and binding
obligation on it; and
(c) the execution, delivery and performance of this Agreement by
it does not violate, conflict with or constitute a breach
of, its organisational documents, its contract with a third
party or any order, decree or judgement of any court,
tribunal or governmental authority binding on it.
2.2 FLAG represents and warrants that at the date of this Agreement
it has performed and complied with its obligations under the KPNQ
Agreement.
3. CONDITIONS AND OTHER DOCUMENTS
3.1 The obligations of the Parties to each other under this Agreement
are conditional upon:
(a) VGSL and FTINL entering into a Network Alliance Agreement
dated as of April 3, 2001 pursuant to which VGSL will
provide transport and related telecommunications services to
FTINL and its Affiliates to support the
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services that FTINL and its Affiliates offer to their
customers;
(b) FLAG, VGSL and KPNQ entering into the Tri-Partite Agreement
dated as of 3 April 2001 pursuant to which VGSL is granted
certain additional rights in relation to the Dark Fibre and
Collocation Facilities in order to minimise its risks in
connection with its use of the Resold Assets in the event of
the occurrence of certain events (as more particularly
described in section 3 of the Tri-partite Agreement); and
(c) KPNQ signing and delivering the Side Letter to VGSL;
(d) FLAG giving KPNQ written notice of the re-sale of the Resold
Assets in accordance with Clause 15.2 of the KPNQ Agreement,
and FLAG hereby undertake to satisfy this condition within 7
Business Days of the date hereof.
3.2 If any of the above-mentioned conditions are not satisfied, this
Agreement shall (subject to any written agreement of the Parties
to the contrary) become null and void and neither Party shall be
entitled to make a claim against the other Party in connection
with this Agreement save for any claim in respect of an
antecedent breach.
4. RE-SALE OF RIGHTS
4.1 Subject to payment by VGSL pursuant to Section 5.1 hereof in
relation to the Initial Assets, FLAG hereby re-sells to VGSL with
full title guarantee and free of all claims, liens, equities,
charges and encumbrances:
(a) the Dark Fibre segments to be identified by VGSL and set
forth in Exhibit 1, Part 1;
(b) the Collocation Facilities to be identified by VGSL and set
forth in Exhibit 1, Part 2; and
(c) all of its rights, title and interest under the KPNQ
Agreement in relation to the above save for the rights
expressly excluded under Section 4.2(a) below.
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below
In relation to any rights granted by KPNQ to FLAG which do not
specifically relate to the Resold Assets and which are necessary
or desirable for VGSL in relation to its acquisition or use of
the Resold Assets, but are required by and retained by FLAG, the
Parties agree that VGSL shall be a third party beneficiary of
those rights and that FLAG will provide VGSL with reasonable
assistance and cooperation in relation to their enforcement
against KPNQ.
4.2 The following are expressly excluded from any re-sale to VGSL
pursuant to the terms of this Agreement:
(a) any option rights of FLAG pursuant to Clause 10.5 of the
KPNQ Agreement; and
(b) any obligations of FLAG under the KPNQ Agreement.
4.3 In addition to the initial quantities of Dark Fibre and
Collocation Facilities to be identified by VGSL and set out in
Exhibit 1 (the "INITIAL ASSETS"), VGSL may, by prior written
notice, require a re-sale of additional Dark Fibre and
Collocation Facilities to the extent that FLAG has such assets
available to it pursuant to the KPNQ Agreement (the "ADDITIONAL
ASSETS"); and such re-sale shall, in each case, be effected by
the execution by the Parties of a supplementary page to (and in
the form comprising) Exhibit 1, setting out details of the
Additional Assets.
4.4 VGSL will conduct a due diligence exercise in relation to such
Dark Fibre and Collocation Facilities it proposes to include
within the Initial Assets, to ascertain that these comply with
VGSL's technical and acceptance criteria. VGSL shall, by written
notice to FLAG within 30 days of the date hereof, identify at
least US$13 million of the Dark Fibre and Collocation Facilities
to be included within the Initial Assets. No later than 30 June
2001, VGSL shall, by written notice to FLAG identify the balance
of Dark Fibre and Collocation Facilities to be included
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in this Agreement. The Parties shall execute a duly completed
form of Exhibit 1 detailing the same no later than 30 June 2001.
5. PRICES; CHARGES; PAYMENT; AND TAXES
5.1 The amount payable pursuant to Section 5.4(a) shall be US$[*]
million. VGSL shall pay to FLAG the price applicable for any
re-sale by FLAG to VGSL pursuant to this Agreement, which shall
be:
(a) US$[*] per metre of Dark Fibre pairs resold to VGSL; and
(b) US$[*] per usable square metre of Collocation Facilities
resold to VGSL.
The purchase of Additional Assets in excess of the US$[*] million
specified in this Agreement shall be subject to additional VGSL
approvals and execution of appropriate documentation.
5.2 In addition to the sums referred to in Section 5.1, VGSL shall
pay to FLAG:
(a) the sum of US$[*] per metre per year for operation and
maintenance expenses for the Dark Fibre and Collocation
Facilities assigned to VGSL;
(b) the Installation Costs; and
(c) the Power Costs.
5.3 FLAG shall invoice ("INVOICE") VGSL with respect to each amount
payable under this Section 5 (the "BILLED ENTITY") in accordance
with the following provisions of this Section 5.
5.4 FLAG shall Invoice the Billed Entity:
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* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions.
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(a) promptly after the date of this Agreement, for the aggregate
amount set forth in Exhibit 1;
(b) promptly after the re-sale of any Additional Assets pursuant
to Section 4.3; and
(c) promptly after receipt by FLAG of an invoice in respect of
any charges due in accordance with Section 5.2, together in
each case with a copy of each such invoice.
5.5 Each Invoice shall be paid by the Billed Entity by wire transfer,
made pursuant to the instructions set forth below, in immediately
available funds, so that the payment is received by FLAG not
later than the date (the "DUE DATE") which is 30 calendar days
from the date of the Invoice; provided, however, that the Due
Date for payment of the amount pursuant to Section 5.4(a) shall
be the date on which FLAG makes payment of the initial payment
under the Network Alliance Agreement. Any delinquent Invoice
shall bear late payment fees at the rate of 1.5% per month (or
such lower rate as may be required by law) from the Due Date
until paid.
Wire Transfer Instructions (subject to change by FLAG by not less
than 10 Business Days prior notice in writing):
[*]
5.6 FLAG shall invoice for all sums payable under this Agreement:
(a) in relation to those amounts payable pursuant to Sections
5.4(a) and 5.4(b) in US$ and all such invoices shall be paid
in US$; and
(b) in relation to those amounts payable pursuant to Section
5.4(c) in the currency of the applicable KPNQ invoice (which
shall be either US$ or EUROs) and all such invoices shall be
paid in that currency.
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* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions.
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6. TAXES
6.1 Each Party shall be responsible for their own taxes on its net
income arising under this Agreement.
6.2 If VGSL is required by law to deduct or withhold any taxes from
any amounts payable under this Agreement, such amounts shall be
increased as necessary so that FLAG receives an amount equal to
the sum it would have received had no such deduction or
withholding been made, provided that VGSL shall make timely
payment of, the amount withheld (before penalties attach thereto
or interest accrues thereon) to the applicable taxing authority.
FLAG will co-operate with VGSL in order to assist VGSL to obtain
such relief from any withholdings or deductions required by law
as is available under any applicable double taxation treaty.
6.3 To the extent that any sum due hereunder is subject to Value
Added Tax, VGSL and FLAG shall work together in good faith such
that, prior to the issuance of any invoices, any invoicing
arrangements are structured so as to minimise the impact of Value
Added Tax for either Party, subject always to applicable law.
6.4 So far as legally possible, FLAG will provide VGSL with such
documentation in respect of VAT as VGSL requires for the purposes
of recovering any amount in respect of VAT in any relevant
jurisdiction.
7. OTHER COVENANTS
7.1 FLAG undertakes to VGSL that it will pay the charges to be paid
by it and perform the covenants and conditions on its part
contained in the KPNQ Agreement in accordance with the terms
thereof.
7.2 FLAG shall forthwith disclose to VGSL in writing any matter or
thing which arises or may arise or become known to it after the
date of this Agreement which
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is likely to amount to a Condition (as defined in the Tri-Partite
Agreement) or is otherwise material to be known by VGSL.
7.3 FLAG will give or procure to be given to VGSL all such
information and other assistance which VGSL may reasonably
require from time to time in relation to the Resold Assets for
the purpose of implementing and exercising its rights under this
Agreement.
8. TERM OF THE AGREEMENT
8.1 This Agreement is effective and the Parties' obligations shall
commence upon the date first set forth above.
8.2 This Agreement grants VGSL an indefeasible right to use the
Resold Assets and shall continue in effect for the term of the
rights in relation to the Resold Assets under the KPNQ Agreement
unless terminated earlier in accordance with Section 9.
9. TERMINATION RIGHTS
9.1 In the event of a breach of any material term or condition of
this Agreement by a Party, the other Party may terminate this
Agreement upon 60 days written notice, unless the breaching Party
cures the breach during the 60 day period or, if such breach
cannot be reasonably be cured within a 60 day period, if the
breaching Party institutes good faith efforts to cure such breach
during such 60 day period and such breach is cured within 180
days.
9.2 This Agreement will terminate automatically as of the effective
date of any election by VGSL pursuant to Sections 1 and 3 of the
Tri-Partite Agreement. Such termination will be without further
liability to either Party under the terms of this Agreement,
except to the extent of any claims arising pursuant to the terms
hereof prior to the date of termination.
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10. LIMITATION OF LIABILITY
Each Party's liability in connection with this Agreement (whether
based in contract, tort (including, without limitation, negligence),
misrepresentation, warranty or any other legal or equitable grounds),
shall in all cases be limited to direct damages suffered by the other
Party, and the entire aggregate liability of each Party in connection
with this Agreement, other than liability for failure to pay amounts
due and owing hereunder, shall not exceed in any calendar year an
amount equal to one-fifteenth of the aggregate price for the Resold
Assets paid or payable at the date of any claim pursuant to this
Section 10. In no event will either Party have any liability in
connection with this Agreement (whether based in contract, tort
(including, without limitation, negligence), misrepresentation,
warranty or any other legal or equitable grounds) for, and each Party
hereby waives and releases any claims it might otherwise have to be
compensated by the other in connection with this Agreement or
otherwise for, any: (a) consequential, special, incidental or indirect
damages (such as, without limitation, loss of revenue, loss of profit,
loss of data, loss of use, loss of goodwill, loss of savings,
interruption of business or claims of third parties), even if such
first Party has been advised of the possibility of such losses or
damages; or (b) punitive or exemplary damages.
11. RELATIONSHIP OF THE PARTIES
The Parties acknowledge and agree that the relationship between them
is solely that of independent contractors, and nothing herein shall be
deemed to constitute a partnership between the Parties nor the
appointment of one of the Parties as agent for the other. Neither
Party, nor their respective employees, agents or representatives, has
any right, power or authority to act or create any obligation, express
or implied, on behalf of the other Party.
12. CONFIDENTIALITY
12.1 Each Party agrees that all information furnished to it by the
other Party (or its Affiliates), or to which it has access under
this Agreement, shall be deemed the confidential and proprietary
information or trade secrets (collectively referred to
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as "PROPRIETARY INFORMATION") of the Disclosing Party and shall
remain the sole and exclusive property of the Disclosing Party
(the Party furnishing the Proprietary Information referred to as
the "DISCLOSING PARTY" and the other Party referred to as the
"RECEIVING PARTY"). Neither Party shall use the Proprietary
Information of the other Party for any purpose other than the
performance of its obligations under this Agreement. Each Party
shall treat the Proprietary Information of the other Party, and
the contents of this Agreement, in a confidential manner and
shall not, without the written consent of the Disclosing Party,
directly or indirectly disclose the same to anyone other than its
employees and Affiliates, and its professional advisors,
consultants, vendors and contractors, who need to know such
information for the purposes of this Agreement and who agree to
be bound by the terms no less stringent than those of this
Section 12.
12.2 The confidentiality of obligations of this Section 12 do not
apply to any portion of the Proprietary Information which (i) is
or becomes public knowledge through no fault of the Receiving
Party; (ii) is in the lawful possession of the Receiving Party
prior to disclosure of the Proprietary Information to the
Receiving Party by the Disclosing Party (as confirmed by the
Receiving Party's records); or (iii) is disclosed to the
Receiving Party without restriction on disclosure by a person who
has the lawful right to disclose the information. If the
Receiving Party is requested or legally compelled by any court,
agency, authority, department, regulatory body or other
instrumentality of any government or country to disclose any of
the Proprietary Information of the Disclosing Party or any of the
contents of this Agreement, the Receiving Party agrees that it
will provide the Disclosing Party with prompt written notice of
such requests so that the Disclosing Party has the opportunity to
pursue its legal and equitable remedies regarding potential
disclosure, and the Receiving Party will seek confidential
treatment for any such information which it is ultimately
required to disclose.
12.3 Each Party acknowledges that its breach or threatened breach of
this Section 12 may cause the Disclosing Party irreparable harm
which would not be adequately
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compensated by monetary damages. Accordingly, in the event of any
such breach or threatened breach, the Receiving Party agrees that
equitable relief, including temporary or permanent injunctions,
is an available remedy in addition to any legal remedies to which
the Disclosing Party may be entitled.
12.4 Neither Party may use the name, logo, trade name, service marks,
trade marks, or printed materials of the other Party, in any
promotional or advertising material, statement, document, press
release or broadcast without the prior written consent of the
other Party, which consent may be granted or withheld at the
other Party's sole discretion.
12.5 Each Party shall ensure that each of its managers and executive
employees is legally bound by confidentiality obligations in
connection with his or her employment by such Party.
13. MISCELLANEOUS
13.1 PUBLICITY. Neither Party will make any public announcement of
this Agreement, without the prior consent of the other Party,
which consent shall not be unreasonably withheld or delayed;
provided that a Party may make such announcement without such
prior consent if such an announcement is required by applicable
laws or regulations or the rules of any applicable stock exchange
and it is impracticable to obtain such prior consent.
13.2 WAIVERS. No waiver of any term or condition of this Agreement
shall be enforceable unless it is in writing and signed by the
Party against whom it is sought to be charged. No failure or
delay by either Party in exercising any right, power or remedy
will operate as a waiver of any such right, power or remedy,
unless otherwise provided herein. The waiver by either Party of
any of the covenants, conditions or agreements to be performed by
the other or any breach thereof shall not operate or be construed
as a waiver of any subsequent breach of any such covenant,
condition or agreement.
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13.3 ASSIGNMENT. Neither Party may assign or transfer its rights or
obligations under this Agreement without the other Party's
written consent. Any assignment or transfer without the required
consent is void. The foregoing notwithstanding, either Party may
assign this Agreement or any of its rights or obligations
hereunder to an Affiliate without the other Party's consent save
that, if any such assignee ceases to be an Affiliate of such
Party at any time during the term of this Agreement, such
assignee shall immediately reassign its rights and obligations
under this Agreement to the assigning Party.
13.4 INTEGRATION; CONSISTENCY. This Agreement and all Exhibits, and
other attachments attached hereto (which Exhibits and other
attachments are hereby incorporated by reference), represent the
entire agreement between the Parties with respect to the subject
matter hereof and supersede and merge all prior agreements,
promises, understandings, statements, representations,
warranties, indemnities and inducements to the making of this
Agreement relied upon by either Party, whether written or oral.
In the event of any inconsistency between the terms of this
Agreement and the terms of any Exhibits, schedules and other
attachments incorporated herein, the terms of such Exhibits,
schedules and other attachments shall prevail.
13.5 CONSTRUCTION. The language used in this Agreement is deemed the
language chosen by the Parties to express their mutual intent. No
rule of strict construction shall be applied against either
Party. Article and Section headings are used in this Agreement
for purposes of convenience only, and shall not be deemed a part
of this Agreement nor used to interpret or construe the
provisions hereof. Any reference herein to any article, section,
subsection, paragraph, subparagraph, exhibit, schedule or
attachment shall be deemed a reference to such portion of this
Agreement unless otherwise specified.
13.6 NOTICES. All notices, including but not limited to, demands,
requests and other communications required or permitted hereunder
(not including Invoices) shall be in writing and shall be deemed
given: (i) when delivered in person, (ii) 24 hours
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after deposit with an overnight delivery service for next day
delivery, (iii) the same day when sent by facsimile transmission
during normal business hours, receipt confirmed by sender's
equipment, or (iv) seven Business Days after deposit in the
official mail service of the sender's jurisdiction, first class
postage prepaid, registered or certified mail, return receipt
requested, and addressed to the recipient Party at the address
set forth below:
If to FLAG:
FLAG Telecom Global Network Limited
Xxxxx 000
00 Xxx-xx-Xxxxx Xxxx
Xxxxxxxx XX00
Xxxxxxx
Attn: Company Secretary
Facsimile:
FLAG Telecom Ireland Network Limited
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Attn: Company Secretary
Facsimile:
with a copy to: FLAG Telecom Limited
0 Xxxxx Xxxxxx
Xxxxxx X0X 0XX
Attn: General Counsel
Facsimile #: x00-00-0000-0000
If to VGSL: Verizon Global Solutions Inc.
000 Xxxxx Xxxx
Xxxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attn: Group Vice President of Carrier Sales
Facsimile #: x0-000-000-0000
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with a copy to: General Counsel International
1095 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile #: x0-000-000-0000
13.7 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original, but
all of which shall constitute one and the same instrument.
13.8 NO THIRD PARTY BENEFICIARIES. The provisions of this Agreement
and the rights and obligations created hereunder are intended
for the sole benefit of VGSL and FLAG, and do not create any
right, claim or benefit on the part of any other person not a
Party to this Agreement, and, accordingly, the provisions of
the Contracts (Rights of Third Parties) Xxx 0000 are hereby
excluded.
13.9 SURVIVAL. Any obligations of the Parties relating to monies
owed, as well as those provisions relating to confidentiality,
limitations on liability, indemnification and antecedent
breach of the terms hereof, shall survive termination of this
Agreement.
13.10 SEVERABILITY. The illegality or unenforceability of any
provision of this Agreement does not affect the legality or
enforceability of any other provision or portion. If any
provision or portion of this Agreement is deemed illegal or
unenforceable for any reason, there shall be deemed to be made
such minimum change in such provision or portion as is
necessary to make it valid and enforceable as so modified.
13.11 CUMULATIVE RIGHTS AND REMEDIES. Except as may otherwise be
provided herein, the assertion by a Party of any right or the
obtaining of any remedy hereunder shall not preclude such
Party from asserting or obtaining any other right or remedy,
at law or in equity, hereunder.
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13.12 AMENDMENTS. Any amendments or modifications to this Agreement
must be in writing and signed by a Director or Vice President
(or higher level officer) of each of the Parties.
13.13 AUTHORITY. By its signature below, each Party acknowledges and
agrees that sufficient allowance has been made for review of
this Agreement by respective counsel and that each Party has
been advised by its legal counsel as to its legal rights,
duties and obligations under this Agreement.
13.14 FURTHER ASSURANCE. Each Party shall, to the extent that it is
reasonably able to do so, and shall use all reasonable
endeavours to procure that any Affiliate shall, at the cost of
the relevant party execute all documents and do all acts and
things as may be required for the purpose of giving full
effect to all the provisions of this Agreement.
13.15 COSTS. Save as otherwise provided in this Agreement, the
Parties shall pay their own costs and expenses in relation to
the preparation, execution and carrying into effect of this
Agreement.
14. DISPUTE RESOLUTION AND GOVERNING LAW
14.1 GOVERNING LAW. This Agreement and all matters relating to or
arising in connection with it (including but not limited to
any question regarding its construction, existence, validity
or termination) will be construed and enforced in accordance
with the law of England.
14.2 DISPUTE RESOLUTION. All disputes, controversies or differences
arising out of this Agreement will be submitted by the Parties
to a panel composed of one principal appointed by each of the
Parties. This panel will meet for three days, or for such
longer period as they may agree, in order to resolve the
dispute, controversy or difference. All information exchanged
by the principals in resolving the dispute, controversy, or
difference may be used by the Parties only for the purpose of
resolving the dispute, controversy, or difference and for no
other purpose except
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as may be agreed by the Parties in writing. If the principals
resolve the dispute, the terms of the resolution will be set
forth in a written settlement agreement that will be signed by
the Parties. If the dispute, difference, or controversy is not
resolved by the principals after three days of meetings, or for
such longer period as the principals may agree, then the Parties
may pursue formal arbitration as set forth in Section 14.3 below.
Each Party will bear its own costs in connection with this
informal dispute resolution process except as the Parties
otherwise agree in writing. Nothing in the foregoing shall be
deemed to limit any rights or remedies available to either Party
at law or in equity.
14.3 ARBITRATION. In the event that a dispute remains unsettled after
the procedures set forth in Section 14.2 above have been
exhausted, either Party may notify the other in writing that the
dispute is being submitted to arbitration in accordance with and
subject to the Rules of Arbitration of the International Chamber
of Commerce and finally settled by three arbitrators appointed in
accordance with such rules, unless the Parties to the arbitration
agree upon a single arbitrator under such rules. The place of
arbitration shall be London, U.K. The arbitrators shall decide
any such dispute strictly in accordance with the governing law
specified in Section 14.1. Any decision or award of the arbitral
tribunal shall (save in the event of fraud or manifest error) be
final and binding upon the Parties, and judgment on the decision
or award may be entered in any court having jurisdiction thereof
or having jurisdiction over either of the Parties or any of their
assets, and the Parties hereby consent to the jurisdiction of any
court in a proceeding to enforce such decision or award. The
arbitrator(s) shall have the right to award costs, including
legal fees.
-19-
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first set forth above.
FLAG TELECOM GLOBAL NETWORKS LIMITED
By:
--------------------------------------------------
Name:
Title:
FLAG TELECOM IRELAND NETWORK
LIMITED
By:
--------------------------------------------------
Name:
Title:
VERIZON GLOBAL SOLUTIONS
HOLDINGS II LTD.
By:
--------------------------------------------------
Name:
Title:
-20-
EXHIBIT 1
PART 1 - DARK FIBRE
------------------------------------------------ -------------------- -------------------- ---------------------------
ROUTE KILOMETER US$ PER ROUTE TOTAL
KILOMETER (US$)
------------------------------------------------ -------------------- -------------------- ---------------------------
1. London-Paris Segment:
------------------------------------------------ -------------------- -------------------- ---------------------------
Docklands-Brentwood 27.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Brentwood-Maidstone 74.5 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Maidstone-Folkstone 80.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Folkstone-Coquelles 63.4 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Coquelles-Isbergues 71.7 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Isbergues-Lille 83.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Lille-St.Sains Marquins 80.6 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
St. Sains Marq.-Licourt 61.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Licourt-Chevrieres 78.9 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Chevrieres-Roissy 71.2 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Roissy-St. Denis 16.8 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Total For Segment: 708.1 $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
2. Paris-Frankfurt Segment:
------------------------------------------------ -------------------- -------------------- ---------------------------
St. Denis-Courbevoie 11.5 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Courbevoie-Nanterre 19.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Nanterre-Rue Reaumur 20.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Rue Reaumur-Roissy 33.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Roissy-St. Leger 81.4 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
St Leger-Normee 76.5 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Normee-Sermaize 87.3 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Sermaize-Broussey 82.5 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Broussey-Moncel 74.3 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Xxxxxx-Xxxxxxx 77.2 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Xxxxxxx-Xxxx 79.5 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Xxxx-Xxxx 69.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Xxxx-Karlsruhe 34.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Karlsruhe-Mannheim 65.2 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Mannheim-Gernsheim 41.1 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Gersheim-Frankfurt 56.8 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Total For Segment: 908.3 $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
3. Frankfurt-Dusseldorf Segment:
------------------------------------------------ -------------------- -------------------- ---------------------------
Frankfurt-Naurod 39.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Naurod-Xxxxxxxx 55.3 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Xxxxxxxx-Xxxx 77.8 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
-21-
------------------------------------------------ -------------------- -------------------- ---------------------------
ROUTE KILOMETER US$ PER ROUTE TOTAL
KILOMETER (US$)
------------------------------------------------ -------------------- -------------------- ---------------------------
Bonn-Dusseldorf 82.1 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Total For Segment: $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
4. Dusseldorf-Amsterdam Segment:
------------------------------------------------ -------------------- -------------------- ---------------------------
Dusseldorf-Kapellen 65.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Xxxxxxxx-Xxxxxx 64.2 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Duiven-Soesterberg 71.6 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Soesterberg-Leiden 73.3 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Leiden-Amsterdam (Lemmerlebergweg) 46.2 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Total For Segment: $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
5. Amsterdam-Brussels Segment:
------------------------------------------------ -------------------- -------------------- ---------------------------
Amsterdam (Lemmerlebergweg)-Leiden 50.5 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Leiden-Oud-Beijerland 64.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Oud-Beijerland-Ossendrecht 72.3 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Ossendrecht-Antwerp 23.2 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Antwerp-Brussels 71.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Total For Segment: .0 $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
6. Lille-Brussels Segment:
------------------------------------------------ -------------------- -------------------- ---------------------------
Lille-Kortrijk 30.7 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Kortijk-Merelbeke 69.0 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Merelbeke-Brussels 76.5 $[*] $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
Total For Segment: $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
7. Calais-Lille Temporary Segment:
------------------------------------------------ -------------------- -------------------- ---------------------------
Calais-Coquelles 5.4 ---- ----
------------------------------------------------ -------------------- -------------------- ---------------------------
COQUELLES-ISBERGUES 71.7 ---- ----
-------------------
------------------------------------------------ -------------------- -------------------- ---------------------------
Isbergues-Arleux 83.4 ---- ----
------------------------------------------------ -------------------- -------------------- ---------------------------
Arleux-Couriers 30.6 ---- ----
------------------------------------------------ -------------------- -------------------- ---------------------------
Couriers-Eslampula 58.2 ---- ----
------------------------------------------------ -------------------- -------------------- ---------------------------
Eslampula-Lille 32.0 ---- ----
------------------------------------------------ -------------------- -------------------- ---------------------------
Total For Segment: 281.3 ---- ----
------------------------------------------------ -------------------- -------------------- ---------------------------
TOTAL (Part 1) $[*]
------------------------------------------------ -------------------- -------------------- ---------------------------
*Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions.
-22-
PART 2 - COLLOCATION FACILITIES
-------------------------- ----------------------- ------------------ --------------------- ---------------- -----------------
CITY ADDRESS m2 REQUIRED m2 ON REQUEST US$ PER SQUARE TOTAL US$ FOR
METRE m2 REQUIRED
-------------------------- ----------------------- ------------------ --------------------- ---------------- -----------------
Frankfurt Xxxxxxxxxxxxx 00, 190 140 $[*] $[*]
60326
-------------------------- ----------------------- ------------------ --------------------- ---------------- -----------------
Amsterdam Lerlemerbergweg 28a, 190 140 $[*] $[*]
1101 AH
-------------------------- ----------------------- ------------------ --------------------- ---------------- -----------------
Brussels Excelsiorlaan 41, 190 140 $[*] $[*]
1930 Zaventem
-------------------------- ----------------------- ------------------ --------------------- ---------------- -----------------
Xxxxxxxxxx Xxxxxxxxxxxxx 0, 00 00 $[*] $[*]
D-40472
-------------------------- ----------------------- ------------------ --------------------- ---------------- -----------------
TOTAL (Part 2) 620 470 $[*]
-------------------------- ----------------------- ------------------ --------------------- ---------------- -----------------
-------------------------------------- -----------------
GRAND TOTAL $[*]
-------------------------------------- -----------------
NOTES:
1. FLAG will provide VGSL with reasonable prior notice and a right of
first refusal to take up the option space ("m2 on Request" in the
above table):
a) when the available contiguous space in a co-location site would
otherwise be reduced below the amount of such optional space; and
b) when the available non-contiguous space within a Collocation
Facilities site would otherwise be reduced below the amount of
such optional space.
2. VGSL has obtained the requisite corporate approval, as required by
Section 5.1 of the Resale and Purchase Agreement, in relation to that
amount of the above Grand Total in excess of US$[*].
* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions.
-23-
EXHIBIT 2
KPNQ AGREEMENT
[*]
* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions.
-24-
EXHIBIT 3
TRI-PARTITE AGREEMENT
[*]
* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions.
-25-
EXHIBIT 4
SIDE LETTER
[*]
* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions.
-26-
