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EXHIBIT 2.9
PAGES WHERE CONFIDENTIAL TREATMENT HAS BEEN REQUESTED ARE STAMPED "CONFIDENTIAL
TREATMENT REQUESTED AND THE REDACTED MATERIAL HAS BEEN SEPARATELY FILED WITH THE
COMMISSION", AND THE CONFIDENTIAL PORTION HAS BEEN REDACTED AND REPLACED WITH
STARS (*****).
CONFIDENTIAL AND PROPRIETARY
IRU AGREEMENT
BY AND BETWEEN
WORLDWIDE FIBER NETWORKS, INC.
AND
GT GROUP TELECOM SERVICES (USA) CORP.
DATED: May 24, 2000
EXECUTION COPY
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TABLE OF CONTENTS
ARTICLE TITLE PAGE
------- ----- ----
1 Attachment; Exhibits; Definitions 2
2 WFI System 7
3 Grant of Rights in the US WFI System 8
4 Payment and Security Interest 9
5 Construction of the WFI System 12
6 Acceptance and Testing of Dark Fibers 13
7 Documentation 13
8 Term and Renewal 14
9 Network Access; WFI Facilities 15
10 Maintenance and Repair of the WFI System 17
11 Permits; Underlying Rights; Relocation 17
12 Operation and Use of the WFI System 19
13 Indemnity 21
14 Limitation of Liability 22
15 Insurance 23
16 Taxes, Fees and Other Governmental Impositions 25
17 Notices 27
18 Confidentiality 28
19 Default 29
20 Termination 30
21 Force Majeure 30
22 Dispute Resolution 31
23 Assignment and Transfer Restrictions 32
24 Representations, Warranties and Acknowledgments 33
25 General 34
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IRU AGREEMENT
THIS IRU AGREEMENT (this "Agreement") is made and entered into as of May
24, 2000 (the "Effective Date"), by and between Worldwide Fiber Networks, Inc.,
a Nevada corporation ("WFI"), and GT Group Telecom Services (USA) Corp., a
Nevada corporation ("Customer").
RECITALS
A. WFI and its Affiliates own rights in (including without limitation
indefeasible rights to use), have constructed or are constructing a fiber optic
communications network consisting of approximately 15,089 kilometers as
generally depicted on Attachment 1 (the "WFI System"), which is intended to
connect those city pairs identified on Exhibit A-1.
B. Customer desires to obtain from WFI rights to use certain dark fibers
and associated property in the portion of the WFI System located within the
geographic boundaries of the United States (the "US WFI System") on the terms
and conditions set forth below.
C. More or less contemporaneous with the execution of this Agreement,
certain Affiliates of WFI and Customer have entered into a Fiber Sale Agreement
(the "Dark Fiber Sale Agreement") relating to the sale to Customer of certain
dark fibers and rights in and associated property in the portion of the WFI
System located within the geographic boundaries of Canada (the "Canadian WFI
System").
D. More or less contemporaneous with the execution of this Agreement,
Worldwide Fiber Network Services Ltd. and Worldwide Fiber Network Services, Inc.
(collectively, "WFNS") and GT Group Telecom services Corp and Customer have
entered into a Capacity Lease Agreement (the "Capacity Lease") relating to the
lease by Customer of certain telecommunications capacity from WFNS.
E. Prior to the execution of this Agreement, WFNS and Customer have entered
into a Capacity Lease and Dark Fiber Agreement dated March 17, 2000 (the
"Transaction Agreement") summarizing the business terms of this Agreement, the
Capacity Lease and the Dark Fiber Sale Agreement and setting forth certain other
agreements between WFNS and Customer.
Accordingly, in consideration of the mutual promises set forth in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the WFI and Customer hereby agree
as follows:
EXECUTION COPY
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 1
ATTACHMENT; EXHIBITS; DEFINITIONS
1.1 Attachment. The following attachment is incorporated herein and made a
part of this Agreement by this reference:
Attachment 1: Map of the WFI System
1.2 Exhibits. The following exhibits are attached hereto, incorporated
herein and made a part of this Agreement by this reference:
Exhibit A-1: WFI Dark Fiber Summary; Segments; Completion Dates
Exhibit A-2: US WFI System; Segment IRU Fee per Route Kilometer
Exhibit B: Construction Specifications
Exhibit C: Fiber Optic Cable Splicing, Testing and Acceptance Standards
Exhibit D: Fiber Specifications
Exhibit E: [Deleted]
Exhibit F: Standard Specifications for WFI Facilities
Exhibit G: System Maintenance Specifications and Procedures
Exhibit H: Collocation License Agreement
1.3 Definitions. As used in this Agreement, the capitalized terms listed in
this Section 1.3 and derivatives thereof shall have the meanings respectively
ascribed to them in this Section 1.3.
(a) "Acceptance Date" shall have the meaning set forth in Section 6.2.
(b) "Affiliate" shall mean, with respect to any Person, any other Person,
who directly or indirectly controls, is controlled by, or is under
common control with that Person. As used in this definition, "control"
means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person,
whether by way of equity ownership, contract or otherwise.
(c) "Agreement" shall have the meaning set forth in the introductory
paragraph.
(d) "As-Built Drawings" shall mean drawings in accordance with the
specifications set forth in Exhibit B.
(e) "Associated Property" shall, with respect to each Segment in the US
WFI System, mean the tangible and intangible property necessary for
the use of the Dark Fibers for the purposes described in this
Agreement, including but not limited to (i) the associated conduit,
(ii) WFI's rights in all Underlying Rights, and (iii) access to the
WFI Facilities to the extent set forth in Article 9 of this Agreement.
(f) "BCICAC" shall have the meaning set forth in Section 22.2.
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(g) "Cable" means the fiber optic cable and the fibers contained therein,
including the Dark Fibers, and associated splicing connections, splice
boxes, and vaults to be installed by WFI as part of the US WFI System.
(h) "Canadian WFI System" shall have the meaning set forth in Recital C.
(i) "Capacity Lease" shall have the meaning ascribed thereto in Recital D.
(j) "Completion Dates" shall mean, with respect to each Segment in the US
WFI System, subject to Events of Force Majeure and any other
extensions of time provided for in this Agreement, the dates set forth
in Exhibit A-1.
(k) "Completion Notice" shall have the meaning set forth in Section 6.1.
(l) "Completion Payment" shall have the meaning set forth in Section
4.1(a).
(m) "Confidential Information" shall have the meaning set forth in Section
18.1.
(n) "Connecting Points" shall have the meaning set forth in Section 9.3.
(p) "Costs" means actual, direct costs paid or payable in accordance with
the established accounting procedures generally used by WFI and which
WFI utilizes in billing third parties for reimbursable projects,
including without limitation the following: (i) internal labor costs,
including wages, salaries and benefits, and overhead allocable to such
labor costs equal to *****, and (ii) other direct costs and
out-of-pocket expenses on a pass-through basis (e.g., equipment,
materials, supplies, contract services, etc.).
(q) "Customer" shall have the meaning set forth in the introductory
paragraph.
(r) "Customer POP" means a point of presence or terminal facility (other
than a WFI Facility) to which Customer has rights in and to, along the
System Route in the US WFI System.
(s) "Dark Fiber Sale Agreement" shall have the meaning set forth in
Recital C.
(t) "Dark Fibers" shall have the meaning set forth in Section 3.1.
(u) "Dollars" or "$" shall mean Canadian Dollars.
(v) "Effective Date" shall have the meaning set forth in the introductory
paragraph to this Agreement.
(w) "Estimated Route Kilometers" shall have the meaning set forth in
Section 4.2.
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(x) "Events of Force Majeure" shall have the meaning set forth in Article
21.
(y) "Fiber Acceptance Testing" shall have the meaning set forth in Section
6.1.
(z) "Final Payment" shall mean, collectively, the Route 1 Final Payment
and the Route 2 Final Payment.
(aa) "Finally Determined Taxes and Fees" shall have the meaning set forth
in Section 16.5(b).
(bb) "Impositions" means all taxes, fees, levies, imposts, duties, charges
or withholdings of any nature (including, without limitation, ad
valorem, real property, gross receipts, franchise, license and permit
fees), together with any penalties, fines or interest thereon arising
out of the transactions contemplated by this Agreement and/or imposed
upon the US WFI System, or any part thereof, by any federal, state or
local government or other Person with taxing authority, other than in
their capacity as a grantor of an Underlying Right.
(cc) "Initial Payment" shall mean, collectively, the Route 1 Initial
Payment and the Route 2 Initial Payment.
(dd) "Interest Rate" shall mean the lower of (i) the highest rate permitted
by law, or (ii) ***** per annum.
(ee) "IRU" shall have the meaning set forth in Section 3.1.
(ff) "IRU Effective Date" shall have the meaning set forth in Section 8.1.
(gg) "IRU Fee" shall have the meaning set forth in Section 4.1.
(hh) "Maintenance Window" or "MW" shall mean a prearranged period of time
reserved for performing certain work on the US WFI System that may
potentially impact traffic along the US WFI System.
(ii) "Option Fibers Segments" shall have the meaning set forth in Section
3.4.
(jj) "Party" shall mean each of WFI and Customer and "Parties" shall mean
WFI and Customer".
(kk) "Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
(ll) "Renewal Term" shall have the meaning set forth in Section 8.6.
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(mm) "Route 1" shall mean, collectively, those Segments designated as Route
1 Segments on Exhibit A-1.
(nn) "Route 1 Final Payment" shall have the meaning set forth in Section
4.1(a).
(oo) "Route 1 Initial Payment" shall have the meaning set forth in Section
4.1(a).
(pp) "Route 2" shall mean, collectively, those Segments designated as Route
2 Segments on Exhibit A-1.
(qq) "Route 2 Final Payment" shall have the meaning set forth in Section
4.1(b).
(rr) "Route 2 Initial Payment" shall have the meaning set forth in Section
4.1(b).
(ss) "Route Kilometers" shall mean, with respect to each Segment, the
number of linear route kilometers (to the nearest hundredth of a
kilometer) as constructed and based upon the As-Built Drawings.
(tt) "Segment" shall have the meaning set forth in Section 2.1.
(uu) "Segment End Point" shall have the meaning set forth in Section 2.1.
(vv) "Segregrated Space" shall have the meaning set forth in Section 9.1.
(ww) "Service Affecting Condition" shall have the meaning set forth in
Section 10.2.
(xx) "Shared Space" shall have the meaning set forth in Section 9.1.
(yy) "System Route" shall mean the actual route of the WFI System between
the Segment End Points.
(zz) "Term" shall have the meaning set forth in Section 8.1.
(aaa) "Transaction Agreement" shall have the meaning set forth in Recital
E.
(bbb) "Underlying Rights" shall have the meaning set forth in Section 11.1.
(ccc) "Underlying Rights Requirement" shall have the meaning set forth in
Section 12.1.
(ddd) "US WFI System" shall have the meaning set forth in Recital B.
(eee) "WFI" shall have the meaning set forth in the introductory paragraph.
(fff) "WFI Account" means the following bank account of WFI, which may be
modified or changed by WFI in writing from time to time:
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Account Name: Worldwide Fiber Networks, Inc.
Account Number: 00000000
Bank Name: Bank of America
ABA No.: 000000000
Reference:
(ggg) "WFI Facilities" shall mean those regenerator, amplifier, junction
and WFI POP facilities to which WFI has certain rights in and to, has
constructed, is constructing or is planning to construct, all along
the System Route in the US WFI System.
(hhh) "WFI POP" means a point of presence or terminal facility to which WFI
has certain rights in and to, along the System Route in the US WFI
System.
(iii) "WFI System" shall have the meaning set forth in Recital A.
(jjj) "WFNS" shall have the meaning set forth in Recital B.
Certain other defined terms shall have the respective meanings ascribed to
them elsewhere in the Agreement.
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ARTICLE 2
WFI SYSTEM
2.1 The WFI System will generally connect the city pairs identified in
Exhibit A-1. Each such city shall be referred to as a "Segment End Point" and
the route between the Segment End Points shall be referred to as a "Segment".
WFI shall use commercially reasonable efforts to deliver the Dark Fibers to
Customer on or before the Completion Dates set forth in Exhibit A-1.
2.2 The specific route and location of the US WFI System between the
Segment End Points in the US WFI System is subject to the Underlying Rights and
WFI's absolute discretion; provided however that the US WFI System will connect
the Segment End Points in the US WFI System. At each Segment End Point in the US
WFI System, the Dark Fibers will be terminated at a fiber distribution panel in
a WFI POP.
2.3 Notwithstanding anything to the contrary contained in this Agreement,
WFI may elect to acquire any portion of the US WFI System from third parties
(whether by purchase, lease, sublease, indefeasible right of use or otherwise)
in lieu of constructing and installing the US WFI System with respect to such
portion. Any such acquired portion shall be constructed in accordance with the
specifications and procedures required by this Agreement except for deviations
that do not, in the reasonable discretion of WFI, materially affect the utility
or value of the US WFI System.
2.4 Notwithstanding anything to the contrary contained in this Agreement,
WFI may assign or subcontract to a third party any or all of WFI's duties or
obligations to Customer under this Agreement, provided that WFI shall remain
obligated to Customer under the terms of this Agreement for any such duties.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 3
GRANT OF RIGHTS IN THE US WFI SYSTEM
3.1 As of the IRU Effective Date for each Segment in the US WFI System
delivered by WFI to Customer hereunder, WFI grants to Customer and Customer
receives from WFI (a) an exclusive indefeasible right of use of a number of dark
fibers with respect to such Segment as are set forth on Exhibit A-1, each of
which dark fibers to be specifically identified in the Cable (the "Dark
Fibers"), and (b) the associated and nonexclusive right to use the Associated
Property, all such rights upon and subject to the terms and conditions set forth
in this Agreement (collectively, the "IRU").
3.2 The IRU does not include the right of Customer to own, control,
maintain, modify or revise the US WFI System, the right of physical access to
the US WFI System, the right to encumber the US WFI System in any manner, or the
right to use the US WFI System except as expressly set forth herein. The rights
and obligations of Customer relative to any dark fibers and other property
located within the Canadian WFI System shall be governed by the terms of the
Dark Fiber Sale Agreement.
3.3 Customer acknowledges and agrees that during the Term technological
advances in optical fiber are likely to occur. Notwithstanding anything to the
contrary contained in this Agreement, WFI shall have the right with the prior
written consent of Customer, which consent shall not be unreasonably withheld or
delayed, upon not less than one hundred twenty (120) days written notice to
Customer, to substitute an equal number of dark fibers for the Dark Fibers
within any Segment of the US WFI System or portion thereof (which alternative
dark fibers shall thereupon constitute Dark Fibers), provided that in such
event, such substitution (a) shall be effected at the sole cost of WFI, (b)
shall be performed in accordance with the specifications and procedures set
forth in Exhibits B and C, (c) shall incorporate dark fiber meeting or exceeding
the specifications set forth in Exhibit D and shall be tested in accordance with
the Fiber Acceptance Testing, (d) shall not change the Segment End Points or any
Connecting Points, and (e) shall be effected by WFI using commercially
reasonable efforts to minimize any interruption or interference with the
operation of the Dark Fibers.
3.4 Customer shall have the option to include within the IRU and cause the
IRU to extend to either six (6) or twelve (12) dark fibers on one or more of
those routes designated as "Option Fibers Segments" on Exhibit A-1 by written
notice to WFI ("Exercise Notice") designating the desired Option Fibers Segment
and number of dark fibers, provided that (a) Customer is not in default under
the terms of this Agreement or the Dark Fiber Sale Agreement, and (b) Customer
delivers the Exercise Notice to WFI within twelve (12) months following the
Effective Date; provided, Customer's option to include one or more of the Option
Fibers Segments in the IRU shall be subject to the availability of dark fibers
in such Option Fibers Segments (as determined by WFI) if the Exercise Notice is
not delivered to WFI within sixty (60) days after the Effective Date. Upon
delivery of the Exercise Notice (and subject to availability as provided above),
the number of dark fibers designated in the Exercise Notice shall constitute
Dark Fibers hereunder and the Option Fibers Segment shall constitute a Segment
hereunder. The IRU Fee in respect of the Option Fibers Segments (if applicable)
shall be paid to WFI in accordance with Exhibit A-2 and the provisions of
Article 4 shall apply in respect thereof mutatis mutandis.
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ARTICLE 4
PAYMENT AND SECURITY INTEREST
4.1 In consideration of the grant of the IRU hereunder by WFI to Customer,
Customer agrees to pay to WFI for each Segment a fee as set forth on Exhibit A-2
for the portion of such Segment within the US WFI System (the "IRU Fee"). The
IRU Fee is payable in accordance with this Article 4 and as follows:
(a) With respect to each Segment (or portion thereof) located within the
US WFI System in Route 1:
(i) *****% of the total IRU Fee for Route 1 (based upon Estimated
Route Kilometers) is due and payable within ***** days of the
Effective Date (the "Route 1 Initial Payment"); and
(ii) *****% of the IRU Fee (based upon actual Route Kilometers subject
to Section 4.2) is due and payable on ***** (a "Completion
Payment"); and
(iii) *****% of the IRU Fee (based upon actual Route Kilometers) is
due and payable ***** after ***** (a "Route 1 Final Payment").
(b) With respect to each Segment (or portion thereof) located within the
US WFI System in Route 2:
(i) *****% of the IRU Fee (based upon actual Route Kilometers) is due
on ***** (a "Route 2 Initial Payment"); and
(ii) *****% of the IRU Fee (based upon actual Route Kilometers) is due
and payable ***** after ***** (a "Route 2 Final Payment").
4.2 The Parties best estimate of total linear kilometers for the US WFI
System is 7,631 kilometers (the "Estimated Route Kilometers"). The Initial
Payment for each Segment and the estimated total IRU Fee for each Segment in the
US WFI System are set forth on Exhibit A-2. Each Completion Payment, each Route
2 Initial Payment and each Final Payment with respect to each Segment in the US
WFI System shall be based upon the actual Route Kilometers. Accordingly, each
Completion Payment shall be equitably adjusted upon ***** to account for any
differences between the Estimated Route Kilometers and the actual Route
Kilometers constructed.
4.3 All payments made by Customer hereunder in excess of $***** shall be
made by wire transfer of immediately available funds in accordance with wire
instructions to be provided by WFI. Payments of all other amounts by Customer
hereunder may be made by wire transfer or by company check of immediately
available funds payable to WFI.
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4.4 If Customer fails to make any payment under this Agreement when due,
then, in addition to such sum and to any other rights and remedies that WFI may
have, Customer shall pay interest on such unpaid amount at the Interest Rate.
Notwithstanding the foregoing, no interest shall accrue on any payment which is
disputed in good faith by Customer while such dispute is pending. If such
dispute is later resolved in favor of WFI, such amount shall bear interest from
the date when due until paid at the Interest Rate.
4.5 In addition to the amounts payable under Sections 4.1 and 4.2, Customer
shall be responsible to pay directly or reimburse WFI, as requested by WFI, for
all other sums, costs, fees and expenses that are required to be paid by
Customer under this Agreement. Except for the IRU Fee, WFI will invoice Customer
for all sums, costs, fees and expenses owed by Customer to WFI, and Customer
shall pay such invoices within thirty (30) days of the invoice date.
4.6 Customer acknowledges that deviations in the System Route, including
material deviations from the Estimated Route Kilometers, are possible due to the
availability of specific portions of the Underlying Rights, final engineering
considerations and WFI's discretion. WFI is hereby expressly authorized by
Customer to increase or decrease the actual Route Kilometers from the Estimated
Route Kilometers by ***** in respect of each Segment in the US WFI System. WFI
shall use commercially reasonable efforts to utilize the shortest route
available consistent with the construction specifications set forth in Exhibit
B. If actual Route Kilometers in excess of said ***** allowance are required to
complete such Segment of the US WFI System, WFI shall notify Customer when this
becomes known, and shall obtain Customer's prior written consent for any such
deviation, which consent shall not be unreasonably withheld or delayed. In the
event Customer reasonably withholds consent to such deviation, WFI may proceed
with construction and Customer shall have no obligation to pay the IRU Fee with
respect to the Route Kilometers in excess of said ***** allowance or WFI may
terminate this Agreement with respect to such Segment in the US WFI System. In
the event of a termination of any such Segment, WFI shall refund to Customer an
equitable portion of the Initial Payment and the Parties shall have no further
obligations with respect to such Segment.
4.7 All payments made by Customer under this Article 4 shall be made
without any deduction or withholding for or on account of any Imposition. If
Customer makes any deduction or withholding from any payment due to WFI, then,
notwithstanding anything to the contrary contained in this Agreement, the gross
amount payable by Customer to WFI shall be increased so that after any such
deduction or withholding for such Impositions or any additional deduction or
withholding on account of any Imposition caused by such additional gross-up
payment, the net amount received by WFI will not be less than what WFI would
have received had no deduction or withholding been required; provided, however,
if WFNS and Customer mutually agree that WFNS is eligible for any reimbursement
of non-United States taxes or assessments levied, WFNS will refund to Customer
the reimbursement amount up to but no higher than any gross-up payment.
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4.8 Customer's obligation to pay any amounts under this Agreement shall not
be subject to any rights of set-off, counterclaim, deduction, defense or other
right which Customer may have against WFI or any other party.
4.9 To secure the prompt performance of Customer's payment obligations
under Section 4.1 of this Agreement and GT Group Telecom Services Corp. under
Section 2.2(b) of the Dark Fiber Sale Agreement, as of the IRU Effective Date
for each Segment, Customer hereby irrevocably grants, conveys, mortgages, and
collaterally assigns to WFI all of Customer's estate, right, title and interest,
now owned and hereafter acquired, in the IRU and further hereby grants WFI a
first and prior security interest in the IRU. If an event of payment default
under Section 4.1 of this Agreement or Section 2.2(b) of the Dark Fiber Sale
Agreement shall occur prior to the time WFI shall release such collateral
assignment and security interest in accordance with this Section 4.9: (a) WFI
shall have the immediate right to enter and take possession of the IRU and the
Dark Fibers and to terminate Customer's access to and use of the IRU and the
Dark Fibers; (b) WFI may sell, lease or offer for sale or lease the IRU and the
Dark Fibers in such portions, order or segments as WFI may determine; and (c)
WFI shall have all rights, remedies and recourses available to a secured party
or mortgagee under this Agreement or now or hereafter existing in equity, at
law, by virtue of statute or otherwise. Upon the sale or lease of the IRU and
the Dark Fibers pursuant to this Section 4.9, Customer shall be divested of any
and all interest and claim to the IRU and the Dark Fibers. Each remedy available
to WFI under this Section 4.9 and this Agreement shall be distinct and
cumulative and may be exercised concurrently, independently or successively.
Customer agrees to execute and deliver to WFI, upon WFI's request, any security
agreements, financing statements, mortgages, collateral assignments or similar
documents, as well as extensions, renewals and amendments thereof, in such form
as WFI may require to perfect a security interest with respect to the foregoing.
Upon the payment of the Final Payment for all Segments in the US WFI System and
the payment of the full Purchase Price (as that term is defined in the Dark
Fiber Sale Agreement) for all Segments in the Canadian WFI System, WFI shall
grant, remise, release and reconvey without warranty, to Customer the collateral
assignment and security interest in the IRU held by WFI by or through this
Section 4.9.
4.10 In consideration of WFI entering into this Agreement with Customer, GT
Group Telecom Services Corp., a corporation organized under the laws of Canada
and an Affiliate of Customer, hereby absolutely and unconditionally guarantees,
as principal and not as surety, the payment by Customer (and its respective
successors and permitted assigns) of each and all of its financial obligations
and liabilities to WFI under this Agreement, as the same may be amended,
changed, replaced, settled, compromised or otherwise modified from time to time,
and irrespective of any bankruptcy or insolvency of Customer or any successor or
permitted assignee.
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ARTICLE 5
CONSTRUCTION OF THE WFI SYSTEM
5.1 WFI shall, at WFI's sole cost and expense, be responsible for and shall
effect the design, engineering, installation and construction of those portions
of the US WFI System not already constructed as of the date hereof in accordance
with the construction specifications set forth in Exhibit B. All dark fibers
included in the Dark Fibers shall meet or exceed the specifications set forth in
Exhibit D. Nothing contained in this Agreement shall prohibit WFI from
commencing construction of the US WFI System prior to obtaining the Underlying
Rights for the entire US WFI System.
5.2 Except as may be expressly provided herein, WFI shall, at WFI's sole
cost and expense, procure all materials to be incorporated in and to become a
permanent part of the US WFI System.
5.3 Customer shall have the right, upon written request, to inspect the
installation, splicing and testing of the Dark Fibers. On Customer's written
request, WFI shall make available for inspection by Customer, at WFI's offices,
copies of all information, documents, agreements, reports, permits, drawings and
specifications that are material to the grant of the IRU to Customer, to the
extent that their terms or other legal restrictions permit disclosure. WFI may
redact confidential or proprietary business terms.
5.4 WFI shall have full and complete control and responsibility for
determining any routing configurations of the US WFI System. WFI may route the
Dark Fibers through any WFI Facility in its absolute discretion. Each Party
shall have full and complete control and responsibility for determining network
and service configurations or designs, regrooming, rearrangement or
consolidation of channels or circuits and all related functions with regard to
the use of that Party's fiber.
5.5 Customer acknowledges and agrees that WFI is not supplying nor is WFI
obligated to supply to Customer any optronics or electronics or optical or
electrical equipment or other facilities, all of which are solely the
responsibility of Customer, nor is WFI responsible for performing any work other
than as specified in this Agreement.
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ARTICLE 6
ACCEPTANCE AND TESTING OF DARK FIBERS
6.1 On a span by span basis along each Segment in the US WFI System, WFI
shall test the Dark Fibers in accordance with the procedures specified in
Exhibit C ("Fiber Acceptance Testing"). WFI shall provide Customer reasonable
advance notice of the date and time of each Fiber Acceptance Testing such that
Customer shall have the opportunity to have a person or persons present to
observe the Fiber Acceptance Testing. When WFI has determined that the results
of the Fiber Acceptance Testing show that the Dark Fibers, with respect to a
Segment in the US WFI System, have been installed and are operating in
conformity with the applicable specifications set forth in Exhibits C and D, WFI
shall promptly provide Customer written notice of the same (a "Completion
Notice") and a copy of such test results.
6.2 Within ten (10) days of receipt of a Completion Notice, Customer shall
provide WFI with a written notice accepting or rejecting the Dark Fibers with
respect to such Segment, specifying in reasonable detail, if rejected, the
defect or failure in the Fiber Acceptance Testing. If Customer fails to notify
WFI of its acceptance or rejection of the Completion Notice within ten (10) days
following Customer's receipt of the same, Customer shall be deemed to have
accepted such Dark Fibers. The date of such notice of acceptance or deemed
acceptance of the Dark Fibers shall be the "Acceptance Date." In the event of
any good faith rejection by Customer, WFI shall take such action as reasonably
necessary, and as expeditiously as practicable, to correct or cure such defect
or failure. The foregoing notwithstanding, if Customer uses the Dark Fibers to
carry traffic prior to acceptance, such use shall constitute acceptance of the
Dark Fibers.
ARTICLE 7
DOCUMENTATION
As soon as reasonably practicable after the Acceptance Date for each
Segment, WFI shall provide Customer with the following documentation:
(a) As-Built Drawings; and
(b) Technical specifications of the Cable and associated splices.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 8
TERM AND RENEWAL
8.1 The IRU with respect to each Segment in the US WFI System shall become
effective on the first day when both the Acceptance Date has occurred, and WFI
has received payment in full of the Initial Payment and the Completion Payment,
as applicable, of the IRU Fee (the "IRU Effective Date") and, subject to
Sections 8.3 and 8.4, the IRU shall extend for a period of twenty (20) years
thereafter unless extended under Section 8.2 (the "Term").
8.2 In the event Customer desires to extend the Term (or any Renewal Term
herein), Customer shall provide WFI with written notice not less than one (1)
year or more than two (2) years prior to the expiration of the then current term
of the IRU. Subject to the continuing validity of the Underlying Rights and the
provisions of Section 11.1, WFI shall use its commercially reasonable efforts to
provide Customer with up to two (2) additional terms of ten (10) years each
(each, a "Renewal Term"). Any such renewal shall be without additional cost to
Customer except to the extent provided in Section 11.1.
8.3 If at any time Customer in its absolute discretion determines that,
with respect to any Segment in the US WFI System, the Dark Fibers have reached
the end of their useful life, or Customer otherwise desires to not retain the
IRU, Customer shall have the right to abandon the IRU by written notice to WFI.
In the case of abandonment, this Agreement shall terminate as to such Segment,
and Customer shall not be entitled to a refund of any of the consideration paid.
Upon such termination, all fees, costs, and other expenses with respect to such
Segment shall be immediately due and payable to WFI by Customer.
8.4 Notwithstanding anything contained herein to the contrary, Customer's
IRU in the Dark Fibers and Associated Property shall be subject to the earlier
expiration, non-recognition or termination of any Underlying Rights. Customer
acknowledges that upon the expiration, non-recognition or termination of any
Underlying Rights, Customer's IRU in the Dark Fibers and Associated Property
shall be subject to the renewal or procurement of alternative Underlying Rights
at Customer's cost. In any event WFI shall have no right to charge Customer an
additional IRU Fee.
8.5 At the expiration or other termination of this Agreement, the IRU shall
immediately terminate, and all rights of Customer to use the Dark Fibers and
Associated Property, or any part thereof, shall cease.
8.6 Upon the expiration of the Term or any earlier termination in
accordance with this Agreement, Customer shall, within thirty (30) days of such
termination, remove from any WFI Facilities, all Customer property, equipment
and materials used in connection with the Dark Fibers. Customer shall accomplish
such removal in a manner that does not damage the WFI System, and Customer shall
be responsible for any damage caused by such removal. If Customer fails to
remove its property within such period, the property shall be deemed abandoned
and WFI shall dispose of the same in any manner it deems appropriate, at
Customer's expense.
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CONFIDENTIAL AND PROPRIETARY
8.7 It is understood and agreed that WFI shall at all times maintain legal
title to the entire WFI System, subject to the IRU hereunder. Notwithstanding
the foregoing, it is understood and agreed as between the Parties that each
Party intends to treat the grant of the IRU hereunder for accounting and federal
and all applicable state and local tax purposes as the sale and purchase of the
Dark Fibers, and that on or after the Acceptance Date, Customer shall be treated
as the owner of the Dark Fibers for such purposes. The Parties agree to file
their respective income tax returns, property tax returns, and other returns and
reports for their respective Impositions on such basis and, except as otherwise
required by law, not to take any positions inconsistent therewith.
ARTICLE 9
NETWORK ACCESS; WFI FACILITIES
9.1 Subject to the provisions of this Article 9, WFI will provide Customer
during the Term with occupancy in each of the WFI Facilities along the US WFI
System or, where Customer desires, interconnection access to the WFI splice
points or distribution panels. Customer's occupancy in the WFI Facilities shall
consist of either (a) the exclusive right to use up to ***** of segregated space
in each such WFI Facility ("Segregated Space") for $***** per month per
Segregated Space, or (b) the nonexclusive right to use up to ***** protected
power/equipment racks in shared space within each such WFI Facility occupied
hereunder or under the Capacity Lease ("Shared Space") for $***** per month per
rack per Shared Space, and where physically available at least ***** protected
power/equipment racks within each such WFI Facility occupied hereunder or under
the Capacity Lease at WFI's then current market rate for any racks in addition
to the first ***** racks. For any Renewal Terms, Customer shall pay WFI's then
current market rate for such Shared Space and Segregated Space. WFI shall
provide Customer (for Shared Space and Segregated Space) up to ***** amps of DC
power and battery string/rectifiers at no charge. Additional DC power would be
provided to Customer at the rate of $***** per ***** amps of DC power per month,
to be provided in ***** amp increments. Subject to Underlying Rights
Requirements, Customer shall have 7 days a week, 24 hours a day access to
Segregated Space and supervised access to Shared Space.
9.2 Customer's occupancy of the WFI Facilities is subject to the Underlying
Rights Requirements and to WFI obtaining other required permits, authorizations
and approvals. A description of the material specifications for the WFI
Facilities is set forth in Exhibit F. Customer shall request occupancy of the
WFI Facilities as set forth in Section 9.1 in writing prior to the latter to
occur of (i) sixty (60) days after the Effective Date and (ii) thirty (30) days
after the date that the plans for such WFI Facilities have been communicated in
writing to Customer; provided Customer's written request for occupancy shall
specify in reasonable detail which WFI Facilities Customer desires to occupy and
the type of space desired. Customer's occupancy of such space in WFI Facilities
shall be governed by the terms and conditions of WFI's standard form collocation
agreement set forth at Exhibit H, as well as the terms of this Agreement. In the
event Customer does not request use of a particular WFI Facility within such
thirty (30) or sixty (60) day period, as applicable, and Customer subsequently
requests the same, WFI will provide such occupancy on the general terms and
conditions of this Agreement, including WFI's standard form collocation
agreement, subject to availability and at WFI's then current rate.
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CONFIDENTIAL TREATMENT REQUESTED
AND THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION
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CONFIDENTIAL AND PROPRIETARY
9.3 WFI shall interconnect Customer's communications system with the Dark
Fibers at fiber distribution panels at the WFI POP in each Segment End Point in
the US WFI System by cable stub from the WFI System and, subject to Section 9.4,
at other technically feasible splice points along the System Route in the US WFI
System (collectively, the "Connecting Points"). All interconnections of the Dark
Fibers and work with respect to the US WFI System shall be performed by WFI and
in accordance with WFI's applicable specifications and operating procedures.
9.4 WFI shall consult with Customer regarding Connecting Points. If
Customer desires that WFI interconnect the Dark Fibers with Customer's
communications system at Connecting Points which are not WFI Facilities,
Customer shall notify WFI in writing of such request. WFI, in its absolute
discretion, acting reasonably, shall determine whether such request is feasible
from a technical standpoint and with respect to the Underlying Rights. If WFI
determines that such request is feasible, WFI shall submit to Customer in
writing an estimate of the Costs to be incurred in connection therewith and an
estimate of the time to perform such work. Such work will be restricted to a
Maintenance Window, unless otherwise agreed to in writing for specific projects.
If Customer determines that such work shall be performed, Customer shall advance
to WFI the estimated Costs to perform such work. Upon completion of the work,
Customer shall pay WFI a management fee for such work equal to ***** of the
Costs incurred therewith within thirty (30) days of Customer's receipt of WFI's
invoice therefor, which payment shall be equitably adjusted for any difference
between estimated and actual costs.
9.5 With respect to Connecting Points which are WFI Facilities, Customer
shall pay WFI's Costs for each connection plus a management fee equal to *****
of such Costs within thirty (30) days of Customer's receipt of WFI's invoice
therefor. In order to schedule a connection of this type, Customer shall request
and coordinate such work not less than ninety (90) days in advance of the date
the connection is requested to be completed. Such work will be restricted to a
Maintenance Window, unless otherwise agreed to in writing for specific projects.
9.6 Subject to all applicable Underlying Rights Requirements, WFI shall
provide Customer with reasonable access to the Connecting Points at all times.
Neither WFI nor Customer shall have any limitations on the types of electronics
or technologies employed to utilize its fibers, subject to WFI safety procedures
and so long as such electronics or technologies do not interfere with the use of
or present a risk of damage to any portion of the other Party's system.
9.7 Notwithstanding anything contained in this Agreement to the contrary,
any and all work with respect to the US WFI System shall be performed by WFI. If
Customer desires that WFI perform any additional work with respect to the Dark
Fibers or US WFI System, Customer shall notify WFI in writing of such request.
WFI, in its absolute discretion, shall determine whether such work is feasible
from a technical standpoint and with respect to the Underlying Rights. If WFI
determines that such work is feasible, WFI shall submit to Customer in writing
an estimate of the Costs to be incurred in connection therewith and an estimate
of the time to perform such work. Such work will be restricted to a Maintenance
Window, unless otherwise agreed to in writing for specific projects. If Customer
determines that such work shall be performed, Customer shall advance to WFI the
estimated Costs to perform such work. Upon completion of the work, Customer
shall pay WFI a management fee for such work equal to ***** of the Costs
incurred
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CONFIDENTIAL TREATMENT REQUESTED
AND THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION
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CONFIDENTIAL AND PROPRIETARY
therewith within thirty (30) days of Customer's receipt of WFI's invoice
therefor, which payment shall be equitably adjusted for any difference between
estimated and actual costs.
ARTICLE 10
MAINTENANCE AND REPAIR OF THE WFI SYSTEM
10.1 From and after the IRU Effective Date with respect to each Segment,
the maintenance of the US WFI System within such Segment shall be provided in
accordance with the maintenance requirements and procedures set forth in Exhibit
G. Customer agrees to reimburse WFI for maintenance in accordance with the
provisions of Exhibit G.
10.2 From and after the IRU Effective Date with respect to each Segment, in
the event that all or any part of the US WFI System within such Segment is
damaged or destroyed such that a Service Affecting Condition exists on the Dark
Fibers, WFI shall promptly resolve such service-affecting condition utilizing
the procedures described in Exhibit G. For purposes of this Section 10.2,
"Service Affecting Condition" shall mean any condition that causes loss of
revenue bearing traffic to Customer, except where the condition is caused by
Customer or a deficiency in Customer's electronics or other equipment.
Notwithstanding anything contained herein to the contrary, WFI shall not incur
any liability to Customer by reason of a Service Affecting Condition, except its
obligation to resolve such Service Affecting Condition as set forth in this
Section 10.2, and Customer shall not be entitled to any credits for IRU Fees or
any other payment paid or to be paid by the Customer pursuant to this Agreement
by reason of such Service Affecting Condition.
10.3 Customer shall have no right to physically access the WFI System or
maintain, adjust, align or attempt to repair the Dark Fibers.
10.4 Unless otherwise agreed to in writing by the Parties, nothing in this
Agreement shall obligate WFI to maintain Customer's optronic, electrical,
optical or other equipment, all of which are the obligation and responsibility
of Customer.
ARTICLE 11
PERMITS; UNDERLYING RIGHTS; RELOCATION
11.1 Subject to the terms and provisions of this Agreement, WFI agrees to
obtain and maintain in full force and effect without ongoing defaults on the
part of WFI during the Term, certain rights of way and other agreements that are
necessary (i) for the construction and installation of the US WFI System in
accordance with this Agreement and (ii) to provide Customer the IRU in
accordance with this Agreement (the "Underlying Rights"). Notwithstanding the
foregoing, the IRU is subject to the terms of the Underlying Rights, and subject
to the terms under which the right of way is owned or held by the grantor of the
Underlying Rights, including, but not limited to, covenants, conditions,
restrictions, easements, reversionary and other interests, bonds, mortgages and
indentures, and other matters, whether or not of record, and to the rights of
tenants and licensees in possession. The IRU granted hereunder is further
subject and subordinate to the prior right of the grantor of the Underlying
Rights to use
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CONFIDENTIAL AND PROPRIETARY
the right of way for other activities, including railroad operations,
telecommunications uses, pipeline operations or any other purposes, and to the
prior right of WFI to use its rights granted under the Underlying Rights. The
rights granted herein are expressly made subject to each and every limitation,
restriction or reservation affecting the Underlying Rights. Nothing contained
herein shall be construed to be a representation, warranty or covenant of WFI's
right, title or interest with respect to the right of way or the Underlying
Rights. In the event Customer desires to extend the Term pursuant to Section
8.2, WFI shall be obligated to renew any Underlying Right on the expiration of
its term (if any right to renew exists) in order to accommodate such extension
of the Term, unless Customer otherwise notifies WFI in writing that it does not
desire the Underlying Right renewed. In the event that any renewal or other
extension of the term of an Underlying Right requires the payment of additional
fees to the provider of the Underlying Right, Customer shall reimburse WFI for
Customer's equitable share of the same, which share shall be based upon the
proportion that the number of Dark Fibers in such Segment bear to the total
number of fibers in such Segment (excluding any fibers in respect of which a
renewal is not required or desired). In the event WFI does not have any right to
renew an Underlying Right, or such Underlying Right is otherwise not extended,
WFI shall provide reasonable cooperation and assistance to Customer in
attempting to obtain an alternate Underlying Right in favor of Customer.
11.2 Provided WFI is not in breach of its obligations under this Agreement
to renew the Underlying Rights (to the extent renewable) and to cooperate and
assist Customer in the acquisition of alternative Underlying Rights, Customer
acknowledges and agrees that it has no claim whatsoever against WFI or its
Affiliates with respect to the Underlying Rights or the interruption of
Customer's quiet enjoyment of the Dark Fibers and Associated Property due to the
expiration of the Underlying Rights at the end of the term applicable thereto.
11.3 If, after the Acceptance Date with respect to any Segment in the US
WFI System, WFI is required by a third party with legal authority to require
relocation (including, without limitation, the grantor of an Underlying Right),
or if Customer agrees to relocate any portion of the US WFI System, with respect
to such Segment, including any of the facilities used or required in providing
the IRU, WFI shall proceed with such relocation, including without limitation,
the right, in good faith, to reasonably determine the extent of, the timing of,
and methods to be used for such relocation; provided that any such relocation
shall be constructed and tested in accordance with the specifications and
drawings set forth in Exhibits B and C, and incorporate fiber meeting or
exceeding the specifications set forth in Exhibit D. In the event of any such
relocation, WFI shall use commercially reasonable efforts to minimize any
service interruptions.
11.4 The Costs of relocation described in Section 11.3, shall be allocated
between the Parties as follows: (a) if the affected portion of the US WFI System
includes any conduit other than the conduit housing the Dark Fibers, the total
Costs shall be first allocated equally among all of the conduits and then based
on the ratio to which the number of Dark Fibers bears to the total number of
fibers in such conduit; or (b) if the affected portion of the US WFI System does
not consist of any conduit other than the conduit housing the Dark Fibers, the
Costs shall be allocated based on the ratio to which the number of Dark Fibers
bears to the total number of fibers within the US WFI System affected.
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CONFIDENTIAL AND PROPRIETARY
11.5 WFI shall deliver to Customer updated As-Built Drawings with respect
to the relocated portions of the US WFI System as soon as reasonably practicable
following the completion of such relocation.
ARTICLE 12
OPERATION AND USE OF THE WFI SYSTEM
12.1 The requirements, restrictions, and/or limitations on Customer's right
to use the Dark Fibers and Associated Property contained in this Agreement, all
applicable government codes, ordinances, laws, rules and regulations and any
safety, operational and other rules and regulations imposed in connection with
the Underlying Rights provided WFI notifies Customer of such other rules and
regulations imposed in connection with the Underlying Rights are referred to
collectively as the "Underlying Rights Requirements."
12.2 Customer represents, warrants and covenants that during the Term it
will use the Dark Fibers and Associated Property in compliance with and subject
to the Underlying Rights Requirements. Notwithstanding anything to the contrary
contained herein, Customer shall secure, prior to the IRU Effective Date with
respect to each Segment in the US WFI System, and maintain in full force and
effect during the Term, any and all necessary approvals, consents, rights of
way, permits, franchises, licenses or similar approvals from all governmental
and other authorities which are necessary or required to be obtained by Customer
for the use and operation of the Dark Fibers by Customer.
12.3 WFI agrees and acknowledges that it has no right to use the Dark
Fibers during the Term hereof and that WFI shall keep the Dark Fibers free from
any liens of any third party attributable to WFI and any rights or claims of any
third party attributable to WFI. WFI shall obtain from any entity in favor of
which WFI, in its discretion, shall have granted after the date hereof a
security interest or lien on all or part of the US WFI System a written
nondisturbance agreement substantially to the effect in which such lienholder
acknowledges Customer's rights and interests in and to the Dark Fibers, the
Associated Property and the IRU hereunder, and agrees that Customer shall not be
diminished, disturbed, impaired or interfered with in any adverse respect by
such lien holder.
12.4 Subject to the limitations set forth in this Agreement, Customer may
use the Dark Fibers and the Associated Property for lawful telecommunications
purposes only. Customer agrees and acknowledges that it has no right to use any
of the fibers that are part of the US WFI System, other than the Dark Fibers.
Customer shall keep any and all of the US WFI System, free from any liens,
rights or claims of any third party attributable to Customer, except that
Customer may encumber the IRU granted to Customer in the Dark Fibers and
Customer's interest in Associated Property, on the condition that Customer shall
provide to WFI an agreement from any such lien holder that the interest of any
lien holder is subordinate to the interests of WFI hereunder.
12.5 Customer and WFI shall promptly notify each other of any matters
pertaining to, or the occurrence (or impending occurrence) of, any event which
would be reasonably likely to give
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CONFIDENTIAL AND PROPRIETARY
rise to any damage or impending damage to or loss of the US WFI System that are
known to such Party.
12.6 Customer shall not use its systems in a way that interferes in any way
with or adversely affects the use of the fibers or cable of any other person
using the US WFI System. The Parties acknowledge that the US WFI System includes
or will include other participants, including WFI and other owners and users of
telecommunication systems.
12.7 Customer and WFI each agrees to cooperate with and support the other
in complying with any requirements applicable to their respective rights and
obligations hereunder.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 13
INDEMNITY
13.1 Subject to the provisions of Article 14, WFI hereby agrees to
indemnify, defend, protect and hold harmless Customer and its employees,
officers and directors, from and against, and assumes liability for all suits,
actions, damages or claims of any character (a) brought against Customer or its
Affiliates because of any injuries or damage received or sustained by any
persons or property which in whole or in part arise on account of the negligent
acts or omissions of WFI in the performance of construction or maintenance of
the WFI System; and (b) brought against Customer or its Affiliates under the
workers compensation laws, except to the extent caused by the negligence or
willful misconduct of the parties indemnified hereunder.
13.2 Subject to the provisions of Article 14, Customer hereby agrees to
indemnify, defend, protect and hold harmless WFI, and its employees, officers
and directors, from and against, and assumes liability for all suits, actions,
damages or claims of any character (a) brought against WFI or its Affiliates
because of any injuries or damage received or sustained by any persons or
property which in whole or in part arise on account of the negligent acts or
omissions of Customer in the performance of its obligations under this
Agreement; (b) under the workers compensation laws, except to the extent caused
by the negligence or willful misconduct of the parties indemnified hereunder;
and (c) brought against WFI or its Affiliates because of any damage arising out
of or resulting from Customer's use of the Dark Fibers and conduct of its
business, including the content of any video, voice or data carried by Customer
or its customers through the Dark Fibers, except to the extent caused by the
willful misconduct or gross negligence of WFI.
13.3 Nothing contained herein shall operate as a limitation on the right of
either Party hereto to bring an action for damages against any third party,
including indirect, special or consequential damages, based on any acts or
omissions of such third party as such acts or omissions may affect the
construction, operation or use of the Dark Fibers or the WFI System, except as
may be limited by Underlying Rights Requirements; provided, however, that each
Party hereto shall assign such rights or claims, execute such documents and do
whatever else may be reasonably necessary to enable the other Party to pursue
any such action against such third party.
13.4 Notwithstanding the foregoing provisions of this Article 13, to the
extent WFI is required under the terms and provisions of any Underlying Rights
to indemnify the grantor or provider thereof from and against any and all
claims, demands, suits, judgments, liabilities, losses or expenses arising out
of or related to such Underlying Rights, regardless of the cause, Customer
hereby releases and waives to the extent of WFI's indemnity any claims against
such grantor or provider, from the same and where applicable, regardless of
whether such claims, suits, judgments, liabilities, losses or expenses arise
from the sole or partial negligence, willful misconduct or other action or
inaction, of such grantor or provider or its employees, servants, agents,
contractors, subcontractors or other Persons using the property covered by such
Underlying Right.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 14
LIMITATION OF LIABILITY
14.1 NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, PUNITIVE OR CONSEQUENTIAL COSTS, LIABILITIES OR DAMAGES, WHETHER
FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH, SUCH PARTY'S
PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
14.2 The Parties acknowledge and agree that on and after the relevant
Acceptance Date, Customer's sole rights and remedies with respect to any defect
in or failure of the Dark Fibers and related Associated Property and facilities
to perform in accordance with the applicable vendor's or manufacturer's
specifications for the Dark Fibers and related Associated Property and
facilities shall be limited to Customer's exercise of rights pursuant to the
particular vendor's or manufacturer's warranty with respect thereto. Each such
warranty, to the extent permitted by the terms thereof shall be assigned to
Customer upon its request; provided such assignment is without detriment to
WFI's rights under or with respect to such warranties. WFI makes no warranty and
shall have no obligations as to such Dark Fibers and related Associated Property
and facilities following the Acceptance Date.
14.3. The Parties hereto expressly agree that no claim for losses or
damages whatsoever in connection with this Agreement shall be made more than two
(2) years after the date that the event giving rise to such claim is known or
reasonably should have been known to the Party making such claim, and no claim
for indemnity under the provisions of Article 13 shall be made more than two (2)
years after any such claim is known or reasonably should have been known by the
Party claiming under such indemnity provision.
14.4 Notwithstanding any provision of this Agreement to the contrary, the
maximum liability to Customer if any, of WFI or its Affiliates in connection
with this Agreement shall be limited, in the aggregate, to the aggregate amount
of any IRU Fees that have been paid by Customer to WFI with respect to the
affected Segment in the US WFI System of which the claim is based on and at the
time the claim is made, provided, however, that this limitation of maximum
liability shall not apply to damages arising from the willful or intentional
misconduct of WFI or its Affiliates; and provided further, that this limitation
shall not restrict either Party's right to proceed for injunctive relief.
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ARTICLE 15
INSURANCE
15.1 During the construction period, and until the first Acceptance Date,
WFI shall procure and maintain in force the following insurance coverage from
companies lawfully approved to do business in the state where the construction
will be performed:
(a) not less than $5,000,000 combined single-limit liability insurance, on
an occurrence basis, for personal injury, bodily injury and property
damage, including, without limitation, injury or damage arising from
the operation of unlicensed vehicles or equipment and liability for
completed operations;
(b) workers' compensation insurance in amounts required by applicable law,
and employers' liability insurance with a limit of at least $1,000,000
per occurrence;
(c) automobile liability insurance covering death or injury to any person
or persons, or damage to property arising from the operation of
licensed vehicles or equipment, with limits of not less than
$5,000,000 per occurrence; and
(d) any other insurance coverages required pursuant to WFI's right-of-way
agreements with railroads or other third parties which are identified
to and specifically applicable Customer.
15.2 WFI shall require its contractors who are engaged in connection with
the construction of the WFI System to maintain insurance in the types and
amounts as would be obtained by a prudent person to provide adequate protection
against loss. In all circumstances, the Parties shall require their contractors
to carry a minimum of $1,000,000 in commercial general liability insurance,
unless a higher amount would be required to be obtained by a prudent person to
provide adequate protection against loss.
15.3 Following the first Acceptance Date, and throughout the remaining term
of the IRU, each Party shall procure and maintain in force, at its own expense:
(a) not less than $5,000,000 combined single limit liability insurance, on
an occurrence basis, for personal injury, bodily injury and property
damage, including, without limitation, injury or damage arising from
the operation of unlicensed vehicles or equipment and liability for
completed operations;
(b) workers' compensation insurance in amounts required by applicable law
and employers' liability insurance with a limit of at least $1,000,000
per occurrence;
(c) automobile liability insurance covering death or injury to any person
or persons, or damage to property arising from the operation of
licensed vehicles or equipment, with limits of not less than
$5,000,000 per occurrence; and
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CONFIDENTIAL AND PROPRIETARY
(d) any other insurance coverages specifically required of such Party
pursuant to WFI's right-of-way agreements with railroads or other
third parties which are identified to and specifically applicable
Customer.
15.4 Both Parties expressly acknowledge that a Party shall be deemed to be
in compliance with the provisions of this Article if it maintains a
self-insurance program providing for a retention of up to $5,000,000. Unless
otherwise agreed, Customer's and WFI's insurance policies shall be obtained and
maintained with companies rated "A" or better by Best's Key Rating Guide and
each Party shall provide the other with an insurance certificate confirming
compliance with this requirement for each policy providing such required
coverage.
15.5 If either Party fails to obtain the required insurance or fails to
obtain the required certificates from any contractor and a claim is made or
suffered, such Party shall indemnify and hold harmless the other Party from any
and all claims for which the required insurance would have provided coverage.
Further, in the event of any such failure which continues after seven (7) days'
written notice thereof by the other Party, such other Party may, but shall not
be obligated to, obtain such insurance and will have the right to be reimbursed
for the cost of such insurance by the Party failing to obtain such insurance.
15.6 In the event coverage is denied or reimbursement of a properly
presented claim is disputed by the carrier for insurance provided above, the
Party carrying such coverage shall make good-faith efforts to pursue such claim
with its carrier.
15.7 Customer and WFI hereby mutually waive their respective rights of
recovery against each other and the officers, directors, shareholders, partners,
joint venturers, employees, agents, customers, invitees, or business visitors of
either Party, for any loss arising from any cause covered or that would be
covered by fire, extended coverage, All Risks or other insurance required to be
carried under this Agreement or now or hereafter existing for the benefit of the
respective Party. Customer and WFI will cause from time to time their respective
insurers to issue appropriate waiver of subrogation rights endorsements to all
property insurance policies carried in connection with their respective
property.
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ARTICLE 16
TAXES, FEES AND OTHER GOVERNMENTAL IMPOSITIONS
16.1 The Parties acknowledge and agree that it is their mutual objective
and intent to (a) minimize the aggregate Impositions payable with respect to the
WFI System, and (b) share such Impositions according to their respective
interests in the WFI System. They agree to cooperate with each other and
coordinate their efforts to achieve such objectives in accordance with the
provisions of this Article.
16.2 WFI shall be responsible for and shall timely pay any and all
Impositions with respect to the construction or operation of the US WFI System
which Impositions are (a) imposed or assessed prior to the Acceptance Date; or
(b) imposed or assessed in exchange for the approval of the original
construction of the US WFI System; or (c) that were assessed in return for the
original right to install the US WFI System on public property or in public
right of way.
16.3 Except as to Impositions described in section 16.2, following the
first Acceptance Date, Customer shall be responsible for and shall pay all
Impositions (a) imposed on, based on, or otherwise measured by the gross
receipts, gross income, net receipts or net income received by or accrued to
Customer with respect to the ownership or use of the Dark Fibers; or (b) which
have been separately assessed, allocated to, or imposed on the Dark Fibers. If
the Dark Fibers are the only fibers located in a Cable from the point where the
Cable leaves the US WFI System right-of-way to a Customer POP, Customer shall be
solely responsible for any and all Impositions imposed on or with respect to
such portion of the US WFI System. To the extent such Impositions are not
separately assessed, allocated to or imposed on the Dark Fibers, WFI will pay
all such Impositions. WFI shall notify Customer of such Imposition, and Customer
shall promptly reimburse WFI for Customer's share of all such Imposition. For
purposes of this Section 16.3, "Customer's share" shall mean Customer's pro rata
share of such Impositions based on the relative number of Dark Fibers in the
affected portion of the US WFI System compared with the total number of fibers
in the affected portion of the US WFI System during the relevant tax period.
16.4 WFI shall have the right to contest any Imposition (including by
nonpayment of such Imposition). The out-of-pocket costs and expenses (including
reasonable attorneys' fees) incurred by WFI in any such contest shall be shared
by WFI and Customer in the same proportion as to which the Parties would have
shared in such Impositions as they were assessed. Any refunds or credits
resulting from a contest brought pursuant to this Section 16.4 shall be divided
between WFI and Customer in the same proportion as separately determined or as
originally assessed. In any such event, WFI shall provide timely notice of such
challenge to Customer.
16.5 Customer shall have the right to protest by appropriate proceedings
any Imposition. In such event, Customer shall indemnify and hold WFI harmless
from any expense, legal action or cost, including reasonable attorneys' fees,
resulting from Customer's exercise of its rights hereunder.
(a) The foregoing notwithstanding, WFI, at its option and at its own
expense, shall have the right to direct and manage any contest
regarding an Imposition that relates
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CONFIDENTIAL AND PROPRIETARY
to the US WFI System that affects the interest of WFI; subject,
however, to reasonable and appropriate consultation with Customer.
Customer agrees to cooperate with WFI in any such contest.
(b) If Customer has exhausted all its rights of appeal in protesting any
Imposition and has failed to obtain the relief sought in such
proceedings or appeals ("Finally Determined Taxes and Fees"), Customer
and WFI may agree to relocate a portion of the US WFI System to avoid
the jurisdiction that imposes or assesses such Finally Determined
Taxes and Fees (subject to the consent and participation of the other
interest holders in the affected portion of the US WFI System). If
Customer and WFI do not determine to relocate the affected portion of
the US WFI System, Customer shall have the right to terminate its use
of the Dark Fibers in the affected portion of the US WFI System. Such
termination shall be effective on the date specified by Customer in a
notice of termination, but not earlier than ninety (90) days after the
notice. Upon such termination, the IRU in the affected portion of the
US WFI System shall immediately terminate, and the Dark Fibers in the
affected portion of the US WFI System shall thereupon revert to WFI
without reimbursement of any of the IRU Fee or other payments
previously made with respect thereto.
16.6 WFI and Customer agree to cooperate fully in the preparation of any
returns or reports relating to the Impositions. WFI and Customer further
acknowledge and agree that the provisions of this Article are intended to
allocate the Impositions on procedures and methods of computation that are in
effect on the date of this Agreement. Material changes in such procedures and
methods could significantly alter the fundamental economic assumptions of the
Parties underlying this Agreement. Accordingly, the Parties agree that, if such
procedures or methods of computation change materially, the Parties will
negotiate in good faith an amendment to this Article 16 to preserve, to the
extent reasonably practicable, the economic intent and effect of this Article.
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ARTICLE 17
NOTICES
All notices and other communications required or permitted under this
Agreement shall be in writing and shall be given by hand delivery or facsimile
(including by means of a professional messenger service or overnight mail)
addressed as follows:
If to Customer: GT Group Telecom Services (USA) Corp.
00 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Executive Vice President, Carrier Services
Attention: General Counsel
Facsimile: (000) 000-0000
If to WFI: Worldwide Fiber Networks, Inc.
000 Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Attention: General Counsel
Facsimile: (000) 000-0000
Any such notice or other communication shall be deemed to be effective when
actually received or refused. Either Party may by similar notice given change
the address to which future notices or other communications shall be sent.
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ARTICLE 18
CONFIDENTIALITY
18.1 This Agreement and all materials and other documents which are marked
confidential and disclosed by one Party to the other in fulfilling the
provisions and intent of this Agreement, are and shall be confidential (the
"Confidential Information"). Neither Party shall divulge or otherwise disclose
the Confidential Information to any third party without the prior written
consent of the other Party, except that either Party may make disclosure to
those required for the implementation or performance of this Agreement,
auditors, attorneys, financial advisors, lenders and prospective lenders,
funding partners and prospective funding partners, provided that in each case
the permitted recipient is advised of the confidentiality provisions set forth
in this Section 13.1. In addition, either Party may make disclosure in the
performance of one's obligations (or those of its Affiliates) as a public
Company or if required or requested by law, administrative or regulatory order,
judicial decree, legal process, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand, or other
similar process, subject to the following items: (a) the disclosing Party shall
disclose only the Confidential Information which is legally required based upon
advice of independent legal counsel; (b) the disclosing Party will notify the
other Party, when reasonable possible, of any such disclosure; (c) the
non-disclosing Party will then have the right, at its sole expense, to bring
proceedings in its name to enjoin such disclosure; and (d) the disclosing Party
will, at the request of the non-disclosing Party and at the non-disclosing
Party's expense, take reasonable steps to cooperate with the non-disclosing
Party in such proceedings.
18.2 Nothing herein shall be construed as granting any right or license
under any copyrights, inventions, or patents now or hereafter owned or
controlled by a Party.
18.3 Upon termination of this Agreement for any reason or upon request of a
Party, each Party shall return all Confidential Information, together with any
copies of same, to the other Party. The requirements of confidentiality set
forth herein shall survive the return of such Confidential Information.
18.4 Neither Party shall, without first obtaining the written consent of
the other Party, use any trademark or trade name of such other Party or refer to
the subject matter of this Agreement or such other Party in any promotional
activity or otherwise, nor disclose to others any specific information about the
subject matter of this Agreement. Neither Party shall issue any publication or
press release relating directly or indirectly to this Agreement without first
notifying the other Party of the same and attempting to mutually agree on the
content of such publication or press release. If no agreement as to the content
is reached, each Party may issue separate publications or press releases.
18.5 The provisions of this Article shall survive expiration or other
termination of this Agreement.
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ARTICLE 19
DEFAULT
19.1 A default shall be deemed to have occurred under this Agreement if:
(a) in the case of a failure to pay any amount when due under this
Agreement, a Party fails to pay such amount within ten (10) days after
notice specifying such breach, or
(b) in the case of any other material breach of this Agreement, a Party
fails cure such within thirty (30) days after notice specifying such
breach, provided that if the breach is of a nature that cannot be
cured within thirty (30) days, a default shall not have occurred so
long as the breaching Party has commenced to cure within said time
period and thereafter diligently pursues such cure to completion, or
(c) a default or an event of default occurs (after any applicable notice
and/or grace period) under the Dark Fiber Sale Agreement.
19.2 If the default consists of a failure of Customer to pay to WFI any
part of the IRU Fee with respect to a Segment in the US WFI System, WFI may
terminate any and all of its obligations under this Agreement with respect to
such Segment, and apply any and all amounts previously paid by Customer
hereunder toward the payment of any other amounts then or thereafter payable by
Customer hereunder. Without limiting the foregoing, in the event of a default by
a Party hereunder, the non-defaulting Party may avail itself of one or more of
the following remedies: (a) take such actions as it determines, in its sole
discretion, to correct the default; and (b) terminate this Agreement; and (c)
pursue any legal remedies it may have under applicable law or principles of
equity, including specific performance.
19.3 A waiver by either Party at any time of any of its rights as to
anything herein contained shall not be deemed to be a waiver of any breach of
covenant or other matter subsequently occurring.
19.4 Notwithstanding anything contained in this Agreement to the contrary,
Customer's sole and exclusive remedy with respect to each Segment in the US WFI
System for any failure by WFI to deliver the Dark Fibers by the Completion Date
shall be limited to those contained in this Section 19.4. In the event WFI shall
have failed to deliver the Dark Fibers in any Segment in the US WFI System
within ninety (90) days after the Completion Date for such Segment (as such date
may be extended by Events of Force Majeure or under the terms of this
Agreement), then Customer shall have the right, at its option, to either
terminate this Agreement with respect to such Segment and receive a refund of
the Initial Payment allocable to such Segment, or continue this Agreement in
effect with respect to such Segment. If Customer elects to so terminate, neither
Party shall have any further duties or obligations to the other Party (except
for WFI's obligation to so refund the allocable Initial Payment) under this
Agreement or under the Transaction Agreement with respect to such terminated
Segment. In the event WFI shall have failed to deliver the Dark Fibers in any
Segment in the US WFI System within twelve (12) months after the Completion Date
for such Segment (as such date may be extended by Events of Force Majeure or
under the
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CONFIDENTIAL AND PROPRIETARY
terms of this Agreement), then this Agreement shall automatically terminate with
respect to such Segment and WFI shall refund to Customer the Initial Payment
with respect to such Segment, and WFI shall have no further duties or
obligations hereunder or under the Transaction Agreement with respect to such
Segment.
ARTICLE 20
TERMINATION
This Agreement shall automatically terminate on the expiration or
termination of the Term with respect to each Segment in the US WFI System, or
earlier as provided in this Agreement. Upon the expiration of the Term or other
termination of this Agreement, the IRU with respect to each such Segment shall
immediately terminate and all rights of Customer to use the US WFI System and
the Associated Property within such Segment, shall cease, all rights to the Dark
Fibers and Associated Property shall revert to WFI, and WFI shall owe Customer
no further duties, obligations or consideration. Customer shall promptly remove
all of Customer's electronics, equipment, and other Customer property from the
System Route in the US WFI System and any related WFI facilities at its sole
cost and under WFI's supervision. Termination of this Agreement shall not affect
the rights or obligations of either Party that have arisen before the date of
termination or expiration.
ARTICLE 21
FORCE MAJEURE
Except for Customer's duty to pay the IRU Fee and other payments hereunder,
neither Party shall be in default under this Agreement if and to the extent that
any failure or delay in such Party's performance of one or more of its
obligations hereunder is caused by any of the following conditions and such
Party's performance of such obligation or obligations shall be excused and
extended for and during the period of any such delay: act of God; weather; fire;
flood; fiber, Cable, Associated Property or other material failures, shortages
or unavailability or other delay in delivery not resulting from the responsible
Party's failure to timely place orders therefor (it being expressly acknowledged
that the Cable that is being acquired for and installed in the US WFI System and
that will include the Dark Fibers must include higher fiber counts than that
necessary solely for the Dark Fibers in order to permit completion of the entire
WFI System); lack of or delay in transportation; government, quasi-governmental
or Native American codes, ordinances, laws, rules, regulations or restrictions;
war or civil disorder; strikes or other labor disputes; failure of a third party
to grant or recognize an Underlying Right; permitting delays beyond the
reasonable control of WFI; inability of WFI to obtain track time or access to
the WFI System; or any other cause beyond the reasonable control of such Party
(collectively, "Events of Force Majeure"). The Party claiming relief under this
Article shall notify the other in writing of the existence of the event relied
on and the cessation or termination of said event, and the Party claiming relief
shall exercise reasonable commercial efforts to minimize the time of any such
delay.
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ARTICLE 22
DISPUTE RESOLUTION
22.1 Application. Any claim, controversy or dispute, whether sounding in
contract, statute, tort, fraud, misrepresentation or other legal theory, related
directly or indirectly to this Agreement, whenever brought and whether between
the Parties to this Agreement or between one of the Parties and the employees,
agents or affiliated businesses of the other Party, shall be resolved by
arbitration as prescribed in this section.
22.2 Arbitrator. Three arbitrators knowledgeable about the subject matter
of this Agreement and experienced in the telecommunications industry and, in
particular, with experience in the purchase and sale of telecommunications
capacity shall conduct the arbitration under the then current rules of the
British Columbia International Commercial Arbitration Centre (the "BCICAC"). The
appointing authorities shall be and the arbitration shall be administered by the
BCICAC. The arbitrators shall be selected in accordance with BCICAC procedures
from a list of qualified people maintained by the BCICAC. The arbitration shall
be conducted in Vancouver, British Columbia, Canada, and all expedited
procedures prescribed by the BCICAC rules shall apply.
22.3 Discovery. There shall be no discovery other than the exchange of
information that is provided to the arbitrator by the Parties. Each Party shall
bear its own costs and attorneys' fees, and the Parties shall share equally the
fees and expenses of the arbitrator. The arbitrator's decision and award shall
be final and binding, and judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof.
22.4 Enforcement. If any Party files a judicial or administrative action
asserting claims subject to arbitration as prescribed herein, and another Party
successfully stays such action or compels arbitration of said claims, the Party
filing said action shall pay the other Party's costs and expenses incurred in
seeking such stay or compelling arbitration, including reasonable attorneys'
fees.
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ARTICLE 23
ASSIGNMENT AND TRANSFER RESTRICTIONS
23.1 Except as provided in Sections 23.2 and 23.3, Customer may not
transfer or assign all or any part of its interest under this Agreement, or
delegate any duties, burdens, or obligations arising hereunder, without WFI's
consent, which consent may be given or withheld in WFI's sole discretion. A
transfer or assignment in violation of this Article 23 shall constitute a
material breach of this Agreement. In the event of any assignment or transfer,
Customer nevertheless shall remain fully and primarily liable for all
obligations under this Agreement. Nothing in this section shall be construed to
restrict the sale of telecommunications circuits or capacity. Any assignee or
transferee of Customer shall be bound by the transfer and assignment
restrictions of this Article 23.
23.2 Customer may assign this Agreement in whole, but not in part, to a
Permitted Assignee. As used herein, the term "Permitted Assignee" shall mean (a)
any Affiliate of Customer, (b) any Person that purchases all or substantially
all of the assets of Customer, or any other Person formed by or surviving the
merger or consolidation of Customer and any other Person or (c) any
institutional lender to whom this Agreement is assigned as collateral security
for any indebtedness of Customer or any Affiliate of Customer, provided that
such collateral assignment is subject to the terms of this Agreement. Upon any
assignment to a Permitted Assignee, the assignor shall remain responsible for
performance under this Agreement. Any Permitted Assignee pursuant to
subparagraph (a) or (b) above shall expressly assume all obligations and
liabilities with respect to the Agreement which arise after the effective date
of assignment or transfer, prior to or upon the effectiveness of such assignment
and, in the case of an assignment as provided in subparagraph (c) of this
Section 23.2, in the event the institutional lender exercises its rights with
respect to this Agreement it shall expressly assume all obligations and
liabilities with respect to the Agreement which arise thereafter.
23.3 For a period of ***** from the Acceptance Date for each Segment in the
US WFI System, Customer may not assign, sell, swap, condo, exchange, grant
indefeasible rights of use in, lease or otherwise transfer its interest in the
Dark Fibers, in whole or in part, without the consent of WFI, which consent may
be withheld in WFI's sole and absolute discretion*****. A transfer or assignment
in violation of this section shall constitute a material breach of this
Agreement.
23.4 Nothing contained in this Article 23 shall be deemed or construed to
prohibit WFI from assigning or otherwise transferring this Agreement or from
selling, transferring, leasing, licensing, granting indefeasible rights of use
in or entering into similar agreements or arrangements with other Persons
respecting any fibers (other than the Dark Fibers) or conduits constituting a
part of the WFI System.
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CONFIDENTIAL TREATMENT REQUESTED
AND THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION
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ARTICLE 24
REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS
24.1 By execution of this Agreement, each Party represents and warrants to
the other (a) that the representing Party has full right and authority to enter
into and perform this Agreement in accordance with the terms hereof and thereof,
and that by entering into or performing this Agreement, the representing Party
is not in violation of its charter or bylaws, or any law, regulation or
agreement by which it is bound or to which it is subject; and (b) that the
execution, delivery and performance of this Agreement by such Party has been
duly authorized by all requisite corporate action, that the signatories for such
Party hereto are authorized to sign this Agreement, and that the joinder or
consent of any other Party, including a court or trustee or referee, is not
necessary to make valid and effective the execution, delivery and performance of
this Agreement by such Party.
24.2 WFI MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DARK
FIBERS, THE ASSOCIATED PROPERTY, THE FACILITIES OR ANY WORK PERFORMED UNDER THIS
AGREEMENT, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE OR USE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED. THE WARRANTIES SET FORTH IN THIS AGREEMENT CONSTITUTE THE ONLY
WARRANTIES MADE BY WFI TO CUSTOMER WITH RESPECT TO THIS AGREEMENT AND ARE MADE
IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED.
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ARTICLE 25
GENERAL
25.1 Binding Effect. This Agreement and each of the Parties' respective
rights and obligations under this Agreement, shall be binding on and shall inure
to the benefit of the Parties hereto and each of their respective permitted
successors and assigns.
25.2 Waiver. The failure of either Party hereto to enforce any of the
provisions of this Agreement, or the waiver thereof in any instance, shall not
be construed as a general waiver or relinquishment on its part of any such
provision, but the same shall nevertheless be and remain in full force and
effect.
25.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the Province of British Columbia, without
giving effect to its principles of conflicts of laws.
25.4 Rules of Construction. The captions or headings in this Agreement are
strictly for convenience and shall not be considered in interpreting this
Agreement or as amplifying or limiting any of its content. Words in this
Agreement which import the singular connotation shall be interpreted as plural,
and words which import the plural connotation shall be interpreted as singular,
as the identity of the parties or objects referred to may require.
(a) Unless expressly defined herein, words having well known technical or
trade meanings shall be so construed. All listing of items shall not
be taken to be exclusive, but shall include other items, whether
similar or dissimilar to those listed, as the context reasonably
requires.
(b) Except as set forth to the contrary herein, any right or remedy of
Customer or WFI shall be cumulative and without prejudice to any other
right or remedy, whether contained herein or not.
(c) Nothing in this Agreement is intended to provide any legal rights
anyone not an executing party of this Agreement.
(d) This Agreement has been fully negotiated between and jointly drafted
by the Parties.
(e) All actions, activities, consents, approvals and other undertakings of
the Parties shall be performed in a reasonable and timely manner, it
being expressly acknowledged and understood that time is of the
essence in the performance of obligations required to be performed by
a date expressly specified herein. Except as specifically set forth
herein, for the purpose of this Agreement the standards and practices
of performance within the telecommunications industry in the relevant
market shall be the measure of a Party's performance.
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25.5 Entire Agreement. This Agreement is entered into pursuant to the
Transaction Agreement. Other than Section 9 of that certain Nondisclosure
Agreement, dated March 17, 2000, entered into between GT Group Telecom Services
Corp. and 360networks inc., this Agreement constitutes the entire and final
agreement and understanding between the Parties with respect to the subject
matter hereof and supersedes all prior agreements (including, without
limitation, the Transaction Agreement) relating to the subject matter hereof,
which are of no further force or effect. The Exhibits and Attachment referred to
herein are integral parts hereof and are hereby made a part of this Agreement.
To the extent that any of the provisions of the Dark Fiber Sale Agreement are
inconsistent with the express terms of this Agreement with respect to the US WFI
System, the terms of this Agreement shall prevail. Terms capitalized in the
Exhibits and not otherwise defined shall have the meanings ascribed to them in
this Agreement. To the extent that any of the provisions of any Exhibit hereto
are inconsistent with the express terms of this Agreement, the terms of this
Agreement shall prevail. This Agreement may only be modified or supplemented by
an instrument in writing executed by each Party and delivered to the Party
relying on the writing.
25.6 No Personal Liability. Each action or claim against any Party arising
under or relating to this Agreement shall be made only against such Party as a
corporation, and any liability relating thereto shall be enforceable only
against the corporate assets of such Party. No Party shall seek to xxxxxx the
corporate veil or otherwise seek to impose any liability relating to, or arising
from, this Agreement against any shareholder, employee, officer or director of
the other Party. Each of such persons is an intended beneficiary of the mutual
promises set forth in this Article and shall be entitled to enforce the
obligations of this Article.
25.7 Relationship of the Parties. The relationship between Customer and WFI
shall not be that of partners, agents, or joint venturers for one another, and
nothing contained in this Agreement shall be deemed to constitute a partnership
or agency agreement between them for any purposes, including, but not limited to
federal income tax purposes. Customer and WFI, in performing any of their
obligations hereunder, shall be independent contractors or independent parties
and shall discharge their contractual obligations at their own risk subject,
however, to the terms and conditions hereof.
25.8 Severability. If any term, covenant or condition contained herein is,
to any extent, held invalid or unenforceable in any respect under the laws
governing this Agreement, the remainder of this Agreement shall not be affected
thereby, and each term, covenant or condition of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
25.9 Attorneys' Fees. If either Party commences an action against the other
Party arising out of or related to this Agreement, the prevailing Party in such
litigation shall be entitled to reasonable attorneys' fees and costs in addition
to such other relief as may be awarded.
25.10 Condition. The validity and efficacy of this Agreement is conditioned
upon the execution and delivery of the Capacity Lease and the Dark Fiber Sale
Agreement.
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25.11 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
instrument.
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In confirmation of their consent and agreement to the terms and conditions
contained in this Agreement and intending to be legally bound hereby, the
parties have executed this Agreement as of the date first above written.
WORLDWIDE FIBER NETWORKS, INC. ("WFI")
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
GT GROUP TELECOM SERVICES (USA) CORP. ("Customer")
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
In respect of and acknowledging and consenting to the
obligations and covenants set forth in Section 4.10 only:
GT GROUP TELECOM SERVICES CORP.
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
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