EXHIBIT 4.19
AMENDED AND RESTATED RESELLER AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, Dated For Reference the 29th day of
September, 2000
BETWEEN:
360NETWORKS INC.
("360")
AND:
360NETWORKS SERVICES LTD.
("Services")
AND:
WFI URBANLINK LTD.
("Urbanlink")
WHEREAS:
A. Urbanlink has agreed to grant to Services, or to such other 360
Subsidiaries as 360 may specify from time to time, IRU capacity purchase
agreements to acquire capacity on each of the Strands, as hereinafter defined.
B. 360, Services and Urbanlink have entered into a Reseller Agreement (the
"Reseller Agreement") to record their respective rights and obligations relating
to the acquisition of such capacity.
C. 360, Services and Urbanlink wish to amend and restate the Reseller
Agreement in its entirety by executing this Agreement.
IN CONSIDERATION of the mutual agreements in this Agreement and subject to the
terms and conditions specified in this Agreement, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
In this Agreement, including the recitals and the schedules, the following words
and expressions have the following meanings unless the context otherwise
requires:
"Affiliate" has the meaning ascribed thereto under the CANADA BUSINESS
CORPORATIONS ACT.
"Capacity Purchase Agreement" shall mean a Capacity Purchase Agreement in the
form attached as Schedule "C", with such amendments as may be agreed between
Services and Urbanlink, acting reasonably and in good faith.
"Capacity Service" means the service of providing the capacity pursuant to the
Capacity Purchase Agreements that are in effect from time to time.
"First Renewal Term" shall have the meaning provided in Section 6.2.
"Initial Term" shall have the meaning provided in Section 6.1.
"Person" means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture or
other entity or a foreign state or political subdivision thereof or any agency
of such state or subdivision.
"Phase I Strands" shall mean the Strands described in Schedule "A".
"Phase II Strands" shall mean the Strands described in Schedule "B" and any
strands acquired by Urbanlink pursuant to any co-development arrangements with
Services or its Affiliates.
"Renewal Terms" shall mean the First Renewal Term and the Second Renewal Term,
as applicable.
"Second Renewal Term" shall have the meaning provided in Section 6.2.
"Strands" shall mean the Phase I Strands and the Phase II Strands.
1.2 SCHEDULES
The following schedules are attached to and form part of this Agreement:
SCHEDULE TITLE
A Phase I Strands
B Phase II Strands
C Capacity Purchase Agreement
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ARTICLE 2
CAPACITY PURCHASE AGREEMENTS
2.1 PHASE I STRANDS
On the execution of this document, Services and Urbanlink shall execute a
Capacity Purchase Agreement in the form attached as Schedule "C" or in such
other form as may be agreed between Services and Urbanlink, acting reasonably
and in good faith, in relation to the Phase I Strands.
2.2 ADDITIONAL STRANDS
On the acquisition of any of the Phase II Strands by Urbanlink, Services (or
such other Subsidiary of 360 as 360 may designate from time to time by notice in
writing to Urbanlink) shall execute a Capacity Purchase Agreement in the form
attached as Schedule "C" or in such other form as may then be agreed between
Services (or such designated Subsidiary of 360) and Urbanlink, acting reasonably
and in good faith, in relation to such Phase II Strands.
2.3 CAPACITY
Unless otherwise agreed from time to time by 360 and Urbanlink, and except as
specifically provided below, for each of the Strands, the Capacity Purchase
Agreement shall be an IRU capacity agreement by which Services (or the
designated Subsidiary of 360) shall acquire from Urbanlink an IRU capacity
purchase agreement for such capacity as Services may order from time to time
under the terms of the Capacity Purchase Agreement, or such greater capacity
that Services may order from time to time as may result from the replacement or
upgrading of telecommunications equipment, or the adding of telecommunications
equipment, as described in Section 3.3. For greater clarity, Urbanlink shall
have the right to lease or IRU any remaining capacity to other customers.
ARTICLE 3
PROVISIONING AND EQUIPMENT
3.1 URBANLINK EQUIPMENT
During the term of any Capacity Purchase Agreement, Urbanlink shall install the
terminal equipment and take such additional actions as may be necessary from
time to time to light these Strands to which the Capacity Purchase Agreement
relates. The selection of the equipment shall be subject to the prior written
approval of Services, acting reasonably, and in good faith. Without limiting the
generality of the foregoing, it shall not be unreasonable for Services to
consider the compatibility of such equipment with the other equipment owned or
used by Services or other Subsidiaries of 360 in Canadian and other
jurisdictions.
3.2 PROVISIONING
During the term of any Capacity Purchase Agreement:
(a) Services and any designated Subsidiaries of 360 shall provide
provisioning schedules to Urbanlink from time to time.
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(b) Services and any designated Subsidiaries of 360 shall provide
notice in writing to Urbanlink within four days of receipt of
a customer's request to provision the Capacity Service and
shall provide not less than 30 days prior written notice
before the effective date of the provisioning of such Capacity
Service to a customer.
(c) For greater clarity, the personnel effecting the purchasing
and installation of terminal equipment shall be employees of
Urbanlink or its contractors.
During the term of any Capacity Purchase Agreement, from time to time at the
request of 360, Urbanlink shall provide Urbanlink personnel to effect
provisioning and moves, adjustments and changes ("MAC") for Services customers
and any designated Subsidiaries of 360. For such services, Services (or the
designated Subsidiary of 360) shall pay to Urbanlink an amount equal to
Urbanlink's direct costs of providing such services plus a margin agreed to
between the parties.
3.3 EQUIPMENT UPGRADES
During the term of any Capacity Purchase Agreement, Services (or the designated
Subsidiary of 360) shall have the option to elect from time to time to increase
the capacity of all or any part of the Strands on the following terms:
(a) If Services desires that Urbanlink replace or upgrade its
telecommunications equipment, or add additional
telecommunications equipment, in order to increase the
capacity available to Services or the designated Subsidiary of
360, then Services (or the designated Subsidiary of 360) shall
provide notice in writing to Urbanlink specifying its request
in reasonable detail.
(b) Within 15 days thereafter, representatives of 360 and
Urbanlink shall meet to discuss such request, and shall
negotiate reasonably and in good faith to reach mutual
agreement on terms acceptable to both 360 and Urbanlink,
acting reasonably, for payments and cost recovery, such terms
to be consistent with the reasonable needs and requirements of
Services, the designated Subsidiary of 360, Urbanlink, and the
customers of Services and any designated Subsidiary of 360.
3.4 360 EQUIPMENT
For greater clarity, Services and any designated Subsidiaries of 360 may install
their own combiners, multiplexing equipment, racks and any other equipment that
is "exempt transmission apparatus" within the meaning of the TELECOMMUNICATIONS
ACT (Canada).
ARTICLE 4
CO-LOCATION FACILITIES AND INTERCONNECTIONS
4.1 CO-LOCATION FACILITIES FOR SERVICES
During the term of any Capacity Purchase Agreement, from time to time at the
request of Services, Urbanlink shall grant to Services (or the designated
Subsidiary of 360) the right to
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co-locate the telecommunications equipment of 360 or any of the Subsidiaries of
360 or the customers of any of them on premises owned or leased by Urbanlink,
pursuant to the terms of a Co-Location Agreement having terms to be agreed
between 360 and Urbanlink, acting reasonably and in good faith. The fees to be
charged for such co-location facility shall be the fair market value of the
provision of such co-location services, as determined by agreement between 360
and Urbanlink, acting reasonably.
4.2 CO-LOCATION FACILITIES FOR URBANLINK
During the term of any Capacity Purchase Agreement, from time to time at the
request of Urbanlink, Services shall grant, or 360 shall cause the relevant 360
Subsidiary to grant to Urbanlink the right to co-locate Urbanlink's
telecommunications equipment on premises owned or leased by 360, pursuant to the
terms of a Co-Location Agreement having terms to be agreed between 360 and
Urbanlink, acting reasonably and in good faith. The fees to be charged for such
co-location facility shall be the fair market value of the provision of such
co-location services, as determined by agreement between 360 and Urbanlink,
acting reasonably.
ARTICLE 5
PAYMENT
5.1 CAPACITY PURCHASE PRICE
For each Capacity Purchase Agreement, Services (or the designated Subsidiary of
360) shall pay to Urbanlink the amounts specified in, or determined pursuant to
the terms of, such Capacity Purchase Agreement.
ARTICLE 6
TERM AND TERMINATION
6.1 TERM
The term of this Agreement will commence on the date of this Agreement and will
continue for 5 years from April 17, 2000 (the "Initial Term").
6.2 RENEWAL TERMS
360 shall have the right to renew this Reseller Agreement for two Renewal Terms
of five years each, on the following terms:
(a) By notice in writing to Urbanlink given on or before the
expiry of the Initial Term, 360 may elect to renew this
Agreement for an additional term of five years commencing on
the expiry of the Initial Term (the "First Renewal Term") on
all the terms contained in this Agreement.
(b) By notice in writing to Urbanlink given on or before the
expiry of the First Renewal Term, 360 may elect to renew this
Agreement for an additional term of five years commencing on
the expiry of the First Renewal Term (the "Second Renewal
Term") on all the terms contained in this Agreement.
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6.3 SURVIVAL OF TERMS
Sections 3.1 to 5.1, 6.3, 7.1 to 7.18, the Capacity Purchase Agreements that are
executed during the Initial Term or any Renewal Term, and such other provisions
as may reasonably be expected to remain in force will survive the expiration or
termination of this Agreement and will remain in full force and effect following
such expiration or termination. The expiration or termination of this Agreement
will not affect the rights of any party to make a claim for damages arising from
a breach of any provision of this Agreement which occurred prior to such
expiration or termination.
ARTICLE 7
GENERAL
7.1 ARBITRATION
All disputes arising out of or in connection with this contract, or in respect
of any defined legal relationship associated therewith or derived therefrom,
shall be referred to and finally resolved by arbitration under the Rules of the
British Columbia International Commercial Arbitration Centre. The appointing
authorities shall be the British Columbia International Commercial Arbitration
Centre. The case shall be administered by the British Columbia International
Commercial Arbitration Centre in accordance with its "Procedures for Cases Under
the BCICAC Rules". The place of arbitration shall be Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx.
7.2 GOVERNING LAW AND ATTORNMENT
This Agreement will be governed by and construed in accordance with the
substantive laws of British Columbia and the federal laws of Canada applicable
in British Columbia, without regard to the conflict of law rules of British
Columbia. Subject to Section 7.1, the parties irrevocably submit to and accept
generally and unconditionally the exclusive jurisdiction of the courts and
appellate courts of British Columbia with respect to any legal action or
proceeding which may be brought at any time relating in any way to this
Agreement. Each of the parties irrevocably waives any objection it may now or in
the future have to the venue of any such action or proceeding, and any claim it
may now or in the future have that any such action or proceeding has been
brought in an inconvenient forum.
7.3 TIME OF THE ESSENCE OF THE AGREEMENT
Unless otherwise specifically provided in this Agreement, time will be of the
essence of this Agreement and of the transactions contemplated by this
Agreement.
7.4 REMEDIES NOT EXCLUSIVE
The remedies provided to the parties under this Agreement are cumulative and not
exclusive to each other, and any such remedy will not be deemed or construed to
affect any right which any of the parties is entitled to seek at law, in equity
or by statute.
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7.5 NOTICES
Any notice, direction, request or other communication required or contemplated
by any provision of this Agreement will be given in writing and will be given by
delivering or faxing or emailing the same to the parties as follows:
(a) To 360 or Services at:
Xxxxx 0000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxxxxxxxx XxXxxxxxx
Fax No.: (604) 681-099
Email: xxxxxxxxx.xxxxxxxxx@000.xxx
(b) To Urbanlink at:
Xxxxx 0000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxx Xxxxxxx
Fax No.: (000) 000-0000
Email: xxx.xxxxxxx@xxxxxx.xxx
Any such notice, direction, request or other communication will be deemed to
have been given or made on the date on which it was delivered or, in the case of
fax or email, on the next business day after receipt of transmission. Any party
may change its fax number or address for service or email address from time to
time by written notice in accordance with this section.
7.6 ASSIGNMENT
(a) This Agreement is not assignable by Urbanlink in whole or in
part without the prior written consent of 360, such consent
not to be unreasonably delayed. This Agreement is not
assignable by 360 or Services without the prior written
consent of Urbanlink, such consent not to be unreasonably
delayed. Any attempt by any party to assign any of the rights
or to delegate any of the duties or obligations of this
Agreement without such prior written consent is void.
(b) Notwithstanding the foregoing, the interests of any party may
be assigned by such party to an Affiliate, provided that such
Affiliate delivers to the other parties a written undertaking
to be bound by the provisions of this Agreement in all
respects and to the same extent as the assignor is bound and
provided further that the assignor will continue to be bound
by all the obligations hereunder as if such assignment had not
occurred and shall perform such obligations to the extent that
such Affiliate fails to do so.
(c) Notwithstanding the foregoing, the interests of a party under
this Agreement (including, without limitation, in the case of
Urbanlink, the right to receive any
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and all amounts payable to Urbanlink under this Agreement) may
be assigned by such party by way of collateral security to a
lender without the consent of the other parties, provided
however that any such lender agrees in writing that:
(i) the rights and interest of the lender are subject to
the rights and interests of the parties other than
the assignor under this Agreement;
(ii) prior to realizing on such collateral security it
will provide notice to the other parties giving them
the opportunity to cure the default; and
(iii) should such security be realized with the result that
the title or interest of the assignor, as the case
may be, is vested in an assignee, acquirer or other
successor in title or interest (including the lender
if such is the case) ("Successor"), then the lender
will cause such Successor to enter into a written
agreement with the other parties to be bound by the
provisions of this Agreement in all respects and to
the same extent as the assignor was bound and this
from the date the title or interest is transferred
and provided further that the assignor will continue
to be bound by all the obligations under this
Agreement as if such transfer of title or interest
had not occurred and will perform such obligations to
the extent that the Successor fails to do so.
7.7 FORCE MAJEURE
The failure or delay of any party to this Agreement to perform any obligation
under this Agreement solely by reason of acts of God, acts of civil or military
authority, civil disturbance, war, strikes or other labour disputes or
disturbances, fire, transportation contingencies, shortage of facilities, fuel,
energy, labour or materials, or laws, regulations, acts or orders of any
governmental agency or official, other catastrophes, or any other circumstance
beyond its reasonable control ("Force Majeure") will be deemed not to be a
breach of this Agreement so long as the party so prevented from complying with
this Agreement has not contributed to such Force Majeure, has used reasonable
efforts to avoid such Force Majeure or to ameliorate its effects, and continues
to take all actions within its power to comply as fully as possible with the
terms of this Agreement. In the event of any such Force Majeure, performance of
the obligations will be deferred until the Force Majeure ceases. This section
will not apply to excuse a failure to make any payment when due.
7.8 COUNTERPARTS
This Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document. All of these counterparts
will for all purposes constitute one agreement, binding on the parties,
notwithstanding that all parties are not signatories to the same counterpart. A
fax transcribed copy or photocopy of this Agreement executed by a party in
counterpart or otherwise will constitute a properly executed, delivered and
binding agreement or counterpart of the executing party.
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7.9 WAIVER
No failure or delay on the part of any party in exercising any power or right
under this Agreement will operate as a waiver of such power or right. No single
or partial exercise of any right or power under this Agreement will preclude any
further or other exercise of such right or power. No modification or waiver of
any provision of this Agreement and no consent to any departure by any party
from any provision of this Agreement will be effective until the same is in
writing. Any such waiver or consent will be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on any party in any circumstances will entitle such party to any other or
further notice or demand in similar or other circumstances.
7.10 FURTHER ASSURANCES
Each of the parties will promptly execute and deliver to the other at the cost
of the other such further documents and assurances and take such further actions
as the other may from time to time request in order to more effectively carry
out the intent and purpose of this Agreement and to establish and protect the
rights, interests and remedies intended to be created in favour of the other.
7.11 ENTIRE AGREEMENT
This Agreement and any other documents and agreements to be delivered pursuant
to this Agreement supersede all previous invitations, proposals, letters,
correspondence, negotiations, promises, agreements, covenants, conditions,
representations and warranties with respect to the subject matter of this
Agreement. There is no representation, warranty, collateral term or condition or
collateral agreement affecting this Agreement, other than as expressed in
writing in this Agreement. No trade terms or trade usages are to be incorporated
by reference implicitly or otherwise into this Agreement, unless expressly
referred to in this Agreement.
7.12 AMENDMENTS
No change or modification of this Agreement will be valid unless it is in
writing and signed by each party to this Agreement.
7.13 INVALIDITY OF PARTICULAR PROVISION
If any provision of this Agreement or any part of any provision (in this section
called the "Offending Provision") is declared or becomes unenforceable, invalid
or illegal for any reason whatsoever including, without limiting the generality
of the foregoing, a decision by any competent courts, legislation, statutes,
bylaws or regulations or any other requirements having the force of law, then
the remainder of this Agreement will remain in full force and effect as if this
Agreement had been executed without the Offending Provision.
7.14 CURRENCY
Unless otherwise specified all sums of money expressed in this Agreement are in
the lawful money of Canada.
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7.15 NUMBER AND GENDER
Unless the context of this Agreement otherwise requires, to the extent necessary
so that each clause will be given the most reasonable interpretation, the
singular number will include the plural and vice versa, the verb will be
construed as agreeing with the word so substituted, words importing the
masculine gender will include the feminine and neuter genders, words importing
persons will include firms and corporations and words importing firms and
corporations will include individuals.
7.16 HEADINGS AND CAPTIONS
The headings and captions of sections and paragraphs contained in this Agreement
are all inserted for convenience of reference only and are not to be considered
when interpreting this Agreement.
7.17 ACKNOWLEDGEMENT OF RECEIPT
Each of the parties acknowledges receiving an executed copy of this Agreement.
7.18 AMENDED AND RESTATED AGREEMENT
This Agreement is an amended and restated version of the original Reseller
Agreement dated as of April 17, 2000 and made between the undersigned parties.
The parties acknowledge and agree that the original Reseller Agreement is
superseded by the terms of this Amended and Restated Reseller Agreement, with
effect to the greatest extent possible as if this Amended and Restated Reseller
Agreement had been executed and had taken effect as of April 17, 2000.
7.19 ENUREMENT
Subject to the restrictions on transfer contained in this Agreement, this
Agreement will enure to the benefit of and be binding on the parties and their
respective heirs, executors, administrators, successors and assigns.
[THE NEXT PAGE IS THE EXECUTION PAGE.]
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date
stated on the first page.
360NETWORKS INC. 360NETWORKS SERVICES LTD.
Per: Per:
Signed Signed
-------------------------------- --------------------------------
Signature Signature
WFI URBANLINK LTD.
Per:
Signed
--------------------------------
Signature
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